New South Wales Supreme Court CITATION : Amirilayeghi v Registrar of WCC & 2 Ors [2007] NSWSC 669 HEARING DATE(S) : 14 June 2007 JUDGMENT DATE : 29 June 2007 JURISDICTION : Common Law Division - Administrative Law List JUDGMENT OF : Associate Justice Harrison DECISION : (1) The plaintiff's amended summons filed 14 June 2007 is dismissed; (2) The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 6 October 2005 is affirmed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed. CATCHWORDS : Review of decisions of Registrar's Delegate and Approved Medical Specialist LEGISLATION CITED : Supreme Court Act 1970 (NSW) - s 69 Workplace Injury Management and Workers Compensation Act 1998 - ss 350, 327 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Craig v South Australia (1994-95) 184 CLR 163 CASES CITED : Kioa v West (1985) 159 CLR 550 Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 Minister for Immigration and Ethnic Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Zuanic v Gypro-Tech (Australia) Pty Limited (in Liq) & Ors (2006) 66 NSWLR 206 Mahmood Reza Amirilayeghi - Plaintiff PARTIES : Registrar of the Workers Compensation Commission - First Defendant Hannan Print Pty Ltd t/as Eastern Suburbs Newspapers Management (No 2) Pty Limited - Second Defendant Dr Richard JJ Crane - Third Defendant FILE NUMBER(S) : SC 30118/2005 COUNSEL : Mr C Jackson - Plaintiff Ms K C Morgan - Second Defendant David Legal - Plaintiff SOLICITORS : Mr I V Knight, Crown Solicitor - First & Third Defendants Moran & Agnew - Second Defendant LOWER COURT JURISDICTION : Workers Compensation Commission LOWER COURT FILE NUMBER(S) : 3337/2005 LOWER COURT JUDICIAL OFFICER : Approved Medical Specialist & Delegate of Registrar of the WCC LOWER COURT DATE OF DECISION : 6 July 2005 & 6 October 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST ASSOCIATE JUSTICE HARRISON FRIDAY, 29 JUNE 2007 30118/2005 - MAHMOOD REZA AMIRILAYEGHI v REGISTRAR OF THE WORKERS COMPENSATION COMMISSION & 2 ORS JUDGMENT (Review of decisions of Registrar's Delegate and Approved Medical Specialist) 1 HER HONOUR: By amended summons filed 14 June 2007 the plaintiff seeks firstly, that the decision of the first defendant dated 6 October 2006 be quashed on the grounds of jurisdictional error; secondly, that a writ of mandamus issue ordering the first defendant to refer the matter to an appeal panel for consideration in accordance with these reasons and according to law; thirdly, in the alternative, that a writ of mandamus issue ordering the first defendant to reconsider whether to refer the matter to an appeal panel in accordance with these reasons and according to law; fourthly, in the alternative, an order that the decision of the third defendant be quashed, and fifthly, an order that the third defendant reassess the medical dispute according to law. 2 The plaintiff is Mahmood Reza Amirilayeghi who relied on the affidavit of Suzy David dated 23 December 2005. The first defendant is the Registrar of the Workers Compensation Commission, who has filed a submitting appearance. The second defendant is Hannan Print Pty Ltd t/as Eastern Suburbs Newspapers Management (No 2) Pty Ltd (Hannan Print), who is the plaintiff's employer. The third defendant is Dr Richard JJ Crane in his capacity as the Approved Medical Specialist appointed by the Workers Compensation Commission. 3 Section 69(3), (4) and (5) of the Supreme Court Act 1970 (NSW) (SCA) provide: "(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 4 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1994-95) 184 CLR 163 at 179: "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." 5 This was later clarified in the case of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351: ""Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig , is not exhaustive. 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." 6 There have been a number of decisions of this Court which canvass judicial review in relation to the decision of the Registrar of the Workers Compensation Commission which have been referred to in Zuanic v Gypro-Tech (Australia) Pty Limited (in Liq) & Ors (2006) NSWLR 206 at [53]-[55]. 7 In any event, I have some reservation that this Court is entitled to interfere with a decision of the Registrar made under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('WIMWCA'). There are two other relevant sections of the WIMWCA, namely ss 350 and 375. 8 Section 350 reads: "Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: … (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) …" 9 Section 375 relevantly reads: "Constitution of Commission for particular proceedings (4) The Registrar does not constitute, and does not exercise functions as, the Commission (except when acting as an Arbitrator pursuant to the Registrar's power to exercise the functions of an Arbitrator)." 10 Wood CJ at CL said in Campbelltown City Council v Vegan [2004] NSWSC 1129, at [33] "The term "the Commission", it seems to me, should be understood in accordance with such content as is given to that expression by ss 4, 366, 368 and 375 of the Act. As such I consider that it means the Commission as constituted either by an arbitrator or by a Presidential Member, and that it does not mean an Appeal Panel. " 11 Wood CJ at CL's approach prevents the operation of s 350 from making a decision of the Appeal Panel unreviewable by this Court. However, if the decisions of a Registrar or of an Appeal Panel are not decisions of the Commission, it is difficult to see how such decisions could be decisions of a "court or tribunal", so as to allow relief being granted by this Court pursuant to s 69(3) of the SCA. 12 On the other hand, if I adopt the view that the Registrar exercises the power of a court or tribunal, then the privative clause contained in s 350 of the WIMWCA operates to exclude the jurisdiction of this Court. Section 69(5) of the SCA by its terms means that the privative clause would prevent the operation of s 69(3). 