Re Lloyd
[2008] WASC 93
•16 MAY 2008
RE LLOYD; EX PARTE ATANASIO [2008] WASC 93
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 93 | |
| Case No: | CIV:1827/2007 | 12 DECEMBER 2007 | |
| Coram: | EM HEENAN J | 16/05/08 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Certiorari and mandamus granted Declaration that applicant entitled to have the question of his degree of disability referred for determination | ||
| B | |||
| PDF Version |
| Parties: | ANTONIO ATANASIO THE DIRECTOR OF WORKCOVER WA BP REFINERY (KWINANA) PTY LTD UNITED MAINTENANCE PTY LTD |
Catchwords: | Administrative law Judicial review Workers' compensation Certiorari and mandamus Decision of Director of Conciliation and Review under Workers' Compensation and Injury Management Act 1981 (WA) Refusal to progress application Jurisdiction of Director Dispute Resolution Jurisdiction of dispute resolution officer Availability of prerogative relief |
Legislation: | Interpretation Act 1984 (WA) Workers' Compensation and Rehabilitation Act 1981 (WA) Workers' Compensation and Injury Management Act 1981 (WA) |
Case References: | BHP Billiton Pty Ltd v Gomes [2007] WASCA 140 Casserley v Alcoa of Australia Ltd [2006] WASCA 150 Clough Engineering v Thomas [2004] WASCA 36 Council of Civil Service Unions v Minister For The Civil Service [1985] AC 374 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Ellwood v Darling Downs Investments Pty Ltd [1987] 14 FCR 580; (1987) 75 ALR 47 Girrawheen Tavern v Joseph [2003] WASCA 244 McLaren v Schuit [1983] 33 SASR 139 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Re McBain; Ex parte Australian Catholic Bishops' Conference [2002] HCA 16; (2002) 209 CLR 372 Re Monger; Ex parte Cross [2004] WASCA 176 Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555 Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509 Transfield Pty Ltd v Rawstron [2005] WASCA 78 Willison v Van Ryswyk [1961] WAR 87 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
ANTONIO ATANASIO
Applicant
AND
THE DIRECTOR OF WORKCOVER WA
First Respondent
BP REFINERY (KWINANA) PTY LTD
Second Respondent
UNITED MAINTENANCE PTY LTD
Third Respondent
Catchwords:
Administrative law - Judicial review - Workers' compensation - Certiorari and mandamus - Decision of Director of Conciliation and Review under Workers'
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Compensation and Injury Management Act 1981 (WA) - Refusal to progress application - Jurisdiction of Director Dispute Resolution - Jurisdiction of dispute resolution officer - Availability of prerogative relief
Legislation:
Interpretation Act 1984 (WA)
Workers' Compensation and Rehabilitation Act 1981 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Certiorari and mandamus granted
Declaration that applicant entitled to have the question of his degree of disability referred for determination
Category: B
Representation:
Counsel:
Applicant : Mr L Gandini
First Respondent : Mr T Sharp
Second Respondent : Mr D W Williams
Third Respondent : Mr D W Williams
Solicitors:
Applicant : Chapmans
First Respondent : State Solicitor for Western Australia
Second Respondent : Williams Handcock
Third Respondent : Williams Handcock
Case(s) referred to in judgment(s):
BHP Billiton Pty Ltd v Gomes [2007] WASCA 140
Casserley v Alcoa of Australia Ltd [2006] WASCA 150
Clough Engineering v Thomas [2004] WASCA 36
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Council of Civil Service Unions v Minister For The Civil Service [1985] AC 374
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Ellwood v Darling Downs Investments Pty Ltd [1987] 14 FCR 580; (1987) 75 ALR 47
Girrawheen Tavern v Joseph [2003] WASCA 244
McLaren v Schuit [1983] 33 SASR 139
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Re McBain; Ex parte Australian Catholic Bishops' Conference [2002] HCA 16; (2002) 209 CLR 372
Re Monger; Ex parte Cross [2004] WASCA 176
Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555
Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509
Transfield Pty Ltd v Rawstron [2005] WASCA 78
Willison v Van Ryswyk [1961] WAR 87
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1 EM HEENAN J: Unfortunately, these proceedings concern a dispute, not about a question of whether or not the applicant has suffered a degree of disability in the course of his employment or about the extent of his alleged disability but, rather, about whether or not a question whether the applicant has suffered a degree of disability not less than the relevant level can be referred to the Director Dispute Resolution, appointed to that position under s 288 of the Workers' Compensation and Injury Management Act 1981 (the Act). This step of referring the dispute to the Director under s 93D(5) of the Act is an essential preliminary to a determination of the dispute under Part XI of the Act which, after due progress, should be resolved by an arbitrator under s 181 (see s 93D(10)). In that case, the arbitrator is bound by the rules of natural justice, subject to s 188(1), and is obliged to give his or her decision in writing either immediately or upon request made under s 213(3)(b) to provide reasons for the decision in writing. None of this can happen, however, unless the question of whether or not the applicant's degree of disability is not less than the relevant level is actually referred to the Director under s 93D(5).
