New South Wales Supreme Court CITATION : Roberts v The Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWSC 612 HEARING DATE(S) : 14/06/2007 JUDGMENT DATE : 19 June 2007 JUDGMENT OF : Associate Justice Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. CATCHWORDS : Judicial review - Appeal Panel - jurisdiction - alleged wrong issue addressed by it - discretionary remedy LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management & Workers Compensation Act 1998 (NSW) CASES CITED : Cornett v Plateau View Aged Care Facility & Ors [2006] NSWSC 244 Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608 Adrian Roberts (Pl) PARTIES : The Registrar of the Workers Compensation Commission of NSW (1st Def) Fine Meats Pty Limited (2nd Def) Ross Bell, Dr Greg McGroder and Dr Stephen Potter being the medical panel appointed by the First Defendant (3rd Def) FILE NUMBER(S) : SC 30094/06 COUNSEL : Mr J. W. Dodd (Pl) Mr G. J. Parker (2nd Def) Capital Lawyers (Pl) SOLICITORS : Crown Solicitor (1st & 3rd Def's) Turkslegal (2nd Def) LOWER COURT JURISDICTION : Workers Compensation Commission LOWER COURT FILE NUMBER(S) : WCC 4851-2005 LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel LOWER COURT DATE OF DECISION : 03/05/2006 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ASSOCIATE JUSTICE MALPASS 19 JUNE 2007 30094/06 Adrian Roberts v The Registrar of the Workers Compensation Commission of New South Wales & Ors JUDGMENT 1 HIS HONOUR: The plaintiff claims that on 2 April 2002, he sustained an injury to his left eye in the course of his employment with the second defendant. 2 On 24 March 2005, he filed an application to resolve a dispute in the Workers Compensation Commission (the Commission). The application was expressed to be for a "threshold dispute for work injury damages or commutation". That application was referred for assessment to Dr Pittar, an Approved Medical Specialist (the AMS). 3 The AMS had before him certain reports. There was material from Dr Petsoglou (who is not an Approved Medical Specialist). It was procured by the plaintiff. There was also material from Dr Duke. It was relied on by the second defendant. There was other material, which need not be mentioned for present purposes. The AMS also conducted his own examination. 4 The material from Dr Petsoglou expressed the view that the plaintiff had a degree of permanent impairment of 15%. The material from Dr Duke presented a figure of 9%, however that figure was expressed to be subject to qualifications. 5 It appears that the complaints made by the plaintiff depended on subjective symptoms and could not be verified by objective testing. The qualifications expressed by Dr Duke included those of causation and of a hysterical response or feigning. 6 The plaintiff was assessed and the AMS issued his Medical Certificate. The whole person impairment of the plaintiff was assessed at 0%. In substance, the AMS did not accept the plaintiff's subjective complaints. 7 The plaintiff made application to appeal against the decision of the AMS. The grounds of the appeal were that the Assessment was made on the basis of incorrect criteria and that the Certificate contained a demonstrable error. 8 The appeal was allowed to proceed and it was referred to an Appeal Panel for review. The Registrar was satisfied that both grounds had been made out. 9 The Appeal Panel had before it the material that was in evidence before the AMS, together with other material (including a Reply). The Reply was not before the AMS. It contained, inter alia, the following:- 2. "That the applicant does not suffer any permanent loss or impairment as the result of any injury as alleged, or in the alternative, any loss is less than alleged." This material was placed before the Appeal Panel by consent. Neither of the medical specialists on the Panel were ophthalmologists. The Panel did not conduct a medical examination of the plaintiff. 10 The Appeal Panel issued a Medical Assessment Certificate. It also assessed the whole person impairment at 0%. A new Certificate was issued because material had been omitted from the original Certificate. 11 On 25 July 2006, the plaintiff filed a Summons in this Court. The process seeks relief by way of judicial review pursuant to s69 of the Supreme Court Act 1970 (NSW) in respect of the decision of the Appeal Panel. 12 The proceedings were heard on 14 June 2007. Mr Dodd appeared for the plaintiff. Mr Parker appeared for the second defendant. The parties relied on written submissions, which were supplemented by oral argument. 13 Mr Parker made a formal challenge to jurisdiction. It was done so as to preserve the position of his client. He freely conceded that there was strong and compelling authority that supported the view that the Court did have jurisdiction. 14 The substance of the submission was that the Appeal Panel was not a Court or Tribunal to whom a writ in the nature of certiorari would lie. It was also submitted that the decision making body was not the Appeal Panel but the Workers Compensation Commission (the Commission) and that, by reason of s350 of the Workplace Injury Management & Workers Compensation Act 1998 (NSW) (the Act), decisions of the Commission were not subject to appeal or review. 15 The submission can be put aside. It does not need to be dealt with in this case. I shall proceed on the basis of assumption of jurisdiction. 16 There was also debate about the status of a Certificate and whether or not a decision had been made by the Panel. I pass on as it is unnecessary to deal with these questions. 17 The argument advanced on behalf of the plaintiff is a short point. It is said that the Appeal Panel addressed the wrong question (the issue was said to be the degree of permanent impairment and did not encompass the question of whether or not there was any impairment at all). The plaintiff relied upon the decision of Cornett v Plateau View Aged Care Facility & Ors [2006] NSWSC 244. 18 The foundation for the argument is what was said to be the issue before the AMS. The reply was not before the AMS and could not have any relevance to what was in issue before him. This left the issue to be discerned from the material from Drs Petsoglou and Duke (it was said that the area of dispute fell within the range between 15% and 9%). The Certificate throws no further light on the matter (it describes the matters referred for assessment as being "Threshold dispute - left eye injury"). 19 I do not accept the plaintiff's argument. It seems to me that it does not have regard to the qualifications expressed by Dr Duke. I am not satisfied that an issue of no permanent impairment was not before the AMS. 20 This finding operates to dispose of the plaintiff's claim for relief in this Court. However, because of what was argued, I shall make some further brief observations. 21 The matter that was argued in this Court was not raised in the grounds of appeal. What was before the Appeal Panel was a review of the issues before the AMS as restricted by the grounds of appeal (see Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608). In the circumstances, it was untenable to argue that the Appeal Panel addressed the wrong issue. 22 The relief that may be granted pursuant to s69 is discretionary in nature. One matter that concerned me was the question of the utility of any relief granted to the plaintiff in this case. There was room for the view that the plaintiff had but slim prospects of successfully obtaining an assessment of permanent impairment to a degree of at least 15%. Because of what has been earlier said, I do not need to dwell on this matter. In my view, it was certainly one which presented an obstacle to the granting of relief in this case. 23 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. ********** 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.