Mahenthirarasa v State Rail Authority of New South Wales

[2008] NSWCA 101

New South Wales

Court of Appeal

CITATION:	MAHENTHIRARASA v STATE RAIL AUTHORITY OF NEW SOUTH WALES [2008] NSWCA 101
HEARING DATE(S):	18 February 2008
JUDGMENT DATE:	21 May 2008
JUDGMENT OF:	Giles JA at 1; Basten JA at 10; Bell JA at 75
DECISION:	(1) Grant leave to appeal in relation to the decision of the Registrar’s delegate and direct the applicant to file his notice of appeal within 7 days. (2) Allow the appeal and set aside the decision of the primary judge dismissing the summons. (3) Set aside the decision of the delegate of the Registrar of the Workers Compensation Commission made on 14 July 2005. (4) Remit the appeal to the Registrar for reconsideration of the application of s 327(4), to be determined according to law. (5) (a) Grant the applicant leave to file and serve submissions in support of his claim that the SRA pay his costs within 28 days. (b) Grant the SRA leave to file and serve submissions in reply within 14 days after receipt of the applicant’s submissions.
CATCHWORDS:	ADMINISTRATIVE LAW – role and functions of Registrar of Workers Compensation Commission – whether error in decision of Registrar’s delegate that there were no grounds of appeal existed – role of court where relief not opposed – whether consent orders appropriate - ADMINISTRATIVE LAW – reasons – when required in relation to administrative decision - COSTS – costs where no opponent - WORDS AND PHRASES – “exists” – “demonstrable error” - WORKERS’ COMPENSATION – inconsistency in medical assessment certificate – whether ground of appeal exists – demonstrable error – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 327(3), (4)
LEGISLATION CITED:	Suitors’ Fund Act 1951 (NSW), ss 2, 6 Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), s 68A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 325, 327, 328, 369, 371, Ch 7, Pt 7
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 Gosford Shire Council v Anthony George Pty Ltd (1969) 89 WN(Pt 1)(NSW) 350 King v Goussetis (1986) 5 NSWLR 89 Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Noel v Becker [1971] 1 WLR 355 (EWCA Civ) Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 Public Service Board of New South Wales v Osmond (1985) 159 CLR 656 Qidwai v Brown [1984] 1 NSWLR 100 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149; (2007) 4 DDCR 607 Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246 Wade v Burns (1966) 115 CLR 537 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954
PARTIES:	Arumugam Mahenthirarasa (Claimant) State Rail Authority of New South Wales (First Opponent) Registrar of the Workers Compensation Commission (Second Opponent) Dr Robert Breit (Third Opponent)
FILE NUMBER(S):	CA 40541/07
COUNSEL:	C Jackson (Claimant) P N Khandhar (First Opponent) N/A (Second and Third Opponents)
SOLICITORS:	P K Simpson & Co (Claimant) DLA Phillips Fox (First Opponent) I V Knight, Crown Solicitor (Second and Third Opponents)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30077/05
LOWER COURT JUDICIAL OFFICER:	Malpass AsJ
LOWER COURT DATE OF DECISION:	9 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Mahenthirarasa v State Rail Authority of New South Wales [2007] NSWSC 22

CA 40541/07
SC 30077/05

GILES JA
BASTEN JA
BELL JA

21 May 2008

MAHENTHIRARASA v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

Headnote

The applicant, Mr Mahenthirarasa, was an employee of the State Rail Authority of NSW (“the first respondent”). On 30 August 2001, he fell at his place of work and suffered an injury to his back and left leg. Until May 2003, he received compensation for this injury. Thereafter, compensation ceased because the first respondent considered that he was able to perform his pre-injury duties.

In September 2004, a dispute was notified to the Workers Compensation Commission and was referred to an arbitrator. Dr Breit, an approved medical specialist, undertook a medical assessment of permanent impairment. In or about March 2005, Dr Breit issued a medical assessment certificate under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). Dr Breit assessed the total percentage of permanent loss attributable to the injury using s 68A of the Workers Compensation Act 1987 (NSW) for injuries received before 1 January 2002 and s 323 of the Workplace Injury Act for injuries received on or after this date. The assessment process involved ascertaining the proportionate loss due to pre-existing injury. Even though the forms of assessment under both sections were substantially identical, the results differed: the proportion of loss ascribed to pre-existing injury was 75% under s 68A and 10/11ths under s 323.

The applicant was dissatisfied with the certificate and appealed to the Registrar of the Workers Compensation Commission on the grounds that the medical assessment was made on the basis of “incorrect criteria” and the certificate contained a “demonstrable error”, pursuant to ss 327(1), 327(3)(c) and (d) and 327(4) of the Workplace Injury Act. On 14 July 2005, a delegate of the Registrar decided that the appeal should not proceed because he was not satisfied that any of the specified grounds “existed” (s 327(4)). On 12 September 2005, the applicant filed a summons in the Common Law Division of the Supreme Court, seeking judicial review of the Registrar’s decision. Malpass AsJ dismissed the application.

Before the primary judge and before the Court of Appeal, the relief sought was unopposed because the respondents filed submitting appearances.

