Supreme Court New South Wales Medium Neutral Citation: Sydney Night Patrol & Inc Co v Absolom [2015] NSWSC 60 Hearing dates: 5 February 2015 Date of orders: 12 February 2015 Decision date: 12 February 2015 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: The Court declares that: (1) The decision of the Medical Appeal Panel in matter number M1-000668/13 made on 28 March 2014 is vitiated by error of law. The Court makes an order (2) In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel in matter number M1-000668/13 and quashing that decision. The Court furthers orders that: (3) Matter number M1-000668/13 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law. (4) The first defendant is to pay the plaintiff's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – workers compensation - judicial review – error of law – procedural fairness -whether appeal panel failed to consider the plaintiff's oral submissions Legislation Cited: Workplace Injury Management and Workers Compensation Act 1988 (NSW) Cases Cited: Ah-Dar v State Transit Authority of New South Wales; Registrar of the Workers Compensation Commission [2007] NSWSC 260 Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Workers Compensation Nominal Insurer v Bui [2014] NSWSC 832 Category: Principal judgment Parties: Sydney Night Patrol & Inc Co (Plaintiff) Beryl Ruth Absolom (First Defendant) An Appeal Panel of the Workers' Compensation Commission (Second Defendant) The Registrar of the Workers' Compensation Commission (Third Defendant) Representation: Counsel: C Jackson (Plaintiff) R Harrington (First Defendant) Solicitors: Leigh Virtue & Associates (Plaintiff) Stacks The Law Firm (First Defendant) Crown Solicitor's Office (Submitting Appearance Second & Third Defendants) File Number(s): 2014/126294 Publication restriction: Nil Judgment 1. HER HONOUR: This is an application for judicial review and involves whether the Appeal Panel failed to consider the plaintiff's oral submissions. 2. By amended summons filed 10 October 2014, the plaintiff seeks a judicial review of the decision of a Medical Appeal Panel due to its failure to convene an open oral assessment hearing. The plaintiff seeks an order in the nature of certiorari quashing the decision of the Medical Appeal Panel made on 28 March 2014, and an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision. The plaintiff also seeks an order in the nature of mandamus, remitting the application to the third defendant for reallocation of the matter to an Appeal Panel, for determination according to law. 3. The plaintiff is Sydney Night Patrol & Inc Co ("Sydney Night Patrol"). The first defendant is Beryl Ruth Absolom ("Ms Absolom"). The second defendant is an Appeal Panel of the Workers' Compensation Commission constituted pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) ("the WIMWC Act") ("the Appeal Panel"). The third defendant is the Registrar of the Workers Compensation Commission ("the Registrar"). The second and third defendants have filed submitting appearances. 4. Sydney Night Patrol relied on the affidavit of Paul H Macken sworn 16 June 2014. Ms Absolom relied on the affidavit of her solicitor Grant Edward Avery affirmed 11 November 2014. Factual and procedural background 1. On 15 February 1994, Ms Absolom underwent a L5/S1 disc excision performed by Dr Stevenson at the Queen Elizabeth hospital, Adelaide for sciatica. The following year, she had a relapse of pain and was readmitted to Clare hospital where it was noted that her ankle reflex was still depressed. She was retrained and managed to obtain employment as a security guard with Sydney Night Patrol. 2. On 12 December 2003, Ms Absolom was working as a security guard with Sydney Night Patrol at a venue in Newcastle where she had to stand for a prolonged period. There was no seating. Over the ensuing two days, she was unable to sit down and developed increasing lower back pain with right sciatica. She consulted her general practitioner, Dr Quedding, at Singleton. 3. On 16 March 2004, a CT scan was performed which showed degeneration at the L5/S1 level with calcification surrounding the right S1 nerve root foramen. 4. On 8 April 2004, an MRI was performed. It found a "post-discectomy collapse of the disc now impinging the right S1 nerve root." 5. At the end of 2004, Ms Absolom was referred to Dr Ghabrial. She was then working part time but finding it very difficult. Her situation had not improved when he saw her again in 2007. 6. In March 2010, Dr Ghabrial performed a L5 decompression laminectomy and one level fusion. Ms Absolom has not returned to full time work since. 7. On 12 December 2012, Ms Absolom filed an Application to Resolve a Dispute in relation to the injury she suffered to her back in 2003. 