Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Ali [2018] NSWSC 1783 Hearing dates: 1 November 2018 Date of orders: 21 November 2018 Decision date: 21 November 2018 Jurisdiction: Common Law Before: Harrison J Decision: Summons dismissed with costs Catchwords: ADMINISTRATIVE LAW – judicial review – workers compensation – decision of the delegate of the Registrar – meaning of "additional relevant information" in s 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 – where applicant seeks to rely on new surveillance report – where report neither additional nor relevant – summons dismissed Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 325, 327, 328 Cases Cited: Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 Campbelltown City Council v Vegan [2004] NSWSC 1129 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC 1156 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Saeb Ali (First Defendant) The delegate of the Registrar of the Workers Compensation Commission (Second Defendant) Representation: Counsel: D Stanton (Plaintiff) L D Robison (First Defendant) Solicitors: Rankin Ellison Lawyers (Plaintiff) Lough & Wells Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2018/132712 Publication restriction: Nil Judgment 1. HIS HONOUR: By its amended summons filed on 14 June 2018, the plaintiff seeks an order that the decision of the delegate of the Registrar of the Workers Compensation Commission dated 1 February 2018 be quashed pursuant to s 69 of the Supreme Court Act 1970 because it involved jurisdictional error and an order that the delegate carry out his function in accordance with ss 327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 or otherwise according to law. 2. These prayers for relief arise in the circumstances that follow. Background 1. Mr Ali was employed by the plaintiff as a Senior District Officer. On 21 March 2001, he sustained a psychological injury as a result of bullying and harassment in the workplace. A dispute arose between Mr Ali and the plaintiff regarding his medical condition. Pursuant to s 319 of the Act, Mr Ali applied to the Workers Compensation Commission on 22 November 2017 to refer the medical dispute for assessment by an Approved Medical Specialist. In the application, he sought an assessment to determine whether the degree of whole person impairment from which he suffered as a result of his injury was greater than 20 percent. 2. As part of his application, Mr Ali included medical evidence from his treating psychiatrist, Dr Anthony Durrell. Dr Durrell was of the opinion that Mr Ali suffered from a major depressive disorder and proceeded to make an assessment of whole person impairment by reason of that disorder of 23 percent. 3. The plaintiff filed a response to the application dated 5 December 2017. It included surveillance reports from Brian F Davis & Associates dated 19 August 2015, 13 November 2015 and 31 January 2016 and a surveillance report from G4S Compliance and Investigations dated 11 June 2014. 4. On 21 December 2017, Dr Wayne Mason, a consulting psychiatrist and the Approved Medical Specialist, assessed Mr Ali's whole person impairment at 22 percent and issued a certificate pursuant to s 325 of the Act. Such a certificate is conclusive regarding the degree of permanent impairment as a result of an injury. Pursuant to s 327 of the Act, a limited right of appeal is available to a party aggrieved by a decision of the Approved Medical Specialist. On 18 January 2018, the plaintiff made an application to the Workers Compensation Commission to appeal against the decision of the Approved Medical Specialist pursuant to s 327. That provision is relevantly as follows: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable [sic] under this section and only on the grounds for appeal under this section. (2) A matter is appealable [sic] under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (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 (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (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 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. (5) …" 1. The plaintiff originally based its appeal upon the grounds that: 1. Additional relevant information was available. 2. The medical assessment was made on the basis of incorrect criteria. 3. The medical assessment contained a demonstrable error. 1. In relation to the first appeal ground relied upon, the plaintiff wished to rely upon an investigation report (and associated surveillance footage) of Brian F Davis & Associates dated 16 January 2018. This was the "additional relevant information" it wished to place before an appeal panel. The surveillance related to Mr Ali and was undertaken over a five day period between 8 January 2018 and 12 January 2018. 2. Mr Ali opposed the appeal for reasons stated in his notice of opposition to appeal against the decision of an Approved Medical Specialist filed with the Workers Compensation Commission and dated 29 January 2018. 3. Section 327(4) of the Act provides that an appeal application is made to the second defendant who is required to determine whether at least one of the grounds specified under s 327(3) of the Act is made out on a prima facie basis. 4. On 1 February 2018, the second defendant issued a determination as follows: "As I am not satisfied that at least one of the grounds of appeal as specified in s 327(3) (of the 1998 Act) has been made out, the appeal is not to proceed." 1. On the issue of whether the January 2018 report was additional relevant information, the second defendant said: "In my opinion, the nature of the allegations made against the respondent in the new material sought to be introduced by the appellant and those contained within the earlier surveillance reports which were before the AMS are essentially the same". 1. In forming the opinion that the material was not additional relevant information, the delegate of the Registrar noted that an earlier investigation report of Brian F Davis & Associates dated 19 August 2015 included the following narrative: "Work-related activities were observed during the surveillance period where the claimant on a daily basis attended a business named 'Top Tiles & Timber Flooring' where he remained on site for long periods on each occasion." 