The issues for determination on appeal were:

(i) whether there was reviewable error in the delegate’s decision that no ground of appeal existed;

(ii) whether the certificate contained a “demonstrable error”;

(iii) whether the primary judge erred in refusing relief; and

(iv) how costs should be awarded.

The Court held, allowing the appeal:

In relation to (i)

(per Basten JA, Giles JA, Bell JA agreeing with Giles JA)

1. Under s 327(4), the Registrar had to decide whether a ground of appeal specified in s 327(3) existed; that is, whether a ground was “on its face, valid and apparently credible” or had “enough substance to warrant the appeal proceeding”. Whether a ground “existed” was not the same as whether a ground was “made out”: [3]–[4], [41]–[42], [47]–[48], [57].

Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149, applied.

Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954, not followed.

Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260; Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, referred to.

2. The delegate did not address the demonstrable error in the certificate, notwithstanding that it had been described and relied upon by the applicant. Also, the delegate provided reasons, which did not refer to this point. It should be inferred that the delegate either overlooked the ground entirely or misunderstood the matter being put, thus constructively failing to exercise his functions under s 327(4): [6], [58], [72].

(per Basten JA)

3. The fact that the delegate did not disclose what test was applied in his reasons for not allowing the appeal to proceed did not mean that the decision could not be reviewed nor that no error in the delegate’s decision could be demonstrated: [31]–[33], [58].

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, applied.

In relation to (ii)

(Basten JA, Giles JA, Bell JA agreeing with Giles JA)

4. On the facts of the case, it was sufficient that an identifiable error was “readily apparent from an examination of the medical assessment certificate”: [60].

Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, applied.

Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, referred to.

5. The approved medical specialist attributed a higher proportion for pre-existing injury under s 68A than for the equivalent exercise under s 323: this was an unexplained inconsistency, which could constitute a demonstrable error in the certificate: [5], [24]–[26], [72].

6. The primary judge erred in failing to find that the delegate had misconceived his function in not allowing this appeal to proceed to an Appeal Panel: [58], [61].

In relation to (iii)

(per Basten JA)

7. The primary judge’s finding that, even if the delegate failed to apply the correct test, he would have declined to grant relief because it would have been “a futility” was not explored fully at the hearing and relief should not have been declined: [36].

King v Goussetis (1986) 5 NSWLR 89; Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246, referred to.

8. Normally unopposed orders are made by consent: [64]. Query whether in judicial review applications it may be inappropriate to set aside the decision of an administrative officer and order the matter be reconsidered without identifying the precise error and without the court being persuaded of error. However, the responsibility for the costs incurred will need to be addressed: [65], [71].

Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323, referred to.

In relation to (iv)

(per Basten JA, Giles and Bell JJA agreeing)

9. The applicant sought an order for costs to be paid by the first respondent. Since the first respondent did not actively take part in the proceedings nor did the applicant or the first respondent address submissions as to costs, the applicant and first respondent should have an opportunity to make submissions in relation to costs: [70]–[71].

CA 40541/07
SC 30077/05

GILES JA
BASTEN JA
BELL JA

21 May 2008

MAHENTHIRARASA v STATE RAIL AUTHORITY OF NEW SOUTH WALES & ORS

Judgment

1 GILES JA: The proper contradictor in the application for leave to appeal and appeal was the State Rail Authority of New South Wales (“the SRA”). As Basten JA has explained, it chose to enter a submitting appearance before the primary judge and in this Court. Despite the assistance from the submissions of counsel for the applicant, in the absence of a contradictor I confine my reasons to those strictly necessary for disposal of the application and appeal. In doing so I gratefully draw upon the reasons of Basten JA.

2 The question for the primary judge was whether there was jurisdictional error or error on the face of the record in the determination of the Registrar’s delegate, made pursuant to s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998, that it did not appear that at least one of the grounds for appeal specified in s 327(3) “exists”. The applicant had relevantly asserted the grounds that the assessment of the approved medical specialist was made on the basis of incorrect criteria and that the medical assessment certificate contained a demonstrable error. The delegate held that neither ground existed.

3 What was meant by “exists” in s 327(4), which has since been amended to use the phrase “has been made out”, has been referred to in this Court in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149; (2007) 4 DDCR 607; and Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission Campbell JA, with whom Hodgson JA and Handley AJA agreed, adopted at [75] the explanation put forward by Handley JA in Campbelltown City Council v Vegan at [8] that a ground for appeal existed if it was “on its face, valid and apparently credible”. His Honour added at [76] the further explanation that a ground of appeal could exist if it was a contention relied on as a reason why the appeal should succeed “made in circumstances where there is a sufficiently realistic prospect of the ground being made out”, and that the Registrar had to form a view whether the ground “has enough substance to warrant the appeal proceeding”. Campbell JA’s explanation was adopted by Mason P, with whom McColl and Bell JJA agreed, in Pitsonis v Registrar of the Workers Compensation Commission of New South Wales at [20].

4 The further explanation by Campbell JA may not be entirely congruent with that of Handley AJA, and may be thought to have some circularity. Perhaps the meaning of “exists” in s 327(4) as it previously stood will call for further consideration, but as Campbell JA said at [76] it is not the same as the ground for appeal being “made out”. It is less than that.

