Re Lloyd - [2011] WASC 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE LLOYD; EX PARTE GEORGIOU GROUP PTY LTD [2011] WASC 91

CORAM: SIMMONDS J

HEARD: 29 MARCH 2011

DELIVERED : 29 MARCH 2011

FILE NO/S: CIV 1275 of 2011

MATTER :An application for a writ of certiorari against Susan Lloyd, Director of the Dispute Resolution Directorate, constituted under the Workers' Compensation and Injury Management Act 1981 (WA)

EX PARTE
GEORGIOU GROUP PTY LTD
Applicant

Catchwords:

Administrative law - Application for an order nisi - Decisions to extend date by which election to retain the right to seek common law damages for injury under the Workers' Compensation and Injury Management Act 1981 (WA) - Grounds of lack of procedural fairness, jurisdictional error and error of law on the face of the record - Requirements for a show cause order - Requirements for a writ of certiorari - Whether order should be returnable before the Court of Appeal

Legislation:

Interpretation Act 1984 (WA), s 75(1), s 76
Workers' Compensation and Injury Management Act 1981 (WA), s 93M(4), s 93O
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 25

Result:

Order nisi granted made returnable before a judge of the General Division

Category: B

Representation:

Counsel:

Applicant: Mr M Zilko SC

Solicitors:

Applicant: Rankin Nathan Lawyers

Case(s) referred to in judgment(s):

Brosnan v Meridian Mining Ltd [2011] WASC 43
Craig v The State of South Australia (1995) 184 CLR 163
Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
McKay v Commissioner of Police [2006] WASC 189
Re Anastas; Ex parte Welsby [2001] WASC 178
Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Re Warden Graham Calder; Ex parte Cazaly Iron Pty Ltd [2010] WASC 393
Woodley v Minister for Indigenous Affairs [2009] WASC 251

SIMMONDS J:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an application by Notice of motion for an order that Susan Lloyd, the Director of the Dispute Resolution Directorate (the Director and the Directorate respectively), constituted under what it is acknowledged is the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), show cause before the relevant court - and I will return to the relevant court shortly - why a writ of certiorari should not be issued against her quashing two decisions of hers of 30 November 2010.
The applicant, Georgiou Group Pty Ltd (Georgiou), was the employer of a Mr Douglas Oreo on 25 May 2009 when he suffered an injury to his right knee while climbing down from the truck he was driving for his employer. Mr Oreo made a claim for his injury and Georgiou's insurer, GIO General Ltd (GIO), accepted liability for the claim.
Under the Act, the last day on which Mr Oreo could elect to retain the right to seek common law damages for the injury was, it seems, 26 May 2010. The Director, in purported exercise of powers under the Act to extend that day, purported to do so by a letter to Mr Oreo dated 30 November 2010. That letter referred to two extensions. One was an extension under the Act s 93M(4)(b) to 11 September 2010. The other was an extension under the Act s 93M(4)(a) to 25 May 2011. The two extensions are the two decisions for which the applicant, Georgiou, seeks to have its show cause order.

The respondent's position

The Director was served with the papers for this application (I will describe those shortly), and has indicated her intention not to participate in the hearing of the application as well as her position that she will abide its result. There is no evidence before me that Mr Oreo has been so served or otherwise notified of the hearing and therefore, in substance, this hearing is an ex parte one. I will return to the significance of the Director having been served and taken the position I have indicated.

