Murray v Woolworths Group Limited

Case •

[2020] NSWSC 1033

•

20 August 2020

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Murray v Woolworths Group Limited [2020] NSWSC 1033
Hearing dates: 9 September 2019; with supplementary submissions received 1 November 2019
Date of orders: 20 August 2020
Decision date: 20 August 2020
Jurisdiction:Common Law
Before: Campbell J
Decision:

(1) Under r 59.10 Uniform Civil Procedure Rules 2005 (NSW) extend the time for bringing these proceedings to 3 May 2019;

(2)   Grant leave to the plaintiff to discontinue the proceedings against the second defendant;

(3)   Substitute the Registrar of the Workers Compensation Commission as second defendant instead of the proper officer of the Workers Compensation Commission;

(4)   Dismiss the proceedings;

(5)   Order the plaintiff to pay the first defendant’s costs;

(6)   Direct that the Third Amended Summons filed in Chambers on 20 September 2019, and a copy of these reasons be served upon the third defendant within 14 days of the date hereof;

(7)   Allow the third defendant a further period of 14 days to file a Notice of Appearance, if so advised.

Catchwords:

ADMINISTRATIVE LAW – reviewability – justiciability – where decisions not amenable to certiorari

CIVIL PROCEDURE – parties – wrong person made a party – application to substitute party – where addition of defendants sought

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Workers Compensation Act 1987 (NSW) ss 32A, 38, 66, 65

Workers Compensation Commission Rules 2001 (NSW) rr 2.1, 8.1

Workplace Injury and Management and Workers Compensation Act 1998 (NSW) ss 294, 321, 322, 322A, 325, 326, 327, 327(4), 327(7), 328, 329, 331, 353, 368, 369, 371, 372, 375, 378

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302, [2012] NSWCA 13

Ballas v Department of Education (State of NSW) [2020] NSWCA 86

Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149; [1996] HCA 44

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [2013] HCA 18

Wingfoot Australia Partners Pty Ltd v Kocak [2013] 252 CLR 480; [2013] HCA 43

Category:Principal judgment
Parties: Peter Lance Murray (Plaintiff)
Woolworths Limited (First Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
Representation:

Counsel:
C Hart (Plaintiff)
L Morgan (Defendants)

Solicitors:
Bale Boshev Lawyers (Plaintiff)
BBW Lawyers (First Defendant)
File Number(s): 2019/139073

Judgment

  1. The basal compensation dispute behind this application for judicial review brought by the worker, Mr Murray against his former employer, Woolworths Group Limited, concerns a three percent whole person impairment assessment (“WPI”). Although modest when considered in isolation, the addition of that degree of WPI to the twenty percent permanent impairment awarded to him under the Workers Compensation Commission’s (“WCC”) Certificate of Determination of 2 November 2018, would place Mr Murray in the category of a “worker with high needs” as defined by s 32A Workers Compensation Act 1987 (NSW) (“WCA”) potentially entitling him to additional compensation benefits (see for example s 38 WCA).

  2. By the Third Amended Summons which I permitted to be lodged with my chambers after the hearing with supplementary written submissions pursuant to leave, Mr Murray calls into question two decisions of officials of the WCC, neither of whom were previously parties to the proceedings. For reasons I will explain below, I am not of the view that they should be joined as named parties now; rather the Registrar of the WCC (“Registrar”) should be joined as a defendant. However, the first official, who at the relevant time occupied the position of “Team Leader, Registry Services” is said to have made a decision under s 327(4) Workplace Injury and Management and Workers Compensation Act 1998 (NSW) (“WIM”) rejecting an application to appeal from a medical assessment.

  3. The second official occupies the position of “Director, Operations” of the WCC. She too is said to have made a decision under s 327(4) WIM “with delegated authority” refusing an application to appeal from the medical assessment certificate. The first decision is said to have been made on 20 November 2018, and the second on 24 December 2018.

Background

  1. Mr Murray suffered a back injury as a result of a workplace accident on 23 July 2007. He subsequently made a claim for lump sum compensation in accordance with s 66 WCA. The first defendant, Woolworths Group Limited (“Woolworths”) disputed the lump sum assessment provided by Dr Ghabrial on 14 June 2017. Dr Ghabrial had assessed Mr Murray as suffering from twenty two percent WPI based on his primary back injury. In his assessment Dr Ghabrial also identified that Mr Murray was suffering from a “bilateral lateral cutaneous nerve of the thigh entrapment” (“peripheral nerve condition”) for which he assessed a 3 per cent WPI (Affidavit, Raymond Blissett, 5 September 2019, Annexure A, p.2).

