Summerfield v Registrar of the Workers Compensation Commission of NSW and Anor

Supreme Court Act 1970 LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 Interpretation Act 1987

Campbelltown City Council v Vegan [2004] NSWSC 1129 Shanahan v Trojan Workforce Recruitment (No. 4) Pty Limited [2005] NSWSC 610 Passey v Registrar of Workers Compensation Commission of NSW [2005] NSWSC 1032 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 Aguiar v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1017 Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 Wise v Sardale Pty Limited [2005] NSWSC 1264 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Cornett v Plateau View Aged Care Facility [2006] NSWSC 244 Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 322 Inghams Enterprises Pty Ltd v Iogha and Others [2006] NSWSC 456 Craig v South Australia (1994-1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Buck v Bavone (1976) 135 CLR 110 Bruce v Cole (1998) 45 NSWLR 163 Bull v Attorney General (NSW) (1913) 17 CLR 370 Australian Gas Light Company v Valuer General (1940) SR 126 CASES CITED : Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Smith v Browne (1974) VR 842 Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549 Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 Green v Premier Glynrhonwy Slate Company Limited (1928) 1 KB 561 Canterbury Municipal Council v Robert W Green Pty Limited (1975) 1 NSWLR 551 Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 197 R v Hepworth (2001) 120 A Crim R 425 Dunlop v Anstee [2004] VSC 139 Akins v National Australia Bank (1994) 34 NSWLR 155 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 R v Abou-Chabake (2004) 149 A Crim R 417 Ratten v The Queen (1974) 131 CLR 510 Mickelberg v The Queen (1989) 167 CLR 259 Khoury v Government Insurance Office (NSW) (1983-1984) 165 CLR 622 R v Maclay (1990) 19 NSWLR 112

Maree Joan Summerfield (Plaintiff) PARTIES : Registrar of the Workers Compensation Commission of NSW (First Defendant) Lambing Flat Enterprises Limited (Second Defendant)

COUNSEL : Mr P Stockley (Plaintiff) Mr T Willis (Second Defendant)

McCabe Partners Lawyers (Plaintiff) SOLICITORS : IV Knight, Crown Solicitor (First Defendant) Moray & Agnew (Second Defendant)

LOWER COURT JURISDICTION : Workers Compensation Commission of New South Wales

LOWER COURT JUDICIAL OFFICER : Ms C Aloisio (as the Registrar's delegate)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Maree Joan Summerfield v Registrar of the Workers Compensation Commissioner of NSW and Anor

1 JOHNSON J: The Plaintiff, Maree Joan Summerfield, seeks relief in the nature of certiorari under s.69 Supreme Court Act 1970 with respect to a decision of the Registrar of the Workers Compensation Commission of NSW, the First Defendant, made on 20 February 2006 that grounds of appeal against a medical assessment did not appear to exist for the purposes of s.327(3)(b) Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act").

2 The Plaintiff alleges that she suffered injury in the course of her employment with the Second Defendant, Lambing Flat Enterprises Limited. The Second Defendant has appeared to oppose the Plaintiff's claim for relief. In accordance with usual practice, the First Defendant has submitted to the orders of the Court except as to costs.

3 At the hearing of the Summons, Mr Stockley, Counsel for the Plaintiff, read the affidavit of David McCabe sworn 16 March 2006. The following facts emerge from that affidavit as to which there is no dispute in these proceedings.

4 On 14 May 2002, the Plaintiff was working in the Lambing Flat laundry conducted by the Second Defendant. The Plaintiff pulled a jammed sheet out from between two rollers of a folding machine. Once the sheet had been removed, the Plaintiff alleges that she felt a pain in her left shoulder which radiated down her elbow. As a result of the injury, the Plaintiff suffered left and right shoulder pain, neck pain and pain radiating down the left arm.

5 The Plaintiff commenced proceedings before the Workers Compensation Commission of NSW to resolve a dispute as to her entitlements to compensation under the Workers Compensation Act 1987. As part of the determination of that dispute, a medical assessment was performed for the purposes of s.319 WIM Act by an approved medical specialist, Dr Warwick Huntsdale.

6 On 24 August 2005, Dr Huntsdale issued a medical assessment certificate assessing the Plaintiff's degree of permanent impairment for the purposes of s.325 WIM Act. For the purpose of preparing the certificate, Dr Huntsdale examined the Plaintiff on 24 August 2005. Dr Huntsdale reported that examination of the Plaintiff's cervical spine "revealed a very good range of motion, which was pain free" (s.325 Certificate, page 4). Dr Huntsdale's reasons for assessment included the following (s.325 Certificate, page 6): "With regards to the cervical spine she is assessed according to the DRE method and according to Table 15.5 she satisfies Cervical Category I, which is, 'no significant clinical findings, no muscular guarding, no documentable neurologic impairment.' This would attract 0% whole person impairment."