Background and relevant law

I need to set out sufficient of the background, as I have it, to permit the grounds for the application to be properly understood, I take that background from the affidavits in support of the application. There are two, both from persons employed by GIO. One is of Iain Gordon Muir sworn 17 February 2011. The other is of Louise Cooper also sworn that date. Mr Muir is a case service officer at GIO while Ms Cooper is a management assistant at that company.
I have no other evidence as to the background. However, I have been informed by senior counsel that there is no other evidence of communications between the Director and either Georgiou or GIO which his inquiries have produced. Further, as I will indicate, the minute of proposed orders calls for an opportunity to be afforded to the applicant to file further affidavits, and one such further affidavit it is anticipated will be from an officer of Georgiou. That officer could, although perhaps it was not originally contemplated that officer would, provide confirmation of the entirety of the relevant communications between the Director, including any delegates of hers, and Georgiou as well as GIO.
I also note the position taken by the Director, given that the Director had the affidavits I referred to as part of the papers as well as the grounds for the application. It would be expected that if there was anything of significance by way of communication between her or a delegate and Georgiou or GIO that that would have been drawn to the court's attention.
I proceed, therefore, in this hearing on the basis referred to me by senior counsel.
In this background I will also refer to the relevant provisions of the Act.
Mr Muir says that he is informed by Ms Cooper that on 9 November 2009 a termination day notice pursuant to s 93O of the Act in the form of a Form 36 document was sent to Mr Oreo. I will call this the Notice. Mr Muir annexes a true copy of the Notice to his affidavit. The Notice is shown as from GIO and it is signed by Ms Cooper on behalf of Mr Muir. Ms Cooper describes GIO's system for generating, saving, printing, copying, posting and filing of scanned copies of such Notices, indicating that the date of 9 November 2009 on the Notice would have been the date the Notice was generated prior to it being saved, printed, a copy posted and scanned copies filed.
The Act s 93O reads as follows:
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).
The Workers Compensation and Injury Management Regulations 1982 (WA), reg 25, requires the Notice an employer is required by s 93O to give to be given by sending the worker a document in the form of Form 36 in Appendix I to the regulations. I note for the purposes of the Act s 93O and the regulations, reg 25, the provisions of the Interpretation Act 1984 (WA) to which senior counsel also referred, at least in part, s 76, read with s 75(1), on service by post.
Mr Muir also annexes three documents, all shown as received by WorkCover on 26 October 2010 in connection with an application by Mr Oreo to extend the termination date. One is an application to extend that date, dated 22 October 2010 (the Application), in which Mr Oreo applied to extend that date to 25 May 2011. The Application is expressed as made under the Act s 93M(4)(a) ‑ (b).
There was also a Report on Worker's Condition not Stabilised dated 10 September 2010 (the Report), by which a medical specialist, Dr D K Kennedy, reported his common law assessment for the purposes of pt IV div 2(3) of the Act that Mr Oreo was still unstabilised.
Further, by a Certificate also dated 10 September 2010 (the Certificate), Dr Kennedy certified that having assessed Mr Oreo's condition as not stabilised to the extent required for an evaluation to be made for that purpose, he recommended that for the purpose of s 93M(4)(a)(ii) the termination date be extended to 25 May 2011.
Section 93M(4)(a) ‑ (b) of the Act reads as follows:
(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.
I note that that provision falls into the Act pt IV div 2(3).
Mr Muir says GIO did not receive copies of the Application, the Report or the Certificate until on 1 December 2010 it received correspondence from the Directorate sent on 30 November 2010, to which I will return.
Mr Muir says a copy of a letter dated 27 October 2010 to Georgiou from the Director's delegate was sent to GIO (the Directorate letter of 27 October 2010).
That letter, a copy of which is annexed to his affidavit, refers to the Directorate having received the application, although a copy, it appears, is not attached to the letter that is annexed to the affidavit. The Directorate letter of 27 October 2010, after setting out the Act s 93O, says that Mr Oreo has claimed that he was not notified of the termination day in accordance with s 93O of the Act and has requested an extension of the termination date on that basis. The letter goes on as follows:
I therefore request that you provide confirmation with regard to whether or not the required notice was sent to Mr Oreo. If the notice was sent, I request that a copy of the notice and details regarding when and where the notice was sent be provided to the Directorate as soon as possible.
Please note a copy of this letter has also been sent to your workers' compensation insurer. You may wish to contact them for assistance in this matter.
The Directorate letter of 27 October 2010 makes no reference to the other basis for the application, s 93M(4)(a).
Mr Muir says that GIO sent a letter dated 29 October 2010 to WorkCover and annexes a copy. The letter states the company attached a copy of the s 93O letter which was sent to the worker on 9 November 2009.
Mr Muir says a copy of a letter dated 3 November 2010 to Georgiou from the Director's delegate was sent to GIO (the Directorate letter of 3 November 2010).
The Directorate letter of 3 November 2010, a copy of which is annexed to Mr Muir's affidavit, refers to the GIO letter of 29 October 2010 which states that the s 93O Notice was sent to the worker on 9 November 2009. The Directorate letter of 3 November 2010 goes on as follows:
