Lukacevic v Coates Hire Operations Pty Limited & Ors

[2011] HCATrans 283

[2011] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2011

B e t w e e n -

DAMIR LUKACEVIC

Applicant

and

COATES HIRE OPERATIONS PTY LIMITED

First Respondent

REGISTRAR OF THE WORKERS COMPENSATION COMMISSION

Second Respondent

AN APPEAL PANEL CONSTITUTED UNDER SECTION 328 OF THE WORKPLACE INJURY MANAGEMENT ACT 1998 (NSW)

Third Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 11.22 AM

Copyright in the High Court of Australia

MR S.B. LLOYD, SC:   If it please the Court, I appear with MR C.D. JACKSON for the applicant.  (instructed by Martin Bell & Co)

MR D.F. JACKSON, QC:   If it please your Honours, I appear with my learned friend, MR R.A. STANTON, for the first respondent.  (instructed by Sparke Helmore Lawyers)

GUMMOW J:   There is a submitting appearance from the second and third respondents, the Registrar and the Appeal Panel.  Yes, Mr Lloyd.

MR LLOYD:   I might start with the legislation which is in a small bundle I think that was handed up a day or two ago.  The relevant provisions which can be noted briefly are section 325 which makes provision for what is called a “Medical assessment certificate” which is prepared by an “approved medical specialist” which, inter alia, has to set out the reasons for the assessment and the facts upon which it is based.

Section 326(1) makes the certificate – it is presumed to be correct “conclusively” in any “court or the Commission” in relation to a number of matters and critically in relation to “the degree of permanent impairment”.  That means that the common law right to challenge the correctness of the assessment is removed.  In relation to section 327 the only way of challenging the correctness is under an appeal under section 327.  The grounds of appeal are noted in subsection (3).  One of those grounds is the “availability of additional relevant information”.  There is then a bracketed passage which is perhaps expanded upon in section 328(3), the nub of which is that the evidence needs to be fresh evidence in the sense that it was not available before the medical assessment.

In the circumstances of this case the applicant did rely upon fresh evidence under the fresh evidence ground as well as in order to show demonstrable error under that ground.  He advanced a statement and in that statement it was accepted by all the members of the court below that it was prima facie open under section 428(3) for the material to be accepted on the appeal and it was ‑ ‑ ‑

GUMMOW J:   I think, Mr Lloyd, you have to face up to what Mr Jackson says at paragraph 23 in his submissions at page 91 of the application book, namely, the reference to what Justice Hislop said at paragraphs 34 to 38.

MR LLOYD:   Yes, your Honour, I accept that.  If I deal with that first.  If it be assumed, if we otherwise are correct that the Panel made legal error or jurisdictional error in refusing to admit the evidence then the test for refusing relief is whether or not the evidence could have made a difference, not whether or not it would have made a difference, which is what Justice Hislop found.  Justice Giles in the Court of Appeal found that Justice Hislop was wrong and the other two members of the majority of the Court of Appeal did not embrace Justice Hislop’s reasoning.

It is true, obviously, in an appeal that a court hearing an appeal on the merits also has the capacity for itself to say, “Well, we don’t think this evidence would have made a difference” but that is not true in a judicial review application.  It was for the Appeal Panel to decide whether or not it would have made a difference.  They did not decide it in that way.  They perhaps could have but they did not at any point say, “We think this is not credible or relevant”.  In fact, on the contrary, their reasoning is only consistent with the view that they treated the statement as credible, relevant and significant because they saw it as enlivening a natural justice obligation.  Part of their reasoning – and perhaps if I go to that – which is in the supplementary application book and the relevant passage is in paragraph 12.

GUMMOW J:   We are at the level of special leave in this Court, Mr Lloyd.  What is the point if it all goes back and it is all done again and there is a real prospect that the statement goes in and there is no different result?

MR LLOYD:   That is true in any natural justice case, your Honour, that there might not be a different result but the point is that my client was denied an opportunity to put on evidence which he wished to put on.  We say it cannot be said and has not been said that it could not make a difference if the material went on.  It was posited by Justice Hislop that it would not be likely to make a difference but we say that is not the test for a discretionary refusal of relief.

GUMMOW J:   Paragraph 38, “no different result would have ensued”.  It is blunt language.

MR LLOYD:   Your Honour, we say that what happened in that case was the Appeal Panel did not have regard to the evidence in the statement.  What Justice Hislop did was in a very brief passage at the end of his Honour’s judgment which I am trying to find.

GUMMOW J:   Page 13 under the heading, “No different result would have ensued if the Statement was admitted into evidence”.