13 The issue of jurisdiction was not ventilated before me, and for reasons of comity, I will assume that this Court has jurisdiction to hear this matter pursuant to s 69 (3) of the SCA. Grounds of Review 14 The grounds of review are that, firstly, the first defendant asked the wrong question, and thus fell into jurisdictional error in determining whether or not to refer the matter to an appeal panel pursuant to s 327 of the WIMWCA; secondly, that the first defendant erred in law in failing to ask the correct question in considering the WorkCover Guidelines or whether there was a demonstrable error, and in failing to find grounds of appeal made out; thirdly, that the third defendant made a jurisdictional error in failing to afford the plaintiff procedural fairness by failing to warn the plaintiff of his intention to base his decision on his interpretation of "Waddell signs"; and fourthly, the third defendant asked the wrong question, and thus failed to exercise its jurisdiction. The plaintiff abandoned the fourth ground during the hearing. Factual Background 15 On 28 June 2003, the plaintiff alleged an injury to his back whilst lifting, as part of his job as a machine operator. An application was made to the Commission by the plaintiff against his employer, Hannan Print. Dr Crane was appointed as the Approved Medical Specialist (AMS). On 21 June 2005, Dr Crane examined the plaintiff, carried out an assessment and issued a Medical Assessment Certificate. The Certificate determined that the plaintiff suffered 0% permanent impairment. Dr Crane as part of his examination gave consideration to the 8 Waddell's signs which are indicative of non-organic problems. Of these 8 signs, 6 were positive. 16 Before Dr Crane were four medical reports furnished by both parties which expressed a range of views about the plaintiff's medical condition. Dr Paul Miniter reported a considerable exaggeration with the examination findings. Dr Bornstein in his report dated 24 July 2003 at page 2 stated, "The Waddell signs in this case are strongly positive". At page 3, he stated, "on the basis of the Waddell signs and the contradictions in straight leg raising demonstrated at today's examination I would expect that his return to work is going to be problematic". 17 In the Medical Assessment Certificate, the Dr Crane considered the significance of the Waddell signs and stated: "There appeared to be significant under-application of effort in the response to requests for various manoeuvres during the examination. For this reason I gave consideration to the 8 Waddell's signs which are indicative of non-organic problems. I undertook further examination manoeuvres in this regard. Of the eight cardinal signs, the two negatives were the absence of "cogwheel" weakness in the lower limbs and the absence of the superficial non-anatomic tenderness light touch in the lower limbs and back. The remaining six signs were positive: 1. Axial compression with vertical loading on the skull producing low back pain. 2. Passive rotation of shoulders and pelvis causing low back pain. 3. Resisted hip flexion. 4. Non-dermatomal sensory loss with the left lower limb. 5. Discrepancy between the straight leg raising findings in sitting and supine positions. 6. Over-reaction with disproportionate response and verbalisation during the examination." 18 Table 1 of the Medical Assessment Certificate stated that the plaintiff suffered a 0% permanent impairment to his lumbar spine from his accident on 28 June 2003. Decision of the Registrar's Delegate 19 On 20 July 2005, the plaintiff appealed against the decision of the AMS, on the basis that the assessment was based on incorrect criteria, and that the Medical Assessment Certificate contained a demonstrable error. The Delegate of the Registrar did not permit the appeal to go to the Appeal Panel. 20 At the time that these proceedings were brought, s 327(3) and (4) of WIMWCA read: "(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." 21 The Delegate in his written reasons dated 6 October 2006 stated at [3]-[5]: "3. Pursuant to Section 327(4) the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in Section 327(3) exists. 4. After consideration of the submissions received from the Applicant and the Respondent it does not appear that either the assessment was made on the basis of incorrect criteria or the medical assessment certificate contains a demonstrable error… "5. Accordingly, as it does not appear to the Registrar that at least one of the grounds of appeal exist, the appeal should not proceed and the matter is referred back to the Arbitrator for any outstanding issues to be resolved." Ground One 22 The plaintiff submitted that the Registrar erred by asking whether or not the grounds of appeal were "made out" instead of properly construing the word "exists" in subsection (4) to mean whether or not an appeal was other than patently untenable or colourful. The plaintiff's Counsel submitted that the Delegate applied a higher test, namely the merits of the appeal. The plaintiff referred the Court to the decision of the Court of Appeal in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284, and submitted that the Delegate should have applied the test in Vegan. The second defendant submitted that the Registrar's Delegate did nothing more than apply the wording of the statute. 