RailCorp NSW v Registrar of the Workers Compensation Commission of NSW

The appeal concerned a judicial review of a determination made by the Registrar of the Workers Compensation Commission of NSW. RailCorp NSW sought to challenge the validity of the Registrar's decision to reconsider an earlier decision to appoint a particular specialist, Dr Schutz, to assess an injured worker, Mrs Haroun. The primary judge had found the Registrar's initial decision invalid, but the Court of Appeal considered whether this finding was correct and, more importantly, whether the Registrar's power to reconsider the appointment had been exhausted.

The central legal issues before the Court of Appeal were whether the Registrar's delegate had acted outside his statutory powers or committed jurisdictional error in making the decision of 30 September 2011, and whether the Registrar was *functus officio* after that decision, thereby lacking the power to reconsider the appointment of Dr Schutz again on 7 November 2011. RailCorp argued that the decision of 30 September 2011 exhausted the Registrar's power to reconsider, rendering him unable to entertain further requests. Additionally, RailCorp contended that the process leading to the 7 November 2011 decision denied them procedural fairness.

The Court found that the September Decision Email did not represent a refusal to exercise jurisdiction, but rather an exercise of it by deciding not to alter the original appointment of Dr Schutz. Therefore, the primary judge erred in concluding that this decision was invalid. However, the critical question was whether the Registrar's power to reconsider was exhausted by this decision. RailCorp argued that the Registrar, having exercised the reconsideration power, was *functus officio*. Mrs Haroun countered that, while the common law position is that a power is spent upon exercise, section 48(1) of the *Interpretation Act 1987* (NSW) displaces this rule unless a contrary intention is evident in the governing legislation, which she submitted was not the case here. She also argued that the terms of section 378 of the *Management Act* did not limit the number of reconsiderations available.

The Court refused leave to amend the originating summons and dismissed the appeal, ordering RailCorp to pay the second respondent's costs.