2 In this case, the Director (via her delegate) declined to proceed with a referral of the question of whether or not the applicant had a degree of disability not less than the relevant level because the view was taken that the medical evidence produced by the worker to the Director from his medical practitioners was not adequate to indicate that, in the medical practitioners' opinion, the degree of disability was not less than the relevant level and that, consequently, the question could not be referred because of the provisions of s 93D(6).
3 Hence the present application raises the questions of who is to decide whether or not the requirements of s 93D(6) are satisfied; what is the nature and status of any decision to refuse to proceed with a 'referral' of the question to the Director for determination in accordance with the Act; and whether prerogative or other relief will lie in the event of a challenge to the propriety of the decision made to decline to proceed with the 'referral' of the question.
4 That this is an abstruse, complicated, semantic and indeterminative decision in a process which is already complicated and prolonged cannot be doubted. That it is necessary for a person aggrieved by the decision to have recourse to the remedies of this court when the purposes of the legislation include the object of making the 'determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick' (s 3(d)) is an illustration of a conspicuous failure of the
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- legislation to achieve that desirable objective. Neither these proceedings, nor the controversy before the delegate of the Director under s 93D(6), deals with the merits of the positions of the contending parties. Instead, the proceedings reveal the unproductive and artificial consequences which so often result from procedural disputes. This is an unedifying example of that tendency.
Background
5 On 13 March 2000, Mr Antonio Atanasio was employed by the second respondent, United Maintenance Pty Ltd, as a trades' assistant carrying out pipe work at the BP Refinery at Kwinana. While engaged in lifting pipes in the course of that employment he suffered a back injury which caused a degree of disablement which, later, so he alleges, increased in severity and consequence and led to other associated disabilities. Because of the nature of the work being done by the applicant and other employees of the first respondent at the Kwinana refinery, the applicant has contended that the second respondent, BP Refinery (Kwinana) Pty Ltd, was a 'deemed employer' of the applicant by reason of s 175(1) of the Act.
6 On 14 September 2001, the applicant, as plaintiff, commenced proceedings in the District Court of Western Australia seeking damages for personal injury and associated losses from each of the second and third respondents for alleged negligence or breach of duty which, so he claimed, had caused the injuries and consequent disability suffered in that employment on 13 March 2000. According to the unchallenged affidavit evidence in these proceedings, a finding was made in the District Court on 5 December 2006 that the second respondent was the deemed employer of the applicant by reason of s 175 of the Act as had been alleged. Those proceedings for damages in the District Court are still pending and have reached the stage when it may be possible for them to be listed for trial and for a pre-trial conference between the parties to be held. However, by reason of s 93C of the Act, neither the District Court nor any other court is to award damages to the applicant contrary to Part IV Division 2 of the Act. In the present circumstances, this means that it is necessary for the applicant and the respondents to have agreed, or for there to be a determination made in accordance with the provisions of the Act, that the degree of disability of the worker is not less than 30% - s 93D(1)(a).
