Kolderie v Murray Brown t/as Goldcard Plumbing & 2 Ors

[2007] NSWSC 657

CITATION:	Kolderie v Murray Brown trading as Goldcard Plumbing & 2 Ors [2007] NSWSC 657 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22 June 2007
JUDGMENT DATE :	27 June 2007
JURISDICTION:	Common Law Division - Administrative Law List
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The decision of the Appeal Panel dated 7 June 2006 is affirmed; (2) The further amended summons filed 22 June 2007 is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed.
CATCHWORDS:	WIMWCA - Review of decision of Appeal Panel - procedural fairness - re-examination
LEGISLATION CITED:	Workplace Injury Management & Workers Compensation Act 1998 - s 327
CASES CITED:	Craig v South Australia (1994-95) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
PARTIES:	Jason Kolderie - Plaintiff Murray Brown t/as Goldcard Plumbing - First Defendant Medical Appeal Panel - Second Defendant Registrar of the WCC - Third Defendant
FILE NUMBER(S):	SC 30138/2006
COUNSEL:	Mr D Williams with Ms L Goodchild - Plaintiff Mr P R Stockley - First Defendant
SOLICITORS:	Bryden's Law Office - Plaintiff Mr I V Knight, Crown Solicitor - Second & Third Defendants
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	9932/2005
LOWER COURT JUDICIAL OFFICER :	Appeal Panel
LOWER COURT DATE OF DECISION:	7 June 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 27 JUNE 2007

30138/2006 - JASON KOLDERIE v MURRAY BROWN t/as GOLDCARD PLUMBING & 2 ORS

JUDGMENT (WIMWCA – Review of decision of Appeal Panel – procedural fairness –
re-examination)

1 HER HONOUR: By further amended summons filed 22 June 2007, the plaintiff seeks firstly, an order extending time for commencement of proceedings; secondly, an order in the nature of certiorari removing to this court the record of the proceedings before the third defendant for the purpose of quashing the order made by the Appeal Panel on 7 June 2006 pursuant to the Workplace Injury Management & Workers Compensation Act 1998 (‘WIMWCA’); thirdly, a declaration that the Appeal Panel erred in law in refusing to medically examine the plaintiff for the purpose of the appeal; fourthly, a declaration that the decision made by the Appeal Panel was erroneous as the plaintiff was denied natural justice; and finally, an order in the nature of mandamus that the matter be remitted to the second defendant to be heard and determined according to law.

2 The plaintiff is Jason Kolderie. The first defendant is Murray Brown t/as Goldcard Plumbing (Goldcard), the employer of the plaintiff. The second defendant is the Appeal Panel. The third defendant is the Registrar of the Workers Compensation Commission. Both the second and third defendants have filed submitting appearance.

3 Section 69(3) of the SCA provides:

“It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.”

4 The “face of the record” is expanded to include the reasons expressed by the Court or Tribunal for its ultimate decision – s 69(4).

5 The scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals is taken from Craig v South Australia (1994-95) 184 CLR 163 at 179:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

6 This was later clarified in the case of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351:

“"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

Factual Background

7 On 9 February 1999, the plaintiff, a plumber who is presently 31 years of age, was injured in the course of his employment with Goldcard. On 22 June 2005, an application to resolve a dispute was lodged with the Workers Compensation Commission (Tab 1). The plaintiff was assessed by Clive Sun, a Consultant in Rehabilitation and Pain Medicine, who found he had an 8% whole person impairment of both the lumbar and thoracic spine, which amounted to a total whole person impairment of 15%. There were various other medical reports, assessing the plaintiff’s impairment to different degrees, including a finding by Dr Matheson of a 0% permanent impairment.

8 On 25 October 2005, Albert Bencsik, an Approved Medical Specialist (AMS) assessed the plaintiff. On 11 November 2005, he issued a Medical Assessment Certificate that assessed the plaintiff’s total amount of permanent loss or impairment as 10% for his back, 5% for his “left leg” and 2% for his “left arm”, in Table 1 (for assessment for injuries received prior to 1 January 2002). In Table 2, he listed 8% whole person impairment to the lumbar spine, and 1% whole person impairment to the left arm, with a total whole person impairment of 9% (Tab 2).