  2. The claim was referred to the WCC to be medically assessed to resolve the dispute Mr Murray’s WPI. The referral did not make reference to the peripheral nerve condition. The referral for medical assessment under s 321 WIM was made by an official of the WCC under the delegation of the Registrar on 3 July 2018. The referral specified the “body parts referred” in the following terms (Affidavit, Daniel Philip Wilkins, 9 September 2019, Annexure A, p.2):

Body part/s referred:   Lumbar spine

Scarring (TEMSKI)

Central and Peripheral Nervous System (sleep disorder)

Method of Assessment:   Whole Person Impairment

The lumbar spine and scarring assessment was referred to Dr David Lewington and the sleep disorder assessment to Dr Christopher Clarke, who was designated as the lead assessor.

  1. Dr Lewington examined Mr Murray on 30 July 2018 (Affidavit, Raymond Blissett, 5 September 2019, Annexure B, p.7). Dr Lewington assessed the WPI of the lumbar spine at sixteen percent and the scarring (TEMSKI) at one percent, producing a combined total of seventeen percent (Blissett affidavit, Annexure B p.12). Dr Clarke assessed the WPI for Mr Murray’s sleep disorder, said to be a consequence of the back injury because of weight gain due to his relative immobility, at three percent. The combined total WPI resulting from the injury was calculated to be twenty percent (Annexure B, p.18, 21).

  2. In his reasons for assessment, Dr Lewington noticed Dr Ghabrial’s assessment of three percent WPI for the peripheral nerve condition. He commented:

The 3% W.P.I. for lateral cutaneous nerve of the thigh is not relevant to today’s assessment as only lumbar spine has been referred. The lateral cutaneous nerve of the thigh is a cutaneous nerve covered under Table 17 – 37, Page 552, A.M.A 5, Chapter 17, “the lower extremities” (not lumbar spine). Lesions of the cutaneous nerve of the thigh are distinct from nerve root problems of the lumbar spine i.e. they do not constitute radiculopathy related to the lumbar spine. (Affidavit, Raymond Blissett, 5 September 2019, Annexure B, p.13):

  1. On 10 August 2018 the WCC issued a Consolidated Medical Assessment Certificate (“MAC”) pursuant to s 325 WIM Act assessing Mr Murray’s combined WPI at 20% (Affidavit, Daniel Philip Wilkins, 3 June 2019, Annexure B). Mr Murray does not seek judicial review of the MAC.

  2. On 23 August 2018 Mr Murray lodged an application to appeal the MAC (“first appeal”). He sought a review of the MAC by a medical assessors review panel in accordance with s 327 WIM on the grounds that the medical assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error. Mr Murray alleged that the medical assessors failed to apply the correct modifiers in their calculation of WPI and failed to use the correct method of combined assessment. On 28 September 2018 Mr McAdam, a delegate of the Registrar refused Mr Murray’s application to appeal. Mr Murray does not seek judicial review of this decision.

  3. On 2 November 2018, the WCC issued a Certificate of Determination based on the MAC. On 16 November 2018 Mr Murray’s solicitors lodged what must be regarded as a second application to appeal on the basis that the MAC contained a demonstrable error. This time because Dr Lewington failed to assess and include the WPI of three percent due to Mr Murray’s peripheral nerve condition (“second appeal”) in his assessment. On 20 November this second appeal was “rejected” under s 327(7) WIM because the Certificate of Determination had been issued. This is the first decision under review.

  4. On 10 December 2018 the solicitors made an application for “review” requesting for the matter to be referred to an Arbitrator to correct the alleged error in the “Certificate” pursuant to s 294(3) WIM (“third appeal”). On 24 December 2018 this third appeal was rejected on the basis that “the issue of [the] … Certificate [of Determination] prevented an appeal” and, if the asserted error was in the MAC that “issue has been finalised by the decision of the Registrar’s delegate dated 28 September 2018” refusing the application to appeal. The Director, Operations of the WCC said that there was “no basis for correction” unless there was an error in the Certificate of Determination and that “subject to further submissions” the request for a teleconference was declined. This is the second decision under review.

