NSW Police Force v Fleming

[2010] NSWSC 216

CITATION:	NSW Police Force v Derek Fleming [2010] NSWSC 216
HEARING DATE(S):	7 December 2009
JUDGMENT DATE :	25 March 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Harrison AsJ
DECISION:	(1) A declaration that the decision of the delegate of the Registrar of the Workers Compensation Commission made on 12 February 2009 is vitiated by jurisdictional error. (2) An order in the nature of certiorari removing this matter into this Court. (3) The decision of the delegate of the Registrar dated 12 February 2009 is quashed. (4) The decision of the Appeal Panel dated 23 March 2009 is quashed. (5) This matter is remitted to the Registrar of the Workers Compensation Commission of New South Wales to be determined in accordance with law. (6) The first defendant is to pay the plaintiff’s costs as agreed or assessed.
CATCHWORDS:	WORKERS COMPENSATION - APPEAL - against medical assessment - on ground of demonstrable error - whether delegate made jurisdictional error - whether decision of Appeal Panel can stand
LEGISLATION CITED:	Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998
CATEGORY:	Principal judgment
CASES CITED:	Akins v National Australia Bank (1994) 34 NSWLR 155 Australian Prestressing Services Pty Ltd v Vosota WCC10798-04 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 McCann v Parsons (1954) 93 CLR 418 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Mickelberg v The Queen (1989) 167 CLR 259 Orr v Holmes (1948) 76 CLR 632 Pitsonis v Registrar of Workers Compensation Commission & Anor [2007] NSWSC 50 Pitsonis v Registrar of Workers Compensation Commission & Anor [2008] NSWCA 88 R v Abou-Chabake (2004) 149 A Crim R 417 Ratten v The Queen (1974) 131 CLR 510 Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission NSW and Ors [2007] NSWCA 149, (2007) 4 DDCR 607 Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 Wollongong Corporation v Cowan (1955) 93 CLR 435
TEXTS CITED:	The Macquaire Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia 2005 New Penguin English Dictionary 1st ed, Penguin, London 2000
PARTIES:	New South Wales Police Force (Plaintiff) Derek Fleming (First Defendant) The Registrar, Workers Compensation Commission (Second Defendant) The Workers Compensation Commission Medical Appeal Panel (Third Defendant)
FILE NUMBER(S):	SC 2009/297963
COUNSEL:	D Stanton (Plaintiff) B McManamey (First Defendant)
SOLICITORS:	Hicksons (Plaintiff) Oates & Smith (First Defendant) Submitting Appearance, Crown Solicitor (Second & Third Defendants)
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	398/2008
LOWER COURT JUDICIAL OFFICER :	The Registrar of the Workers Compensation Commission and Medical Appeal Panel of the Workers Compensation Commission
LOWER COURT DATE OF DECISION:	12 February 2009 and 23 March 2009

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

ASSOCIATE JUSTICE HARRISON

THURSDAY, 25 MARCH 2010

2009/297963 NEW SOUTH WALES POLICE FORCE v
DEREK FLEMING & 2 ORS
JUDGMENT (Judicial review – Decisions of Registrar
and Appeal Panel – WIMWCA )

1 HER HONOUR: By amended summons filed 13 August 2009, the plaintiff seeks first, a declaration and order that the decision of the second defendant in proceedings before the Workers Compensation Commission in the matter of Derek Fleming v NSW Police Service (Matter No M1 000398/08) dated 12 February 2009 involved (a) jurisdictional error and was beyond power, and (b) an error on the face of the record; secondly, a declaration and order that the decision of the third defendant in proceedings before the Workers Compensation Commission in the matter of Derek Fleming v NSW Police Service (Matter No M1 000398/08) dated 23 March 2009 involved (a) jurisdictional error and was beyond power, and (b) an error on the face of the record; thirdly, an order that the decision of the second and third defendants be quashed; and fourthly, an order that the second and/or third defendant carry out his (or its) functions in accordance with s 327 and s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”).