5 In the present case the ground for appeal of demonstrable error existed. That is so because, as recounted by Basten JA, there was plain inconsistency within the medical assessment certificate. The approved medical specialist assessed 20 per cent impairment for the left leg at or above the knee and an 11 per cent whole person impairment. These percentages could differ, because the subject matters were different. But the approved medical specialist attributed much more of the whole person impairment to pre-existing injury than he attributed the impairment for the left leg at or above the knee to pre-existing injury. For the same pre-existing injury, this could not be right; or at the least, there was a strong argument that it was not right. The error was asserted in the grounds falling for the delegate’s determination, and was plain from the medical assessment certificate. On any reasonable view of demonstrability and within any view of existence as explained in the cases to which I have referred, demonstrable error existed.

6 The delegate simply asserted that it did not appear that the assessment was made on the basis of incorrect criteria or that the medical assessment certificate contained a demonstrable error. In such explanation as was given in the delegate’s reasons there was no mention of error through inconsistency within the medical assessment certificate, notwithstanding that it had been described and relied on in the grounds for appeal. On the contrary, the delegate said that nothing on the face of the record of the medical assessment certificate indicated that the findings made by the approved medical specialist “amounts to the use of an incorrect criteria [sic] or demonstrable error”. It should be concluded that the delegate failed to address the ground for appeal of demonstrable error on which the applicant relied, and in not exercising the function as required of the Registrar under s 327(4) fell into jurisdictional error.

7 The primary judge referred to Campbelltown City Council v Vegan, but from his [20] appears to have considered that the test for whether one of the grounds for appeal existed was whether it had been made out. With the benefit of the later decisions of this Court, that can not be sustained. His Honour said that even on the test propounded by the applicant, one put in various ways such as whether the ground was arguable or there was a serious issue to be tried, the applicant should fail. Having dealt with other matters, his Honour referred to the submission that the delegate had failed to find a demonstrable error or an arguable case of demonstrable error in the respect described earlier in these reasons. He said -

“27 The further argument was not developed and it seemed to me to be but faintly pressed at the hearing. In my view, the plaintiff failed to make out this argument. Further, there was a failure to persuade that what was done could constitute “demonstrable error” in the contents of the certificate. It may be added that even if a different view was taken on these matters, it was not shown that the ground had any real significance in relation to the assessment.”

8 Although it may not have been developed, I respectfully consider that the submission commanded acceptance, and that there was error in failing to grant the relief claimed by the applicant.

9 As appears from the reasons of Basten JA, the applicant’s recovery of costs is problematic. I agree that he should have leave enabling him to pursue recovery of his costs against the SRA, but any application will be at his own risk as to the costs of the application. I agree with the orders proposed by Basten JA.

10 BASTEN JA: Mr Arumugam Mahenthirarasa (“the applicant”) was, in August 2001, an employee of the State Rail Authority of NSW (“the SRA”). He fell, injuring his back and left leg, as a result of which he received compensation until a date in May 2003. Thereafter the employer considered that he was able to perform his pre-injury duties and compensation ceased. A dispute was notified to the Workers Compensation Commission in September 2004 and was referred to an arbitrator. A medical assessment of permanent impairment was undertaken by an approved medical specialist, Dr Robert Breit, who in or about March 2005, issued a certificate under s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Workplace Injury Act”). The applicant was dissatisfied with the certificate.

11 Section 327(1) of the Workplace Injury Act provides that 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 under this section and only on the grounds for appeal under this section”: s 327. The grounds are set out in s 327(3) and include deterioration of the worker’s condition (par (a)) and the availability of additional relevant information (par (b)). These grounds appear not to have been relied upon. The other grounds, set out in paragraphs (c) and (d), are that the assessment was made on the basis of “incorrect criteria” and that the medical assessment certificate contains a “demonstrable error”.

12 The appeal is made by application to the Registrar: s 327(4). In July 2005, when the Registrar considered the application, s 327(4) further provided:

“The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.”

13 Section 327(4) has been amended since the Registrar exercised his power in the present matter. As from 1 November 2006 the section no longer requires that it appear to the Registrar that at least one of the grounds exists, but now provides that 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”.

14 Although other steps may be taken, the general procedure on appeal is that an Appeal Panel constituted by two approved medical specialists and an arbitrator is established by the Registrar and that body then reviews the original medical assessment: s 328(1) and (2). In the present case, a delegate of the Registrar determined that the appeal should not proceed because he was not satisfied that any of the specified grounds ‘existed’. The applicant sought to review that determination in the Court.

Grounds of review

15 The grounds relied upon before the primary judge (Malpass AsJ) were not originally stated with great precision. However, an amended summons, filed after the hearing, included a sole ground alleging that the Registrar had “asked the wrong question, that error going to jurisdiction … or erred in law, that error being apparent on the face of the record”: see Mahenthirarasa v State Rail Authority of New South Wales [2007] NSWSC 22 at [16]. That ground was particularised by reference to two matters. First, it was said that the Registrar erred in asking whether the grounds relied upon to challenge the certificate were “made out” rather than whether they established a serious issue to be tried. Secondly, it was said that the Registrar failed to take into account a relevant consideration, namely whether the medical specialist had “demonstrably erred” or “applied incorrect criteria” in making inconsistent deductions for pre-existing injury in different parts of the certificate.