The proceedings in this Court

  1. The proceedings for judicial review were commenced on 3 May 2019. Originally, an order in the nature of certiorari was sought in respect of Dr Lewington’s MAC of 10 August 2018, the decision of the Delegate of the Registrar refusing the application to appeal of 28 September 2018, a decision of 2 November 2018, which I take to be a reference to the Certificate of Determination made under s 294 WIM awarding Mr Murray compensation, which was entered by Arbitrator Annette Farrell and the decision of 24 December 2018, which may be taken to be the decision now styled as a refusal of the third application to appeal of 16 November 2018. That too, was made by Arbitrator Farrell, but in her capacity, apparently, as the Director, Operations of the WCC.

  2. At the commencement of the hearing on 9 September 2019, Mr Hart of Counsel who appeared for Mr Murray sought and was granted leave, without objection, to proceed on a document styled “Second Amended Summons” which was filed in Court on that day. This process no longer impugned Dr Lewington’s MAC, but challenged “the decisions” of 28 September 2018, 20 November 2018 and 24 December 2018. To the extent necessary an order setting aside the Certificate of Determination was sought as a consequential matter (1.20–39T; Second Amended Summons p.2).

  3. During the course of argument, Mr Hart made it clear that the impugned decisions were those of 20 November 2018 and 24 December 2018 (21.30-35T; 22–23.40T). I granted leave to make those amendments, but directed that a further amended summons be filed together with supplementary submissions, with leave to Woolworths to file submissions in response. Given the reconfiguration of the case, neither Dr Lewington nor the delegate of the Registrar who made the decision of 28 September 2018 were proper parties to the proceedings. I ventured the suggestion that, after Woolworths, the Registrar of the WCC was the only other proper party (32.40-50T; 53.1-11T).

  4. It was in this context that the Third Amended Summons was brought forward seeking inter alia: an extension of the time fixed by the Rules for commencing the proceedings; leave to discontinue the proceedings against Dr Lewington; the removal of the Registrar’s Delegate who made the 28 September 2018 decision as a party by the substitution of the Team Leader who made the 20 November 2018 decision; and the addition of the Director of Operations who made the 24 December 2018 decision. The impugned decisions were then those of 20 November 2018 and 24 December 2018 only and consequentially the Certificate of Determination of 2 November 2018 was sought to be set aside.

  5. Perhaps significantly the Third Amended Summons sought an order in the nature of mandamus remitting the matter to the Registrar for determination of Mr Murray’s (I assume second) application to appeal from the combined MAC by a different delegate and, in the alternative for the determination of an application to reconsider the combined MAC (and or the Certificate of Determination of 2 November 2019) according to law.

Statutory framework

  1. Under s 66 WCA, a worker who receives an injury that results in a degree of permanent impairment greater than ten percent is entitled to receive from the worker’s employer permanent impairment compensation in addition to other compensation under the Act. Importantly, by s 66(1A) “only one claim can be made … for permanent impairment compensation in respect of the permanent impairment that results from an injury”.

  2. Section 66(1A) needs to be read with s 65 WCA in mind. It provides, “the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of [WIM]”. Section 65(2) is in the following terms:

If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

  1. So far as is material, and as it stood at 3 July 2018 when this matter was referred for medical assessment, s 321 WIM provides that a medical dispute may be referred for medical assessment by, inter alia, the Registrar of his own motion or at the request of a party to the dispute. By s 322 WIM, the assessment of the degree of permanent impairment of an injured worker is to be made in accordance with Workers Compensation Guidelines as in force at the time the assessment is made. By subsection 322(2) impairments resulting from the same injury are to be assessed together to assess the degree of permanent impairment. And by subsection 322(3) impairments that result from more than one injury arising out of the same incident are to be assessed together.

  2. Section 322A WIM is of some importance and I will set it out in full.

One assessment only of degree of permanent impairment

(1)  Only one assessment may be made of the degree of permanent impairment of an injured worker.

(1A)  A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

(2)  The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).

(3)  Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—

(a)  assessment and a medical assessment certificate under this Part, or

(b)  a determination by the Commission under Part 4.

(4)  This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).

  1. Under s 325 WIM the approved medical specialist to whom a medical dispute is referred is required to give a MAC as to the matters referred for assessment. By s 325(3) WIM “if the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical certificate to correct the error” (my emphasis).

  2. Section 326 WIM is a key provision: the assessment certified in an MAC is “conclusively presumed to be correct”, including, as to the degree of permanent impairment of the worker as a result of an injury, in any proceedings before a court or before the Commission.

