New South Wales Supreme Court CITATION : Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22 HEARING DATE(S) : 29/01/2007 JUDGMENT DATE : 9 February 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The summons is dismissed. I reserve the question of costs and it can be argued in the future if there be a need to do so. CATCHWORDS : Judicial review - appeal by application to the Registrar - test to be applied by Registrar - conflicting authority - discretion - demonstrable error - failure to discharge onus. Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) LEGISLATION CITED : Workplace Injury Management and Workers Compensation Act 1998 (NSW) Supreme Court Act 1970 (NSW) Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163 CASES CITED : Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2005] NSWSC 1260 Wikaira v Registrar of the Workers Compensation Commission of NSW & Anor [2005] NSWSC 954 Arumugam Mahenthirarasa PARTIES : State Rail Authority of New South Wales The Registrar of the Workers Compensation Commission of New South Wales Dr Robert Breit FILE NUMBER(S) : SC 30077/05 COUNSEL : Mr C. Jackson (Pl) Mr D. Saul (1st Def) SOLICITORS : P K Simpson & Co (Pl) Phillips Fox Lawyers (1stDef) LOWER COURT JURISDICTION : Workers Compensation Commission LOWER COURT FILE NUMBER(S) : 14174-04 LOWER COURT JUDICIAL OFFICER : Jeremy Lum LOWER COURT DATE OF DECISION : 14 July 2005 LOWER COURT MEDIUM NEUTRAL CITATION : Arumugam Mahenthirarasa v State Rail Authority of NSW - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 9 FEBRUARY 2007 30077/05 Arumugam Mahenthirarasa v State Rail Authority of New South Wales & Ors JUDGMENT 1 HIS HONOUR: As at 30 August 2001, the plaintiff was employed by the first defendant as a cleaner. On that day, he suffered injury in the course of that employment (injury to the back and both legs). 2 He was paid compensation until 8 May 2003. Since then, the first defendant has taken the stance that the plaintiff was able to perform his pre-injury duties. 3 On 14 September 2004, the plaintiff made application to the Workers Compensation Commission (The Commission) in the approved form to resolve a dispute. The dispute came for determination before an Arbitrator (Arbitrator Scott). On 8 December 2004, there was a teleconference. The dispute then came before an approved medical specialist (Dr Breit). 4 On 21 February 2005, the plaintiff was examined by Dr Breit. On 4 April 2005, he issued his medical assessment certificate (the certificate). 5 The certificate identified the matters referred for assessment as being "Impairment dispute" and "Threshold dispute". It summarised the injuries and diagnoses as follows:- . Bilateral L5 pars interarticularis defects. . Anterior cruciate deficient left knee with construction and repair medial meniscus. . Degenerative left knee. . Right knee arthritis. There was a finding of pre-existing injury as follows:- . L5 pars interarticularis defect. . Anterior cruciate tear left knee. . Degenerative disease both knees. Tables 1 and 2 set out the assessment made as to the proportion of permanent loss or impairment due to pre-existing injury in respect of, inter alia, the left leg. Table 1 sets out the assessment made in accordance with the table of disabilities for injuries received before 1 January 2002 (an assessment of ¾). Table 2 sets out the assessment for injuries received on or after 1 January 2002 (an assessment of 10/11). 6 The plaintiff made an application for appeal against the decision of Dr Breit. The grounds of appeal relied on were "incorrect criteria" and "demonstrable error". One of the submissions made in support of the application was as follows:- "10. Likewise, the AMS deduction with regard to the left lower extremity under AMA5 of 10/11ths was plainly wrong. The relevant criterion under Section 323 of the 1998 Act is essentially the same as Section 68A. The finding under Section 68A of ¾ and the finding under Section 323 of 10/11ths with regard to the same body part is a clear demonstrable error. The two different findings with regard to virtually the same criterion are inconsistent. Again, the applicant relies on the fact that there is simply no evidence of suffering any problems with his knees or back before the accident and the evidence is to the effect that he was healthy and pain free before the accident. The Applicant's primary submission is that there should not have been any Section 323 deduction. The secondary submission is that if any deduction was called for, the 10% rule should have been applied." 7 Section 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act) governs the matter of the appeal. Sub-section (4) thereof deals with the matters of the making of and the proceeding of the appeal. At the relevant time it was as follows:- "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." 