2 The plaintiff is the New South Wales Police Force. The first defendant is Derek Fleming (“Mr Fleming”). The second defendant is the Registrar of the Workers Compensation Commission (“the Registrar”). The third defendant is the Workers Compensation Commission Medical Appeal Panel (“Medical Appeal Panel”). The second and third defendants filed submitting appearances. The NSW Police relied on two affidavits of Stewart Cameron sworn 12 May 2009 and 13 August 2009. Allianz Australia Insurance Limited (“Allianz”) who are the workers compensation insurer for the NSW Police. For convenience I shall refer to the plaintiff as the NSW Police.

3 Mr Fleming was employed by the NSW Police as a police officer. He commenced employment in 1992 and worked on general duties for six years before he became a detective. He last worked in July 2005 when he ceased work due to the effects of a post-traumatic stress disorder that was caused by his employment with the NSW Police.

4 On 29 January 2008, Mr Fleming commenced proceedings against the NSW Police for workers compensation benefits in the Workers Compensation Commission. Those proceedings alleged that Mr Fleming had suffered psychological and/or psychiatric injury on 12 July 2005 due to, “Accumulation of multiple exposure to traumatic incidents in particular applicant (sic) while on duty attended a traumatic incident where an armed offender had shot a dog and threatened children, he feared for his own safety.” The Proper Officer referred the medical dispute to a consultant psychiatrist, Dr Robert Kaplan (“the AMS”) for medical assessment.

5 On 22 April 2008, Dr Kaplan examined Mr Fleming. Dr Kaplan noted that the following matters were referred for assessment: first, the degree of permanent impairment of the worker as a result of an injury; secondly, whether any proportion of any permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of the proportion; thirdly, whether the impairment is permanent; and fourthly, whether the degree of permanent impairment of the injured worker is fully ascertainable.

7 Dr Kaplan determined:

“Mr Fleming’s condition, notably MDD, has not stabilised. It is recommended that he have appropriate management of depression, if necessary going to a specialised unit. A significant improvement of at least 3% can be expected. Once depression has responded, it is likely that his motivation and compliance with a PTSD treatment program will increase.
When treatment is concluded, his condition can be reviewed to determine permanent impairment. It is estimated that such a period would be 6 to 12 months.”

8 On 28 May 2008, the Registrar issued a Certificate of Determination stating that maximum medical improvement had not been reached. Liberty was given to both parties to apply to the Workers Compensation Commission to restore the proceedings when maximum medical improvement had been reached.

9 On 30 September 2008, Mr Fleming’s solicitors Oates & Smith wrote to the Workers Compensation Commission pursuant to the leave granted requesting the Workers Compensation Commission refer Mr Fleming for assessment by an AMS.

10 On 22 December 2008, a further medical assessment under s 321 of the Act was arranged with Dr Kaplan. The matters referred for assessment on this occasion were the following questions: first, the degree of permanent impairment of the worker as a result of an injury; secondly, whether any proportion of any permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of the proportion; thirdly, whether the impairment is permanent; and fourthly, whether the degree of permanent impairment of the injured worker is fully ascertainable.

12 The questions were answered by the AMS as follows:

a. The degree of permanent impairment of the worker as a result of an injury;

1%

b. Whether any proportion of any permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of the proportion;

No.

c. Whether the impairment is permanent;

Yes.

d. Whether the degree of permanent impairment of the injured worker is fully ascertainable.

Yes.

13 Pursuant to s 325 of the Act, the Registrar issued a Medical Assessment Certificate (“MAC”) certifying that the whole person impairment was one percent. The determination of the delegate dated 12 February 2009.

Appeal against a decision of an AMS

14 The right to appeal from a medical assessment is contained in s 327. It reads:

“327 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.

…

(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 being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),

(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.

…”

The parties’ submissions in relation to the s 327 application

15 On 16 January 2009, Mr Fleming lodged an application pursuant s 327 of the Act appealing the decision of the AMS, Dr Kaplan. The grounds of appeal were stated to be as follows:

“1. Availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before the medical assessment).

2. The assessment was made on the basis of incorrect criteria.

3. The Medical Assessment Certificate contains a demonstrable error.”

16 Under the heading “Availability of additional relevant information” Mr Fleming asked the Appeal Panel to consider the report of Dr James Heiner, Mr Fleming’s treating psychiatrist dated 9 January 2009 on the factual, medical and legal issues and a further statement of Mr Fleming.