  3. Section 327 WIM is concerned with appeals against a medical assessment. Its provisions assume some importance in the argument in the matter and I will also set it out in full:

Appeal against medical assessment

(1)  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.

(2)  A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3)  The grounds for appeal under this section are any of the following grounds—

(a)  deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)  availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c)  the assessment was made on the basis of incorrect criteria,

(d)  the medical assessment certificate contains a demonstrable error.

(4)  An appeal is to be made by application to the Registrar. 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.

(5)  If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6)  The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Note. Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

(8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.

Note. Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.

  1. It is convenient to interpolate now for the purpose of understanding s 327(7) WIM and the significance of a “determination by … the [WCC]” that s 294 WIM is in the following terms:

Certificate of Commission’s determination

(1)  If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.

(2)  A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.

(3)  If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.

It is important to note the power to issue a replacement certificate if the Registrar is satisfied that the Certificate of Determination contains an obvious error.

  1. Section 328 WIM deals with the constitution and powers of an Appeal Panel and the procedure on appeal if the Registrar (or his delegate) is satisfied that on the face of the application and any submissions made at least one of the grounds of appeal has been made out in accordance with s 327(4).

  2. Section 329 WIM is in the following terms:

Referral of matter for further medical assessment or reconsideration

(1)  A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—

(a)  the Registrar as an alternative to an appeal against the assessment as provided by section 327, or

(b)  a court or the Commission.

(1A)  A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.

(2)  A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.

In my opinion, if it matters for the resolution of the proceedings ss 329(1A) applies notwithstanding the provisions of s 322A WIM.

  1. Section 331 WIM provides that medical assessments, appeals and further assessments are subject to relevant provisions of the Workers Compensation Guidelines. No particular provision of the guidelines is invoked by either of the parties to the proceedings before me.

  2. Sections 329, 350 and 378 WIM confer broad powers of reconsideration of decisions of arbitrators, presidential members, the Registrar, approved medical specialists and appeal panels. The power when properly invoked enables the relevant decision-maker to “rescind, alter or amend any decision previously made or given” by it.

The Workers Compensation Commission

  1. As a question arose at the hearing about the status of the decision of the “Team Leader, Registry Services”, and “the Director, Operations” it is necessary to say something about the legal structure of the WCC. The WCC is established by s 368 WIM. It consists of a President who is a judge of a court of record, Deputy Presidents, a Registrar and Arbitrators. To be eligible for appointment as the Registrar, a person must be an Australian lawyer or have “such qualifications, skills or experience as may be determined by the Minister”: s 369 WIM.

  2. Section 371 WIM deals with the functions of the Registrar in the following terms:

(1)  The Registrar has and may exercise all the functions of an Arbitrator.

(2)  The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.

(3)  The Registrar may exercise any of the functions of the Commission constituted by an Arbitrator to dismiss proceedings before the Commission.

  1. By s 372 WIM the members of the WCC, other than Arbitrators are in the exercise of their functions, subject to the general control and direction of the President. Arbitrators are subject to the general control and direction of the Registrar.

  2. By s 374 WIM so far as is presently material “persons may be employed in the Public Service … to enable the [WCC] to exercise its functions”. By s 374(2), “the persons so employed are, in the exercise of their functions, subject to the general control and direction of the Registrar”.

  3. The Registrar may give directions as to which Arbitrator is to constitute the WCC for the purpose of any particular proceedings or any particular class of proceedings: s 375(2) WIM. Except for when acting as an Arbitrator, the Registrar does not constitute and does not exercise functions as the WCC.

Workers Compensation Commission Rules 2011

  1. Under r 2.1, the WCC is to maintain a Registry under the control and direction of the Registrar, “subject to the general control and direction of the President”.

  2. Rule 8.1(1) provides that “all documents required or permitted to be lodged in or with, or issued by, the [WCC] must be lodged at, or issued from the registry”.

The decisions under review

  1. Before focussing on the decisions under review it is necessary to revisit Mr McAdam’s decision refusing the first application to appeal in the light of the statutory framework I have set out above. The first application to appeal of 23 August 2018 was accompanied by written submissions which particularised the grounds of appeal as “incorrect criteria” and “demonstrable error” by reference to Dr Lewington’s failure to include the three percent impairment referable to the peripheral nerve condition as “residual symptoms of radiculopathy” following spine injury (Affidavit, Daniel Philip Wilkins, 3 June 2019, Annexure A). The application was opposed by Woolworths. In its written submissions, Woolworths accepted that a 3 percent allowance can be made for radiculopathy but noted that there must be “verifiable symptoms of radiculopathy persisting after surgery”. Woolworths pointed out that Dr Lewington had not found such symptoms and therefore no error was demonstrated (Affidavit, Daniel Philip Wilkins, 3 June 2019, Annexure C).