7 Accordingly, by letter dated 18 April 2007, the solicitors for the applicant forwarded to the Director, Dispute Resolution Directorate WorkCover, the applicant's 'Form 22' (see reg 19J(1) of the Workers'
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- Compensation and Injury Management Regulations 1982 (WA), (the Regulations). This was submitted under s 93D(5) of the Act together with medical reports from Dr David Kennedy dated 5 December 2006 and Dr A G Linde FRANZCP of 28 March 2007. By the Form 22 then submitted the applicant contended that the degree of disability as assessed by his medical practitioners was 51.6% and that therefore he satisfied the requirements of s 93E(3) of having a degree of disability not less than 30%. Also submitted with the correspondence to WorkCover were copies of letters showing that the reports of Dr Kennedy and Dr Linde had been provided to the solicitors acting for the respondents and that each firm of solicitors, on behalf of its respective client, had responded to the effect that the alleged degree of disability was not accepted.
8 This submission of the Form 22 on 18 April 2007 was, so the applicant contends, a referral of the question of the degree of disability to the Director in accordance with s 93D(5).
9 The response from the Director came in the form of a letter from the Director's delegate to the applicant's solicitors dated 27 April 2007 which, after acknowledging receipt of the Form 22 referral together with the two medical reports already mentioned, stated:
Part of my function in relation to a worker's referral under s 93D(5) of the Act is to examine the medical evidence produced pursuant to s 93D(6) of the Act.
With regard to the psychiatric component of your client's injury, it is my view the report provided by Dr Linde is not sufficient to satisfy the requirements of 'medical evidence' for the purposes of s 93D(6) of the Act. I take that view as Dr Linde has used an inappropriate method of conversion to produce a percentage of impairment of 24%. I also note that Dr Linde has not addressed the permanency of your client's condition.
The report of Dr David Kennedy alone does not indicate that the relevant level of degree of disability is above the relevant level claimed.
For the above reasons I am not satisfied you have produced medical evidence necessary to indicate a permanent degree of disability above the relevant level claimed. Accordingly, I am unable to process your client's application. However, if you are able to produce further evidence to support the relevant level claimed, I may be in a position to reconsider the referral.
Yours faithfully,
- D Whitford-Harvey
Director's Delegate
Dispute Resolution Directorate
27 April 2007
10 From submissions made at the hearing of this application it is evident that the solicitors for the applicant did not accept that there were sufficient reasons for the Director's delegate to decline to proceed with the referral of the question which arose following the lodgement of the Form 22. However, rather than engage in controversy at that point, they sought to remedy any imagined shortcomings by obtaining and supplying further medical evidence to WorkCover.
11 So it was that the applicant's solicitors sought and obtained a further medical report from Dr Linde FRANZCP dated 18 May 2007 which, under cover of their letter of 15 June 2007, they forward to the Director observing that, to the extent necessary, Dr Linde's further report dealt with the matters raised in the letter from the delegate of 27 April 2007 and requested that the applicant's Form 22 should be 'progressed'. There was a follow-up letter to similar effect from the applicant's solicitors dated 22 June 2007. These initiatives produced a second response from the Director's delegate by letter dated 21 June 2007 in the following terms:
I refer to your letter of 15 June 2007 and previous correspondence in this matter.
Whilst I acknowledge the supplementary report provided by Dr A G Linde dated 18 May 2007 confirms that your client is permanently impaired in being able to sustain employment, I remain of the view that the issue of whether the psychiatric impairment is permanent at the level assessed has not been addressed.
For the above reason I am not satisfied you have produced medical evidence necessary to indicate a permanent degree of disability above the relevant level claimed. Accordingly, I am unable to process your client's application.
Yours sincerely
Dave Whitford-Harvey
Director's Delegate
21 June 2007
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12 Following that second refusal to proceed with the referral of the question of the degree of disability raised by the applicant's Form 22, the solicitors for Mr Atanasio advised that they would proceed with an application for prerogative relief. They made an application to this court for writs of certiorari and mandamus by notice of motion dated 16 August 2007.
