McEwan v Director of Dispute Resolution Directorate
[2013] WASC 355
•26 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: McEWAN -v- DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE [2013] WASC 355
CORAM: KENNETH MARTIN J
HEARD: 26 AUGUST 2013
DELIVERED : 26 SEPTEMBER 2013
FILE NO/S: CIV 1263 of 2012
MATTER :An application for a writ of certiorari against the Director of Dispute Resolution Directorate under the Workers' Compensation and Injury Management Act 1981 (WA)
BETWEEN: KELLY ANN McEWAN
Applicant
AND
DIRECTOR OF DISPUTE RESOLUTION DIRECTORATE
First RespondentACEBROOK CORPORATION PTY LTD
Second RespondentINSURANCE AUSTRALIA LIMITED T/A CGU WORKERS COMPENSATION
Third Respondent
Catchwords:
Prerogative relief - Certiorari - Workers' compensation - Extensions of termination day - Last day for extension - Statutory interpretation - Last day of one year period - Turns on own facts
Legislation:
Interpretation Act 1984 (WA), s 61
Workers Compensation and Injury Management Act 1981 (WA), s 93L, s 93M
Result:
Application granted, order for certiorari quashing decision
Category: B
Representation:
Counsel:
Applicant: Mr M A Tedeschi
First Respondent : Submitting appearance
Second Respondent : Mr G R Hancy
Third Respondent : Mr G R Hancy
Solicitors:
Applicant: Waterside Legal
First Respondent : Submitting appearance
Second Respondent : SRB Legal
Third Respondent : SRB Legal
Case(s) referred to in judgment(s):
Bird v Commonwealth (1988) 165 CLR 1
Bodrudazza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 208 CLR 651
R v Electricity Commissioner Ex parte London Electricity Joint Committee Co [1924] 1 KB 171
KENNETH MARTIN J: This is an application by originating motion of 17 February 2012 seeking orders absolute for certiorari, as well as for mandamus. Certiorari is sought to quash certain decisions of the Director of the Dispute Resolution Directorate's delegate (Ms Geary). Mandamus is sought to compel the Director to accept a notice of an election to pursue common law damages, lodged on 30 June 2011 behalf of the applicant.
Reference to the Dispute Resolution Directorate is to the organisation within WorkCover (WA) responsible for resolution of Workers' Compensation and Injury Management Act 1981 (WA) (Workers' Compensation Act) disputes. Ms Geary's communications to the applicant's solicitors were responding to various applications to extend time limits, including most relevantly, an application to further extend her 'termination day' (under s 93M of the Workers' Compensation Act) to 30 June 2011.
The applicant suffered spinal and other injuries when she fell off or through a roof whilst employed by the second respondent, when cleaning gutters at a property at Noble Falls on 18 May 2009. The Directorate is the first respondent to the applications. It advised (by writing on 14 May 2013) that it would abide the decision of the Court. It did not otherwise participate.
The second and third respondents (as employer and employer's insurer, respectively) were joined as parties at a subsequent directions hearing. Since joinder, they have participated through common solicitor representation and by counsel at the hearing. They are effectively the contradictors against this application.
The second and third respondents advise by their written submissions that they are not aware of any prior instance where prerogative relief has been granted in respect of a decision made by a Director's delegate under the Workers' Compensation Act. Otherwise, no substantive or considered argument was addressed to me about this Court's capacity to grant prerogative relief in respect of such decisions. However, the present application for final relief was opposed by the second and third defendants and fully argued out upon its merits.
It is a long recognised proposition of public law that a statutory authority, acting ultra vires, may be called to order by use of the prerogative writs issued by superior courts. Lord Atkin in R v Electricity Commissioner Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 classically observed:
Wherever any body of persons having legal authority to determine questions affecting the rights of subject, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the [court] exercised in these writs.
The role of a superior court in controlling jurisdiction is to determine whether an underlying decision at issue may be tainted by jurisdictional error. The court acts as a judicial review institution, not a merits review body. That is, it will only exercise the prerogative jurisdiction when there is shown to be some error of jurisdiction made by the impugned decision maker. In Bodrudazza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 208 CLR 651 the High Court observed that it held supervisory power in that presenting instance of a departmental officer acting as the Minister's delegate. However supervisory powers were restricted to instances of jurisdictional error.