8. The Registrar referred the medical dispute to the Approved Medical Specialist ("the AMS"), Dr David O'Keefe, for assessment. The decision of the AMS 1. The AMS noted that there had been a previous s 66(a) settlement or award of 11 per cent whole person impairment ("WPI"). In making that assessment, the AMS made a deduction for the proportion of the impairment that he considered was due to previous L5/S1 disc excision in 1994. The AMS assessed the contribution at 4/5ths. He did not believe there was any specific injury on 12 December 2003, her back became sore after standing for a prolonged period and without the previous surgery she would not have developed the symptoms and required a spinal fusion. 2. On 11 November 2013, the AMS issued a Medical Assessment Certificate ("MAC"). The AMS assessed Ms Absolom's WPI for the injury to her lower back at 5 per cent. The appeal 1. On 9 December 2013, Ms Absolom lodged an application to appeal the decision of the AMS. On 28 March 2014, the Appeal Panel revoked the MAC of the AMS and issued a new MAC assessing Ms Absolom's WPI at 14 per cent. 2. Ms Absolom's application to appeal was based on two grounds, namely, on the grounds that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and also on the basis that the MAC of the AMS contained a demonstrable error (s 327(3)(d)). On 18 December 2013, Sydney Night Patrol lodged a notice of opposition to the appeal. 3. It is necessary to briefly refer to the contents of the notice of opposition. 4. Part 2 of the notice of opposition is headed "PART 2 – Supporting Documentation". 5. Question 2.2 of that notice reads: "2.2 Are submissions attached addressing the submissions made by the Appellant?" … If no, the appeal may be determined solely on the basis of the submissions contained in the application." 1. In answer to 2.2 Sydney Night Patrol answered "Yes". 2. Question 2.3 reads: "2.3 Can the appeal be decided by an Appeal Panel solely on the basis of the written application and any written notice of opposition lodged? … If no, attach reasons why the appeal should not be determined by an Appeal Panel on the papers and why a hearing is necessary." 1. In answer to 2.3 Sydney Night Patrol answered "No". 2. Sydney Night Patrol did not attach reasons as to why the appeal should not be determined by an Appeal Panel on the papers and why a hearing was necessary. Its written submissions at paragraph [2] stated: "The Respondent says that the Submissions filed should be sufficient for the Registrar to refuse to allow the Appeal to proceed to a Medical Appeal Panel. In the event that the matter is allowed to proceed to a Medical Appeal Panel, it is a matter which, in the submission of the Respondent, should be dealt with by the provision of an oral hearing." 1. On 14 January 2014, the matter came before the Registrar who stated that "on the face of the application and submissions made, I am satisfied to the standard of gatekeeper that a ground of appeal as specified in s 327(3)(d) is made out in the AMS's assessment of the lumbar spine." (at [5]). The matter was referred to the Appeal Panel. The Appeal Panel Decision 1. The Appeal Panel was comprised of Arbitrator P H Molony and Approved Medical Specialists Drs R Pillemer and J Scougall. The Appeal Panel in its written reasons dated 28 March 2014, under the heading "Preliminary Review" at [8] - [9] stated: "8. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. 9. At the preliminary review, the Panel determined that, it was not necessary for the worker to undergo a further medical examination. Mrs Absolom had not requested a re-examination. There was sufficient material before the Panel upon which to review the Medical Assessment Certificate, without the need for a further clinical examination." 1. The Appeal Panel at [21] - [22] continued: "The Parties' Medical Evidence 21. The medical evidence relied on by the parties is sufficiently referred to in the detailed discussion of them in Medical Assessment Certificate in in the Panel's findings and reasons below. DECISION MADE AFTER PRELIMINARY REVIEW WITHOUT HOLDING AN ASSESSMENT HEARING 22. Neither party sought an Assessment Hearing. For the reasons outlined above we proceeded to determine the review on the papers." 1. The first sentence in [22] is incorrect. Sydney Night Patrol did request an oral hearing. I accept that in its submissions, aside from reiterating that there should be an oral hearing before the Appeal Panel, Sydney Night Patrol did not provide any reasons in support of this request. Judicial review 1. Sydney Night Patrol seeks a judicial review of the decision on two grounds, first, that the Appeal Panel failed to take into account a matter which it was required to take into account, when it determined not to hold a hearing on the erroneous understanding that both parties consented to the matter being determined "on the papers" (AP [22]); or secondly, the mistake regarding Sydney Night Patrol's request for a hearing gave rise to a failure to accord it procedural fairness. I will deal with each ground in turn. (1) Failure to take into account a matter which it was required to take into account 1. Sydney Night Patrol contends that the Appeal Panel failed to take into account a matter which it was required to take into account when it determined not to hold a hearing on the erroneous understanding that both parties consented to the matter being determined "on the papers" (AP [22]). 