7 Dr Huntsdale certified, for the purposes of s.325 WIM Act, that the Plaintiff had a 5% Whole Person Impairment ("WPI") with respect to the left shoulder, 4% WPI with respect to the right shoulder and 0% WPI with respect to the cervical spine, leading to a total percentage WPI of 9%.

8 On or about 19 October 2005, the Plaintiff lodged an application to appeal under s.327 WIM Act against the decision of the approved medical specialist, Dr Huntsdale. Written submissions were provided to the First Defendant by the Plaintiff's solicitor with that application, together with further written submissions, provided after 25 November 2005. The further written submissions of the Plaintiff's solicitor were accompanied by a number of documents, one of which provides the foundation for the present proceedings. The Plaintiff's solicitor submitted to the First Defendant (further written submissions, pages 2-3): "The Applicant has filed an Application to Admit Late Documents on the 28.10.2005 and again on the 22.11.2005. The important documents which the Applicant now seeks to rely upon are the following: 1) X-ray of the cervical and thoracic spine by Dr Les Narunsky, Young District Hospital dated 24.03.2005.

2. CT scan of the neck and left shoulder by Dr Aamer Aziz dated 01.11.2005. These documents are relied upon pursuant to section 327(3)(b) being additional relevant information that was not available to the worker before the medical assessment appealed against or they could not have been reasonably obtained by the worker before that medical assessment. The CT scan shows that the Applicant has suffered injuries at three disc levels. There is a protrusion of the C3/4 intervertebral disc, the C5/6 level is severely narrowed and degenerative and also the C6/7 intervertebral disc is also narrowed. In accordance with the WorkCover Guides to the Evaluation of Permanent Impairment First Edition June 2002, AMA 5 Chapter 15 applies to the assessment of permanent impairment of the spine subject to the modifications set out in that chapter. Table 4.1 assessing spinal impairment, states that a person with multiple level structural compromise is entitled to DRE IV or DRE V. In accordance with the 5th Amended AMA Guides to the Evaluation of Permanent Impairment Fifth Edition, on page 392, DRE IV the Applicant would be entitled to 25 to 28% Whole Person Impairment or DRE category V, the Applicant would be entitled to 35 to 38% Whole Person Impairment."

9 The CT scan of the neck and left shoulder performed by Dr Aamer Aziz on 1 November 2005 was undertaken at the request of Dr Michelle Mullany, one of the Plaintiff's treating medical practitioners in Young. The CT scan had been ordered on 26 October 2005. It was performed on 1 November 2005 and, on that day, Dr Aziz, a Radiologist, reported, inter alia: "Slight protrusion of C3/4 intervertebral disc is seen, with osteophyte formation in the C3, which is extending on the right side into the spinal canal. However there is no definite stenosis of the spinal canal at this level. The intervertebral disc at the level of C5/6 is severely narrowed and degenerative, showing vacuum phenomena and gas collection in it. It is protruding into the cervical canal and extending into the left neural foramen as well, where it appears to be entrapping the C6 nerve root. The C6/7 intervertebral disc is also narrowed, with slight protrusion into the spinal canal. However it is not causing any major stenotic lesion. The posterior elements and facet joints appear to be normal. Extensive osteophyte formations are also seen in the anterior part of the C5 vertebra."

10 On 20 February 2006, Connie Aloisio, a delegate of the First Defendant, gave a decision for the purpose of s.327(4) WIM Act. Ms Aloisio concluded that, after consideration of the submissions, it did not appear that grounds for appeal currently existed under s.327(3)(b) WIM Act. In that part of the delegate's decision which is relevant for present purposes, the following appears (s.327(4) Decision, 20 February 2006, page 2): "6. The requirement is that the information be not only additional but also relevant. The following documents were attached to the Application to Admit Late Documents: (a) Medical Report - Dr Mullany, 20 October 2005

(b) CT Cervical Spine & Left Shoulder - Dr Aziz, 1 November 2005

(c) Medical Certificate - Dr Mullany, 26 October 2005

(d) Letter to Elissa - QBE Workers Compensation (NSW) Limited, 18 August 2005

(e) Copy of account from Regional Imaging Riverina, 1 November 2005

The Appellant states these documents should be considered in relation to this appeal, and have attached 'further submissions'. 7. With respect to items (a), (c), (d) and (e), these submissions do not appear to address the relevance of the reports, and do not explain why the evidence was not available before the medical assessment or why it could not reasonably have been obtained before that medical assessment. Therefore, the Appellant has not provided sufficient information for it to appear to the Registrar that grounds for appeal exist under section 327(3)(b) in relation to these documents.