The matter not having been otherwise argued, I am satisfied here that there is a respectable edifice for me to assume this court may exercise its jurisdiction against impugned decisions made by a Director's delegate. Such decisions may deliver serious repercussions against the rights of an employee. In the circumstances, I will proceed on the basis the challenged decision of the Director's delegate in this action, is reviewable. However, I expressly reserve for another day, and for a more substantive argument, my underlying assumption. This decision sets no precedent in that arena.
Key events
I will now set out below a chronology of the key events extracted from the tendered evidence on the application.
| Date | What happened | Evidence |
| 18 May 2009 | Kelly Ann McEwan (Ms McEwan) injured. Issued with medical certificate. | McEwan Affidavit par 4, annex 'KAMI' page 10. |
| 25 May 2009 | A claim form for weekly compensation is prepared for Ms McEwan, but is not signed by her. | McEwan Affidavit pages 37, 40. |
| 29 June 2009 | Ms McEwan has conversations with insurer for employer (CGU Workers Compensation). Further claim form (duly signed) is submitted by Ms McEwan. | McEwan Affidavit par, annex 'KAM2' page 12. |
| Interim | Receives weekly compensation payments. | McEwan Affidavit par 8. |
| 30 December 2009 | Letter from CGU to Ms McEwan dated 15 December 2009. Notice to worker about termination day for election. Ms McEwan advised her termination day is 30 June 2010. | McEwan Affidavit par 9, annex 'KAM3' page 15. |
| 12 May 2010 | Ms McEwan's solicitor contacts her doctor (Dr Ker) for a review appointment on 24 May 2010. Solicitor sends form to Dr Ker seeking a report on the worker's degree of permanent impairment. | McEwan Affidavit par 11.1.
|
| 24 May 2010 | Appointment with Dr Ker. | |
| 25 May 2010 | Dr Ker provides medical report, from appointment on 24 May 2010, without certificate of degree of impairment. | McEwan Affidavit par 11.3, annex 'KAM5' pages 21 ‑ 25. |
| 21 June 2010 | Ms McEwan's solicitor writes to Dr Ker seeking clarification of his report. | McEwan Affidavit par 11.4, annex 'KAM6' pages 27, 28. |
| 29 June 2010 | Application to extend termination day until 30 June 2010 received by Directorate (First Application). | McEwan Affidavit, annex 'KAM9' page 35. |
| 30 June 2010 | Directorate extends termination day for first time (under s 93M(4)(b)) to 30 June 2010. | McEwan Affidavit par 12. |
| 21 July 2010 | Solicitor writes again to Dr Ker seeking clarification on the report. | McEwan Affidavit par 11.5. |
| 23 July 2010 | Directorate receives application to extend termination day until 23 August 2010. | McEwan Affidavit, annex 'KAM9' page 35. |
| 26 July 2010 | Directorate grants second extension of termination day second time (under s 93M(4)(d)(i)) until 23 August 2010. | McEwan Affidavit page 35, annex 'KAM9'. |
| 6 August 2010 | Ms McEwan's solicitor receives response from Dr Ker of 3 August 2010. | McEwan Affidavit par 11.6, annex 'KAM7' page 30. |
| 11 August 2010 | Solicitor writes for third time to Dr Ker asking for WorkCover forms. | McEwan Affidavit par 11.6, annex 'KAM8' page 33. |
| 17 August 2010 | Solicitor contacts Dr Ker's office (fourth time). Informed he is in Tasmania until 23 August 2010. | McEwan Affidavit par 11.6. |
| 20 August 2010 | Directorate receives letter from Ms McEwan's solicitors seeking a third extension of the termination day until 10 September 2010. | McEwan Affidavit, annex 'KAM10' page 46. |
| 24 August 2010 | Directorate extends termination day (third time) until 10 September 2010. | McEwan Affidavit par 12, annex 'KAM10'. |
| 6 October 2010 | Solicitors contact Dr Ker for the fifth time seeking the necessary documents from WorkCover. | McEwan Affidavit par 13, annex 'KAM11' page 52. |
| Between 5 November 2010 and 11 February 2011 | Solicitors contact Dr Ker five more times. 10 occasions total. | McEwan Affidavit par 14, annex 'KAM12' and 'KAM13'. |
| May 2011 | Ms McEwan referred to Drs Goodheart and Campbell for assessment treatment. | McEwan Affidavit par 18. |
| 4 May 2011 | Ms McEwan's solicitors write to Dr Goodheart confirming appointment for 16 June 2011 and enclosing AMS form 1. | McEwan Affidavit par 21. annex 'KAM13' page 57. |
| Early May 2011 | Dr Ker responds with the relevant AMS forms attached. | McEwan Affidavit par 21. |
| 8 June 2011 | Dr Goodheart calls solicitors, and solicitors fax the remaining documentation for appointment. | McEwan Affidavit par 22, annex 'KAM14' page 61. |
| 16 June 2011 | Ms McEwan's medical appointment with Dr Goodheart. | McEwan Affidavit pages 97 – 103. |
