Cook v City of Sydney

[2015] NSWSC 1904

Supreme Court

New South Wales

Medium Neutral Citation:

Cook v City of Sydney [2015] NSWSC 1904

Hearing dates:

17 September 2015

Date of orders:

18 December 2015

Decision date:

18 December 2015

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

1. The decision of the second defendant, the Appeal Panel of the Workers Compensation Commission of NSW, revoking a medical assessment certificate issued by Dr Patrick Morris on 15 April 2014 is quashed.

 

2. The medical assessment certificate issued by the second defendant in respect of the plaintiff is quashed.

 3. The matter is remitted to the third defendant, the Registrar of the Workers Compensation Commission of NSW, to be further dealt with according to law.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Review of the decision of medical panel – Where error conceded – Where statutory provision provided a mechanism to correct error – Whether such provision gave the plaintiff an equally convenient and beneficial remedy – Whether court should exercise discretion to refuse the relief sought in those circumstances

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Enfield City Corporation v Development Association Commission [2000] HCA 5; (2000) 199 CLR 135
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389

Category:

Principal judgment

Parties:

Jamie Adrian Cook - Plaintiff
City of Sydney - First Defendant
John Wynyard, Dr Robert Gertler and Professor Nicholas Glozier, as members of the Appeal Panel of Workers Compensation Commission of NSW - Second Defendant
Registrar of the Workers Compensation Commission of NSW - Third Defendant

Representation:

Counsel:   
M Allars SC – Plaintiff
M Blount – First Defendant

  Solicitors:
Carroll & O’Dea – Plaintiff
Bartier Perry – First Defendant

File Number(s):

2015/37120

Publication restriction:

Nil

Judgment

INTRODUCTION

1. By summons filed on 8 May 2015 Jamie Adrian Cook (“the plaintiff”) seeks (inter alia) an order in the nature of certiorari quashing a decision of the second defendant, the Appeal Panel of the Workers Compensation Commission of New South Wales.

2. The summons is supported by an affidavit of Emily Katheklakis of 18 June 2015.

3. The plaintiff advanced a series of separate grounds in support of the relief sought. The first defendant, who was the only active defendant in the proceedings, conceded that error was made out in respect of one of those grounds. However as discussed further below, it was the first defendant’s position that in all of the circumstances, and notwithstanding that error, I should refuse to grant the relief sought. That is the principal issue for determination.

FACTUAL BACKGROUND

4. The exhibit to the affidavit of Ms Katheklakis covered several volumes of material setting out the factual background. To the extent necessary for present purposes, that background may be summarised as follows.

5. Between 20 November 2006 and 20 August 2008 the plaintiff was employed by the first defendant as a cleansing services officer. On 18 September 2008 he lodged a claim for compensation with the first defendant in respect of a psychological injury which was said to have arisen from bullying and intimidation in the workplace. By letter of 14 October 2008 the first defendant issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (“the WIMWC Act”) denying liability.

6. On 2 September 2011 the plaintiff lodged a claim for compensation for permanent impairment with the first defendant in respect of a psychological injury.

7. On 24 January 2013 the plaintiff lodged an application to resolve a dispute with the Workers Compensation Commission (“the Commission”). In support of his application the plaintiff relied upon a report from Dr Clark, a consultant forensic psychiatrist, dated 2 May 2011, which had been prepared at the request of his solicitors. Dr Clark diagnosed the plaintiff as suffering from severe depression, and that his whole person impairment (“WPI”) was 20%.

8. On 14 February 2013, the first defendant lodged a reply to the plaintiff’s application. That reply was supported by a number of documents including:

1. a report by Dr Snowdon, psychiatrist, of 30 November 2011; and

2. a report by Quantumcorp of 5 December 2011.

9. Dr Snowdon had reviewed the plaintiff on 16 November 2011. He concluded that the plaintiff had a paranoid personality disorder and that his WPI was 1%.

10. The report of Quantumcorp of 5 December 2011 was prepared in response to instructions from the first defendant to undertake a period of surveillance of the plaintiff. The report suggested that the plaintiff was working.