8. The x-ray of the cervical and thoracic spine by Dr Les Narunsky was dated 24 March 2005, 21 weeks before the medical assessment appealed against. The submissions do not appear to provide any reason why this report is evidence that was not available to the appellant before the medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. Therefore, the ground of appeal pursuant to section 327(3)(b) in relation to this report has not been demonstrated.

9. In relation to the CT report dated 1 November 2005, the Appellant submissions state this is evidence Ms Summerfield has suffered injuries at three disc levels. It is submitted that applicant was referred for a CT scan of the neck and shoulder for ongoing problems with her neck and back, and underwent this investigation after the AMS examination. However, this does not appear to give reasons why the additional report could not reasonably have been obtained before the medical assessment. The mere fact that the report is dated after the medical assessment does not address the issue as to why the report was provided after the assessment. Therefore it does not appear that any ground for appeal exists under section 327(3)(b) ." (emphasis added)

11 On 17 March 2006, the Plaintiff filed a Summons in this Court seeking relief under s.69 Supreme Court Act 1970. Relevant Statutory Provisions

12 According to its long title, the WIM Act is an Act to provide for the effective management of work-related injuries and injury compensation for workers in respect of such injuries and for other purposes.

13 Section 3 WIM Act sets out the objectives of the statute in the following terms: "3 System objectives

The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives: (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,

(b) to provide: • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries,

in order to assist injured workers and to promote their return to work as soon as possible,

(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,

(d) to be fair, affordable, and financially viable,

(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,

(f) to deliver the above objectives efficiently and effectively."

14 Chapter 7 WIM Act provides for "new claims procedures". Within that Chapter, Part 6 provides for court proceedings for work-injury damages. Part 7 (ss.319-331) provides for medical assessment.

15 Section 321 provides that a medical dispute (as defined in s.319) may be referred for assessment to an approved medical specialist (appointed under s.320). The approved medical specialist assesses impairment under s.322 WIM Act. Section 324 provides for the powers of the approved medical specialist on assessment. The approved medical specialist to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment: s.325(1).

16 A medical assessment certificate has important statutory status involving a conclusive statutory presumption that it is correct as to certain matters. Section 326 provides: "326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings."

17 I come then to ss.327 and 328 WIM Act, the proper construction of which lies at the heart of the present proceedings. Those provisions are in the following terms: "327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. 328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.

(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.

(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel.

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel." Relief under s.69 Supreme Court Act 1970

18 There is no statutory appeal from the refusal of the First Defendant to accept an appeal under s.327(4) WIM Act. Accordingly, the Plaintiff seeks relief in the nature of certiorari under s.69 Supreme Court Act 1970.

19 This is the latest in a long line of cases in which workers or employers dissatisfied by a decision of the First Defendant concerning an appeal under s.327(4) WIM Act have approached this Court for relief under s.69 Supreme Court Act 1970. In this regard, see Campbelltown City Council v Vegan [2004] NSWSC 1129 (Wood CJ at CL); Shanahan v Trojan Workforce Recruitment (No. 4) Pty Limited [2005] NSWSC 610 (James J); Passey v Registrar of Workers Compensation Commission of NSW [2005] NSWSC 1032 (Patten AJ); Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 (Malpass AssJ); Aguiar v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1017 (Malpass AssJ); Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 (Hislop J); Wise v Sardale Pty Limited [2005] NSWSC 1264 (Hislop J); Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 (Studdert J); Cornett v Plateau View Aged Care Facility [2006] NSWSC 244 (Malpass AssJ); Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 322 (Malpass AssJ) and Inghams Enterprises Pty Ltd v Iogha and Others [2006] NSWSC 456 (Latham J).

20 It does not appear that the proper construction of the subject provisions has been considered as yet by the Court of Appeal although leave to appeal to the Court of Appeal from the decision in Vegan has been granted (Riverina Wines Pty Limited at paragraph 17).

21 In Craig v South Australia (1994-1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

22 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."

23 Relief may be granted in the case of error of law on the face of the record: Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at paragraph 28. The face of the record includes the reasons expressed by the tribunal for its ultimate determination: s.69(4) Supreme Act 1970; Vegan at paragraph 39.

24 The Plaintiff bears the onus of proving the facts grounding an entitlement to such relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259.