8 The application was dealt with by a delegate of the Registrar (in July 2005). He came to the view that it did not appear that at least one of the specified grounds for appeal exists. A written decision (which contained reasons) was delivered. The reasons contained, inter alia, the following:- "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 Appellant and the Respondent, it does not appear that the assessment was made on the basis of incorrect criteria or that the medical assessment certificate contains a demonstrable error. 9. Hence, there is nothing on the face of the record of the medical assessment certificate that indicates that the findings made by the AMS on the basis of information and material provided to the AMS, and also clinical observation, amounts to the use of an incorrect criteria or demonstrable error. 10. 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." 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. 15 On 12 September 2005, the plaintiff filed a summons in this Court. It seeks relief in the nature of judicial review (s69 of the Supreme Court Act 1970 (NSW)). It seems to be generally accepted that the scope for intervention is as expressed in Craig v South Australia (1995) 184 CLR 163 at 179. 16 The summons relied on during the hearing did not contain any enunciation of grounds upon which relief was sought. Subsequent to the reserving of judgment, a formulation (which was presented in a proposed Amended Summons) was made as follows:- "Ground one. The First Defendant asked the wrong question, that error going to jurisdiction ( Craig v South Australia [184 CLR 163 at 179, line 21ff), and/or erred in law, that error being on the face of the record (section 69 of the Supreme Court Act ). Particulars. That the First Defendant should have asked whether or not the application merely pleaded valid grounds under section 327(3), and, possibly, whether valid grounds were pleaded which were not "colourable", "manifestly hopeless", "doomed to failure", "not arguable", or whether there was a "serious issue to be tried", whereas the First Defendant, in fact, inquired as to whether or not the grounds pleaded were "made out". Ground two. In the alternative to ground one (should the Court find that the Registrar had to be satisfied that grounds were "made out"), the First Defendant failed to take into account a relevant consideration, thus erring in law, and erring as to jurisdiction, in failing to consider whether or not the Third Defendant had "demonstrably erred" or "applied incorrect criteria" in applying a ¾ deduction under table 68A of the Workers Compensation Act 1987 for pre-existing condition, and a 10/11th deduction under table 327 of the Workplace Injury Management and Workers Compensation Act 1998 in relation to exactly the same injury ." 17 The hearing took place on 29 January 2007. There were three named defendants. All of the defendants have adopted a submitting role. Counsel appeared for the plaintiff. Counsel also appeared for the first defendant. He was present to deal with any question concerning costs. He did not participate in argument concerning the plaintiff's claim for relief. 18 The primary matter argued on behalf of the plaintiff was said to be that the first defendant applied the wrong test and thus asked the wrong question in addressing whether or not there was satisfaction that a ground of appeal exists. The argument looked to the obiter dicta in Vegan for support. It was said that the role of the Registrar was to address the question of whether or not a specified ground of appeal was arguable (as opposed to made out). 19 In written submissions, it was submitted that:- "14. The Registrar's decision in this case is predicated, in the Applicant's decision, on the assumption that it is the role of the Registrar to evaluate the quality of the Applicant's argument and make an evaluative judgment, on the balance of probabilities, as to whether or not there is "application of incorrect [medical] criteria" or "demonstrable error", that is, it applies the test referred to in paragraph 8." 17. In the Plaintiff's submission, a proper reading of the Act requires simply that the Registrar exercising their powers under section 327 determines simply whether grounds are formally pleaded, whether there is an arguable case, or whether an appeal is manifestly hopeless; the test must involve a low thresh-hold (sic). The remainder of the review task then falls for consideration by the appeal panel." 20 For present purposes, it may be thought that what has been done by the legislature rings the death knell for the primary argument. It assists in confirming the view that the test propounded by the plaintiff is not what was intended by the legislature. As would appear from what has been earlier said, I do not depart from the view expressed in Wikaira. If that test was applied, in my view there was no error. 