17 Mr Fleming’s solicitor submitted to the delegate that the assessment was made on incorrect criteria and/or contained a demonstrable error because an incorrect history had been taken. Examples of the incorrect history were the time of the deaths of Mr Fleming’s mother and brother who died prior to his birth; the history of Mr Fleming’s prescribed dosage of medication; his reaction to the loss of his career as a member of the NSW Police; Mr Fleming’s plans for the future and reported denial of his intention to consider returning to work in any capacity or retraining; and his social interactions. In particular the solicitor submitted that Dr Kaplan had misreported Mr Fleming’s travelling with his wife to Bega; Dr Kaplan’s comments that Mr Fleming did not read the newspaper much and that Mr Fleming’s social life was unchanged when Mr Fleming had advised Mr Kaplan that he only socialised with family members and had virtually no social life outside that of his wife, his wife’s family and their children.

18 Mr Fleming’s solicitor submitted that if the history had been taken correctly the AMS might have found that Mr Fleming’s injury had not reached maximum medical improvement and was not capable of assessment in accordance with the WorkCover Guidelines. In essence the plaintiff’s submission was that the AMS’ determination was made on the basis of an incorrect history, which has led to a demonstrable error.

19 On 9 February 2009, the NSW Police filed a Notice of Opposition to Appeal against the decision of the AMS. The NSW Police submitted that it is not in a position to provide comment on what was reported to Dr Kaplan by Mr Fleming, and whether the history had been accurately documented in the MAC. Accordingly, the NSW Police stated that it did not advance any submissions in direct response to this issue.

20 The NSW Police submitted that in the event that it is determined that Dr Kaplan has taken an incorrect history, and that this constitutes the MAC as having been issued on the basis of incorrect criteria, and/or as containing a demonstrable error, it requested that the Medical Appeal Panel ought limit its finding to the issue of whether maximal medical improvement had been attained.

21 The power to be exercised is described as requiring the Registrar (or the delegate) to exercise a gatekeeper role: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at [8].

The delegate’s decision

22 In the written reason dated 12 February 2009, Samira Kamandi, the delegate of the Registrar stated:

“2 On 16 January 2009 the Appellant lodged an Application to Appeal the Decision of the AMS on the following grounds: availability of additional relevant information (being evidence that was not available to the Appellant before the medical assessment appealed against or that could not reasonably have been obtained by the Appellant before that medical assessment) (section 327(3)(b)); the assessment was made on the basis of incorrect criteria (section 327(3)(c)); the MAC contains a demonstrable error (section 327(3)(d)).

3 Section 327(4) of the Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and the submissions made to the Registrar, at least one of the grounds of appeal as specified in subsection 327(3) of the Act has been made out.

4 On the face of the application and submissions made, I am satisfied that a ground of appeal as specified in section 327(3)(d) is made out. Based on the submissions made and an examination of the MAC, it can be shown that the MAC contains a demonstrable error concerning the AMS’s assessment of the Appellant’s psychiatric condition.”

23 Hence, on 12 February 2009, the delegate determined that based on the submissions made and an examination of the MAC it could be shown that the MAC contained a demonstrable error under s 327(3)(d) of the Act, and referred the matter to an Appeal Panel.

24 Counsel for the NSW Police submitted that if an error of fact is relied upon, as it is in this case, it must be an error of fact that is not dependent upon evidence within s 327(3)(a) or (b) being adduced in the appeal and that the evidence sought to be identified in the submissions filed by Mr Fleming in support of the appeal was evidence that to be admissible would need to have fallen within s 328(3)(b). Counsel submitted that such evidence cannot be relied upon to indicate demonstrable error on the fact of the record and referred to Pitsonis v Registrar of Workers Compensation Commission & Anor [2008] NSWCA 88 (“Pitsonis”).

25 The NSW Police submitted that attempting to cavil with the clinical judgment of the medical assessor is not a demonstrable error on the face of the record. Counsel also referred to Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSWand Ors [2007] NSWCA 149, (2007) 4 DDCR 607 at 609 where Hodgson J said:

“If the latter medical report is from a doctor who gave an earlier report to similar effect, with which the MAC conflicted, the Registrar could well take the view that there was merely an attempt being made to avoid the conclusive affect of the MAC, and that there was no sufficiently realistic prospect of the ground (deterioration) being made out to warrant the appeal proceedings.”