  2. The decision of the Registrar’s delegate was given on 28 September 2018. The gravamen of Mr McAdam’s decision is as follows (CB 47 at [18]):

The AMS’s assessment did not lead to a conclusion that radiculopathy was present. Accordingly, no allowance was made. When reading the MAC as a whole, the AMS’s conclusions are clear, and his reasons follow a logical path. I am satisfied that the AMS considered the appropriate criteria in his assessment.

He went on to say that he was not satisfied that “the MAC contains demonstrable error”.

  1. It is quite clear that in form and in substance the application made on 16 November 2018 was a second application to appeal against the MAC of Dr Lewington of 10 August 2018. Again, it relied upon the “incorrect criteria” and “demonstrable error” grounds. Written submissions in support sought an extension of time explaining that the application “was delayed due to the worker seeking counsel’s opinion as to potential relief by way of Judicial Review. Consequent to that advice, instructions were received to renew, on alternative grounds, the application at the present time” (Affidavit, Raymond Blissett, 5 September 2019, Annexure C). No application for reconsideration under s 378 WIM was made in express terms.

  2. The submissions identified the error as a demonstrable error due to Dr Lewington “failing to assess and include the impairment [due to the peripheral nerve disorder]”. It was pointed out that Dr Lewington had assessed the loss due to that condition at 3 percent WPI. It was submitted that the loss should have been included in the assessment even though not “referred” because the matter was “in the claim and the papers that he held”. Woolworths’ solicitors had been copied in to the email forwarding the application to the “Registry – WCC”, but I infer that the second application was not formally served.

The first decision under review

  1. The impugned “decision” can be set out in full. I point out, it is contained in an email dated 20 November 2018 from Lisa Spence to Mr Murray’s solicitors. As has been pointed out earlier, but it should be emphasised, Ms Spence described her position as “Team Leader, Registry Services”. Her email in full is as follows:

I refer to your Form 10 – Application to Appeal against a decision of Approved Medical Specialist lodged on behalf of your client on Friday 16 November 2018.

Your appeal is rejected pursuant to s 327(7) of the [WIM] (the 1998 Act). A Certificate of Determination was issued by the Commission on 2 November 2018.

It is important also to emphasise that Ms Spence does not describe herself as exercising any power delegated to her by the Registrar.

The second decision under review

  1. On 10 December 2018, Mr Murray’s solicitors emailed “Registry – WCC”, copying in Woolworths’ solicitors. The content of the email was addressed to Ms Spence and is in the following terms (Affidavit, Raymond Blissett, 5 September 2019; Annexure E):

We would be grateful if the WCC could refer this matter for teleconference before an Arbitrator pursuant to s 294 of the WIM Act as the Certificate contains an obvious error. We attach a copy of our Submissions relevant to the error, these were attached to the Application to Appeal which were rejected by your office on 20 November 2018.

This email is sent pursuant to s 294 subsection 3. We require you to provide a determination of this issue as soon as possible.

There was no reference to s 327 WIM or any invocation of the powers of reconsideration I have referred to above.

  1. I infer that this email was passed on to Ms Annette Farrell. She was the Arbitrator who issued the determination, but for the purpose of responding to the email of 10 December 2018 wore her hat as “Director, Operations” WCC. I have referred to this matter above, but I will set out the content of her email of 24 December 2018 in full (Affidavit, Raymond Blissett, 5 September 2019; Annexure F):

I note your appeal was rejected on the basis that the Commission had issued a Certificate of Determination dated 2 November 2018 and the issue of said Certificate prevented an appeal again the decision of the Approved Medical Specialist (s 327(7) of the 1998 Act).

Your email suggests there is an obvious error in “the Certificate”. Unless such error is in the Certificate of Determination, there is no basis for correction under section 294.

If the error is in the Medical Assessment Certificate, I note this issue has been finalised by the decision of the Registrar’s delegate dated 28 September 2018.

….

On the basis of the information to hand and in the absence of further submissions, the request for a teleconference is declined.

Ms Farrell did not purport to act as the delegate of the Registrar for the purpose of s 327 WIM. No further submissions in response to the email of 24 December 2018 were made on behalf of Mr Murray.