| 21 June 2011 | Application to extend termination day lodged by solicitors seeking until 30 June 2011. Contained Dr Goodheart's documentation - 31% impairment. Received on 22 June 2011. | McEwan Affidavit, pars 21, 23. annex 'KAM15' pages 64, 72. |
| 27 June 2011 | Letter dated 24 June - Directorate responds saying that the application was out of time as the original termination day was 25 May 2010, so the latest date that could be granted is 25 May 2011. | McEwan Affidavit, par 25', annex 'KAM16' page 72. |
| 30 June 2011 | Solicitors lodge further (second) application to extend termination day until 30 June 2011 and submissions as to termination day. They also file an election to retain right to seek common law damages and AMS forms 5 and 6. | McEwan Affidavit, par 26, annex 'KAM17' pages |
| 14 July 2011 | Directorate replies (Ms Geary) raising issues and seeking a response | McEwan Affidavit, par 27, annex 'KAM18' pages |
| 4 August 2011 | Solicitors write to Directorate over seeking more time to respond to the letter dated 15 July 2011. | McEwan Affidavit, par 28, annex 'KAM19' and 'KAM20'. |
| 19 August 2011 | Without considering response, Directorate denies request for extension. | Supplementary McEwan Affidavit, 'KAM1', exhibit B. |
From the chronology it may be observed that by reference to s 93M(4) of the Workers' Compensation Act, three extensions to the applicant's termination day were granted. A fourth was refused. As will emerge, the first extension to (30 June 2010) was unnecessary, but has sown the seeds for subsequent confusion of the applicant's correct termination day.
By s 93M(8) of the Workers' Compensation Act it is open to grant an extension to the termination date even after the initial or extended termination day has passed (subject to the Act). Applications of that nature were made here.
Here, the current termination day extension had been granted (on 24 August 2010) to 10 September 2010 (McEwan Affidavit, 'KAM10'). This date passed.
At a section of a seven‑page letter of 14 July 2011 under a heading 'Application dated 30 June 2011 lodged under s 93M(4)(a) of the Act', the Director's delegate wrote:
As the Application dated 30 June 2011 has been lodged under section 93M(4)(a) of the Act, and based on the information provided in the Form 35, the original termination day for this matter (prior to the extensions of termination day being granted) was 29 June 2010. Therefore the latest date an extension can be granted until is 29 June 2011.
I am therefore unable to grant an extension of the termination day until the 30 June 2011 as requested. (my emphasis underlined)
The advice above, and the adverse decision refusing a further extension seen therein, effectively meant that the application of 30 June 2011 of the applicant for another extension of time (ie, from 10 September 2010 to 30 June 2011) could not be and was not granted. In effect, the application was assessed as being late by one day. The delegate assessed 29 June 2011 as the last cut off day open to be the 'termination day'. As I explain, I disagree.
Relevant statutory provisions
It is necessary to set out certain provisions from the Act concerning the designation of a worker's 'termination day'. As to this, I refer generally to the provisions which I will set out below:
93H .Terms used
(1)In this Subdivision -
degree of permanent whole of person impairment means the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146C, resulting from the injury or injuries arising from a single event, as defined in subsection (2);
election registration day means the day on which the Director registers the election under section 93K(4)(b).
93K .Constraints on awards
(4)Damages in respect of an injury can only be awarded if —
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 15%.
…
(8)If -
(a)subsection (4) does not allow damages to be awarded in respect of the injury; or
(b)damages in respect of the injury have been awarded in accordance with subsection (5),
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (the Contribution Act ) in respect of damages awarded against another person in relation to the injury.
…
93L.Election under s. 93K to retain right to seek damages
(1)In this section -
termination day has the meaning given in section 93M.
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if -
(a)the worker and the employer agree -
(i)that the worker’s degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker’s degree of permanent whole of person impairment is at least 25%;
or
(b)the worker’s degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
….
(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
93M.Termination day defined
(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).