23 The Delegate at [3] of his reasons stated, "Pursuant to Section 327(4) the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in Section 327(3) exists" and at [5] he said that it did not appear that at least one of the grounds of appeal exist. The Delegate did not refer to Vegan. 24 The issue in Vegan was whether the Appeal Panel was obliged to give reasons for its decision. The Court of Appeal decided that the Appeal Panel was obliged to give reasons for its decision. In Vegan, Handley JA said, at [8]: "An appeal does not proceed to an Appeal Panel unless it appears to the Registrar that at least one of the grounds for appeal "exists", which I take to mean that the ground is, on its face, valid and apparently credible." 25 Basten JA went on to say, at [133]: "On first impression, it would seem that the Registrar is not required to determine the scope of the appeal because her role is merely to determine whether the appeal is to proceed", the appeal itself being by way of review by the Appeal Panel. If only one ground for appeal exists, in the opinion of the Registrar, it would appear that the whole of the appeal may proceed and that, being satisfied as to one ground, the Registrar is not required to address other grounds. Similarly, to say that a ground of appeal "exists", as it "appears" to the Registrar, is to say no more than that the application before the Registrar satisfies the minimum requirements of s 327(3). There is no suggestion that the Registrar is required to consider whether the ground should succeed or to do more than satisfy herself that a ground, in conformity with s 327(3), is alleged and (perhaps) cannot be dismissed as patently untenable or colourable. " 26 According to Handley JA, "exists" means on its face, valid and apparently credible. Basten JA used different words and described "exists" as meaning "not patently untenable or colourable." But these statements from the court of appeal are obiter dicta. The current history and position of the Registrar's role and the applicable test has been helpfully summarised by Associate Justice Malpass in Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22, in [9] – [14] where he said: "9 The role of the Registrar (or a delegate thereof) in dealing with such an application under sub-section (4) (as it then was) has been the subject of a number of decided cases. This statutory provision contained a difficult collocation of words. The case law on it threw up different approaches to the question. The approaches appeared to reflect individual impressions of the statutory language. The most recent consideration took place in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 . The judgments in this case were delivered subsequent to the decision of the delegate. The judgments of Handley JA at paragraph 8 (with whom McColl JA agreed) and Basten JA at paragraphs 133-134 (McColl JA agreed generally with his reasons) contain obiter dicta on the question. This obiter dicta also threw up differences of approach (including between Handley JA and Basten JA). Basten JA further observed that it was not entirely clear whether what had been said by him on the question was entirely consistent with the approach accepted and apparently applied by other judges (the primary judge in Vegan and Hislop J in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2005] NSWSC 1260) . 10 The primary judge (who may have been the first judge to address the question) appears to have taken the approach that the Registrar must be satisfied of error for the matter to be referred to the Appeal Panel (Hislop J inferred that it was to be determined on the balance of probabilities). 11 In the circumstances it has to be said that the law concerning this statutory provision (as it then was) is, and has been, in a state of uncertainty. This uncertainty left any Registrar (or delegate) in an invidious position. 12 It would seem that the legislature has sought to address this problem. Sub-section (4) was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) (which I am told was proclaimed subsequent to the Court of Appeal decision in Vegan ). The amendment that was made was as follows:- "Omit "it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists" from section 327(4). Insert instead "the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out". 13 This amendment would appear to have removed the uncertainty that had previously existed as to the proper construction of the sub-section. Under the amended provision, the appeal does not proceed unless the Registrar is satisfied that at least one of the specified grounds of appeal has been "made out" (words which I had used in Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 ). 14 The amendment would appear to accord with what was said by the primary judge and in, inter alia, Wikaira (which for reasons of judicial comity Hislop J chose to follow in Riverina Wines ) . Whilst I am informed that no assistance can be gleaned from what has been said by Parliament, it could be expected that the purport of the amendment was to deal with the uncertainty and to clarify what had been the original intention of the legislature. " 27 It is my view that the Delegate posed the correct test, that is he is not to proceed unless it appears that at least one of the grounds of appeal for appeal specified in s 327(3) exists. 