MR LLOYD:   Yes.  His Honour says in his opinion but we say that that goes to ‑ ‑ ‑

GUMMOW J:   That is preceded by four paragraphs.

MR LLOYD:   Yes.  In paragraph 37 his Honour says:

It did so having regard, inter alia, to the submissions by the plaintiff which relevantly replicated the issues –

So his Honour says the Panel has had a look at the submissions and so having had a look at the submissions one can sort of draw the inference that it would not have made a difference because the points were made.  The point we say is that absent evidence which actually contests the history taken at the AMS by the approved medical specialist it cannot be said that it could not have made a difference.  The fact that the Panel thought that natural justice obligations were enlivened suggests that they did think that the evidence was credible, relevant and significant.  To that extent it is inconsistent, we say.  Justice Hislop’s reasoning is inconsistent with the approach of the Panel.

GUMMOW J:   You keep talking about natural justice.  Were they not talking about Wednesbury unreasonableness?

MR LLOYD:   The Wednesbury unreasonableness was in excluding ‑ ‑ ‑

GUMMOW J:   It seems a pretty unlikely candidate for Wednesbury unreasonableness.

MR LLOYD:   The Wednesbury unreasonableness was in the exercise of the discretion to exclude the evidence.

GUMMOW J:   That is right.

MR LLOYD:   By excluding the evidence that meant my client did not have an opportunity to advance his case.

GUMMOW J:   That is right, yes.

MR LLOYD:   Which meant that that is ‑ ‑ ‑

GUMMOW J:   How do you encapsulate, shortly, what this Court said from time to time as to what is involved in Wednesbury unreasonableness?  It is not an incantation.  What does it mean?

MR LLOYD:   A tribunal or panel would fall into error if it exercised a discretion in a manner that was irrational or unreasonable and also, we would say ‑ ‑ ‑

GUMMOW J:   Merely unreasonable?

MR LLOYD:   Unreasonable in the Wednesbury sense.  I think even the Court has had difficulty in SZMDS and coming up with a formula that has been embraced by all members of the Court.  Ultimately, in the majority in SZMDS that formula still gets light again but what is done in paragraph 12 by the Appeal Panel is to say that they will not receive the fresh evidence because it is not in the “interest in finality of litigation” and we say that at one level that is true of every application in relation to new evidence but the point is that this is fresh evidence and the Act specifically allows a ground of appeal for fresh evidence so it cannot be said the “interest in finality of litigation” is an answer.  They then say:

For reasons of procedural fairness, the Panel could not consider the allegations made by the Appellant in the absence of a response from the AMS.

There is some ambiguity as to what that means.  On one view it looks they are saying that the AMS has an interest in procedural fairness and that the AMS should have an opportunity to answer the allegations.  It is not clear that that is true.  Or, the other way of putting it, which is the way favoured by the respondent, is that they are entitled to procedural fairness and that they cannot compel the AMS and so therefore they are in some way disadvantaged. 

Now, we say that that is the statutory scheme.  The mere fact that one witness to an event is not compellable does not preclude another party from putting on evidence as to what happened at that hearing or at that examination.  The way we put it is that those two aspects, the idea that – I mean, in a nutshell what the Panel was saying is that procedural fairness would make us have to expend time and effort to be fair to the parties in relation to this allegation and we say that that is true but that is not a reason and it is not a relevant consideration. 

If I could put it another way, it is an irrelevant consideration which is another way we put it in our application.  We say that the Panel was bound not to consider the notion that they would have to accord procedural fairness as a reason for not admitting evidence.  Then the final reason they give is that the continual opening and reopening of the evidence is not in the interests of justice and not contemplated as part of the appeal mechanism and the commission.

The notion of continual opening and reopening is somewhat hyperbole.  We have an appeal mechanism which allows an appeal on the basis of fresh evidence.  We have somebody seeking to make an appeal relying upon fresh evidence, so it is not continual opening and reopening, and to say that it is not contemplated as part of the appeal mechanism we say is wrong because the appeal mechanism expressly allows an appeal on the basis of fresh evidence.

The net result is then that the Panel recognising there was a difficulty because the applicant wanted to challenge the earlier doctor’s history has used this mechanism to avoid the conflict in the evidence.  They go on in the reasons of the Panel, for example, at paragraph 29 on page 4:

The Respondent submitted that the AMS took a detailed history . . . 

30.      The Panel agrees –

with that submission of the respondent and then the Panel makes a positive finding that he did take “an adequate and accurate history”.  The net result is, you have one party who is allowed to rely upon the evidence of the AMS but the other party is not allowed to put forward the only evidence they could conceivably put forward to challenge what happened, which is admissible, is relevant and then is excluded solely on the notion that it would be contrary to the finality of litigation and that the Panel would have to give procedural fairness to somebody. 