2. The parties referred to two authorities, Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 and Ah-Dar v State Transit Authority of New South Wales; Registrar of the Workers Compensation Commission [2007] NSWSC 260 ("Ah Dar"). I shall briefly refer to both cases. Lakovska 1. In Lakovska, one of the grounds of judicial review was whether the Appeal Panel had erred in failing to take into account the request of the employer for an oral hearing, in deciding not to grant an oral hearing. In the Appeal Panel's reasons, it expressly noted the application for an oral hearing and the reasons articulated by the employer in favour of its application. 2. In referring to this ground of judicial review, the Court of Appeal per Basten JA (with whom Barrett and Gleeson JJA agreed) at [17] stated: "[17] A somewhat different argument was identified in written submissions, namely that, in applying cl 46 of the WorkCover Guidelines, the Appeal Panel merely determined that the matter was one which was 'capable of determination on the papers' While, arguably, the contrary view might have required an oral hearing, the employer submitted that there were other factors which might warrant an oral hearing even in circumstances where the matter was capable of being determined on the papers. However, this did not provide a better basis for review. If there were other matters, they should have been raised by the employer in its application for an oral hearing: those matters which were raised were considered and there was nothing raised which, as a matter of law, transmogrified the discretion of the Appeal Panel into a duty to hold a hearing." 1. Basten JA stated at [48] to [53] refers to the Guidelines and the role of the Appeal Panel by saying: "[48] …It is true, as Inghams submitted, that a medical Appeal Panel, in deciding whether to convene an oral hearing, must take into account a party's expressed desire that there should be such a hearing: Ah-Dar v State Transit Authority of New South Wales [2007] NSWSC 260; 69 NSWLR 468 at [68]. In the present case, there was such a request and the medical Appeal Panel, in its reasons, not only acknowledged that the request had been made but also stated that, for reasons it briefly stated, it saw no benefit in holding an assessment hearing to hear further submissions from the parties. [49] That decision was clearly open to the medical Appeal Panel, given the provisions of the WIM Act and the Guidelines discussed in Galluzzo v Little [2013] NSWCA 116. It was pointed out in that case that the question whether an oral hearing should be undertaken by a medical Appeal Panel is to be answered by reference to s 328(2) of the WIM Act (which says that the Guidelines may provide for the procedure on an appeal), s 331 (which says that appeals under Part 7 are subject to relevant provisions of the WorkCover Guidelines relating to certain matters, including the procedure on appeals) and relevant provisions of the Guidelines, being paragraphs 45 and 46. Paragraph 45 reads, in part, as follows: 'The appeal panel may adopt any of the following procedures in accordance with the needs of the individual case: preliminary review (in all matters), 'on the papers' review, further medical examination by an approved medical specialist on the appeal panel, assessment hearing.' [50] The balance of paragraph 45 deals with the case where a further medical examination is required. Paragraph 46 then provides: 'Where the appeal panel determines a matter is not capable of determination on the papers either with or without a further medical examination, an assessment hearing will be arranged.' [51] Pertinent features of the applicable provisions are thus that it is the medical Appeal Panel that decides which of the several procedures described in the Guidelines is to be adopted; that the medical Appeal Panel's decision is to be informed by its assessment of the needs of the particular case; that a hearing will be arranged if the medical Appeal Panel determines that the matter is not capable of determination on the papers; and that the reference to an appeal being "heard" does not imply that there must invariably be oral submissions and argument. [52] Having regard, in particular, to the third of these matters, the general expectation is that there will be a determination on