25 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-199: Bruce v Cole (1998) 45 NSWLR 163 at 183-184; Vegan at paragraph 41. The Plaintiff's Submissions

26 Mr Stockley submits that error of law appears on the face of the record of the decision of the First Defendant's delegate dated 20 February 2006. He submits that the error of law involves a clear misconstruction of s.327(3)(b) WIM Act. The Plaintiff submits that the ground of appeal permitted by that sub-section involves the availability of additional relevant information which falls into two discrete and alternative classes, namely: (a) evidence that was not available to the Plaintiff before the medical assessment appealed against, or

(b) evidence that could not reasonably have been obtained by the Plaintiff before that medical assessment. He emphasises that the phrases contained in brackets within s.327(3)(b) are linked by the word "or" and that the term ought be given its usual disjunctive meaning. He submits that the meaning of the words is clear. Further, he submits that s.327 is a remedial provision and that s.327(3)(b) ought be construed so as to give the fullest relief which the fair meaning of the language will allow: Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384; Pearce and Geddes, Statutory Interpretation in Australia , 5th edn, Butterworths, page 227.

27 Mr Stockley submits that the first category of evidence includes evidence that was not available to the Plaintiff because it did not exist at the time of the medical assessment appealed against. In this case, it is submitted that this includes the additional relevant information contained in the report of Dr Aziz dated 1 November 2005. That report commented on computerised tomographs of the Plaintiff's cervical spine and left shoulder performed on 1 November 2005. This investigation had been undertaken at the request of Dr Mullany, one of the Plaintiff's treating medical practitioners. The Plaintiff submits that this information satisfies the first category referred to in s.327(3)(b) being evidence that was not available to the Plaintiff at the time of Dr Huntsdale's assessment of 24 August 2005.

28 The Plaintiff submits that the second category referred to in s.327(3)(b) encompasses evidence that was in existence at the time of the medical assessment, but which could not reasonably have been obtained by the Plaintiff at that time. By way of illustration, the x-ray of the Plaintiff's cervical and thoracic spine taken on 24 March 2005 by Dr Narunsky was in existence at the time of the medical assessment. If the Plaintiff wished to rely upon this as additional relevant information for the purposes of s.327(3)(b), it was necessary for the Plaintiff to contend that this evidence could not reasonably have been obtained by the Plaintiff before that assessment. The Plaintiff does not rely upon the delegate's conclusion with respect to this x-ray report as a basis for relief in these proceedings. However, it is relied upon as an illustration of the suggested distinction between the two alternate categories of evidence referred to in s.327(3)(b) WIM Act.

29 Mr Stockley submits that the First Defendant has erred in law with respect to the CT report of 1 November 2005. It is submitted that this report falls within the first category of evidence contained in s.327(3)(b), but the delegate has applied the test referrable to the second category of evidence contained in the sub-section to it. In this way, the Plaintiff submits that the delegate has erred in law, has identified a wrong issue and asked herself a wrong question: Craig v South Australia at 179. There has been a misdirection as to law: Australian Gas Light Company v Valuer General (1940) SR 126 at 138; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156. The Plaintiff submits that this error gives rise to an entitlement to relief as sought in the Summons. The Second Defendant's Submissions

30 Mr Willis, Counsel for the Second Defendant, submits that the Plaintiff has not demonstrated an entitlement to relief in this case. He submits that no error of law on the face of the record has been demonstrated.

31 Counsel submits that the word "or" linking the two categories of evidence in parentheses in s.327(3)(b) ought be construed as meaning "and". He contends that the words in parentheses constitute a cumulative and conjunctive test and not two disjunctive categories.

32 Mr Willis emphasises the statutory significance of the medical assessment certificate with its statutory conclusive presumption with respect to matters certified for the purposes of s.326 WIM Act. He submits that the Plaintiff's construction would allow a worker to refrain from gathering certain evidence which was capable of constituting additional relevant information until after the medical assessment certificate was issued and then provide such material in support of an appeal under s.327(3)(b) WIM Act. In this way, it was submitted that a worker could undermine the intended statutory finality of the medical assessment certificate and provide to himself or herself a second opportunity by way of an appeal to the Appeal Panel under s.328 WIM Act.