21 Even if that consideration be put aside, I consider that the argument remains confronted with an insurmountable problem. If a different view be taken and it is assumed, for the purposes of this hearing, that what the Registrar had to do at the relevant time is as alleged by the plaintiff, I still consider that the argument must fail. 22 In my view, a reading of the reasons does not support it. In the expression of the decision of the delegate the reasons seek to employ the statutory language (see, inter alia, paragraphs 3, 4 and 10). There is a neutrality in what was said. The chosen language may reflect what could be regarded by the Registrar and delegates as being placed in an invidious position. I am unable to discern from it what test was applied. It was also argued that other material contained in the reasons disclosed that the delegate was seeking to determine the matter on the balance of probabilities. I do not accept that submission. Accordingly, I am not satisfied that the primary argument has been made out. 23 There is also a further consideration. The relief sought by the plaintiff is discretionary in nature. Relief may not be granted if so doing would be a futility. 24 Even if a different view had been taken on the plaintiff's argument, I do not consider that the Court should refer the matter back to the Registrar unless there is utility in so doing. In this case, it would have to be shown that there was a ground of "incorrect criteria" or "demonstrable error" that needed to be addressed. 25 A further argument was briefly raised in oral submissions. It was put in written submissions as follows:- "19. Further regardless of whether the test can be characterised as a "balance of probabilities" or an "arguable case" test, the Registrar has erred in failing to find that there is a "demonstrable error" (or arguable case that there is a demonstrable error) in the application of sections 68A and section 323. 20. That is because of the logical inconsistency between the deduction for pre-existing condition under section 68A of the old Act, using table 1, and the deduction for pre-existing condition under section 323 of the WIM Act, using table 2, in relation to precisely the same injury (pages 4 and 5 of the decision of the AMS decision, which is annexure 'G' in the documents exhibited to Michael Malley's affidavit, filed 9 September 2005 "the affidavit")." 21. This ground of appeal was raised at paragraph 10 of the appellant's appeal from the AMS, which is annexure "F" of the affidavit. 26 The certificate has the status accorded to it by section 326 of the Act. 27 The further argument was not developed and it seemed to me to be but faintly pressed at the hearing. In my view, the plaintiff failed to make out this argument. Further, there was a failure to persuade that what was done could constitute "demonstrable error" in the contents of the certificate. It may be added that even if a different view was taken on these matters, it was not shown that the ground had any real significance in relation to the assessment. 28 For completeness, I should make some brief observations concerning the matter of the meaning to be given to the words "demonstrable error" in their statutory context. This was not a matter on which the Court was given assistance by counsel. 29 The words are not defined in the Act. It may be said that the proper meaning to be given to these words in their statutory context remains at large (sub-section (3)(d) requires that the certificate contain such an error). A dictionary meaning given to "demonstrable" is "capable of being shown or logically proved". It would appear not to be intended to include "obvious error" which the Registrar has power to correct (s325(3)). In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939, Hoeben J said that it was sufficient for the purposes of determining that case to conclude that such an error is an error that is readily apparent from an examination of the medical assessment certificate and the document referring the matter for assessment. He also observed that error alone was not sufficient. The second reading speech contains the following concerning "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." 30 In conclusion, it suffices to say that the plaintiff bears the onus of demonstrating an entitlement to relief and I do not consider that such task has been discharged. 31 The summons is dismissed. The Court has been asked to reserve the question of costs. Accordingly, I reserve that question and it can be argued in the future if there be a need to do so. ********** 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. 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