13 That notice of motion did not name any respondent but was listed for hearing before me on 5 September 2007. At that hearing I made a series of orders and directions which included orders that the Director of WorkCover be added to the proceedings as first respondent, that the first defendant in the District Court proceedings, BP Refinery (Kwinana) Pty Ltd, be added as the second respondent and that the second defendant in the District Court proceedings, United Maintenance Pty Ltd, be added as third respondent. I also made an order to show cause why writs of certiorari and mandamus should not be granted and made that order returnable before a single judge sitting in this court. Further directions as to service of the application and associated papers upon the newly added respondents were made and a further directions hearing ordered.
14 Subsequently, after service had been effected as ordered, a notice of intention to abide by the court's decision was filed in the registry by the solicitor for the first respondent, the Director WorkCover Conciliation and Review, indicating that the Director did not intend to appear by counsel but would abide by the decision of the court. A notice of intention to appear by both the second and third respondents was filed by the same solicitors acting for both those respondents. At the hearing counsel were heard for the applicant and for the second and third respondents. Consistently with the notice to abide by the decision of the court, there was no representation for the first respondent.
Nature of relief sought and grounds for relief claimed
15 By his originating application of 16 August 2007 Mr Atanasio as the applicant sought the following orders:
1. Ms Su Lloyd, Director of the Conciliation and Review Directorate ('the director') do show cause before a single judge why a writ of certiorari should not be issued against her for the purpose of:
1.1 quashing the director's decisions (through her delegate) of 27 April 2007 and 21 June 2007
(a) not to accept an application ('Form 22') issued by Antonio Atanasio ('the applicant') on the basis
- that it did not comply with s 93D(6) of the Workers Compensation and Injury Management Act 1981 (WA) ('the Act')
- which non-acceptance of the Form 22 was contrary to the provisions of the Act; and
- 2 Ms Su Lloyd, Director of the Conciliation & Review Directorate ('the Director') do show cause before a single judge why a writ of mandamus should not be issued against her for the purpose of:
2.1 compelling the Director to
(a) accept the Form 22 issued by the applicant on the basis that it does comply with s 93D(6) of the Act;
(b) acknowledge that medical evidence lodged with the Form 22 does constitute medical evidence for the purposes of s 93D(6);
(c) acknowledge that a dispute pursuant to s 93D(8) of the Act has therefore arisen for the purposes of pt IIIA of the Act; and
(d) refer the question of the applicant's degree of disability pursuant to s 93D(10) for resolution under the provisions of pt IIIA (other than div 2) of the Act.
16 The grounds relied upon by the applicant for relief either by certiorari or mandamus are:
1. By virtue of s 93D(6) of the Act, the director was required to only decide if the applicant had produced to her medical evidence which indicated in the medical practitioner's opinion that the applicant's degree of disability was not less than 30%.
2. The applicant's medical evidence does comply with the requirements of s 93D(6).
3. The applicant's medical evidence is sufficiently clear to allow a calculation of the disability for the purposes of s 93D(6).
4. The Director should have accepted the Form 22 on the basis that it did comply with the Act.
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- 5. The Director should have determined that a dispute pursuant to s 93D(8) of the Act has arisen for the purposes of pt IIIA of the Act.
6. The Director should have referred under s 93D(10) of the Act the question of the applicant's degree of disability for resolution under the provisions of pt IIIA of the Act.
Medical evidence of the degree of disability
17 The obligation on the worker which he must fulfil, before any disputed question of the disability may be referred to the Director (s 93D(5)) is that the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level (s 93D(6)).
18 In the present case there is no doubt that the evidence which was submitted by the applicant to the directorate under cover of his solicitor's letters of 18 April and 15 June 2007 constituted medical evidence from medical practitioners as defined by s 5 of the Act and, indeed, there has never been any suggestion to the contrary.