26 Mr Fleming submitted that when making the decision whether there was demonstrate error the Registrar was entitled to take into account further evidence under s 327(3)(a) or s 327(3)(b). Mr Fleming submitted that Pitsonis excludes establishing a demonstrable error by reference to evidence being adduced in the appeal that does not fall within s 327(3)(a) or s 327(3)(b).

27 The MAC was issued on 22 December 2008. The report of Dr Heiner did not come into existence until 9 January 2009. Mr Fleming submitted that the report was clearly evidence that was not available before the medical assessment. According to Mr Fleming the Registrar did not determine whether a ground had been made out under s 327(3)(b). He says that that ground is made out if there is additional relevant information, being evidence not available before the medical assessment appealed against or that could not reasonably have been obtained before that medical assessment. Hence, Mr Fleming submitted that the Registrar was bound to find that the grounds under s 327(3)(b) had been made out and says that the Registrar appears not to have considered that ground because she was already satisfied that the ground under s 327(3)(d) had been made out and that it would be futile to remit the matter to the Registrar. Mr Fleming submitted on further consideration the same conclusion would be reached which is that the matter should proceed to a medical appeal panel. While I accept that the delegate did not address s 327(3)(b) in her reasons it does not automatically follow that that ground of appeal had been made out.

28 The NSW Police did not immediately act to challenge the decision of the Registrar but rather it chose to await the outcome of the Appeal Panel. In these circumstances the court should as a matter of discretion decline to grant the relief sought by the NSW Police. In so far as the exercise of this Court’s discretion, it is also relevant to take into account that it was Mr Fleming’s solicitor who exercised liberty to restore the matter for medical assessment on the basis that maximum medical improvement had been reached and then succeeded in arguing that he had not achieved maximum medical improvement.

29 In so far as s 327(3)(d) is concerned, the phrase “demonstrable error” was discussed by the Court of Appeal in Pitsonis. The thrust of the appellant’s argument in Pitsonis v Registrar of Workers Compensation Commission & Anor [2007] NSWSC 50 was described by Malpass AsJ at [29] – [30] as follows:

“Generally speaking, in the present case, it is said that the error in, or inadequacy of, history was, inter alia, of the nature of either a failure to record or accurately record history that was given or a failure to ask relevant questions …
In the present case the initial problem confronting the plaintiff is the difficulty had in the demonstration of such error. There is an evidentiary hurdle which she could not overcome. All that the plaintiff can look to is competing assertions (made subsequent to the certificate) and speculation. The contents of the certificate do not support the assertion of error. In the circumstances the challenge failed at this threshold stage.”

30 On appeal in Pitsonis, Mason P (with whom McColl and Bell AJA agreed) explained at [47] – [49]:

“47 The word “demonstrable” means capable of being demonstrated (The Macquarie Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia, 2005, New Penguin English Dictionary 1st ed, Penguin, London, 2000). If the word “contained” in para (d) were read as no more than “have within itself” (Macquarie Dictionary), then it would follow that s327(3)(d) would confer the equivalent of a right of appeal on all grounds subject only to the persuasive burden being carried by the appellant. This would render para (c) redundant and would tend to trespass over the areas addressed in paras (a) and (b).

48 One thing, I think, is clear, namely that the “appeal” to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh. I agree with the observations of Basten JA in Vegan at 400[137] when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited:

“First, if the Appeal Panel’s powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question.”

49 I am therefore driven to conclude that s 327(3)(d) uses “contained” in the more intense meaning of having as a constituent part, comprising or including ( Macquarie Dictionary ). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] ( “an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment”.) ”

31 In Pitsonis, Mason P continued at [57] – [59]:

“57 In Vegan , there was no dispute that demonstrable error had occurred. There was a clear inconsistency in the Certificate because, having found a percentage of permanent impairment, the specialist had neglected to take it into account in reaching his final conclusion.