16 One other matter should be noted in relation to the proceedings below. The summons commencing proceedings in the Common Law Division named the SRA as the first defendant, the Registrar as the second defendant and the medical specialist as the third defendant. The third defendant was apparently included because an order was sought quashing the certificate provided by him. That relief appears not to have been pressed before the primary judge. Although an order quashing the certificate was sought in the draft notice of appeal, no grounds were included in support of that order and it would not be appropriate in any event to make it. The role of the third defendant (and third respondent) can therefore be put to one side.

17 The Registrar was presumably joined as the officer responsible for the decision under review. If so, the assumption was not strictly correct as the decision was that of a delegate of the Registrar. In any event, the Registrar also filed a submitting appearance, both in the Common Law Division and on the appeal.

18 The first respondent below and in this Court was the SRA. It was the employer of the applicant and was the party responsible for paying compensation. It also filed a submitting appearance, a position which was confirmed in writing after the hearing in this Court.

19 As a result, the relief sought in the summons was unopposed. Similarly, the relief sought on the application for leave to appeal and the appeal were also unopposed. Despite those circumstances, the applicant was apparently required to argue his case before the primary judge and, indeed, failed to obtain the relevant relief on the uncontested application. For reasons explained below, the primary judge was in error, even if it were appropriate to consider the merits of the application. As a result, the applicant is entitled to the relief sought, setting aside the decision of the delegate of the Registrar. The fact that the decision was not contested, however, has led to a circumstance where no party is willing to pay the applicant’s costs properly incurred for the purpose of obtaining an order to which he was entitled. In a system where costs follow the event, the result that the applicant is unable to obtain an order for costs would appear to be anomalous.

20 In order to understand the nature of these challenges, it is necessary to consider the content of the certificate of permanent impairment issued by Dr Breit pursuant to a request dated 8 December 2004. The applicant was examined by Dr Breit on 21 February 2005 and the certificate, apparently not dated, bears a facsimile transmission date at the top of each page of 24 March 2005. (Nothing turns on it, but it seems unlikely that the certificate was issued on 4 April 2005, as the primary judge stated.) The medical certificate was issued pursuant to s 325 of the Workplace Injury Act, which provided as follows:

“ 325 Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate ) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.”

21 The injury to the applicant occurred on 30 August 2001, at his place of work. The claims made related to a degree of impairment of the back, left knee and right knee. The certificate recorded that the matters referred involved an “impairment dispute” and a “threshold dispute”. This dual characterisation flowed from the fact that the injury occurred prior to the commencement, on 1 January 2002, of Part 7 of Chapter 7 of the Workplace Injury Act, pursuant to which the procedure was established involving the use of approved medical specialists. It is not necessary for present purposes to consider how the transitional provisions operated in the present case.

22 At pages 12-13 of the certificate, the medical specialist gave reasons for his assessment of the percentage of permanent impairment. He stated first:

“Prior to the first surgery on the left knee the MRI showed a chronic tear of the anterior cruciate which was not caused by the fall. There was also evidence of chronic articular damage. The most likely sequence of events is that the knee gave way because of the anterior cruciate deficiency resulting in a blow to the front of the knee and a tear of the medial meniscus as well as a more minor tear of the lateral meniscus. This is an aggravation and acceleration of a pre-existing condition.”

23 Curiously, at page 13, he set out his assessment of whole person impairment by reference to “the right knee”. In the tables at the end of the reasons, impairments were noted in each case in relation to the left knee. The error on page 13, where the relevant percentages are first set out, might have been identified as an “obvious error” but nothing was said to turn on it for the purposes of the appeal.

24 The primary point of complaint was that, although the tests for the two forms of assessment under s 68A of the Workers Compensation Act 1987 (NSW) and s 323 of the Workplace Injury Act were substantially identical, the results provided in the two tables differed significantly. Thus, in the table for injuries received before 1 January 2002, the total percentage of impairment identified for the left leg at or above the knee was 20%, the proportionate loss due to pre-existing injury, abnormality or condition, assessed under s 68A, was 75%. This gave a total percentage of permanent loss attributable to the injury at 5%. The medical specialist stated at page 13, in referring to the threshold assessment:

“The reasoning for my assessment is the same as for the Table of Disabilities, that is, in my opinion there is no work related impairment associated with either the left knee or the lumbar spine.”

25 As already noted, that was a direct contradiction of all that had been said on the previous page as to which knee was injured. But the percentages which were then assessed, and set out in the second table in relation to the “left lower extremity”, constituted a total whole person impairment of 11% and an apportionment under s 323 for the pre-existing injury at 10/11ths. This gave a percentage attributable to the injury as 1%, or one-fifth of that identified in the previous table according to what the medical specialist himself described as the same assessment.

26 In his grounds of appeal in the Workers Compensation Commission, the applicant identified a number of errors. The error presently under consideration was identified in express terms at paragraph 10:

“Likewise, the AMS deduction with regard to the left lower extremity under AMA5 of 10/11ths was plainly wrong. The relevant criterion under section 323 of the 1998 Act is essentially the same as section 68A. The finding under section 68A of ¾ and the finding under section 323 of 10/11ths with regard to the same body part is a clear demonstrable error. The two different findings with regard to virtually the same criterion are inconsistent.”

