Read v Liverpool City Council & Anor [2007] NSWSC 320

New South Wales Supreme Court

CITATION : Read v Liverpool City Council & Anor [2007] NSWSC 320

HEARING DATE(S) : 05/04/2007

JUDGMENT DATE : 12 April 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Further refusal for medical assessment - function of s329 - jurisdiction of the Court - no basis for relief made out - demonstrable error.

LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CASES CITED : Dar v State Transit Authority of NSW [2007] NSWSC 260

Mark Read PARTIES : Liverpool City Council & Anor Workers Compensation Commission of NSW

FILE NUMBER(S) : SC 30136/06

COUNSEL : Mr D. Knaggs (Pl) (Solicitor) Ms M. Allars (1st Def)

SOLICITORS : Cross Law (Pl) Abbott Tout (1st Def)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

12 APRIL 2007

30136/06 Mark Read v Liverpool City Council & Anor

JUDGMENT 1 HIS HONOUR: In October 1993, the plaintiff sustained injury to his right leg during employment with the second defendant. He commenced proceedings in the Compensation Court. At the time of the commencement of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act) those proceedings remained unresolved. 2 He made an application to resolve a dispute pursuant to the Act. Certain documents accompanied the application (including medical reports). These may have been later supplemented by other documents. I shall refer generally to all of these documents as the plaintiff's documents. The dispute then came before an Approved Medical Specialist (Dr Lennan). He examined the plaintiff. He was not given all of the plaintiff's documents. He did have all of the reports relied on by the second defendant. A Medical Assessment Certificate was issued by Dr Lennan. It determined the permanent impairment and loss of efficient use of the leg at nil percent. 3 The plaintiff did not then seek a further referral for medical assessment from an arbitrator. Indeed, an application for leave to appeal against the assessment pursuant to s327 of the Act was made to the Registrar. 4 This application was supported by submissions which presented as a first preference that the plaintiff sought a further examination and the issue of a replacement Certificate (reference was made to s325 of the Act). The application was made on the grounds set forth in (a), (c) and (d) of subs(3) of s327 (even though it appeared to be founded only on certain of the plaintiff's documents not being had by Dr Lennan). The Registrar came to the view that only ground (d) had been made out. The Registrar then referred the matter to an Appeal Panel. This decision has not been challenged by the plaintiff. 5 The Appeal Panel did not conduct a further examination of the plaintiff. However, it did have before it all of the plaintiff's documents. Its Statement of Reasons expressed that these had been taken into account. It then confirmed what had been done by Dr Lennan. 6 Subsequent to the decision of the Appeal Panel, Mr Knaggs requested the Commission refer the application back for assessment by an Approved Medical Specialist (AMS). This was done, at least, by letter dated 8 September 2006. It is common ground that the Commission has not made any such referral. 7 The plaintiff filed a Summons in this Court. It sought, inter alia, the following :- "1. Declaration that the Second Defendant has power to refer the plaintiff's case again for further medical assessment by an approved medical specialist under s329 Workplace Injury Management and Workers Compensation Act 1998 notwithstanding the plaintiff's appeal against his previous assessment; 2. In the alternative to 1, Order that the plaintiff's matter for assessment be referred again for assessment under that section notwithstanding the plaintiff's appeal against his previous assessment;" 8 The appeal was heard on 5 April 2007. Mr Knaggs appeared for the plaintiff. Ms Allars, of counsel, appeared for the first defendant. 9 The second defendant is erroneously described as "Workers Compensation of New South Wales" (the Commission). No application was made to correct the erroneous description of the Commission. The Commission played a submitting role in the hearing. 10 The Appeal Panel was not a party to the proceedings. The Registrar of the Commission was also not a party to the proceedings. 11 At an initial stage during the hearing, the plaintiff was given leave to amend Prayer 2 in the Summons (by the deletion of the words "In the alternative to 1"). 12 As the hearing progressed, the nature of the plaintiff's application became clearer. Mr Knaggs identified s329(1)(b) as being the source for the relief sought in Prayers 1& 2 of the Summons. He did not appear to be looking to s69 of the Supreme Court Act 1970 (NSW) 13 Section 329(1) is as follows:- "329 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission." 14 Section 329 forms part of Part 7 ("Medical assessment") of the Act. It appears sequentially after sections 327 ("Appeal against medical assessment") and 328 ("Procedure on appeal"). 15 Section 327(6) is as follows:- "(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." 16 Initially, it appeared that Mr Knaggs had intended to challenge the decision of the Appeal Panel on the basis that it improperly had regard to the documents. This contention appeared to have in mind the provisions of s328(3) of the Act. 17 He came to accept that such a course was not open to him as he had not made any application to have the decision set aside (indeed, he later came to submit that it was a correct decision). The same position applied in respect of the decision of the Registrar in allowing the appeal to proceed. 18 It emerged that the thrust of the proceedings was to have a referral back to an AMS so that there could be an examination of the plaintiff in a context where he or she had the plaintiff's documents. Whilst it was initially sought to have this effected by way either of action on the part of the Commission or of this Court, it now seemed to be accepted that the Commission was not disposed to act. 19 The rationale behind this approach was said to be that this would afford natural justice to the plaintiff (s329 being seen as an avenue which would enable that justice to be done). 20 A threshold question is whether or not this Court has jurisdiction to make an order pursuant to s 329(1). The Court has been told that "court" is undefined in the Act. Dar v State Transit Authority of NSW [2007] NSWSC 260 is the only case that is known to have dealt with this question. Although an order was made under s329(1)(b), it appears that no examination of the question of jurisdiction took place. Bell J proceeded on an assumption of jurisdiction. 21 There are other provisions in the Act (including s312) which may be seen as restricting "court" to any court of competent jurisdiction. It may also be that what was had in mind by the legislature was a court in which proceedings for work injury damages had been commenced. I need take these considerations no further. This case can be disposed of without deciding the threshold question. 22 It seems to me that these proceedings are misconceived. Assuming that this Court did have jurisdiction, no basis has been demonstrated for the granting of the relief sought. 23 The Registrar was only empowered to refer the Medical Assessment for further assessment under s329 where either a ground referred to in (a) or (b) of subs(3) is made out and, where this is done, as an alternative to an appeal against the assessment. In this case, no such ground was made out. Accordingly, the Registrar was not empowered in the circumstances to refer the matter again for assessment. 24 The unchallenged decision of the Appeal Panel confirmed the Certificate given by Dr Lennan. Under the provisions of the Act, the Assessment is conclusively presumed to be correct (s326). In the circumstances, a further referral to an AMS would have no utility. At best, a Certificate issued by an AMS could be expected to cause confusion. 25 I am not satisfied that there has been any denial of natural justice. The plaintiff has been examined by Dr Lennan. His Assessment has been confirmed by the Panel and it had the advantage of looking at all of the plaintiff's documents. 26 The intended function of s329 is far from clear. It is a question that was not the subject of full argument. It may be that it affords a remedy which should have been pursued with the Commission by the plaintiff in lieu of the application for leave to appeal. 27 Also, it may be that s329 was intended to provide a remedy in cases where no grounds of appeal can be made out but the dictates of justice require a further referral for assessment. 28 Before concluding this judgment, perhaps I should make one further observation. There may be debate as to the correctness of the decision of the Registrar to allow the appeal to proceed. It had to appear to the Registrar that the Medical Assessment Certificate contained a demonstrable error. Whether or not such a ground may be made out where the AMS is not given documents may depend on the particular circumstances of each case. In the present case, all that the Court knows is that Dr Lennan was not given certain of the plaintiff's documents.