33 Mr Willis submits that a purposive approach to construction supports the Second Defendant's approach: s.33 Interpretation Act 1987. He relies upon part of the second reading speech of the relevant Minister which is reproduced in Vegan at paragraph 58: s.34 Interpretation Act 1987; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 at 1096 (paragraph 106). The Minister, Mr Whelan, said (Hansard, Legislative Assembly, 19 June 2001, page 14772): "Where the medical question in dispute concerns permanent impairment of an injured worker - including hearing loss - the opinion of the approved medical specialist will be conclusive evidence, and cannot be overturned or challenged by an arbitrator in subsequent proceedings. Obviously in some cases mistakes or errors may be made. It is for this reason that the bill provides a right of appeal against a conclusive permanent impairment certificate to a panel consisting of two approved medical specialists, and an arbitrator. The panel will take submissions from the parties and review the original decision, with the possibility of conducting further medical examination. The role of the arbitrator will be limited to ensuring procedural fairness given that most issues arising in appeals will call for the exercise of medical judgment and expertise.

The bill carefully and closely confines the grounds of appeal. Appeals will be allowed where there has been a deterioration in the worker's condition, additional information has become available - that could not have been obtained before the original hearing - the assessment was made on the basis of incorrect criteria, or the certificate contains a demonstrable error. A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied. The also includes numerous protections to ensure that the parties are afforded procedural fairness. This includes notification of a proposed referral of a medical question, and requirements for detailed reasons to be given in support of certificates." (emphasis added)

34 Mr Willis emphasises the Minister's words including the phrase "additional information has become available - that could not have been obtained before the original hearing". It is submitted that this supports the construction that there is a single cumulative test intended in s.327(3)(b) WIM Act.

35 Mr Willis submitted further that Dr Aziz, the author of the CT report dated 1 November 2005, was a radiologist. No material had been provided by the Plaintiff to the First Defendant in support of the appeal to point to the relevance of the CT report to the appeal. In particular, there was no report of an orthopaedic surgeon explaining the significance of what was said to have been depicted in the CT scan of the cervical spine and left shoulder. Mr Willis submitted that the First Defendant's delegate was not a medical practitioner. In these circumstances, it was submitted that it was open to the delegate to form the view that this material was not relevant without some explanation or elaboration of its significance to the Plaintiff's claim. In the absence of such material, Mr Willis submitted that the Plaintiff could not satisfy the requirements of s.327(3)(b) WIM Act.

36 In the course of a further written submission provided after the hearing in this matter, Mr Willis indicated that he wished to seek leave to open his case to tender a document. I relisted the matter to allow further submissions to be made on this application. Mr Willis tendered a letter dated 9 December 2005 from Dr Ian Sullivan. Mr Stockley objected to the tender and I indicated that I would give my ruling on the admissibility of the document as part of my reasons for judgment.

37 It was common ground that Dr Sullivan's letter of 9 December 2005 was not before the First Defendant at the time when the decision presently under challenge was made on 20 February 2006. In these proceedings, the Plaintiff seeks relief in the nature of certiorari under s.69 Supreme Court Act 1970 upon the basis of error of law on the face of the record. Although the concept of the "record" has been extended for the purposes of such relief by s.69(4) Supreme Court Act 1970, I do not consider that a document which was not before the administrative decision maker is admissible in these proceedings. Where relief is sought upon the basis of error of law on the face of the record, attention ought be confined to the material before the decision maker: Craig v South Australia at 176. Accordingly, I decline to admit the letter (MFI 1) into evidence. However, even if I had admitted the letter into evidence, as will be seen, it would not have affected the outcome of the present proceedings. Proper Construction of s.327 WIM Act

38 In determining whether error of law on the face of the record has been demonstrated in this case, it is necessary to construe ss.327 and 328 WIM Act.

39 The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 (paragraph 115). In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

"[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

40 The role of the Registrar under s.327 WIM Act was considered by Wood CJ at CL in Vegan at paragraph 74ff. His Honour accepted a submission that the Registrar discharges a "gatekeeper role" under s.327 with respect to appeals. If it appears to the Registrar that at least one of the grounds of appeal specified in s.327(3) exists, then the appeal to the Appeal Panel under s.328 can proceed. The Appeal Panel conducts a review afresh and is not itself required to determine whether any of the four grounds referred to in s.327(3) has been made good. Although Wood CJ at CL acknowledged that the result was unusual, his Honour concluded that it was "consistent with the legislative policy of placing a tight control on appeals, and of confining the grounds for them": Vegan at paragraph 76.

41 Although there was a restriction concerning the use of fresh evidence before the Appeal Panel under s.328(3) WIM Act, Wood CJ at CL considered that the review remained a review de novo: Vegan at paragraph 77.

42 If the appeal is on a ground referred to in s.327(3)(b), the Registrar may refer the medical assessment for further assessment under s.329 as an alternative to an appeal against the assessment: s.327(6). This provision is significant for the resolution of the present proceedings. Where additional relevant information has become available, the Registrar may cause a further medical assessment to be undertaken with the benefit of the additional relevant information. In this way, there is a measure of flexibility available to the Registrar in addition to allowing the appeal to proceed to the Appeal Panel.

