Supreme Court New South Wales Medium Neutral Citation: Batshon v Sydney Trains [2020] NSWSC 1266 Hearing dates: 29 July 2020 Date of orders: 17 September 2020 Decision date: 17 September 2020 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the plaintiff to amend the summons filed on 28 November 2019 by the addition of the following ground of appeal: "14 That the Medical Appeal Panel committed jurisdictional error by failing to consider Samir Batshon's request to be re-examined by an Authorised Medical Specialist who is a member of the Medical Appeal Panel." (2) Allow the appeal. (3) Set aside the decision of the Medical Appeal Panel dated 30 August 2019 in matter number M1-671/19. (4) Remit the matter to the Registrar of the Workers Compensation Commission for referral to a Medical Appeal Panel differently constituted under s 328 of the Work Injury Management and Workers Compensation Act 1998 for re-determination according to law. (5) Make no order as to costs. Catchwords: CIVIL PROCEDURE — administrative law — whether plaintiff should be given leave to appeal to amend summons — whether submission made by plaintiff addressing re-examination by approved medical specialist — where submission made by plaintiff — where medical appeal panel failed to consider request for re-examination — failure to consider mandatory consideration — jurisdictional error Legislation Cited: Work Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Batshon v Sydney Trains [2020] NSWSC 831 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Samir Batshon (Plaintiff) Sydney Trains (First Defendant) Medical Appeal Panel of the Workers Compensation Commission (Second Defendant) Registrar of the Workers Compensation Commission (Third Defendant) Representation: Counsel: J W Dodd (First Defendant) Solicitors: Turks Legal (First Defendant) File Number(s): 2019/375163 Publication restriction: Nil Judgment 1. HIS HONOUR: My earlier judgment in this matter was delivered on 30 June 2020: see Batshon v Sydney Trains [2020] NSWSC 831. After hearing Mr Batshon's appeal, I formed the view that it was appropriate to receive further submissions. The proceedings thereafter came before me on 29 July 2020 for argument upon the question of whether or not Mr Batshon should be given leave to amend his summons and what should follow if he were. Sydney Trains opposed the grant of leave to amend but contended that the appeal should be dismissed in any event. 2. I had indicated at [12] in my decision that Mr Batshon's solicitor attached submissions in support of his request to be examined by the Medical Appeal Panel. I included those submissions in terms in the body of my decision. For reasons that will become apparent, I propose to repeat the relevant portion of those submissions here: ITEM 4.3 – SUBMISSIONS IN SUPPORT GROUND 1 3.1 Pursuant to Item 11.6 of the Guidelines diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment. 3.2 Accordingly it is submitted that if the Applicant's impairment was assessed on the basis of an incorrect diagnosis he should be re-assessed by an AMS who is a member of the Medical Appeal Panel. (Emphasis added.) 1. When the matter returned to me for further submissions, Mr Dodd of counsel for Sydney Trains maintained that Mr Batshon had not in fact attached a submission to his original application addressing why he should be re-examined by an Authorised Medical Specialist who is a member of the Appeal Panel and that my reference in the judgment to him having done so was wrong. In order that Mr Dodd's submissions can be fully understood, the following transcript excerpt may be of assistance: "HIS HONOUR: Perhaps I'll just address this to you, Mr Dodd. In reviewing this matter and producing my judgment, it struck me there was a possibility, as you will appreciate, that Mr Batshon might want to argue that the appeal panel hadn't provided an indication of why they chose not to examine him when his request to do so was, can I use the expression, in the mix. You don't have to comment upon whether or not you agree with my view about that, but if he were to apply by leave to amend, what would your view be in relation to that? DODD: Well, it's opposed your Honour. And in opposing it I have to draw your Honour's attention to what I will be submitting is a fundamental error in your Honour's approach to this case. HIS HONOUR: Do that now. DODD: Thank you your Honour. And it reflects exactly on the point that your Honour raises with me and is raised in your Honour's judgment. Can I take your Honour to paragraph 12 of your Honour's judgment. Your Honour there says that Mr Batshon's solicitor attached submissions in support of his request to be examined by the medical appeal panel. Your Honour then sets out in paragraph 14 those submissions. That is the entirety of the submissions that were put in support of the appeal. HIS HONOUR: Yes. DODD: We don't have to go hunting for them, your Honour, is the point. What you won't find anywhere in paragraph 14 are any submissions in support of the question to be examined by the medical appeal panel. And in that respect, in my respectful submission, with the greatest respect to your Honour, paragraph 12 is simply wrong. Your Honour will recall perhaps in the course of the hearing of this matter we noted that, if I can use the expression 'the box was ticked on the form', that is a form that's prescribed under regulations, et cetera. It then goes on to say as your Honour relates in your Honour's judgment failure to provide submissions may result in that request not being considered. And your Honour indeed no