1. The second defendant also noted similar observations made in the reports of Brian F Davis & Associates dated 13 November 2015 and 31 January 2016 and that the report of G4S Compliance and Investigations dated 11 June 2014 showed Mr Ali at Top Tiles during a fit out of the premises. 2. Regarding the January 2018 report, the second defendant said: "The surveillance report which the appellant seeks to introduce as new evidence again deals with the respondent's attendance at the premises of Top Tiles & Timber Flooring and notes the claimant was observed undertaking 'work related activities'. Each of the reports by Brian F Davis & Associates notes the respondent to have remained at those premises over a long period of time." Relevant law 1. In Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284, Basten JA said this: "[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." 1. In this context, the Registrar has been described as performing a gatekeeper role in determining whether an appeal on its face displays one of the grounds of appeal referred to in s 327(3) of the Act: see, for example, Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1260; Campbelltown City Council v Vegan [2004] NSWSC 1129. Basten JA referred to this role in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 when he said: "[67] First, the natural role for a 'gatekeeper', who is not required to determine the outcome of an application, is to avoid wasted resources, including the time of medical assessors and the concomitant expense which would result from the need to consider appeals which appear to be frivolous or without substance." Plaintiff's submissions 1. The plaintiff ultimately relied only on a ground of appeal based upon the alleged availability of additional relevant information. The delegate of the Registrar did not determine whether the January 2018 report was not available to or could not reasonably have been obtained by the plaintiff before the medical assessment was appealed against. The second defendant simply referred to "the mere temporal unavailability of the report at the time of issuing the MAC". 2. The report and the surveillance observation clearly post-dated the examination by the Approved Medical Specialist. The plaintiff contends that at a prima facie level, the January 2018 report was not available to the plaintiff before the Approved Medical Specialist examination and could not reasonably have been obtained by the plaintiff before the medical assessment was appealed against. The second defendant's error of law is therefore said to consist in his characterising the January 2018 report as "essentially the same" as the evidence in the earlier investigation reports. The second defendant referred to "work-related activities" as described in the investigation report of Brian F Davis & Associates dated 19 August 2015. The second defendant said: "Identical observations are contained at page 3 of the report of Brian F Davis & Associates dated 13 November 2015 and 31 January 2016. The report of G4S compliance and investigations dated 11 June 2014 does not purport to show the respondent working, however, it does show him in attendance at the address of Top Tiles and Timber Flooring whilst a fit out of those premises was being undertaken." 1. The plaintiff accepts that the second defendant's classification of the reports as revealing "work-related activities" is accurate. The statement by the investigator in the report dated 19 August 2015 was in the following terms: "Work-related activities were observed during this surveillance period where the claimant on a daily basis, attended a business named 'Top Tiles and Timber Flooring' where he remained on site for long period on each occasion." 1. That statement by the investigator is a statement of opinion. The report reveals observations of Mr Ali at Top Tiles on Monday 3 August 2015 at 9.03am, Thursday 13 August 2015 at 9.03am and Monday 17 August 2015 at 9.03am. A similar statement is made by the investigator in the report dated 13 November 2015. The observations on those occasions reveal attendances at Top Tiles on Monday 2 November 2015 at 9.12am, Tuesday 3 November 2015 at 9.33am and Wednesday 11 November 2015 at 9.35am. Likewise, on 31 January 2016, a similar statement regarding the work-related activities is made by the investigator. The observations at Top Tiles are made on Friday 22 January 2016 at 9.18am, Wednesday 27 January 2016 at 9.04am, Thursday 28 January 2016 at 9.13am and Friday 29 January 2016 at 9.38am. Finally, in the January 2018 report, a similar statement is made by the investigator. Observations at Top Tiles were made on Monday 8 January 2018 at 9.50am, Tuesday 9 May 2018 at 9.31am, Wednesday 10 January 2018 (arrival before 9.15am), Thursday 11 January 2018 at 9.09am and Friday 12 January 2018 at 9.40am. 2. That summary of the investigation reports reveals that Mr Ali has consistently attended the premises on a regular basis. He has also done so at times consistent with being in attendance at the premises generally before the opening of the store at 9.30am on weekdays and 10am on Saturday. 3. The January 2018 report for the first time however revealed observations over consecutive days from Monday to Friday whereas the earlier investigation reports did not do so. The fact that Mr Ali attended the premises on consecutive days provides an inference that he is working there. That is said to be the first material difference between the January 2018 report and the earlier reports. That means, according to the plaintiff, that the January 2018 report could not be described as "material of a similar nature" or a report that was "essentially the same" as the earlier reports. 