43 In Riverina Wines Pty Limited, Hislop J concluded at paragraph 22(a), citing Vegan and Waikara, that the application to the Registrar under s.327(4) is in the nature of an application for leave to appeal. The right of appeal created by s.327(1) is expressly limited to a matter identified in s.327(2) and to a ground or grounds specified in s.327(3) and there is no right of appeal in the absence of a ground specified in s.327(3): Riverina Wines Pty Limited at paragraph 22(c).

44 The second sentence in s.327(4) provides that the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in s.327(3) exists. In Ingham Enterprises Pty Ltd v Iogha, Latham J at paragraph 22 described the Registrar's power under s.327 as being of a "very limited and restricted kind".

45 Where a statute involves a decision maker acting when a state of affairs "appears" to that person, it has been said that the decision maker is not required to conduct a preliminary hearing to satisfy himself that evidence is available to allow an applicant to prove his case: Smith v Browne (1974) VR 842 at 847; Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549 at 559; Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 120-123. In a different statutory context, it has been held that it is sufficient that it appears or seems from documentary materials that a state of affairs exists, and it is not necessary that it be established to be the case before a decision maker may act with respect to a statutory function requiring the appearance of a fact or matter as the foundation for action: Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 at 292.

46 The test to be met to satisfy the second sentence in s.327(4) appears to be a relatively slender one. Exercising the gatekeeper or filtering function, the Registrar will examine the documents to see if it appears, or seems to be the case, that at least one of the specified grounds for appeal in s.327(3) exists. The Registrar, of course, is not undertaking or determining the appeal. Nevertheless, it is the task of the Registrar under s.327 to examine the documents provided in support of the appeal to see whether it appears, or seems to be the case, that a specified ground of appeal exists.

47 It is noteworthy that if it appears to the Registrar that the ground contained in s.327(3)(b) exists (and the Registrar determines not to refer the matter for further assessment under s.327(6)), then the appeal will go forward, but the Appeal Panel itself is empowered to exercise a fresh evidence test under s.328(3) WIM Act.

48 The submission of Mr Willis invites the word "or" in s.327(3)(b) to be construed as if it were "and". In Green v Premier Glynrhonwy Slate Company Limited (1928) 1 KB 561 at 568, Scrutton LJ said: "You do sometimes read 'or' as 'and' in a statute. In Brown & Co v Harrison (1927) 43 TLR 394, MacKinnon J read 'or' as 'and' in the Carriage of Goods by Sea Act, 1924, and his decision was confirmed by this Court. But you do not do it unless you are obliged, because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'."

49 The circumstances recognised in the authorities in which a court will construe the word "or" in a statute as if it were "and" are restricted: Canterbury Municipal Council v Robert W Green Pty Limited (1975) 1 NSWLR 551 at 554-555; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 197 at 194-195; R v Hepworth (2001) 120 A Crim R 425 at 430-431; Dunlop v Anstee [2004] VSC 139 at paragraph 8.

50 As will be seen, the fresh evidence grounds set out in parenthesis in s.327(3)(b) WIM Act are known to the law in another context, as alternative and not cumulative grounds.

51 The concept of fresh evidence arises frequently in the context of appeals from decisions of courts. On an appeal to the Court of Appeal, s.75A Supreme Court Act 1970 applies. Section 75A(7), (8) and (9) provides as follows: "75A Appeal

… (7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing."

52 The restriction upon the adducing of further evidence contained in s.75A(7) and (8) has been construed to involve a test where the appellant must show, inter alia, that the evidence could not have been obtained with reasonable diligence for use at the trial: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There is a separate test provided for in s.75A(9), which allows a general discretion to admit evidence as to matters occurring after the date of the trial, but this discretion is not at large and regard must be had "to the context in which [the discretion] arises and also to the general public interest in the finality of litigation": Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296; Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at paragraph 36.

53 In the context of criminal appeals, a distinction is drawn between "new evidence" and "fresh evidence": R v Abou-Chabake (2004) 149 A Crim R 417 at 427 (paragraph 63). Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Great latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial: Ratten v The Queen (1974) 131 CLR 510 at 512; R v Abou-Chabake at 427-429 (paragraphs 63-64). In a criminal appeal, however, the court is ultimately concerned with whether there has been a miscarriage of justice: Mickelberg v The Queen (1989) 167 CLR 259 at 301; Abou-Chabake at 428 (paragraph 63).

54 The issues to be determined in the present case involve the proper construction of s.327(3)(b) WIM Act. However, it is helpful to approach this question of construction with an understanding of the principles applicable to the receipt of fresh evidence, especially in civil appeals.