27 The SRA filed a response in the Commission which did not expressly address this complaint. So far as percentages were concerned, it quoted from a report of Dr Perla, dated 18 November 2002, expressing the opinion that “the striking of the left knee had probably aggravated a pre-existing problem, such that 50% of his condition was attributable to the work related incident, with the remaining 50% attributable to a pre-existing condition”. It also referred to a report of Dr Bornstein dated 27 April 2004, which included the opinion that the applicant had “suffered from a 5% permanent loss of use of the left leg, which was likely work related”. For what it was worth, this material supported the applicant’s contention that there must have been error in the table finding a work-related impairment of 1% only.

28 On 14 July 2005 a decision was made by a delegate of the Registrar, pursuant to s 327(4) of the Workplace Injury Act.

29 The Registrar’s delegate gave reasons and no complaint is made about their inadequacy. So far as they are presently relevant, they are brief and conclusory. Thus the delegate stated:

“[4] After consideration of the submissions received from the Appellant and the Respondent, it does not appear that the assessment was made on the basis of incorrect criteria or that the medical assessment certificate contains a demonstrable error.
…
[9] Hence, there is nothing on the face of the record of the medical assessment certificate that indicates that the findings made by the AMS on the basis of information and material provided to the AMS, and also clinical observation, amounts to the use of an incorrect criteria [sic] or demonstrable error.
[10] Accordingly, as it does not appear to the Registrar that at least one of the grounds of the appeal exist, the appeal should not proceed and the matter is referred back to the Arbitrator for any outstanding issues to be resolved.”

30 If the delegate were required to give reasons in the exercise of a judicial function (which as discussed below he is not), these would not suffice. Nevertheless, they provide support for the proposition that the unexplained inconsistencies, which exist in the certificate, were simply not addressed.

31 The applicant sought to review this decision, the application being heard by Malpass AsJ. His Honour dismissed the application. At [6], his Honour set out the submission in paragraph 10 of the applicant’s submissions, which has been set out above at [26]. He then addressed the relevant criteria to be applied by the Registrar concluding, following his own earlier decision of Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954, that the Registrar was required to be satisfied that at least one of the grounds “has been ‘made out’”: at [13]. For reasons noted below this approach was in error. His Honour also took the view that, even if the Registrar need only be satisfied that one ground was arguable to let the appeal proceed, the application for review would nevertheless fail: at [21]. His Honour said, no doubt correctly, that the reasons of the delegate did not disclose what test was applied. But it does not follow from that conclusion that no error can be demonstrated. His Honour’s failure to consider further the possibility of legal error was itself erroneous.

32 As was explained by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, the fact that it was for the Commissioner, not the Court, to be satisfied of a particular matter, did not render the Commissioner’s decision unexaminable. As his Honour noted:

“If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.”

33 Relevantly for present purposes, Dixon J continued:

“Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”

34 His Honour referred to what he characterised as a “further argument” which relied upon demonstrable error in the certificate, resulting from the disparate application of s 68A and s 323: at [25]. The submission stated:

“That is because of the logical inconsistency between the deduction for pre-existing condition under section 68A of the old Act, using table 1, and the deduction for pre-existing condition under section 323 of the WIM Act, using table 2, in relation to precisely the same injury….”

35 The primary judge said that this ground was not developed, although it appears to have been identical to the second particular identified in the amended summons. It is not self-evident that further development was required: on its face it showed that a demonstrable error existed without additional explanation.

36 Having concluded that there was no error, his Honour indicated that had he been satisfied otherwise he would have declined to grant relief in the exercise of his discretion because relief would have been “a futility”: at [23]. It may be inferred that the “futility” of relief was not fully explored at the hearing and his Honour’s conclusion should not lead this Court to decline relief, if satisfied that his Honour erred on the primary issue: see King v Goussetis (1986) 5 NSWLR 89 at 94 (McHugh JA, Kirby P and Hope JA agreeing) applying Wade v Burns (1966) 115 CLR 537; Canham v Australian Guarantee Corporation Ltd (1993) 31 NSWLR 246 at 263 (Kirby P, Priestley and Meagher JJA agreeing).

37 The primary judge added, apparently as an additional reason, that he was not satisfied that “what was done could constitute ‘demonstrable error’ in the contents of the certificate”: at [27]. He stated at [29]:

“In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, Hoeben J said that it was sufficient for the purposes of determining that case to conclude that such an error is an error that is readily apparent from an examination of the medical assessment certificate and the document referring the matter for assessment. He also observed that error alone was not sufficient. The second reading speech contains the following concerning ‘demonstrable error’:
‘A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.’”

38 Finally, albeit as something of an unresolved comment, the primary judge also stated at [27]:

“It may be added that even if a different view was taken on these matters, it was not shown that the ground had any real significance in relation to the assessment.”

39 This final comment may have been intended to indicate that it did not matter whether the applicant’s degree of impairment was 1% or 5%. The medical specialist was asked to do no more than assess the degree of whole person impairment. It should be assumed that each of the specific findings in the certificate, made in accordance with the matters referred, should be treated as material unless demonstrated otherwise. No party sought to demonstrate otherwise. Accordingly materiality should be assumed.