58 None of the matters complained about with reference to the Certificate in this matter are of a similar nature.

59 Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”

32 The Court of Appeal dismissed the appeal.

33 Mr Fleming’s appeal did exactly what was done in Pitsonis. He cavilled with the errors in the history recorded by the AMS. As in Pitsonis, Mr Fleming has an evidentiary hurdle which he must overcome to satisfy that s 327(3)(d) is made out. However, Mr Fleming also submitted that there was additional relevant information, namely the report of Dr Heiner dated 9 January 2009. As Mason P stated in Pitsonis, a demonstrable error is not fresh additional evidence. Additional relevant information is addressed in s 327(3)(b), not s 327(3)(d). To constitute an error under s 327(3)(d), it may be an error of fact or law but it must be more than one that depends upon evidence that is not within s 327(3)(a) or s 327(3)(b). The delegate determined that she was satisfied that a ground of appeal as specified in s 327(3)(d) was made out. It was not. In my view the delegate made a jurisdictional error.

Determination of the Appeal Panel dated 23 March 2009

34 On 23 March 2009, the Appeal Panel issued a determination revoking the MAC of Dr Kaplan and issuing a new MAC. The new MAC stated that there had been “no maximum medical improvement” and that the total whole person impairment was not assessable.

35 Pursuant to s 328 an appeal against a medical assessment is to be heard by an Appeal Panel constituted by two approved medical specialists and one Arbitrator chosen by the Registrar. The appeal is by way of review of the original medical assessment. The Act provides the Appeal Panel may have regard to evidence that was not before the AMS in limited circumstances.

36 Section 328(3) reads:

“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.”

37 The NSW Police submitted that the Appeal Panel was wrong to admit further evidence. The Appeal Panel determined to accept the report of Dr Heiner dated 9 February 2009 but did not accept the additional statement of Mr Fleming dated 14 January 2009.

38 The Appeal Panel in its written reasons stated at [10] – [12]:

“10 The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (‘ Ross ’). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC10798-04). In Ross the Deputy President stated:
‘A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case ( Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They also addressed the fundamental demands of fairness and justice in the instant case.’
11 The Panel has determined that the following ‘fresh evidence’ should be received in the Appeal:
Medical report of Dr Heiner dated 9 January 2009
12 The Panel has determined that the ‘fresh evidence’ should be received in the Appeal because it is of such probative value that it is reasonably clear that it would change the outcome of the case.”

39 In Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 (“Summerfield”) where Johnson J examined s 328(3) of the Act and stated (at [52] to [57]):

“52 The restriction upon the adducing of further evidence contained in s 75A(7) and (8) has been construed to involve a test where the appellant must show, inter alia, that the evidence could not have been obtained with reasonable diligence for use at the trial: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There is a separate test provided for in s 75A(9), which allows a general discretion to admit evidence as to matters occurring after the date of the trial, but this discretion is not at large and regard must be had “to the context in which [the discretion] arises and also to the general public interest in the finality of litigation”: Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296; Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80 at paragraph 36.

53 In the context of criminal appeals, a distinction is drawn between “new evidence” and “fresh evidence”: R v Abou-Chabake (2004) 149 A Crim R 417 at 427 (paragraph 63). Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Great latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial: Ratten v The Queen (1974) 131 CLR 510 at 512; R v Abou-Chabake at 427-429 (paragraphs 63-64). In a criminal appeal, however, the court is ultimately concerned with whether there has been a miscarriage of justice: Mickelberg v The Queen (1989) 167 CLR 259 at 301; Abou-Chabake at 428 (paragraph 63).

54 The issues to be determined in the present case involve the proper construction of s 327(3)(b) WIM Act. However, it is helpful to approach this question of construction with an understanding of the principles applicable to the receipt of fresh evidence, especially in civil appeals.

55 Section 75A(8) and (9) Supreme Court Act 1970 provide for a dichotomy between evidence as to matters that occurred before the trial and evidence as to matters occurring after the date of the trial for the purpose of a civil appeal. A more onerous test applies under s 75A(8) with respect to evidence as to matters that occurred before the trial. The reasonable diligence test applies at that level: Akins v National Australia Bank at 160.