….
(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if -
(a)before the termination day, an approved medical specialist, in writing -
(i)certifies that the worker’s condition has not stabilised to the extent required for a normal evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and
(ii) recommends a day until which the termination day be extended;
or
(b)the Director is satisfied that the employer has failed to comply with section 93O; or
(c)the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or
(d)the Director is satisfied that -
(i)the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker’s degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or
(ii)the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker’s degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.
….
(6)An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
(7)An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.
(8)An extension may be given even though the termination day has passed.
93O.Employer to give worker notice of certain things
(1)At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations -
(a)of the day that would be the termination day if no later day were to be fixed under section 93M(4); and
(b)that about 6 months remains before the termination day; and
(c)of the significance of the termination day for the worker’s ability to seek damages; and
(d)of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker’s degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.
(2)The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).
Evaluation: certiorari
I repeat that s 93M(6) says:
An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d) the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.
Materials submitted to the Director's delegate on 30 June 2011 (see exhibit A, annexure KAM17) by the applicant's solicitors, showed that for the purposes of s 93L(1) and s 93M(1) of the Act, the day that would have been the applicant's 'Termination Day' (had there been no extensions) was 30 June 2010, not 29 June 2010 as the delegate has concluded.
I reach that starting position on a threefold basis. First, a (Form 36) notice sent to the Applicant under s 93O, on or around 15 December 2009, said explicitly:
Your termination day for this injury is 30/06/2010, which is about 6 months away.
You may be able to apply for the termination day to be extended but an extension can only be given in limited circumstances (see section 93M(4) and (8) of the Act).
(See exhibit A pages 104 – 105).
Second, the concept of a worker's 'Termination Day' is seen to be defined at s 93L(1). This is achieved by the incorporated reference onwards to s 93M.
Under s 93M(1) it is said:
(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4). (emphasis added)
For present circumstances, the day on which a claim for compensation by weekly payments was made for the applicant was 29 June 2009: see exhibit A, pages 102 ‑ 103. Information verifying that to be so was forwarded to the Director's delegate on 30 June 2011. An earlier claim document that may have been filled in or submitted for her, dated 25 May 2009, had not been signed. In consequence, the applicant was asked to sign and complete a claim form, as she did, on 29 June 2009. That signed document of 29 June 2009 was then her claim for compensation by weekly payments, made then, not earlier.
Calculation of a day for the purposes of s 93M(1) that is one year 'after', 'the day on which the claim for compensation by way of weekly payments' was made, is (see Interpretation Act 1984 (WA) s 61(1)(b)) to not be inclusive of the day from which the one year period commences to run from. Section 61(1)(b) of the Interpretation Act, reads:
where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period … (my emphasis)
So, the first day in the running of a one year period is 30 June 2009 (ie, not counting 29 June 2009, which is the specified day under s 61(1)(b) of the Interpretation Act and not before a part of the calculated one year period).
From that base, the next question is what is the 'last day' of a period that is one year after 30 June 2009?
On my assessment the last day of such a one year period will be the one year anniversary of that day, namely 30 June 2010.
And that very day (30 June 2010) is the date this applicant was expressly advised of by the insurer, CGU, as being her 'Termination Day' by the Form 36 sent to her. In my view, the applicant was correctly so advised at the time by CGU that 30 June 2010 was her 'Termination Day'.
Third, I am not at all attracted by the second and third respondents' arguments at hearing that the method of calculating the last day of a period of one year (under s 93M(1) and s 93M(6) should be by reference to the duration of a 'financial year'. That is particularly so bearing in mind the presenting circumstances here in which aspects of this legislation can operate to curtail an injured employee's rights to pursue common law damages arising from personal injuries sustained during a period of employment.
Where there is ambiguity or doubt as to the workings of legislation, in a scenario of a potential curtailment of common law rights, then the party who is potentially affected (the employee) ought have the benefit of any doubt: see Bird v Commonwealth (1988) 165 CLR 1, 9 (Deane & Gaudron JJ) Here, if the legislature of Western Australia had intended a financial year 'guillotine' effect outcome in calculating periods of 'one year' by this legislation, it could and should have said so in more precise terms. In the absence of such an indication the period of one year is to be assessed, on my view, in commonly understood and accepted fashion which reflects the notion of a one year anniversary date.