the papers. This is reinforced by the prescribed form by means of which an appeal is initiated. The form says, in relation to a request to present oral submissions: If yes, attach reasons why the appeal should not be determined by the Appeal Panel on the papers, and why the presentation of oral submissions is necessary. Failure to attach submissions may result in the application being rejected. [53] Given the strong emphasis in the applicable provisions on determination without oral hearing and the fact that Inghams pointed to no special reason why there should have been such a hearing in this case, there is no basis on which it can be said that the medical Appeal Panel erred in law by declining to convene such a hearing." Ah-Dar 1. In Ah-Dar, an employer appealed against the AMS's assessment of an employee's WPI resulting from a work injury. The Registrar referred the appeal to an Appeal Panel, which upheld the appeal and made a lower assessment. The employee sought judicial review of both the Registrar's referral decision and the Appeal Panel's determination. 2. In Ah-Dar, Bell J at [63] to [69] stated: "[63] Ground 4 contends that the Appeal Panel failed to afford the plaintiff procedural fairness because it proceeded to a determination of the matter "on the papers" without hearing further from the parties either by way of written submissions or by the holding of an assessment hearing. [64] The defendant acknowledged that the Appeal Panel proceeded upon a factually wrong basis, namely, that the plaintiff did not object to the determination of the matter without an assessment hearing and that the plaintiff supported an assessment on the papers. In the defendant's submission this factual error did not amount to a denial of procedural fairness: Appeals heard by Appeal Panels are subject to the procedures provided in the Guidelines (s 328(2)), including cl 43 that is set out above. At the preliminary hearing the Appeal Panel may decide that an appeal will be determined without a further medical examination and without an assessment hearing. [65] In the defendant's submission, the plaintiff had the opportunity to put submissions before the Appeal Panel. He did so. It was open to the Appeal Panel to conclude that the matter would be dealt with on the papers notwithstanding the plaintiff's wishes in this respect. In the defendant's submission, the plaintiff was not entitled to assume that the Appeal Panel would accede to any request that there be an assessment hearing, and any matters that he wished the Appeal Panel to take into account should have been canvassed in the submissions. The Appeal Panel's decision to decide the appeal on the papers was said not to have involved any denial of procedural fairness. [66] … Ground 4 was in these explained as embracing the Appeal Panel's failure to take into account a relevant consideration, namely, that the plaintiff desired to have an assessment hearing and to make oral submissions to it. [67] It may be accepted that it was open to the Appeal Panel to determine that the appeal would proceed without an assessment hearing. However, there is force to the complaint that the Appeal Panel's discretion to decide whether to hold an assessment hearing was not properly exercised. It seems to me that it was not exercised at all because the Appeal Panel, wrongly, understood that each of the parties to this medical dispute wanted the appeal to be determined on the papers. [68] The Appeal Panel's failure to take into account the plaintiff's wish to have an assessment hearing and make oral submissions would only justify setting its determination aside if it was bound to take this consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 Mason J at 39. In determining whether the Appeal Panel was bound to take this consideration into account it is necessary to have regard to the functions of the appeal panel under the Act. The appeal panel exercises a function that is judicial in nature. Its determination has potentially significant consequences for the parties. An assessment hearing offers the injured worker an opportunity to be legally represented and to have oral submissions advanced on his or her behalf. A party may be permitted to cross-examine a witness at an assessment hearing. The proceedings are recorded. An assessment hearing may offer important procedural protections to a party to a medical dispute. [69] In this case the Appeal Panel was being invited by the defendant to find the degree of the plaintiff's impairment to be less than that assessed by Dr Meakin who had examined him by reference to material, which included surveillance film at a review conducted "on the papers". In my opinion the Appeal Panel was bound to take into account the plaintiff's wish that there be an assessment hearing and his desire to make oral submissions at it. The failure to take this consideration into account is an error of the kind described in Craig at [29]." 