56 Section 327(3)(b) contains the phrases “availability of additional relevant information” and “evidence that was not available to the appellant before the medical assessment appealed against”. According to the Macquarie Dictionary, the word “availability” means “the state of being available”. The word “available” is defined in the same dictionary in the following way (page 155):

“1. Suitable or ready for use; at hand; of use or service; available resources. …”

57 In my view, the word “or” in s 327(3)(b) WIM Act ought be treated as a disjunctive term. This is the ordinary meaning of the word. The Act gives the Registrar some flexibility in s 327(3)(b) cases to refer the person for further assessment under s 327(6). The Appeal Panel will itself apply a fresh evidence test under s 328(3) WIM Act for the purposes of the appeal. The Registrar’s decision under s 327(3)(b) and (4) does not have the result that the additional relevant information which appears to exist will necessarily be admitted by the Appeal Panel at the hearing of the appeal.
58 It may be taken that the statutory scheme in the WIM Act seeks to achieve finality with the issue of a medical assessment certificate, subject to the statutory right of appeal to the Appeal Panel (or referral by the Registrar for further medical assessment) under the Act. It is the public interest in finality of litigation which underlies the fresh evidence rule in both civil and criminal appeals. Nevertheless, the WIM Act provides for an appeal to the Appeal Panel under ss 327 and 328 of the Act. I see no warrant in the words of the statute, viewed in the context of the broad objectives and purposes of the legislation, to impose a harsher and more demanding test for fresh evidence on appeal under ss 327 and 328 than the test which applies on appeal from a civil trial court to the Court of Appeal in civil curial proceedings.”

40 The NSW Police submitted that the Appeal Panel erred at law in determining that the medical report of Dr Heiner was fresh evidence or rather, in the terms of the legislation, additional relevant information, being evidence that was not available to Mr Fleming before the medical assessment appealed against or that could not reasonably have been obtained by the appeal before that medical assessment.

41 The NSW Police submitted that a final consideration was that the medical evidence that sought to suggest that Mr Fleming has not reached maximum medical improvement at the time of the approved medical specialist examination was evidence that could have been obtained by the exercise of due diligence before the examination. The NSW Police says that this was the effect of the opinion expressed by Dr Heiner in his report dated 15 September 2008 when one has regard to the WorkCover Guide. If this is so, the further opinion of Dr Heiner could not be said to be “fresh evidence” within the meaning of s 328.

42 The NSW Police submitted that the mischief created by the Appeal Panel using Dr Heiner’s evidence as additional relevant information under s 328(3) is obvious, namely, the effect of doing so would be to permit a disgruntled appellant in every case to obtain evidence from another doctor that sought to cavil with the otherwise final determination made by an approved medical specialist, whether that assessment be about permanency or quantum and dress up an appeal due to new information. It was submitted that this is clearly contrary to the intention of the legislation to put in place a system of assessment that resolves once and for all disputes regarding the medical condition of an injured worker. According to the NSW Police the Appeal Panel erred at law in considering that the evidence of Dr Heiner satisfied the requirement under s 328(3) that the evidence was “fresh evidence” and not available prior to the medical assessment.

43 As the delegate made a jurisdictional error, it follows that the decision of the Appeal Panel cannot stand. It is not necessary that I determine whether or not the Appeal Panel made a jurisdictional error in admitting Dr Heiner’s reported dated 9 January 2009, other than to say that it applied the principles set our in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7. That decision was made prior to Summerfield and encompasses a consideration as to whether the evidence is of such a probative value that it is reasonably clear that it would change the outcome of the case. This consideration is not one set out in s 328(3) or in Summerfield.

44 This matter is to be remitted to the Registrar of the Workers Compensation Commission to be determined in accordance with law.

45 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.

The Court orders:

(1) A declaration that the decision of the delegate of the Registrar of the Workers Compensation Commission made on 12 February 2009 is vitiated by jurisdictional error.

(2) An order in the nature of certiorari removing this matter into this Court.

(3) The decision of the delegate of the Registrar dated 12 February 2009 is quashed.

(4) The decision of the Appeal Panel dated 23 March 2009 is quashed.

(5) This matter is remitted to the Registrar of the Workers Compensation Commission of New South Wales to be determined in accordance with law.

(6) The first defendant is to pay the plaintiff’s costs as agreed or assessed.
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