The parties’ submissions

Submissions for Mr Murray

  1. As I have pointed out above, it was not clear that Mr Murray’s challenge was only to the “decisions” of 20 November 2018 and 24 December 2018 respectively until during oral argument at the hearing. The written submissions originally filed in this Court did not make that clear and for that reason I gave leave for the filing of supplementary submissions.

  2. I also raised with counsel whether the “decisions” were amenable to certiorari, having regard to the principles discussed in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 158 – 160 (Brennan CJ, Gaudron and Gummow JJ).

  3. Mr Hart characterised the first decision as a “gateway” decision of the Registrar’s delegate refusing to allow the second appeal to proceed. He emphasised the expression, the “appeal is rejected” and submitted that, by the reference to s 327(7), Ms Spence’s decision was “properly characterised” as “a decision [that] affects rights or where through a preliminary step, it is sufficiently connected with a decision that does so”: Hot Holdings v Creasy at 178 (Dawson and Toohey JJ) (albeit in descent). Mr Hart argued that his submissions were not merely factual challenges to the first decision; they were legal challenges derived from the governing statute. He reiterated that given that the appeal was rejected, the decision falls squarely within the area where relief in the nature of certiorari should lie.

  4. The ground of jurisdictional error invoked by Mr Hart was legal unreasonableness in accordance with Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. He argued that no sensible authority acting with due appreciation of its responsibilities would have decided not to include Mr Murray’s peripheral nerve condition in its medical assessment of WPI.

  5. In his supplementary submissions, Mr Hart argued that the decision of 24 December 2018 was a second “gateway decision” and was equally amenable to certiorari as Ms Farrell had declined to conduct the requested “review” because the power under s 294(3) was related to Certificates of Determination only and by reference to s 327(7) WIM there could be no further challenge to the MAC. Mr Hart did not address the significance of the qualification “subject to further submissions”. Again he relied upon legal unreasonableness.

Submissions for Woolworths

  1. Mr Morgan argued that the decision of 20 November 2018 did not affect Mr Murray’s legal rights and was not amenable to certiorari. He submitted that s 327 WIM did not countenance second or subsequent applications to appeal and that, in any event, the issue of the Certificate of Determination on 2 November 2018 terminated the availability of any application to appeal: s 327(7) WIM. The decision of Ms Spence to “reject” the appeal did not affect Mr Murray’s rights. The issue of the Certificate of Determination had closed off any further avenue of appeal from the MAC. Mr Morgan argued that Ms Spence’s decision was a purely “administrative” one rejecting the lodgement of the document only. She was not purporting to exercise the Registrar’s powers under s 327(4) WIM.

  2. Mr Morgan also characterised the decision of 24 December 2018 as one made “on purely administrative grounds”. Section 294(3) relates to obvious errors in a Certificate of Determination not a MAC, as Ms Farrell pointed out. Given the real complaint was the failure of Dr Lewington to make an allowance for the 3 percent WPI referrable to the cutaneous nerve entrapment, it was clear that Mr Murray was really calling Mr McAdam’s decision of 28 September 2018 under s 327(4) into question. But that, however, was not challenged in these proceedings. He argued that the summons should be dismissed.

Consideration

  1. In Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [15], for the purpose of distinguishing jurisdictional error from error of law on the face of the record Basten JA said, “whilst jurisdictional error may be established by any admissible evidence relevant for that purpose, a quashing order based on the broader concept of error of law must identify the relevant error as appearing “on the face of the record””. The only error identified here by Mr Hart was said to be jurisdictional error. However, not every administrative decision is amenable to an order in the nature of certiorari.

  2. In Hot Holdings v Creasy at 159 Brennan CJ, Gaudron and Gummow JJ said:

The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.

…

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently “affects rights” in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently “determines” or is connected with that decision.

In their Honours second or extended category, obviously, it is not necessary that the decision itself directly affects legally enforceable rights. As the formulation adopted by their Honours demonstrates, it is sufficient if the decision “is one to which regard must be paid by the final decision-maker” (Hot Holdings v Creasy at 165). Decisions in this category will have “the requisite legal effect upon rights to attract certiorari”: Hot Holdings v Creasy at 165; see also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 580; and Wingfoot Australia Partners Pty Ltd v Kocak [2013] 252 CLR 480; [2013] HCA 43 at [25].