Further to my letter to you dated 27 October 2010 I seek evidence which goes to show that the 93O Notice was physically mailed to the worker. Such evidence may include a copy of GIO Workers Compensation's outgoing mail ledger, a postage date stamped copy of the 93O Notice or confirmation from Australia Post that the 93O Notice was sent.
If you are able to provide the above information, could you please do so within seven (7) days of the date of this letter.
Mr Muir says GIO sent a letter dated 8 November 2010 to the Directorate and annexes a copy. That letter after referring to the Directorate letter of 3 November 2010 goes on as follows:
As advised in our correspondence dated 29.10.10 the 93O letter was sent to the workers correct home address on 09.11.09 advising of the termination date of 26.05.10. Please note that other than the copy of the correspondence on file there is no 'evidence' that the notice was physically mailed to the worker, however there is also no evidence on file of the correspondence being returned to GIO if not delivered by Australia Post.
It is also our understanding that there is no requirement for the insurer to provide any evidence as requested in your correspondence for every 93O notice sent to a worker. If this is incorrect please can you provide me with details of the requirements as set out in The Workers' Compensation and Injury Management Act 1981 as obviously this will have an impact on how this correspondence is recorded in the future.
Mr Muir says that the Director's delegate sent a letter dated 15 November 2010 to GIO and annexes a copy (the Directorate letter of 15 November 2010). That letter refers to the GIO letter of 8 November 2010 and sets out the Act s 93M(4)(b) and s 93O(2) and goes on as follows:
In order to satisfy myself that the employer has complied with section 93O of the Act as I am required to do by virtue of section 93M(4)(b) of the Act I have sought evidence from GIO Workers Compensation that the 93O Notice was sent to the worker.
A decision on whether to exercise my discretion and extend the worker's termination day is based on the information provided to me by the parties in relation to whether the 93O Notice was given to the worker.
As stated in my letter to GIO Workers Compensation dated 3 November 2010 evidence of whether the notice had been 'given' to the worker may include a copy of an outgoing mail ledger, a postage date stamped copy of the 93O Notice or confirmation from Australia Post that the 93O Notice was sent.
I note the information supplied in your correspondence and will make a decision in relation to the worker's application to extend the termination day based on the evidence before me and will revert to you again in due course.
Mr Muir says that the Director's delegate sent a letter dated 17 November 2010 to Georgiou and annexes a copy of it (the Directorate letter of 17 November 2010). That letter refers to the GIO letter of 29 October 2010 and goes on as follows:
I note that GIO Workers Compensation states in its letter that the 93O Notice was sent to the worker on 9 November 2009.
In order to assist me in determining whether nor not the employer has failed to comply with section 93O of the Workers' Compensation and Injury Management Act 1981 ('the Act') I require the employer's insurer to provide the DRD with a Statutory Declaration confirming that the 93O Notice was sent to the worker and the process by which the 93O Notice was sent to the worker.
If you are able to provide the above information could you please do so within seven (7) days of the date of this letter.
Mr Muir says a copy of the Directorate letter of 17 November 2010 was not provided to GIO by the Director or her delegate until 2 December 2010, after a phone call on 1 December 2010 between Mr Muir and a person at WorkCover. Mr Muir says his solicitors received from the Director's delegate a copy of a statutory declaration of Mr Oreo of 22 November 2010 bearing a date stamp showing it as received by the Directorate on 25 November 2010 (Mr Oreo's Statutory Declaration).
Mr Oreo's Statutory Declaration says, among other things, that he 'never received any correspondence from GIO Insurance in regard to my termination date'. Mr Muir says the Director's delegate sent a copy of Mr Oreo's Statutory Declaration to GIO's solicitors as an attachment to a facsimile on 27 January 2011 and the first time GIO received a copy of Mr Oreo's Statutory Declaration was when the following day their solicitors provided it with a copy.
Mr Muir says a copy of a letter from the Director's delegate sent 30 November 2010, addressed to Mr Oreo at an address for the GIO, was sent to both Georgiou and GIO (the Directorate letter of 30 November 2010). That letter, which appears to be the correspondence of 30 November 2010 previously referred to, is annexed to Mr Muir's affidavit.
The Directorate letter of 30 November 2010 refers to the Application, notes an extension of the termination date was sought under the Act s 93M(4)(a) ‑ (b), states the author is satisfied the provisions of s 93M(4) and the regulations, reg 23, have been properly applied and goes on:
Extension sought under section 93M(4)(b)
Based on the information before me, an extension of the termination day is given until 11 September 2010.
Extension sought under section 93M(4)(a)
Based on the information before me and in light of the extension granted under section 93M(4)(b), an extension of the termination day for you to make an election pursuant to section 93K(4)(a) of the Act is given until 25 May 2011.
Enclosed are endorsed copies of the applications. Copies have also been provided to your employer and your employer's insurer.
As does the application before me, I will refer to the decision on Mr Oreo's application to extend under the Act s 93M(4)(b) as the first decision and to the decision on Mr Oreo's application to extend under the Act s 93M(4)(a) as the second decision. Enclosed with the Directorate letter of 30 November 2010 were, it seems, the Application, the Report and the Certificate. These were sent to GIO with the Director's Directorate letter of 30 November 2010.