Nature of Registrar’s function

40 The relevant form of s 327(4) was referred to by this Court in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8], [76] and [80]. That case was not directly concerned with the decision of the Registrar under s 327(4), the matter having been considered by an Appeal Panel. Rather, it was concerned with the validity of the decision of the Appeal Panel, and the adequacy of the reasons provided by the Panel. The decision in Campbelltown City Council concerned steps taken in 2003 and, in the course of giving reasons, both Handley JA and I expressed views as to the function of the Registrar under s 327(4), as then in force.

41 Handley JA stated at [8]:

“An appeal does not proceed to an Appeal Panel unless it appears to the Registrar that at least one of the grounds for appeal ‘exists’, which I take to mean that the ground is, on its face, valid and apparently credible (s 327(5)).”

(The reference to s 327(5) should be understood as a reference to s 327(4).)

42 I considered the matter in the context of whether it was necessary for more than one ground to appear to the Registrar to exist, in circumstances where the appeal proceeded and it was necessary to consider what grounds the Appeal Panel was required to address. With respect to the powers of the Registrar, I stated at [133]:

“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.”

43 McColl JA saw no significant difference between these expressions and agreed with both.

44 Although it was not necessary to determine the issue, I expressed doubt as to whether the approach adopted by single judges of the Court in previous decisions was consistent with that approach.

45 The Registrar in the present matter, who made a determination long before the decision in Campbelltown City Council, cannot be criticised for not following the remarks of this Court. The primary judge was unable to derive any clear assistance from the remarks in this Court but noted that the amendment effected in November 2006 adopted words which he had used in Wikaira at [27], which had been followed by Hislop J in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 at [17]: see [2007] NSWSC 22 at [9]-[14].

46 In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149, the Court held that, as an officer carrying out administrative functions, the Registrar was not under a duty to provide reasons for the decision made under s 327(4): at [114] (Campbell JA, Hodgson JA and Handley AJA agreeing). However, Hodgson JA in a short concurring judgment suggested that the answer to the question might be different where the Registrar’s decision “prevents the matter going forward”: at [5]. Campbell JA agreed with the additional comments of Hodgson JA, without seeking to reconcile that additional comment with his own reasoning on that question: at [115]. Handley AJA agreed with the reasons for judgment of Campbell JA, which he had read in “draft”, without indicating whether the draft included [115], so as to pick up the additional comments of Hodgson JA.

47 The decision of this Court in Riverina Wines was handed down some months after the decision of the primary judge in this matter. Accordingly, his Honour cannot be faulted for not referring to it. Nevertheless, and unsurprisingly, it affirmed the approach that had been taken in Campbelltown City Council. The principal judgment was that of Campbell JA, who set out the remarks of Handley JA and noted that McColl JA agreed: at [73]. His Honour preferred the language of Handley JA noting that to express the test in a negative sense might be misleading if that language were used to replace the statutory language because it would reverse the onus of proof: at [75].

48 Handley JA had stated in Campbelltown City Council that, for a ground of appeal to exist, the relevant satisfaction was that “the ground is, on its face, valid and apparently credible”. Campbell JA provided a further explanation in Riverina Wines at [76]:

“A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can ‘exist’ if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is ‘sufficiently’ realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding.”

49 His Honour then considered that the structure of the provision, namely that the appeal was not to proceed “unless” the Registrar were relevantly satisfied, suggested that the Registrar had, in any event, a discretion. The discretion would need to be exercised in accordance with the statutory context. On one view, it may have been intended to state the matter in that way because of the alternative course made available under s 327(6). Whether there would be a discretion available in other circumstances is unclear and need not be addressed.

50 His Honour also noted that to be appointed the Registrar of the Commission, a person must be a legal practitioner or someone having “such qualifications, skills or experience as may be determined by the Minister”: s 369(3). On the other hand, the Registrar is given an apparently unfettered power to delegate his or her functions to any member of the Commission or member of staff of the Commission: s 371(2). The delegate is not required to be a legal practitioner or to have any relevant qualification, skill or experience. Further, unlike an arbitrator, the delegate of the Registrar is not stated to be subject to “the general control and direction of the Registrar”: cf s 372(2).

51 A further factor of potential significance in terms of the functions and powers being exercised under s 327(4) is that, as an administrative function, there is no obligation to give reasons for a decision, absent some statutory provision to the contrary: see Public Service Board of New South Wales v Osmond (1985) 159 CLR 656, applied in Riverina Wines at [105]-[112]. At [113], Campbell JA continued:

“Even though someone who makes a decision of an administrative character is usually not under an obligation to give reasons, in special circumstances the rules of natural justice may require the provision of reasons in the exercise of administrative power, where a person’s rights and legitimate expectations may be adversely affected if the reasons are not provided.”

52 One example of such a situation was said to be a case where the statutory scheme in question provided for “an appeal” from the decision of an administrative decision-maker: Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 734-735 was cited as authority for that proposition. Campbell JA noted that that exception did not apply in the present statutory scheme. The concept of an appeal from an administrative decision is somewhat anomalous. At least from the perspective of the Court, it would require the exercise of original jurisdiction. The statutory scheme in relation to costs assessors, under consideration in Kennedy Miller Television, may well have involved the exercise of a judicial function, as suggested by Handley JA at 739.