4. There was however, a far more substantial difference between the January 2018 and the early observations of Mr Ali. In a report dated 19 August 2015, the following statement appears: "At about 9.15am, a foot patrol past premises reveals the claimant is situated inside in an office area at the back of the store, it is not possible to obtain a view inside the shop due to tile display racks in front of the window area blocking the view." 1. The plaintiff maintains that such an observation is completely different to the observations made in the January 2018 report. Mr Ali's activities on Friday 12 January 2018 are described as follows: "About 9.40am, we elect to enter the shop, over the next ten minutes, video was obtained as the claimant is seen in sight, he was initially located in a small office/kitchenette area at the very back of the building, sitting at a desk with a computer, the claimant is then seen walking around inside the store, showing flooring display units. During this period of surveillance, there are customers seen arriving and departing the store at infrequent levels. At about 2.45pm, with the claimant still alone on site, and with no other staff or family members ever being in attendance, we ceased surveillance and departed the area". 1. For the first time, this description is consistent with Mr Ali undertaking work activity and being seen doing it. The description "walking around inside the store, showing flooring display units" is self-explanatory. This is activity that had not formerly been observed by the investigators and is a new observation. Such an observation is said to be sufficient to establish that the January 2018 report is additional relevant information. The fact that the phrase includes the word "relevant" means that it must be relevant to the assessment to be undertaken by the Approved Medical Specialist. "Additional relevant information" for the purposes of s 327(3)(b) is information of a medical kind or information that is directly related to the decision required to be made by the Approved Medical Specialist. 2. The task undertaken by the Approved Medical Specialist is to conduct an assessment of whole person impairment by reference to the WorkCover Guidelines. Pursuant to the Guidelines, impairment as a result of psychological impairment is assessed by reference to the PIRS rating scheme. Pursuant to that scheme, one of the matters to be assessed is employability. Another is the area of social and recreational activities. The surveillance observations revealed in the January 2018 report are said to be relevant to such assessments. 3. The other consideration regarding relevance must relate to the statement of Mr Ali's activity to the Approved Medical Specialist. Mr Ali told the Approved Medical Specialist that: "His daughter works as a social worker with the Illawarra Migrant Service and married in May of this year. She also owns a tiling business. Mr Ali told me that he does not like going out and he does not like interacting with people. I told him the documents indicate he frequently went to his daughter's tiling business. He said he did go there on two or three days per week; he sits in the back room watching animal clips on YouTube. He acknowledged he did visit his daughter's tiling shop a couple of times a week where he will sit in the back and use the computer." 1. The observations made in the January 2018 report are inconsistent with Mr Ali's statements to the Approved Medical Specialist. It is clear the Approved Medical Specialist relied upon such statements as being truthful, as he ultimately assessed on the issue of employability that Mr Ali was totally impaired. He also stated that in relation to social and recreational activities, Mr Ali's statement that he visited his daughter's tiling shop a couple of times a week where he would sit at the back and use the computer, was a matter that ought to be taken into account. 2. In concluding that the January 2018 report was "essentially the same" as the earlier surveillance reports, the second defendant relied upon the observation made by the author of the earlier reports that "work-related activities were observed". That was a statement of opinion made by an investigator. In order to determine if the January 2018 report was different to the earlier surveillance evidence, the second defendant was required to review the earlier surveillance evidence to determine whether the opinion expressed by the investigator was accurate. The second defendant did not do so. Rather, he relied upon the fact that all the earlier investigation reports revealed that Mr Ali had attended his daughter's tile shop on a number of occasions. Such attendance may or may not be consistent with work-related activities. Rather, close scrutiny of the investigation reports prior to the January 2018 report would have revealed to the second defendant that on no occasion was Mr Ali observed to be involved in any activity that would support the opinion that he was undertaking "work-related activities". Again, the second defendant's failure to consider the substance of the earlier reports compared to the January 2018 report indicates that the delegate of the Registrar has failed properly to consider the questions required of him, namely whether the January 2018 report was in substance additional relevant information and was directly related to the decision required to be made by the Approved Medical Specialist. Consideration 1. In my opinion, the plaintiff's application is misconceived and its summons should be dismissed. This is for the following reasons. 2. First, the information contained in the later surveillance reports is neither additional nor relevant as properly understood. The expression "additional relevant information" contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense. That is obviously so in the present case, in which the so-called additional relevant information consists of the investigation reports, which uncontroversially "could not reasonably have been obtained … before". 3. At [11] and [19]–[20] of his decision, the delegate of the Registrar said this: "[11] Evidence in the nature of investigative reports may fall within the category of information which is directly related to the decision required to be made by an AMS, however, in my view, the mere temporal unavailability of the report at the time of the issuing of the AMC does not of itself mean the material should be admitted. This is particularly the case in circumstances where an AMS has had material of a similar nature before them at the time they made their assessment. … [19] In my opinion, the nature of the allegations made against the Respondent in the new material sought to be introduced by the Appellant and those contained within the earlier surveillance reports which were before the AMS are essentially the same. [20] The AMS had before him no fewer than three surveillance reports which, on the face of the MAC, he took into consideration. The fact that the new material contains allegations which are essentially identical to those within the earlier reports which were considered by the AMS in making his assessment in my opinion militates against the probative value of the new material." 