The grounds of the application before me

These are as follows:
Grounds of application
1.In making the first decision, the Director denied the Applicant procedural fairness in that the Director failed to inform the Applicant's insurer that the Director required the Applicant's insurer to provide her with a statutory declaration confirming that the s93O notice was sent to the Claimant and the process by which it was sent to the claimant. The Director wrote to the Applicant in those terms by [the Directorate letter of 17 November 2010], but failed to provide a copy of that letter to the Applicant's insurer. All previous correspondence from the Director to the Applicant concerning the Claimant's application had been either copied or sent to the Applicant's insurer, and the Applicant and its insurer had a reasonable and legitimate expectation that [the Directorate letter of 17 November 20l0] would similarly be copied to the Applicant's insurer. The Director thereby failed to afford the Applicant through its insurer the opportunity to provide a statutory declaration as to the matters requested and other such documentation as was available to the Applicant's insurer to establish that the Applicant had complied with s93O of the Act.
2.Further and in the alternative, in making the first decision the Director denied the Applicant procedural fairness, in that the Director failed to provide to the Applicant or its insurer a copy of [Mr Oreo's Statutory Declaration] which was received by the Directorate on 25 November 2010, or to inform the Applicant or its insurer of the existence of the statutory declaration or to give the Applicant or its insurer any opportunity to respond to the matters therein.
3.Further and in the alternative, the second decision was made in excess of jurisdiction and involved error of law on the face of the record in that the Director extended the termination day under s93M(4)(a) (being 25 May 2010) notwithstanding that an approved medical specialist had not certified in writing before the termination day that the Claimant's condition had not stabilised to the extent required for a normal evaluation of the Claimant's degree of permanent whole of personal impairment and had not recommended a day until which the termination day ought be extended. Instead the Director acted upon [the Certificate] of an approved medical specialist, Dr D K Kennedy, which was dated 10 September 2010 but received by the Director on 26 October 20l0. The Director was not permitted by s93M(4)(a) to consider and act upon [the Certificate] in circumstances where it was not received by the Director until 26 October 2010, some 5 months after the termination day.
4.Further and in the alternative, the second decision was made in excess of jurisdiction and involved error of law on the face of the record in that upon the proper construction of s93M of the Act the Director was not permitted to make the second decision thereby granting two extensions under s93M at the same time for cumulative periods.
5.Further and in the alternative, in making the second decision the Director denied the Applicant procedural fairness in that the Director did not inform the Applicant of her intention to consider granting any extension of time under s93M(4)(a) of the Act.
6.Further and in the alternative, in making the second decision the Director denied the Applicant procedural fairness in that the Director made both the first and second decisions at the same time without affording the Applicant or its insurer an opportunity to make submissions in respect of the separate issue of whether two extensions should be granted under s93M at the same time for cumulative periods.
7.Further and in the alternative, in making the second decision the Director denied the Applicant procedural fairness in that the Director made the decision to grant the Claimant's application under s93M(4)(a) without advising the Applicant or its insurer that she had received the report of Dr Kennedy or that she intended to act upon the report or to inform the Applicant or its insurer of the existence of the report or to give the Applicant or its insurer any opportunity to respond to the report.