9 On 29 November 2005, the plaintiff lodged an appeal against the decision of the AMS, on the basis that the assessment made was based on incorrect criteria, and the medical assessment certificate contained a demonstrable error (s 327(3)(c) and (d), WIMWCA) (Tab 3). In the plaintiff’s submission, he says that “the applicant submits, save for re-examination by the Medical Appeal Panel, that the matter is suitable to be determined on the papers” and the last paragraph says “A re-examination may assist the Medical Panel to reach its findings.” (Tab 4) The respondent, in its submissions also submits that the matter should be determined on the papers (Tab 5).

10 On 24 January 2006, the Delegate of the Registrar, Erin Stephens, was satisfied that one of the grounds for appeal in s 327(3) existed. An appeal was granted. The Delegate, at the conclusion of her reasons stated:

“The Appeal Panel may determine the appeal solely on the basis of the written application and any written notice of opposition. When the matter is determined on the papers, a copy of the decision will be issued to the parties.
Should the Appeal Panel require the worker to be re-examined by the Appeal Panel, or set the matter down for hearing, separate advice in relation to this will be issued.” (Tab 7)

11 On 15 March 2006, the Appeal Panel carried out a preliminary review. It stated “The parties consent to the review of the original medical assessment on the basis of the papers already provided” and that “the Panel has determined that no further medical examination is required because there is sufficient material before it to properly determine the appeal.” (Tab 9)

12 The Appeal Panel in its reasons for decision dated 7 June 2006, at [8], [9] and [14] 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. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because all of the material necessary for the Panel’s determination of this Appeal is before it in documentary evidence.
14. The parties agreed to the determination of the matter without an Assessment Hearing.” (Tab 10)

13 On 7 June 2006, the Appeal Panel revoked the certificate and replaced it with a new certificate, certifying total amount of permanent loss or impairment as 10% for back, 5% for “Left leg at or above the knee” and 2% for “Left arm at or above the elbow” attributable to the injury of 9 December 1999 (Tab 11).

14 The plaintiff submitted that the fact that he was seeking a further re-examination by the Appeal Panel was not considered on the preliminary review, as the Appeal Panel misread his submissions where the words “save for a re-examination” appear. The plaintiff further submitted that the Appeal Panel made an error when it made a finding of fact that the parties consented to the review of the original assessment on the papers when clearly that was not the case. This error, according to the plaintiff, led to him being denied procedural fairness, in that he lost the opportunity to be re-examined. The first defendant submitted that the decision of the Appeal Panel was correct and that there was no denial of procedural fairness.

15 The WorkCover Guidelines (the Guidelines) in force at all relevant times (12 December 2005 to 7 June 2006) were those published in the New South Wales Government Gazette 197 dated 19 December 2003. The relevant portion of the Guidelines are contained in Chapter E. Paragraph 43 describes the procedure on the Appeal Panel preliminary review. It identifies two matters that the Medical Appeal Panel will consider. The first is whether the worker should be re-examined and if new evidence should be allowed; and the second, is whether there should be an assessment hearing or whether the appeal should proceed on the papers. Paragraph 44 describes the procedure upon a medical re-examination and paragraph 45 sets out the procedure upon an assessment hearing.

16 The issue of whether medical re-examination should be conducted is part of the evidence gathering exercise. It is distinct from the procedure to be adopted on the determination of the appeal. The appeal may be by way of hearing or upon consideration of written submissions. That is why the Registrar and the Appeal Panel refer to each issue of dealing with the appeal on the papers and the issue of a medical re-examination separately.

17 It is my view that Appeal Panel at its preliminary review decided that it was unnecessary for the plaintiff to undergo a further medical examination because all of the material necessary for the panel’s determination was before it in documentary evidence. The Appeal Panel was entitled to take this view. The Appeal Panel did not overlook the plaintiff’s preference for re-examination. There is no error of law on the face of the record. The plaintiff was not denied procedural fairness. The decision of the Appeal Panel dated 7 June 2006 is affirmed. The further amended summons filed 22 June 2007 is dismissed.

18 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

The Court orders:

(1) The decision of the Appeal Panel dated 7 June 2006 is affirmed.

(2) The further amended summons filed 22 June 2007 is dismissed.

(3) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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04/07/2007 - Change "t/as" to "trading as" in defendant's name - Paragraph(s) Coversheet