11. On 23 September 2013 the first defendant lodged an application to the Commission to admit additional documents, including (inter alia) a further report of Quantumcorp of 28 June 2012. That report was prepared in response to instructions received from the first defendant to conduct a further period of surveillance of the plaintiff. During the course of investigations undertaken on 13, 14, 19, 20 and 26 June 2012, footage was taken of the plaintiff which was said to depict him (inter alia):

1. walking in a normal manner;

2. driving a motor vehicle;

3. attending a medical examination; and

4. talking to a neighbour on the footpath in the front of his residence.

12. On 28 October 2013 the first defendant lodged another application to the Commission to admit further documents including a report of additional surveillance undertaken of the plaintiff which again suggested that he was working.

13. On 30 January 2014 the plaintiff lodged an application with the Commission to admit a further report of Dr Clark of 17 September 2013. In that report, Dr Clarke said that there was little change in the plaintiff’s condition when compared to his presentation at the previous examination. Dr Clarke confirmed that the plaintiff continued to suffer from a Major Depressive Disorder “in a picture of what has become a chronic Dysthymia”. He said that the plaintiff’s WPI remained at 20%.

14. On 7 February 2014 the first defendant lodged another application to admit documents including a further report by Dr Snowdon of 3 January 2014. In that report Dr Snowdon set out additional documentation with which he was provided, including a number of statements made by the plaintiff’s former work colleagues. Dr Snowdon thought that the plaintiff could do unskilled work for six hours per day, five days per week.

15. On 10 April 2014 an order was made remitting the matter to the Registrar of the Workers Compensation Commission (who is the third defendant) for referral to an approved medical specialist to assess the plaintiff’s degree of WPI. Pursuant to that order, the plaintiff was referred to Dr Patrick Morris, psychiatrist, who undertook an assessment on 15 April 2014.

16. Dr Morris concluded that the plaintiff was suffering from Dysthymic Disorder, and had been since about 2008. He assessed the plaintiff as having a WPI of 16% and issued a certificate in those terms. In reaching that conclusion, Dr Morris initially assessed the plaintiff’s WPI as 17%. He added 1% to that figure, which represented an adjustment for the effect of treatment. He then subtracted 1.8% on account of the plaintiff’s pre-existing impairment, arriving at a final WPI of 16%.

17. In respect of the adjustment for the effect of treatment, Dr Morris stated:

“I added 1% for the effect of treatment as he is taking the antidepressant medication Sertraline at the maximum dose of 200mg per day which is of some benefit to him”.

18. On 13 May 2004 the first defendant lodged an application to appeal against the decision of Dr Morris and requested that the plaintiff be re-examined. The matter ultimately came before the second defendant, a medical panel comprising Arbitrator Wynyard, Dr Robert Gertler and Prof. Nicholas Glozier (“the panel”). The panel noted that although there had been a request that the plaintiff be re-examined, this was not considered necessary.

19. The panel concluded that the plaintiff’s WPI was 7%. However, in reaching that conclusion the panel did not address the issue of, and made no adjustment for, the effect of treatment undertaken by the plaintiff. The panel concluded that the certificate issued by Dr Morris should be revoked and a fresh certificate issued.

THE GROUNDS RELIED UPON BY THE PLAINTIFF

20. As previously noted, the plaintiff has advanced a number of grounds in support of the relief sought. One of those grounds asserted that the panel erred in failing to take into account a relevant consideration, namely the adjustment to be made to the level of WPI having regard to the effect of the plaintiff’s treatment. The first defendant conceded that this was an error, but argued that I should not grant the relief sought.

Submissions of the plaintiff

21. Senior counsel for the plaintiff submitted that the assessment of the degree of WPI must be made in accordance with the applicable provisions of the Permanent Impairment Guidelines (“the Guidelines”), Chapter 11 of which governs psychiatric and psychological disorders. Paragraph 11.9 of the Guidelines deals with the effect of treatment in the following terms:

“Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment”.

22. Senior counsel submitted that in reaching its assessment of the plaintiff’s WPI, and in issuing the fresh certificate, the panel had failed to take into account the effect of the plaintiff’s treatment. It was submitted that in view of that (conceded) error, the relief sought in the summons should be granted.