Having now ascertained the applicant's 'termination day' would be 30 June 2010 (unless extended), in circumstances where the Director's delegate used what I assess to be the wrong starting out termination day (29 June 2010), I will proceed to the next phase of the required calculation – namely the implications of s 93M(6). I repeat, that s 93M(6) provides, as regards a (relevant) potential outer limit for any period of possible extension to an employee's termination day:
An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension … (my emphasis)
The day that would have been this applicant's termination day, had there been no extension(s) under s 93M(4), was 30 June 2010. It is necessary to ascertain (the maximum extension period) by s 93M(6) the day that is not more than one year after the day (namely after, 30 June 2010) again applying s 61(1)(b) Interpretation Act. Section 61(1)(b) of the Interpretation Act in this process excludes 30 June 2010 when calculating the period 'one year' after then. So a second relevant one year period begins to run from the next day, namely, as from 1 July 2010. Hence, the day for the purposes of s 93M(6) which is 'one year after' 1 July 2010, by my calculation, is the one year anniversary of that day, namely, 1 July 2011.
The contrary conclusion of the Director's delegate ‑ to the effect 'therefore the latest date an extension can be granted until is 29 June 2011', was incorrect. On the information before her, the correctly calculated last day by s 93M(6) to which an extension of the termination day might have been granted, on the applicant's extension application pursuant to s 93M(4)(a) was the day I have identified, 1 July 2011.
Accordingly, the applicant's second request for an extension of time (of 30 June 2011, to that day) was not a request that was made out of time: see s 93M(8). It ought not to have been peremptorily rejected as being made too late as it was. This was an error of law by, in effect, misinterpreting the workings of the underlying legislation.
Here, the decision of the Director's delegate displayed jurisdictional errors of law arising from misinterpretations of how s 93M(1) and (6) worked. This, in the end, caused the miscalculation of the original termination day, then further, as to the calculation of the last day of a possible extension period, assessed by reference to that original day (by s 93M(6)).
The consequence of the erroneous calculations and conclusions was that the Director's delegate did not in the end evaluate the merits of the application for an extension of the applicant's termination day to 30 June 2011. An extension to then would have allowed the applicant to validly give her election notice of her intention to pursue common law damages, in accord with s 93L(4) (see also s 93K(4)(d)).
Considerable material was before the Director's delegate to support the merits of the applicant's case for an extension of her termination day to 30 June 2011. The material showed protracted difficulties in obtaining medical reports from a medical specialist required in assessing the extent of the applicant's residual disability after the accident. All these delays were clearly beyond the applicant's control. Effectively, in this period she was in the hands of the medical profession. In the end, required medical reports and forms were only obtained from her second consultant neurologist, Dr Ross S Goodheart on 16 June 2011 (see exhibit A, pages 89 - 97 and 98 - 101). This material shows the applicant suffered long‑term impairments from her injuries which reached in totality a 31% whole person impairment (see the respective impairments as enunciated at page 92 of exhibit A, and a following assessment of the 'whole person impairment' at pages 92 - 93).
Furthermore, the materials placed before the delegate show that the applicant, through her solicitors, made considerable efforts seeking out these medical reports or forms, in the end, from another specialist.
As of 20 August 2010, Dr Ker had, in fact, recommended the extension of the applicant's termination date to 30 June 2011. The recommended extension was on the basis that the applicant's condition had not stabilised to an extent required for an evaluation of her long‑term impairment to be made (see exhibit A, page 70).
But the ultimate merits of arguments seeking an extension of time for the applicant's 'termination day' until 30 June 2011 are not, in the end, for this court to decide on a certiorari application. The merits of such an extension as was sought must be for the Director's delegate to consider and assess in accord with law, properly understood and interpreted.
Quashing this delegate's decision by an order absolute for certiorari on a basis the decision was tainted by jurisdictional errors of law, simply means that the evaluation of the request for an extension will need to be remade by the Director's delegate.
Nor, in my view, in present circumstances, would any order for mandamus be appropriate. There is no reason to believe or suspect that the Director's delegate, with the benefit of these reasons and orders, would not proceed in accord with the law and re‑evaluate the request for an extension of time on a proper basis.
In the circumstances, I will issue an order absolute for a writ of certiorari quashing the delegate's decisions concerning the applicant's termination day, as is embodied in passing correspondence as to the issue of the maximum period of extension for her termination day. Those errors were jurisdictional. It is appropriate for certiorari to issue to quash the impugned decision.
I will hear the parties as to the precise orders that should issue, including as to costs.