28 The second defendant submitted that even if I were to find that the Delegate applied the wrong test which amounted to a jurisdictional error, it would be futile to send the matter back to the Registrar, as the same test was applicable. The plaintiff's Counsel submitted that the test that is to be applied is the one that existed at the time of lodging the appeal, namely the test laid out by Basten J in Vegan. The plaintiff's submission is not persuasive, but as there is no error of law on the face of the record, I do not need to consider this argument. Ground Two 29 The plaintiff provided two particulars to ground 2. They are firstly, that it did not ask the correct question, which is whether the AMA V and the WorkCover Guidelines had been applied, or that there was demonstrable error, when the third defendant divided the plaintiff's complaints into "organic" and "non-organic" and assessed only "organic impairment"; and secondly, it did not ask whether AMA V and the WorkCover Guidelines had been applied when the third defendant refused to apply the AMA V and WorkCover Guidelines in relation to the L1 crush fracture because the injury was "old". 30 In the Delegate's reasons, the Delegate stated "in relation to the Appellant's Submissions… it appears that the MAC clearly reveals in paragraph 9(b) that the AMS made his assessment on the basis of correct criteria in accordance with AMA 5 and WorkCover guides". The Delegate also stated that "the AMS's consideration of X-Ray report dated 1 July 2003, altered sensation at L5 and whether the previous compression fracture was aggravated, do not appear to reveal that any ground for appeal exists under Section 327(3)(c) or (d)" (Decision of 6 October 2005, 4(i) and (4)(iii)). 31 The Delegate considered whether or not the AMS had properly applied the Workcover guidelines, and came to the conclusion that there was no demonstrable error nor application of incorrect criteria. So far as this Court is concerned, the Delegate's reasons do not reveal an error. Grounds three and four 32 The plaintiff submitted that the AMS made a jurisdictional error by not affording procedural fairness to the plaintiff. The first question that arises is whether or not the Supreme Court has jurisdiction to directly review the decision of an AMS. Neither party was aware of any case in which the Court had previously held there was such jurisdiction. The plaintiff relied on s 69(3) of the SCA and upon the inherent jurisdiction of the Supreme Court as a court of superior record, to do what is necessary for the administration of justice in New South Wales. 33 It is my view that s 69(3) of the SCA is incapable of applying to the decision of an AMS, as that provision can only apply to quash decisions of a "court" or "tribunal". The AMS is appointed pursuant to s 320 of the WIMWCA but the assessment of an AMS is not an assessment made by a Tribunal. It is my view that this Court does not have jurisdiction for the plaintiff to hear a challenge to the decision of the AMS. The Act provides for a limited right of appeal of the decision of the AMS by the Registrar set out in s 327 of the Act. 34 It is also my view, that the inherent jurisdiction of the Supreme Court should not be invoked to quash the decision of an AMS. The AMS is part of a rigid legislative structure, which has a limited right of appeal. However, unlike the Registrar's decision, the decision of an AMS is not the final determination of the matter, and is subject to appeal to the Registrar. The inherent jurisdiction of this Court should not be used to circumvent the power of the Registrar. 35 The plaintiff submitted that the procedural fairness infecting the third defendant's decision so affected the Registrar's decision that it was "no decision at all", as envisioned by Gaudron, Gummow and McHugh JJ in Minister for Immigration and Ethnic Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj, the High Court considered the Refugee Review Tribunal's decision to correct its own administrative error. The Court held that the Tribunal's failure to properly comply with its statutory obligations to give the respondent an opportunity to attend a hearing meant that the subsequent decision lacked legal foundation. The High Court held that the Tribunal's later decision, after it had provided the respondent with a hearing opportunity, was not precluded by the first decision because the first decision was "no decision at all". Bhardwaj does not have relevance to the appeal from an assessment of the AMS to the Registrar. The plaintiff attended the hearing before the AMS. 36 Even if this Court has jurisdiction, the AMS did not deny the plaintiff procedural fairness. In Kioa v West (1985) 159 CLR 550, Mason J stated that the law had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness as a notion is a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case (at 585). 37 The assessment of the plaintiff's Waddell signs was found on the AMS' own examination of the plaintiff, and was not solely based on the reports of other doctors. The notion of procedural fairness does not extend to require an AMS to explain that a clinical test he or she is about to conduct may lead to an adverse finding being made. In my view, there has been no denial of procedural fairness. 38 The result is that the claim for relief fails. The plaintiff's amended summons filed 14 June 2007 is dismissed. The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 6 October 2005 is affirmed. 39 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed. The Court Orders: (1) The plaintiff's amended summons filed 14 June 2007 is dismissed. (2) The decision of the Delegate of the Registrar of the Workers Compensation Commission dated 6 October 2005 is affirmed. (3) The plaintiff is to pay the defendants' costs as agreed or assessed. ********** 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.