The applicable law

There are two parts to the matter of the applicable law. The first is the law applicable to what an applicant for a show cause order must show. The second is what is required to be shown in an application for certiorari in order to obtain the issue of such a writ. I will deal with those parts in that order.
I recently summarised my understanding of the law as to what an applicant is required to show for a show cause order to issue in Re Warden Graham Calder; Ex parte Cazaly Iron Pty Ltd [2010] WASC 393 [49] ‑ [50] as follows:
As to the proper test for the issue of an order nisi for a writ of certiorari, the applicable law appears to be well established in this State, although there has been some difference of opinion in this court as to some of the detail in its formulation. See Talbot v Lane (1994) 14 WAR 120; (1994) A Crim R 115, 152 (Malcolm CJ), approving the passage in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd (Fleet Street Casuals Case) [1982] AC 617, 642 ‑ 644 (Lord Diplock); Cazaly Iron Ore Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282 [55] (Buss JA); Re Capobianco; Ex parte Castelli (Unreported, WASC, Library No 980567, 25 September 1998) 6 (Parker J); Re Matthews; Ex parte Mackenzie [2000] WASC 147 [8] - [13] (Templeman J); Perpetual Trustees WA Ltd v City of Joondalup (Unreported, WASC, Library No 990195, 16 April 1999) 6 (McKechnie J); Re Anastas; Ex parte Welsby [2001] WASC 178 [17] (McLure J); and Civil Procedure in Western Australia [51.1.1] as at 2 November 2010.
I would summarise that law in the following propositions:
1.The purpose of the procedure for the order nisi is to avoid the time of the court being wasted by misguided or trivial complaints of administrative error: Talbot (152) (Malcolm CJ), quoting with approval Inland Revenue Commissioners (642 - 644);
2.The court will not go into the matter in any depth: Talbot (152) (Malcolm CJ), quoting with approval Inland Revenue Commissioners (642 - 644); however, matters involving some complexity may require more than a quick review: Cazaly [55];
3.The court's task is to determine whether the applicant has demonstrated an arguable case for the relief sought: Talbot (152), quoting with approval Inland Revenue Commissioners (642 ‑ 644); Cazaly [55]; however,
4.Two different formulations have been given of what constitutes an arguable case. One formulation is that, unless relief is sought in respect of quasi-criminal proceedings, the case to be demonstrated is merely one capable of being argued, and it is not necessary to demonstrate that the case has some reasonable or real prospect of success: Capobianco (6). The other formulation is that an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success: Perpetual Trustees (6);
5.A number of judges of this court have stated a preference for the formulation in Capobianco (6) over that in Perpetual Trustees (6): see Matthews [8] - [13]; and see Aznavour Pty Ltd v City of Mandurah [2002] WASC 95 [7] (Roberts-Smith J) and Re Patrick John Walker, Commissioner For Fair Trading; Ex Parte Fremantle Islamic Association Incorporated [2003] WASC 176 [1] - [3] (Johnson J), both referring to Matthews; at the same time
6.The view has been expressed that both of the formulations in 4 (above) set a very low threshold test, and it may be that the practical difference between them is more apparent than real: Anastas [17].
However, I did not take account in that description of what was said in McKay v Commissioner of Police [2006] WASC 189 [3], a decision of his Honour the Chief Justice, and Woodley v Minister for Indigenous Affairs [2009] WASC 251 [37], another decision of his Honour the Chief Justice. I refer to what was said concerning those paragraphs by Corboy J in Eclipse Resources Pty Ltd v Department of Environment and Conservation [2010] WASC 360 [49] ‑ [51] as follows:
In McKay v Commissioner of Police [2006] WASC 189 Martin CJ said:
'I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success [3].'
In Re The Hon J McGinty MLA; Ex parte Duff [2007] WASC 210 Jenkins J agreed with the formulation of the threshold test proposed by Martin CJ in McKay [3], while in Woodley v Minister for Indigenous Affairs [2009] WASC 251 Martin CJ again observed:
'[P]erhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the Court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].'
The short passage reproduced above from McKay v Commissioner of Police makes it clear that the test proposed by Martin CJ in that case was intended to be different in substance to that applied in the earlier authorities as summarised by Buss JA in Cazaly Iron. That is confirmed by the observations made immediately after the passage that has been reproduced from McKay v Commissioner of Police concerning the public interest in the use of the limited resources of the judicial system. However, there are apparently subtle shifts between the formulations in McKay v Commissioner of Police and Woodley v Minister for Indigenous Affairs and as his Honour commented in the second of those cases, 'the nicety of the distinction between an arguable case and an arguable case without reasonable prospects of success is perhaps a semantic issue' [37].
Like Corboy J in Eclipse Resources [52], I do not consider I need to consider the matter further as I consider that the application should be granted regardless of which formulation is applied to it.
To assess that application it is necessary to review the principles applicable to a grant of certiorari in brief terms. Those principles require that the decision be susceptible to such a grant at the instance of the applicant and that there exists one or more of the 'distinct established grounds' for such a grant: see Eclipse Resources [60] and Craig v The State of South Australia (1995) 184 CLR 163, 175 in the judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ, (source of the quotation).
The requirement that the decision be susceptible to a grant of certiorari is that the decision affects the rights of subjects in the relevant sense: see Eclipse Resources [60] ‑ [65]. In my view, it is arguable in accordance with any of the formulations above that a decision purporting to extend the date by which to elect to preserve the right to sue the applicant for common law damages affects the rights of the applicant. It is not contended that the decision affects the rights of GIO, which is not an applicant before me.
That arguable effect will give the applicant standing to seek the issue of the writ of certiorari if it was arguable that one or more of the distinct and established grounds existed for such a grant; see Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295, 305 (Malcolm CJ, Pidgeon & Rowland JJ agreeing).
The requirement for one or more of the distinct and established grounds to exist is briefly explained in Craig as follows:
Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record' (175 ‑ 176). (footnotes omitted)
It will be seen that the grounds of the application before me invoke one or more of the first, second and fourth grounds for the grant of certiorari. It will be evident that the determination of the requirements for the making of a show cause order requires me to determine if the applicant has shown it is arguable, as I have indicated, that the writ of certiorari should be issued on the grounds described. I turn now to those grounds.