  1. I repeat that it is important to bear in mind that there is no challenge to the AMS’s assessment, the decision under s 327(4) refusing to allow the appeal to proceed, or the issue of the Certificate of Determination, so far as that may be a “decision”. I am of the view that the evidence fails to establish that either impugned decision is a decision affecting rights in the sense discussed in Hot Holdings v Creasy and the other authorities to which I have referred.

  2. Dealing with Ms Spence’s decision of 20 November 2018, I am of the view that it was a purely administrative decision of a registry official employed under s 374(2) WIM to conduct the registry required to be established by the Registrar under the Workers Compensation Commission Rules 2001 (NSW). As I have already pointed out Ms Spence does not purport to be a delegate of the Registrar for the purpose of s 327 WIM; she does not “sign-off” in that way. In my judgment her administrative action is by way of rejecting a document that had been lodged in the Registry because she was not authorised to accept it as it was purported to be lodged in contravention of s 327(7) WIM because a Certificate of Determination had already issued under s 294 WIM on 2 November 2018. Ms Spence employed the language of, “Your appeal is rejected”. But she was rejecting the document entitled “Application to Appeal” forwarded under cover of the email of 16 November 2018. She was not purporting in any way to exercise the powers of the Registrar conferred by s 327(4) WIM.

  3. Other matters of context suggesting this approach is correct include the consideration that the application is not sealed with the seal of WCC (Affidavit, Raymond Blissett, 5 September 2019, Annexure C). This is in contradistinction to the Application for Appeal of 23 August 2018 (Affidavit. Daniel Philip Wilkins, 3 June 2019, Annexure A) which resulted in Mr McAdam’s decision of 28 September 2018. That decision also bore the seal of WCC and described the decision-maker as, “Delegate of the Registrar”.

  4. A further matter is that although Woolworths’ solicitors were copied in, they were not formally served with a sealed copy of the Application to Appeal, nor afforded the opportunity to lodge a Notice of Opposition to Appeal: compare with Affidavit, Daniel Philip Wilkins, 3 June 2019 Annexure C.

  5. For these reasons, Ms Spence’s “decision” is not amenable to certiorari.

  6. I am also of the view that Ms Farrell’s decision of 24 December 2018, wearing her “Director, Operations” hat, rather than her “Arbitrator” hat is not amenable to certiorari. The email from Mr Murray’s solicitors of 10 December 2018 requesting the matter be referred to an Arbitrator pursuant to s 294 WIM attached another copy of the submissions which had been attached to the rejected second application for appeal of 16 November 2018. Those submissions purport to identify errors in Dr Lewington’s MAC. Indeed, these submissions state in express terms that Mr Murray, “seeks review of the MAC assessment of Dr Lewington by a medical panel …”. There is no mention of the Certificate of Determination whatsoever even though the covering email pressed for a teleconference “pursuant to s 294(3)” and stated “as the Certificate contains an obvious error”. The phrase, “obvious error” picks up the language of ss 294(3) rather than s 327 WIM.

  1. Ms Farrell’s response was entirely understandable, so far as it is open for me to say so. There was an obvious ambiguity. She pointed out that the issue of a Certificate for Determination prevented an appeal, by reference to s 327(7) WIM. She also pointed out that the solicitor’s email referred, simply, to “the Certificate” and stated that unless the error was in the Certificate for Determination there was no basis for correction under s 294. Any error in the medical assessment certificate “has been finalised by the decision of the Registrar’s Delegate dated 28 September 2018”. This may be, by implication, a statement that only one appeal lies from a MAC. But if so, it was clearly in the alternative to the indication that s 327(7) WIM prevented an appeal at that stage.

  2. As I have pointed out above, the request for a teleconference was declined, “on the basis of the information to hand and in the absence of further submissions” (my emphasis). The opportunity to provide further submissions justifying re-opening the matter was not taken up.

  3. It is impossible to see Ms Farrell’s “decision” as a purported exercise of the power of the Registrar under s 327(4), as Mr Hart would have it. The evidence before me does not establish that the second application to appeal was re-submitted for acceptance by the WCC Registry on 10 December 2018. Quite the contrary, the evidence shows a different tack was taken. Only the written submissions attached to the Second Application for Appeal were reiterated and Ms Farrell queried their intent in the circumstances.

  4. Like Ms Spence’s decision, I am of the view that Ms Farrell’s decision of 24 December 2018 was a decision of a public servant employed within the Registry and was of a purely administrative nature not affecting Mr Murray’s rights. It was not a decision under s 327(4). Nor did it fall into that category of a preliminary decision having affect upon some later determination. The gravamen of the decision was that it had not been shown that s 294(3) was regularly invoked. It had not been shown that an Application to Appeal still lay from Dr Lewington’s MAC. Further submissions were invited, but not provided.