23. Senior counsel acknowledged that s. 378 of the WIMWC Act conferred a power on the panel to correct an obvious error. However, and even in circumstances where the first defendant had indicated that it would agree to that course, senior counsel submitted that it did not offer to the plaintiff an avenue of redress which was as convenient and beneficial as the relief sought in the present proceedings. It was submitted that this court should be slow in exercising its discretion to refuse to grant such relief.

Submissions of the first defendant

24. Counsel for the first defendant submitted that in view of the provisions of s. 378, the relief sought should not be granted. It was submitted that s. 378 conferred a wide discretion on the panel to rescind, alter or amend its decision, correct any obvious error and issue a replacement certificate.

25. Counsel further submitted that in commencing the present proceedings the plaintiff had sought to put himself in a more advantageous position than would be the case if he were to rely upon the remedy contained in s. 378. Counsel submitted that the plaintiff was, in truth, using a “minor and easily fixed error” as a means of quashing the entire certificate, so that he could then “roll the dice” before a newly constituted panel in an attempt to achieve an assessment of WPI which met the threshold for an award of modified common law damages.

26. In these circumstances, whilst accepting that there was an error, it was submitted that I should decline to grant the relief sought.

Consideration

27. I turn firstly to the legislation. Section 378 of the WIMWC Act is in the following terms:

378 Reconsideration of decisions of Registrar or Appeal Panel

(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.

(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.

(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).

(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.

(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.

28. It will be noted that the power conferred upon the panel by s. 378(3) to correct an obvious error is a discretionary one, as is the related power to issue a replacement certificate.

29. In circumstances where error is established, this Court should be slow to exercise its discretion against granting the relief sought. In Enfield City Corporation v Development Association Commission [2000] HCA 5; (2000) 199 CLR 135, Gaudron J observed (at [56]):

“Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less”.

30. One circumstance which may justify a refusal to grant relief is where there is an equally convenient and beneficial remedy available. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389 the High Court (Latham CJ, Rich, Dixon, McTiernan and Webb JJ) observed (at 400):

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld”.

31. Bearing in mind these principles, I am of the view that the plaintiff is entitled to the relief he seeks. I have reached that conclusion for a number of reasons.

32. Firstly, and in my view importantly, the terms of s. 378 do not confer any right or entitlement upon a person in the position of the plaintiff. As I have observed, s. 378(3) confers a discretion upon the panel to (inter alia) correct error. There is no guarantee that if the plaintiff sought to invoke the provisions of s. 378, any such application would be granted. In these circumstances, it could hardly be said that the remedy afforded by s. 378 is as convenient or satisfactory to the plaintiff as the relief he seeks in these proceedings.

33. Secondly, s. 378 does not, by its terms, incorporate any independent review. On the contrary, it contemplates the matter being referred back to the original decision maker (in this case, the panel).

34. Thirdly, the error in this case arises from a fundamental failure on the part of the panel to properly carry out its assessment. Whether, as counsel for the first defendant suggested, this was due to an oversight is not something that I am able to determine. What is clear is that a failure by a medical panel to properly carry out a medical assessment constitutes a failure to properly perform a fundamental function. In my view, such a failure is not properly categorised as “minor”.

35. Fourthly, I am unable to accept the submission of counsel for the first defendant that the error is one which is “easily fixed”. What is required to “fix” the error involves taking into account the effect(s) of the plaintiff’s treatment. The plaintiff has a long and complicated psychiatric history, in the course of which a large number of medical and associated reports have been generated. In light of that history, taking into account the effect of his treatment for the purposes of assessing his level of WPI may well have its complications.

36. For all of these reasons, and in circumstances where error has been conceded, I am of the view that this is a matter in which the plaintiff should have the relief he seeks. It is therefore not necessary for me to consider the remaining grounds upon which he relies.

ORDERS

37. I make the following orders:

1. The decision of the second defendant, the Appeal Panel of the Workers Compensation Commission of NSW revoking a medical assessment certificate issued by Dr Patrick Morris on 15 April 2014 is quashed.

2. The medical assessment certificate issued by the second defendant in respect of the plaintiff is quashed.

3. The matter is remitted to the Third Defendant, the Registrar of the Workers Compensation Commission of NSW, to be further dealt with according to law.

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Decision last updated: 18 December 2015