Ground 1

Ground 1 is a procedural fairness ground. It will be noted that the affidavit of Mr Muir indicates that the applicant was informed of the Director's requirement that GIO provide it with a statutory declaration confirming that the Act s 93O Notice had been sent to Mr Oreo. That affidavit further confirms that the Directorate letter of 17 November 2010 does not bear any indication on it that it was copied to GIO, distinguishing it from previous correspondence. At the same time the ground refers to the applicant's reasonable and legitimate expectation that the Directorate letter of 17 November 2010 would be similarly copied to GIO.
Given the terms of the Directorate letter of 17 November 2010 against the background of previous correspondence, it seems to me to be arguable in accordance with any formulation above that procedural fairness required that the Director inform GIO of its requirement. I refer for this aspect of procedural fairness to Aronson M, Dyer B & Groves M, Judicial Review of Administrative Action (4th ed, 2009) s 7.125.

Ground 2

Ground 2 is also a procedural fairness ground concerning, in this case, a failure to provide or otherwise inform the applicant of Mr Oreo's Statutory Declaration or its contents so as to give the applicant or its insurer an opportunity to respond to the matters therein. I refer to what I said earlier concerning what I should take to have been the extent of the communications between the Director or her delegates and both Georgiou and GIO.
It seems to me that it is arguable, in accordance with any of the formulations I have referred to, that procedural fairness did require the provision of that information as by providing the document itself to the applicant or its insurer as the person with whom, for the benefit of the applicant, the Director or her delegate had communicated. It seems to me that the basic requirements of procedural fairness would be applicable to this decision maker and that those requirements, it is arguable, were not satisfied in the respect the subject of ground 2.

Ground 3

Turning to ground 3, this ground refers to jurisdictional error and error of law and this implicates the question of the power of the Director to extend under s 93M(4)(a) when the circumstances existed of the kind described in ground 3. It seems to me that it is arguable, in accordance with any of the formulations that I have described, that there was an excess of jurisdiction and an error of law on the face of the record in those circumstances so described.
The question, of course, is one of the construction of s 93M(4)(a) and its application in those circumstances, which on the nature of the kind of review in proceedings of this kind it seems to me is to be dealt with as I have previously indicated.