53 The other support for this proposition was derived from Osmond at 676, in the judgment of Deane J. Deane J agreed with the Chief Justice “that where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission”. His Honour also accepted that:

“the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision-maker should be under a duty to give reasons or to accept that special circumstances might arise in which contemporary standards of natural justice or procedural fair play demand that an administrative decision-maker provide reasons for a decision to a person whose property, rights or legitimate expectations are adversely affected by it”.

54 His Honour continued:

“Where such circumstances exist, statutory provisions conferring the relevant decision-making power should, in the absence of a clear intent to the contrary, be construed so as to impose upon the decision-maker an implied statutory duty to provide such reasons.”

55 The comments of Campbell JA can thus be understood, by reference to the two authorities his Honour cited. It is difficult to see that the existence of an obligation to give reasons will turn on whether the Registrar’s decision is adverse to the applicant’s interests or not: one party will be dissatisfied by the outcome of a contested decision, whichever way it goes. Osmond denied the availability of reasons under the general law in relation to a decision entirely adverse to Mr Osmond’s interests: cf Riverina Wines at [5] . It is a large question as to whether rules of procedural fairness require, as a condition of the validity of administrative decision-making, the giving of reasons. In accepting that a statutory right of review might be attracted in circumstances where there had been a failure to give reasons and thus a failure to comply with a procedure in connection with the making of the decision, the joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 at [43] (Gleeson CJ, Gummow and Heydon JJ) noted that such a conclusion “does not address the submission that such a failure also taints that decision with jurisdictional error so as to attract s 75(v) of the Constitution”. In the same case, McHugh J stated at [55]:

“It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision.”

56 If Osmond is to be distinguished in relation to the powers of the Registrar under s 327(4), it may be because the Registrar acts as ‘gatekeeper’ to the exercise of judicial power by the Appeal Panel. However, these questions need not be addressed further in the present case, where there is no challenge made to the adequacy of the reasons provided, nor any contention that the provision of satisfactory reasons constituted a statutory obligation of the delegate.

57 The decision of the Court in Riverina Wines, confirmed that the test to be applied by the Registrar under s 327(4) was not whether a ground of appeal had been ‘made out’. Accordingly, the test adopted by the primary judge was in error.

Demonstrable error

58 The primary judge held that no legal error was discernable from the reasons of the delegate, without following the approach indicated in Avon Downs. Had he taken that step, it would have been necessary to consider whether the applicant’s argument had merit because it was apparent that the delegate had misapprehended the nature of his function in considering whether a ground of appeal based on demonstrable error existed.

59 The concept of “demonstrable error” is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error “on the face of the record” for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word “demonstrable” does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error. In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [13], Gleeson CJ made comments relevant to such a concept, stating:

“The concept of ‘manifest’ defect in jurisdiction, or ‘manifest’ fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review. For example, the principles according to which a court of appeal may interfere with a primary judge’s finding of fact, or exercise of discretion, are expressed in terms such as ‘palpably misused [an] advantage’, ‘glaringly improbable’, ‘inconsistent with facts incontrovertibly established’, and ‘plainly unjust’. Unless adjectives such as ‘palpable’, ‘incontrovertible’, ‘plain’, or ‘manifest’ are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected.”

60 As noted above, in Merza Hoeben J thought it was sufficient that an error is one “readily apparent from an examination of the medical assessment certificate”. That is also sufficient for the present case, although it may not constitute a necessary element of the statutory formulation. The matter was considered further in the recent decision of this Court in Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 in the judgment of Mason P, with whom McColl and Bell JJA agreed, at [44]-[61]. The discussion need not be further addressed in this context.

61 As noted at [22]-[26] above, the appeal included a ground based on demonstrable error which was, on its face, valid and apparently credible. Its existence, in the absence of any clear basis for its rejection, should have led the primary judge to conclude that the delegate had failed to exercise his function according to law. In that respect his Honour erred and the appeal should be allowed.

Fresh ground

62 A further ground was raised, which concerned a fresh issue as to whether all of the material available to the Registrar had been forwarded to the medical specialist. This matter was not in terms the subject of the proposed appeal to the Appeal Panel and was not addressed by the primary judge. It is not necessary to consider whether it is available to the applicant to be raised in this Court.

Costs

63 This case has had a somewhat unusual litigious history. Although the SRA resisted the appeal to the Registrar and sought a determination that the appeal should not proceed, it did not appear either before the primary judge or in this Court to support the delegate’s determination. All three respondents filed submitting appearances both below and on appeal and have foreshadowed resistance to an order for costs against any of them. Although it is not entirely clear, partly because the orders were never taken out, it appears that the primary judge ordered the applicant to pay the respondent’s costs on a submitting basis. As it is necessary to set aside the decision of the primary judge, that order should also be set aside.

64 Where no party opposes relief sought by an applicant, it will often be appropriate to make orders by consent. At least that is so where the parties are sui juris, the orders properly formulated, the Court has no reason to suppose that its procedures are being abused and the public interest does not require a different result: see Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246 at 252-253 (Kirby P, dissenting as to the outcome), 255-256 (Mahoney JA) and 257-258 (McHugh JA); Noel v Becker [1971] 1 WLR 355 (EWCA Civ). That result will minimise the costs incurred, although the applicant would normally be entitled to an award of costs which would follow the event.