1. Counsel for Sydney Night Patrol submitted that if a party affected by a decision indicates that they want to be heard orally then that has to be taken into account by the Appeal Panel and the Appeal Panel failed to take into account its request to make oral submissions. 2. Counsel for Ms Absolom referred to Lakovska and submitted that under the Guidelines it is the Appeal Panel that has an obligation to make an assessment of the documents and determine whether there is a need to order a hearing; it is not for the parties to make that determination. While he accepted that when the Appeal Panel stated, "neither party sought an assessment hearing" it made a misstatement, he submitted that the Appeal Panel had actually turned its mind to whether or not an oral hearing should take place. This is demonstrated because the Appeal Panel examined the documentary evidence, namely, the application and submissions, the original reply and attachments, the response and its attachments; and that they reviewed the AMS's reasons. After doing so, it established that the ground of appeal involved solely a medical matter. 3. The factual situation in these proceeding differs from Lakovska. It is almost identical to that in Ah-Dar. Sydney Night Patrol, in its notice of opposition, indicated that it did not agree that the appeal should be determined on the papers it also indicated its desire to make oral submissions at a hearing. Whether or not to conduct a hearing where a party can make oral submissions is a mandatory consideration and one that that the Appeal Panel was bound to take into account. It did not. The failure to take into consideration the request of a party to make oral submissions at a hearing constitutes a jurisdictional error. 4. As McCallum J observed in Workers Compensation Nominal Insurer v Bui [2014] NSWSC 832 at [6], the results of such an assessment, be it by the AMS or the Appeal Panel, are important to both parties because such an assessment is conclusively presumed to be correct in any proceedings before a court or the Workers Compensation Commission as to the degree of permanent impairment. 5. As I have already decided that there is jurisdictional error, it is unnecessary to determine whether there has been a failure to afford procedural fairness. Discretion to quash decision 1. As to whether or not I should not exercise my discretion to quash the decision, counsel for Ms Absolom gave three reasons why I should not. They are first, that the amount in dispute is modest (about $4,500), second, the fact that Sydney Night Patrol should have outlined what oral submissions it wished to make to the Appeal Panel and it did not do so and finally, that no different result could occur should the decision be remitted. 2. Counsel for Sydney Night Patrol responded by referring to what was said in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [55] where Gaudron and Gummow JJ stated that "the discretion with respect to [such] remedies … is not to be exercised lightly against the grant of a final remedy, particularly where … there is no avenue of appeal …" Counsel for Sydney Night Patrol submitted that the sum of about $4,500 reflects the entirety of the assessment. 3. In order to exercise my discretion to not quash the Appeal Decision I need to be satisfied that if the matter is remitted a different result could not be produced: see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. I am not satisfied that a different result could not be produced as I cannot be satisfied that the oral submissions would not make any difference. While I agree that the amount is modest it does represent the full amount of Ms Absolom's assessment. 4. For these reasons, it is my view that I should exercise my discretion to quash the decision of the Appeal Panel. I do so and remit the decision to the Workers Compensation Commission for determination according to law. 5. I should add that had the Appeal Panel considered the request for an assessment hearing and declined to grant it on the basis that no reasons had been proffered by Sydney Night Patrol, the result would have been different. 6. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed. The Court declares that: (1) The decision of the Medical Appeal Panel in matter number M1-000668/13 made on 28 March 2014 is vitiated by error of law. The Court makes an order (2) In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel in matter number M1-000668/13 and quashing that decision. The Court furthers orders that: (3) Matter number M1-000668/13 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law. (4) The first defendant is to pay the plaintiff's 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. Decision last updated: 13 February 2015