55 Section 75A(8) and (9) Supreme Court Act 1970 provide for a dichotomy between evidence as to matters that occurred before the trial and evidence as to matters occurring after the date of the trial for the purpose of a civil appeal. A more onerous test applies under s.75A(8) with respect to evidence as to matters that occurred before the trial. The reasonable diligence test applies at that level: Akins v National Australia Bank at 160.

56 Section 327(3)(b) contains the phrases "availability of additional relevant information" and "evidence that was not available to the appellant before the medical assessment appealed against". According to the Macquarie Dictionary, the word "availability" means "the state of being available". The word "available" is defined in the same dictionary in the following way (page 155): "1. Suitable or ready for use; at hand; of use or service; available resources. …"

57 In my view, the word "or" in s.327(3)(b) WIM Act ought be treated as a disjunctive term. This is the ordinary meaning of the word. The Act gives the Registrar some flexibility in s.327(3)(b) cases to refer the person for further assessment under s.327(6). The Appeal Panel will itself apply a fresh evidence test under s.328(3) WIM Act for the purposes of the appeal. The Registrar's decision under s.327(3)(b) and (4) does not have the result that the additional relevant information which appears to exist will necessarily be admitted by the Appeal Panel at the hearing of the appeal.

58 It may be taken that the statutory scheme in the WIM Act seeks to achieve finality with the issue of a medical assessment certificate, subject to the statutory right of appeal to the Appeal Panel (or referral by the Registrar for further medical assessment) under the Act. It is the public interest in finality of litigation which underlies the fresh evidence rule in both civil and criminal appeals. Nevertheless, the WIM Act provides for an appeal to the Appeal Panel under ss.327 and 328 of the Act. I see no warrant in the words of the statute, viewed in the context of the broad objectives and purposes of the legislation, to impose a harsher and more demanding test for fresh evidence on appeal under ss.327 and 328 than the test which applies on appeal from a civil trial court to the Court of Appeal in civil curial proceedings.

59 The construction I have adopted applies the ordinary meaning of the words in s.327(3)(b) WIM Act. It flows from application of the principles in Project Blue Sky referred to in paragraph 39 of this judgment. This construction is reinforced by the remedial nature of the provision - its language should be construed so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open: Bull v Attorney General (NSW) at 384; Khoury v Government Insurance Office (NSW) (1983-1984) 165 CLR 622 at 638.

60 I have had regard to the statements within the second reading speech relied upon by the Second Defendant. It is, of course, the task of the Court to construe the statute and not the Minister's speech: R v Maclay (1990) 19 NSWLR 112 at 125.

61 It should not be overlooked that the purpose of the WIM Act is to establish a workplace injury management and workers' compensation system with the objective of being fair as well as speedy, affordable, efficient and financially viable: ss.3(d) WIM Act.

62 The question for the Registrar under s.327(3)(b) and (4) WIM Act is whether it appears to the Registrar that a ground of appeal exists by way of availability of additional relevant information. To be "relevant", the information must bear upon or be connected with the matter in hand or be pertinent: Macquarie Dictionary (page 1459). In considering this question, the Registrar should consider whether the ground refers to evidence in one of the two alternative categories expressed in parentheses in s.327(3)(b) of the Act in the sense which I have explained above. Has the Plaintiff Demonstrated Error of Law on the Face of the Record?

63 It is appropriate to return to the facts of this case. It may be taken that the abnormalities in the Plaintiff's cervical spine and left shoulder (as depicted in the CT scan of 1 November 2005) existed as 24 August 2005 when the medical assessment certificate was issued. However, there was no CT scan available at that time which depicted these abnormalities. It was not until 26 October 2005 that the Plaintiff's treating general practitioner referred her for a CT scan. The report of Dr Aziz of 1 November 2005 revealed to the Plaintiff, for the first time, the existence of the abnormalities in the cervical spine and left shoulder. The results of the CT scan and the report of Dr Aziz containing those results did not become available to the Plaintiff until 1 November 2005.

64 In the present case, I am satisfied that the Plaintiff has demonstrated error of law on the part of the First Defendant in applying the test under s.327(3)(b) WIM Act. I accept the Plaintiff's submissions in this respect. In the circumstances of this case, it was necessary for the Registrar to consider whether the evidence of deformities in the cervical spine and left shoulder referred to in the CT scan report of 1 November 2005 was evidence that was not available to the Plaintiff before the medical assessment appealed against. That was undoubtedly the case. The CT scan did not come into existence until 1 November 2005. It was erroneous in law for the delegate to apply, as a cumulative element, the reasonableness test which was confined to the second leg of the sub-section. The delegate has erred in law, has identified a wrong issue and asked herself the wrong question: Craig v South Australia at 179.