  5. The WCC has wide powers of reconsideration, as I have said above, but these powers were not invoked as a basis for setting aside the Certificate of Determination. Nor did Mr Murray’s solicitors invoke the power of the Registrar under s 329(1A) to refer a matter “again on one or more further occasion … to the approved medical specialist for reconsideration”. At one point in the oral argument Mr Hart argued that a s 329 re-referral could have been ordered under s 327(6) “as an alternative to an appeal”, presumably sometime after 16 November 2018. However, that power is subject to the qualification that it may only be exercised “if the matter could otherwise have proceeded on appeal under this section”: s 327(6) WIM. As at 16 November 2018 an appeal could not otherwise have proceeded because of the operation of s 327(7) WIM.

  6. In view of this conclusion it is not necessary to consider the question whether a second or subsequent application to appeal from a MAC is competent, which I doubt. The issue was referred to but not fully argued. It seems to me that the provisions of s 66(1A) WCA and s 322A WIM (see [17] – [19] above), the wide statutory powers of reconsideration and the important public interest in disputes being brought to finality tells against a party’s entitlement to apply to appeal more than once from the same MAC.

  7. It follows that I am of the view that neither impugned decision is amenable to certiorari and that the proceedings must be dismissed. Accordingly, it is unnecessary for me to consider the arguments advanced by Mr Hart that the impugned decisions were legally unreasonable or involved an improper exercise of power.

  8. I should say that this matter is unlike Ballas v Department of Education (State of NSW) [2020] NSWCA 86, where the decision of the delegate was set aside and the consequent Certificate of Determination declared invalid on the grounds of jurisdictional error. In that case, the Court of Appeal considered whether in determining an appeal under s 327 WIM the delegate had misconstrued their gatekeeping function and in doing so concluded that jurisdictional error had been made by the delegate. In this instance, as I have already said, Mr Murray is not seeking judicial review of the decision to appeal of 28 September 2018 refusing the application to appeal, but rather seeks the review of administrative decisions made within the Registry not affecting Mr Murray’s rights. Ballas makes clear that where a s 327(4) decision is vitiated by jurisdictional error a Certificate of Determination subsequently issued based on the challenged MAC will be also be invalid.

Addendum

  1. As I have pointed out, the Third Further Amended Summons seeks to discontinue the proceedings against Dr Lewington as Second Defendant, substitute Ms Spence as Third Defendant in place of Mr McAdam who made the 28 September 2018 decision, and add Ms Farrell as a Fourth Defendant. It is likely of course that these additional defendants would have filed submitting appearances as had already occurred in the case of Dr Lewington. On the other hand, it seems nothing could be gained procedurally from permitting a “discontinuance” of the proceedings against Dr Lewington, given my decision. Moreover, given what I have said about the capacity in which Ms Spence and Ms Farrell acted, in my opinion neither of them was an appropriate defendant. Rather, the Registrar was the only proper defendant in relation to their impugned “decisions”. Given the conclusion I have come to, there seems to be no good reason in substance in regularising the record except in the event of an appeal from my orders to the Court of Appeal. But that I suppose is reason enough.

  2. My orders are:

  1. Under r 59.10 Uniform Civil Procedure Rules 2005 (NSW) extend the time for bringing these proceedings to 3 May 2019;

  2. Grant leave to the plaintiff to discontinue the proceedings against the second defendant;

  3. Substitute the Registrar of the Workers Compensation Commission as second defendant instead of the proper officer of the Workers Compensation Commission;

  4. Dismiss the proceedings;

  5. Order the plaintiff to pay the first defendant’s costs;

  6. Direct that the Third Amended Summons filed in Chambers on 20 September 2019, and a copy of these reasons be served upon the third defendant within 14 days of the date hereof;

  7. Allow the third defendant a further period of 14 days to file a Notice of Appearance, if so advised.

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Amendments

20 August 2020 - Representation: D Morgan amended to L Morgan

Decision last updated: 20 August 2020

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Cases Cited

8

Statutory Material Cited

4

Ainsworth v Criminal Justice Commission [1992] HCA 10
Martin v Taylor [2000] FCA 1002
Ainsworth v Criminal Justice Commission [1992] HCA 10