Justice Giles at paragraph 43 and following on page 44 looks at Wednesbury unreasonableness and in particular at paragraphs 53 and 54 notes that it is not for the court to look at whether or not the conclusion ultimately reached was the Panel was correct, but look at the processes that it had undertaken and ultimately, at the end of paragraph 54 his Honour says:

The path they took, however, involved determining the very issues to which the evidence they refused to receive was directed, notwithstanding that without the evidence the applicant had nothing on which he could rely for his complaints –

We say that shows the fairness – unfairness and unreasonableness.  His Honour at paragraph 56 clearly rejects the notion that the Panel took into account credibility or the capacity to effect the result and we say that his Honour was correct in that regard.  Then at paragraphs 57 through to 60 his Honour makes the same kind of points that I have already made in relation to the errors involved in the reasoning of the Panel.

Justice Hodgson’s judgment begins on page 55 at paragraph 73.  His Honour in paragraphs 76 and 78, when looked at together, in substance amounts to an acknowledgement that this kind of complaint could be done if there had been substantial prima facie – “evidence had substantial prima facie probative value”.

His Honour acknowledges at paragraph 79 that the Appeal Panel “did not spell out all those considerations” but then in the balance of 79 and 80, in substance he was to say that they hinted that their concern was probative - the probative force of the evidence – and that it would have been well open to them to have rejected the evidence as lacking probative force.  Again, we say, it was not what the Appeal Panel did and it is a matter for the Appeal Panel whether or not it had the probative force.  The fact that the Appeal Panel saw it as enlivening natural justice obligations suggested that they saw it as being credible, relevant and significant and so to that extent we say his Honour Justice Hodgson is wrong.

Justice Handley starts to deal with the discretion point at paragraph 104 on page 62.  He refers to two aspects in paragraph 108.  One was that “it was not necessary to” have “a further medical examination”.  That is elaborated on in 109 and 110 and we are not taking issues with that but then at 111 he deals with the second aspect of the matter mentioned in 108 which is the paragraph 12 and his Honour says that those matters – the finality of litigation and procedural fairness – he mentions three things, two of them are finality in litigation and procedural fairness to the respondent - he says that they are relevant considerations.

Our point was and is not that the topics of finality in litigation and procedural fairness are irrelevant but that the manner in which the Panel sought to imply them so as to say, “Because we have to give procedural fairness we would rather just not have regard to the evidence” that is the irrelevant consideration, the manner in which it is applied.  The third aspect of Justice Handley’s reasoning at paragraph 111 we say reveals error where his Honour says:

and the fact that the issues raised were “not contemplated as part of the appeal mechanism”.

His Honour is there quoting from paragraph 12 but, with respect, not quoting accurately because what the Panel said was that it was the continual opening and reopening of the evidence that was not part of the appeal mechanism not that the issues raised were - or the fact that the issues raised were not contemplated as part of the appeal mechanism.  We say it is clear that the appeal mechanism at least envisaged one opportunity to raise fresh evidence.  His Honour at paragraph 123 recognised that:

It would be most unfortunate if an AMS could dishonestly or carelessly “verbal” an injured worker –

At paragraph 124 his Honour also thought it would be unfortunate if an injured worker could make false allegations about what an AMS had done and at paragraph 128 his Honour said that he thought that the Supreme

Court’s equitable jurisdiction for allowing relief in bad faith matters would be an adequate remedy.  What we say to that is that that is no answer to where there is just a mistake made through carelessness or negligence, that the scheme does allow someone to put on fresh evidence about these matters and that the Panel was wrong not to do it, that in terms of a refusal of – a discretionary basis for refusing relief, which was Justice Hislop’s view, it was expressly rejected by Justice Giles.  The other two justices in the majority did not embrace it.  So, to that extent it is not correct. 

We also say that it is not correct because the test as stated in this Court in Stead and other cases is whether or not it could have made a difference and when one looks at judicial review matters that turns on the - that is a matter for the decision‑maker, not for a court to say whether or not the weight to be given to things treat it as credible, relevant and significant could or could not have made a difference.  May it please the Court, they are my submissions.

GUMMOW J:   We do not need to call on you, Mr Jackson.

The actual decision of the majority of the New South Wales Court of Appeal was correct.  Special leave is refused with costs. 

We will adjourn to reconstitute.

AT 11.41 AM THE MATTER WAS CONCLUDED