65 The Second Defendant submits that it was open to the First Defendant to determine that the appeal should not proceed under s.327(4) because the CT scan report involved a bare statement of what was depicted in the CT scan without any additional medical expert opinion explaining the significance of these abnormalities to the Plaintiff's appeal. I do not accept this submission. Firstly, it does not appear from a reading of the delegate's reasons (which appear in paragraph 10 of this judgment) that the delegate determined that the report of Dr Aziz concerning the CT scan of 1 November 2005 was not "relevant" for the purpose of s.327(3)(b) WIM Act. The delegate confined the relevance ground to items (a), (c), (d) and (e) as listed by the delegate. Item (b) was the CT scan report of Dr Aziz of 1 November 2005. The delegate's decision concerning the CT scan report relates only to the alleged failure of the report to satisfy the statutory fresh evidence test. Secondly, in my view, the Second Defendant's submission involves, in any event, a misunderstanding of the function of the Registrar under s.327 of the Act.

66 The function of the Registrar under s.327(4) is to examine the documentary material provided and to apply the statutory test as to whether it appears to the Registrar that at least one of the grounds specified in s.327(3) exists. Where a ground under s.327(3)(b) is sought to be raised, the Registrar is to consider whether it appears that a ground asserting availability of additional relevant information exists. The word "relevant" provides the Registrar with some latitude. To take an obvious example, if the additional information provided related to a problem with the Plaintiff's foot when the injury which was the subject matter of the claim was one to the Plaintiff's hand, the Registrar may determine readily that the additional information proffered is not relevant. However, in a case such as this where the CT scan points to abnormalities in the Plaintiff's cervical spine and left shoulder and where these areas of the body were considered in the medical assessment certificate, it would be open to the Registrar to conclude that the information was relevant within the meaning of the sub-section. The absence of further specialist medical evidence elaborating upon the particular abnormalities is not, in my view, decisive. The Registrar is an officer within a specialist tribunal who may be taken to have some understanding of a range of matters relevant to the exercise of the Registrar's statutory functions: ss.369(3) and 371 WIM Act. Further, where a s.327(3)(b) ground appears to exist, it is open to the Registrar to refer the person for further medical assessment under s.327(6) as an alternative to an appeal to the Appeal Panel.

67 I have referred earlier in this judgment to the tender by the Second Defendant of a report of Dr Sullivan of 9 December 2005. I rejected the tender of the report as it was not a document which was before the First Defendant. Nevertheless, I do not, in any event, accept the submission of the Second Defendant that the report of an orthopaedic specialist explaining a CT scan is a prerequisite to the First Defendant treating as additional relevant information a CT scan which has become available after the medical assessment was performed where the CT scan is accompanied by a radiologist's explanation of the scan itself. It is not for the Registrar to determine whether the specified ground of appeal is made out, but merely to ascertain whether it appears that the ground of appeal exists.

68 Insofar as the Second Defendant submits that the medical assessment system may, in some way, be undermined by the construction which I adopt in this case, the following observations are pertinent. The approved medical specialist possesses a number of powers: s.324 WIM Act. It is open to the approved medical specialist to call for the production of medical records and other information as the specialist considers necessary or desirable for the purposes of the assessment: s.324(1)(b) WIM Act. It might be thought that, in many cases, the medical assessment specialist will enquire as to whether a CT scan exists and, if so, require its production. If a CT scan does not exist, it may be open to the approved medical specialist to indicate that such an examination ought be undertaken. If the approved medical specialist proceeds to issue a medical assessment certificate without a CT scan having been undertaken, then ss.327 and 328 may be utilised. In such a case, it is open to the Registrar to adopt the flexible approach of referring the person for further assessment instead of allowing the appeal to proceed to the Appeal Panel. It does not seem to me that the use of the appellate provisions in the WIM Act in such circumstances operates to undermine the effective operation of the Act. Conclusion

69 I am satisfied that the Plaintiff has made out a case for relief under s.69 Supreme Court Act 1970 and that the decision of the First Defendant should be set aside.

70 I make the following orders: (a) the decision of the First Defendant of 20 February 2006 declining to allow the Plaintiff's appeal to proceed under s.327(3)(b) and (4) WIM Act is set aside;

(b) the matter is remitted to the First Defendant for determination under s.327(4) WIM Act in accordance with the law;

(c) the Second Defendant is to pay the Plaintiff's costs of the proceedings.

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