65 Judicial review applications may be thought to fall into a different category. Because relief is discretionary, and because the order below will stand unless set aside, and because it may be seen to be inappropriate to set aside the decision of an administrative officer and order him or her to reconsider without identifying the precise error, some cases require that the court be persuaded of error: see, eg, Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [9] (French J). That may have been the view adopted in the present case so that, despite the lack of opposition, the primary judge required to be persuaded of error.

66 The applicant incurred costs before the primary judge as a result of an error on the part of an officer of the State, namely the delegate. There is something to be said for the view that it is the State which should bear the legal costs involved. The only way that such an order could be made is if the review proceedings fell within the scope of the Suitors’ Fund Act 1951 (NSW). For that scheme to apply, the proceedings must be capable of characterisation as “an appeal” and the decision of the delegate as the decision of “a court”: Suitors’ Fund Act, s 6(1). The error which has been demonstrated is an error of law on the part of the delegate.

67 The term “appeal” is defined in s 2(1) of the Suitors’ Fund Act to include “any motion for a new trial and any proceeding in the nature of an appeal”. Both stated cases and applications for statutory prohibition have been treated as appeals. It may be that the present proceedings, brought under s 69 of the Supreme Court Act, should be treated in the same way.

68 If there were an appeal, the next question is whether the Workers Compensation Commission constitutes “a court” for the purposes of the Suitors’ Fund Act. To the extent that the Commission exercises judicial functions, it may be appropriate so to treat it. Thus, the Equal Opportunity Tribunal has been found to be a court for the purposes of the Act: Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497; similarly, the Medical Tribunal may also be a court: see Qidwai v Brown [1984] 1 NSWLR 100 at 102. On the other hand, the Board of Subdivision Appeals under the Local Government Act 1919 (NSW) was held not to be a court in Gosford Shire Council v Anthony George Pty Ltd (1969) 89 WN(Pt 1)(NSW) 350. If the function of the Registrar under s 327(4) were incidental to an exercise of judicial power, the Registrar’s decision may be capable of being classified as a decision of a court provided the Appeal Panel to which the appeal was to be taken was a court. That would not necessarily depend only on the characterisation of the function as administrative or judicial. However, if the exercise of the function by the delegate were properly characterised as administrative, it might render unlikely the proper classification of the proceeding as an appeal or a proceeding in the nature of an appeal.

69 So far as the proceedings in this Court are concerned, they satisfy the definitions within the Suitors’ Fund Act. However, it is the respondent to whom an indemnity certificate is granted, not the successful applicant. A certificate will therefore not avail the applicant unless a respondent is ordered to pay his costs and the respondent is eligible to have a certificate. Each of these obstacles would be sufficient to preclude the issue of a certificate.

70 There will also be a question whether a party which sits by, taking no active part in the proceedings, but not consenting to an order, can avoid payment of the applicant’s costs incurred in making good a claim to relief. The Registrar and the medical specialist were acting properly in not actively resisting the order: see The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36. No order is sought against them. It may be that the SRA falls into a different category.

71 Although the applicant included in his draft notice of appeal an order for his costs to be paid by the SRA, neither party addressed submissions to this claim. If the applicant seeks to pursue a claim for costs, it will be necessary to allow the SRA, against whom such an order is sought, an opportunity to put submissions in opposition, if it wishes to resist the order. The applicant should have 28 days to explore the opportunity for agreement and to formulate the relevant order or orders, if required, and file and serve submissions in support. The SRA should have 14 days to reply.

Conclusions

72 It follows from these considerations that the error relied upon by the applicant was a “demonstrable error” which was apparent on the face of the medical assessment certificate. In the absence of any relevant explanation by the delegate of the Registrar for rejecting that contention, it should be inferred that the delegate either overlooked the ground entirely or misunderstood the matter being put. The fact that some reasons were given which make no reference to this ground supports that inference.

73 The primary judge also failed to come to terms adequately with the challenge which was expressly identified in the amended summons and in the written submissions for the applicant. The applicant is entitled to orders setting aside the decision below and the delegate’s decision. The parties will have an opportunity to agree or, in default of agreement, present written submissions as to costs in this Court and the Court below.

74 I would propose the following orders:

(1) Grant leave to appeal in relation to the decision of the Registrar’s delegate and direct the applicant to file his notice of appeal within 7 days.

(2) Allow the appeal and set aside the decision of the primary judge dismissing the summons.

(3) Set aside the decision of the delegate of the Registrar of the Workers Compensation Commission made on 14 July 2005.

(4) Remit the appeal to the Registrar for reconsideration of the application of s 327(4), to be determined according to law.

(5) (a) Grant the applicant leave to file and serve submissions in support of his claim that the SRA pay his costs within 28 days.

(b) Grant the SRA leave to file and serve submissions in reply within 14 days after receipt of the applicant’s submissions.

75 BELL JA: I agree with the orders proposed by Basten JA. In the absence of a contradictor, I prefer to confine the reasons for making those orders to those stated by Giles JA.

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