submissions were filed to support that application for Mr Batshon to be re- examined. HIS HONOUR: So just - I'm just reminding myself. The box was ticked saying we would like to be examined and submissions saying why that should occur are attached, but they don't deal with it. DODD: No your Honour, no. With respect, there was on the form nothing other than the box being ticked. And there being printed on the form under the box to attach submissions and 'failure to provide submissions may result in this request being rejected', or words to that effect, and there was nothing either further on the form nor in the submissions that your Honour replicates at paragraph 14 of submissions being made for this man to be re-examined by the medical appeal panel. Now, if that's - if my analysis, your Honour, is correct that your Honour at paragraph 12 has erred just on a matter of fact in the case, then the balance of what your Honour has raised and the reason for your Honour not proceeding to judgment but proceeding to this directions hearing today is misconstrued [sic], in my respectful submission. So it is not something that was, save for tick the box, raised before the medical appeal panel." 1. With the utmost respect to Mr Dodd, I think the error is his, not mine. The words in the submissions provided to the Medical Appeal Panel by Mr Batshon's solicitor were "that if the Applicant's impairment was assessed on the basis of an incorrect diagnosis he should be re-assessed by an AMS who is a member of the Medical Appeal Panel". I accept that Mr Batshon's solicitor was clearly not being paid by the word, but there is something extremely unambiguous about the few words that he used: Mr Batshon wished to be re-examined. (The fact that the submissions refer to him being "reassessed" as opposed to "re-examined" is not significant having regard to the fact that the box requesting a re-examination was ticked on the Application to Appeal). The issue at hand is not whether the submissions were or were not sufficient to convince the Medical Appeal Panel that Mr Batshon should be re-examined by one of their number: the Medical Appeal Panel simply failed entirely to address this issue, a proposition that I do not understand to be controversial. The question then becomes whether the failure of the Medical Appeal Panel to deal with Mr Batshon's request was one that generates any remedy for him in this Court. 2. In my opinion, the Medical Appeal Panel was obliged to consider Mr Batshon's request. It amounted in the circumstances to a relevant mandatory consideration that the Medical Appeal Panel failed to take into account. The conclusion that it was mandatory follows from the fact that the opportunity to be re-examined by an Approved Medical Specialist who is a member of the Medical Appeal Panel is specifically contemplated by the form that Mr Batshon was required to complete when seeking to appeal from the original decision of the Approved Medical Specialist. That form reflects the procedure for an appeal prescribed by the Work Injury Management and Workers Compensation Act 1998 and the Workers Compensation Guidelines. The inference that Mr Batshon's request was not considered or taken into account arises clearly from the fact that there is no reference to it at all in the Medical Appeal Panel's reasons. It cannot be inferred that consideration was given to the request but that it was refused. 3. An established failure by the Medical Appeal Panel to have regard to a mandatory consideration constitutes a jurisdictional error, as it amounts to a failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 at [73]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]. What is required on the part of a decision-maker in respect of mandatory factors was explained by the Full Court of the Federal Court of Australia in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (at [44]): "The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration (see Tickner v Chapman (1995) 57 FCR 451 at 462 and Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105]). However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case (see Minister for Immigration and Citizenship v Khadgi (2010) 274 ALR 438 at [58]-[59])" (Emphasis added.) 1. In my opinion, this is a case in which the total absence of any reference to Mr Batshon's request gives rise to the very strong inference that the Medical Appeal Panel did not consider it. There is no indication that it was given even cursory consideration. This amounts to a jurisdictional error, being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred. 2. What should occur? In my opinion, Mr Batshon's disappointed expectation that his request to be re-examined would be heeded calls for the grant of relief. The following orders should therefore be made: 1. Grant leave to the plaintiff to amend the summons filed on 28 November 2019 by the addition of the following ground of appeal: "14 That the Medical Appeal Panel committed jurisdictional error by failing to consider Samir Batshon's request to be re-examined by an Authorised Medical Specialist who is a member of the Medical Appeal Panel." 1. Allow the appeal. 2. Set aside the decision of the Medical Appeal Panel dated 30 August 2019 in matter number M1-671/19. 3. Remit the matter to the Registrar of the Workers Compensation Commission for referral to a Medical Appeal Panel differently constituted under s 328 of the Work Injury Management and Workers Compensation Act 1998 for re-determination according to law. 4. Make no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2020