Ground 4

This takes me then to ground 4 which also refers to excess of jurisdiction or jurisdictional error and error of law on the face of the record. This goes to a different question of the construction of s 93M, that question being the one described in the ground having to do with the power of the Director to grant what is referred to as two extensions at the same time for cumulative periods. Again, on the kind of review which is appropriate, on the authorities I have referred to, for me to undertake, it seems to me in accordance with any of the formulations as to arguable that I have referred to earlier that this ground is made out.

Grounds 5, 6 and 7

I turn then to grounds 5, 6 and 7. It seems to me that I can deal with them together. All of them refer to matters of procedural fairness which it seems to me arise out of a common core having to do with the making of the decision to grant two extensions, or in the case of ground 5 the extension under s 93M(4)(a), without providing information to the applicant of her intention so to proceed sufficient to enable the applicant to make submissions in relation to those matters.
Senior counsel indicated to me that he had not been able to find authority with respect to such matters of procedural fairness and therefore these grounds were founded on matters of fundamental principle in relation to procedural fairness, particularly in this respect but also, it seems to me, in respect of grounds 3 and 4 where there also appears to be no authority directly in point. I should note the reference by McLure J in Re Anastas; Ex parte Welsby [2001] WASC 178 [17] to General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 to which Corboy J refers in Eclipse Resources [52] as 'a reminder that in determining what constitutes an arguable case and assessing the prospects of that case succeeding it is necessary to be sensitive to uncertainties in the law and its possible future development'.
In that light, it seems to me that the case that it is arguable as described in each of grounds 5, 6 and 7, and to some extent as well grounds 3 and 4, in the sense of any of the formulations I have described, has been made out.

Orders

It would follow from that that I would make orders in terms of the minute of proposed orders which incorporates the grounds that I have previously set out without any amendment to them either by the author of the minute or by me, save as will shortly appear. The minute also allows for the filing of any further affidavits within 14 days of the date of the order and I would so order. There is also the usual provision for service of a copy of the application, all affidavits filed in support of it and this order, on the Director and also on Mr Oreo, with an indication as to how service may be affected. An order consequential on that I would also make from the minute has to do with liberty to file and serve affidavits within the time stipulated.
That then takes me to order 5 (see also order 1), which is that for the return of the order nisi. The return allows for return either before this court or the Court of Appeal, leaving it, as senior counsel confirmed, for determination as to which should be that to which the order lay.
It is the case that there are some matters of law raised by the order nisi of some nicety. I have referred to one of them in relation to procedural fairness.
There is another matter to which senior counsel directed my attention, having to do with the satisfaction of s 93O as to service of the Notice provided for in that section and the manner of proving such satisfaction. I am able fairly readily to appreciate the practical significance of those two matters to employers and more particularly to their insurers in relation to applications to preserve the right to common law damages under the legislation.
Viewing those matters together, however, it does not seem to me that they are sufficient to warrant having this matter made returnable before the Court of Appeal. I do note, as Allanson J noted in Brosnan v Meridian Mining Ltd [2011] WASC 43 [58], that there has been no attempt in the authorities to state any guidelines for the exercise of the discretion under O 56 r 2 of the Rules of the Supreme Court 1971 (WA) as to the division of the court before which an order nisi should be heard.
However, as senior counsel noted, he did not press strongly for this matter to be returnable before the Court of Appeal. In my view, it is appropriate for a judge in my position to take the position that such a judge would require some persuasion - I do not go any higher than that - why the matter should be made returnable before the Court of Appeal rather than before a judge of the General Division.
In my view, on the limited authorities referred to by Allanson J in Brosnan [58] and my reflections on the two matters I have referred to, there is not sufficient reason to have the matter returnable before the Court of Appeal. Therefore, under the minute in terms of its proposed order 5 (see also proposed order 1), the order nisi would be returnable for hearing before a judge of 'this Honourable Court', meaning a judge of the General Division, within the time stipulated there.
The remaining order as to the costs of the application being in the cause is the normal order that would be made in a case like this and I see no reason not to make it.