1. In my view the delegate of the Registrar was correct to emphasise what he referred to as "the mere temporal unavailability" of the latest investigation material as a means of drawing attention to the fact that the only difference between the earlier reports and the latest reports is the date that they were obtained. 2. Secondly, but in a related sense, the plaintiff's contentions do not accord with the approach emphasised by Hoeben J (as he then was) at [31]–[32], [34] in Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC 1156 as follows: "[31] In my opinion the words 'availability of additional relevant information' qualify the words in parentheses in s 327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s 326 as to which a MAC is conclusively taken to be correct. In other words, 'additional relevant information' for the purposes of s 327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s 327(3)(c) and (d) but they do not come within subs 327(3)(b). [32] It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not 'additional relevant information' for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar. … [34] There is another consideration which I have taken into account. If the function of the Registrar under s 327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as 'additional relevant information' for the purposes of s 327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal." 1. It is clear that his Honour was not literally limiting the material that might qualify under this provision to information "of a medical kind" so much as information relevant to the assessment of the medical issue in question. Be that as it may, in the present case the plaintiff says that the latest surveillance reports indicate or suggest that Mr Ali is in fact engaging in employment or employment related activities and is socialising and that these are matters that ought properly to inform a medical assessment in accordance with the Guidelines. However, even though the Guidelines advert to matters, among others, such as employability and social and recreational activities as an aid to assessing (relevantly for present purposes) the existence or extent of a person's psychiatric condition, and hence their degree of permanent impairment, they are not matters that could be said to exist "on the face of the application" in accordance with s 327(4) even notwithstanding the plaintiff's submissions concerning them. The plaintiff's opinion or assertion that Mr Ali is employable or is capable of engaging in social activities cannot qualify as "additional relevant information" as it is unrelated to the medical exercise in which the Approved Medical Specialist was required to engage. In my view, the same applies to the latest surveillance material which is only quantitatively different to the earlier obtained reports. 2. Thirdly, accepting for the purposes of the argument that the so-called additional information is capable of supporting the suggestion that Mr Ali's degree of permanent impairment may be potentially different, I am not satisfied that it could not reasonably have been obtained by the plaintiff before the medical assessment appealed against. The plaintiff's opinion that its most recent investigation or surveillance reports are capable of establishing that Mr Ali's activities are now different or more extensive than when the challenged assessment was made is not coextensive with the proposition that the latest surveillance reports are thereby additional relevant information. The fact that the plaintiff contends that the latest surveillance material suggests or supports a different degree of permanent impairment does not mean that it was also not available or could not reasonably have been obtained before the impugned assessment was made. 3. Fourthly, the information is not in any event additional in the sense required. According to the plaintiff's analysis, the material is additional because it arguably demonstrates that Mr Ali is now in some way significantly involved in his daughter's business, or is gainfully employed, in contradistinction to the earlier reports that were either neutral or inconclusive about that possibility. That is a false distinction in my opinion. The fact that the latest investigation reports appear (according to the plaintiff) to provide some enhanced forensic support for its assertions that Mr Ali's assessed degree of permanent impairment is questionable does not thereby convert the reports themselves into additional relevant information. "Additional relevant information" is not the same thing as the (potential) availability of an argument in support of a different forensic outcome. 4. Finally, the whole structure and wording of s 327 are concerned with appeals. With the exception of s 327(3)(a), the section proceeds upon the basis that a party aggrieved by the challenged assessment should be given a limited opportunity to establish, if it be the case, that not all relevant information available at the time was taken into account. Section 327(3)(b) limits that right of appeal to circumstances where additional relevant information is available but only if the additional information was not available to, and could not reasonably have been obtained by, the plaintiff before the medical assessment appealed against. That clearly anticipates the existence of a provable state of affairs at the time the decision is made. Section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite. That limitation suggests, as a matter of ordinary statutory construction, that an appeal with respect to an alleged reduction in the degree of permanent impairment is neither contemplated by the words of s 327 in general nor provided by s 327(3)(b) in particular. Conclusion 1. In my opinion it follows that the plaintiff's summons should be dismissed with costs. ********** 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: 21 November 2018