19 The only basis, therefore, upon which there could be a refusal to proceed with the applicant's referral of the question to the Director would have to be that the medical practitioner's or practitioners' opinion or opinions, as so submitted, did not indicate that in the practitioner's opinion the degree of disability is not less than the relevant level. The requirement for the sufficiency of the medical evidence is that the medical practitioner, not some third person and certainly not the Director or her delegate, is of the opinion that the degree of disability is not less than the relevant level and that this opinion is so indicated by the report or reports submitted. Furthermore, the referral of which s 93D(5) and s 93D(6) speak is a referral by the worker and not by the Director or any other person.
20 Not only is this apparent from the language employed in s 93D(5) and s 93D(6), but such an interpretation is also plainly indicated by the structure of Part IV Division 2 generally. The question of whether or not a worker has a degree of disability not less than a relevant level can be determined in several ways under the provisions of the Act. Firstly, it may be determined by agreement between the worker and the employer - s 93D(5), s 93D(10) and s 93F(1); secondly, it may be determined by the dispute resolution process under Part XI, which again may result in determination by agreement, or by arbitration under Part XI Division 3 -
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- s 181. In certain instances involving pneumoconiosis, mesothelioma or lung cancer, or chronic bronchitis and pneumoconiosis, or lung cancer and pneumoconiosis (s 34, s 35 and s 36) the dispute may be determined by referral to a medical panel - s 93D(11). As already mentioned the process of determination of the dispute by an arbitrator under Part XI requires observance of the rules of natural justice (s 188), a right to legal or other representation (s 195) and a written decision with written reasons if requested or required by the DRD rules (s 213(2) and s 213(3)). There is provision for questions of law arising on an arbitration to be referred for determination by the Commissioner (s 246) and, subject to leave of the Commissioner, a right of appeal to the Commissioner against a decision in respect of the dispute by an arbitrator under Part XIII (s 247(1)). On a question of law before the Commissioner the Commissioner may state a case for the decision of the Court of Appeal (s 251(1)) and a party to a proceeding before the Commissioner may, by leave of the Court of Appeal, appeal to that court from a decision of the Commissioner on a question of law (s 254(1)).
21 All this means that extensive rights of representation, the obligation to observe the rules of natural justice subject to the provisions of the Act, and the existence of rights of appeal on questions of law from the decisions of an arbitrator or the commissioner on a dispute are conferred by the legislation.
22 No such rights of review, rights to legal representation or other methods of redress are created in relation to any decision to decline to proceed with a 'referral' of a question about the degree of disability to the Director under s 93D(5) and s 93D(6).
23 This could be taken as an indication that the decision whether or not to proceed with a 'referral' of a dispute over a degree of disability was never intended to be a judicial or determinative function and, at the most, is only an administrative function. Even then, any reference to whether or not a question over the degree of disability should be referred to the Director because of someone's view that the accompanying evidence may not satisfy the requirements of s 93D(6) itself involves a question begging assumption. If it is a specific function, then by whom is it to be performed? No indication of any answer is provided by the section itself and it would, at the very least, be curious if, consistent with the other provisions of the Act dealing with dispute resolution and hearings, a function which may result in a decision fatal to the entitlement of an applicant worker to have a dispute about his or her degree of disability determined in accordance with the Act was ever intended to be performed
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- by an unnamed official without any form of convenient review. This absence of express power, and lack of designation of a person to perform the supposed function does not appear to be overcome by any of the provisions of s 52 or s 53 of the Interpretation Act 1984 (WA) and, at the cost of repetition, it is the worker and not the Director who has the power of referral under s 93D(5).
24 Clearly, the requirements of s 93D(6) are intended to act as some form of restraint to avoid the dispute resolution process being clogged with unmeritorious or hopeless applications. With that object in mind, it seems to be consistent with the Act to allow an administrative process for the scrutiny of referrals of any dispute between parties about the degree of disability at an early stage and to point out to applicants, if thought appropriate, that the applications may be deficient in the nature or quantum of the evidence supplied to support the claim that the disability is of a degree above a relevant threshold. However, if in cases where the applicant or his or her advisers still contend that the evidence supplied is sufficient to entitle the applicant to refer the question to the dispute resolution process and, on that basis, desires to persist with the referral, how can there be any basis upon which a refusal to proceed with the 'referral' of the question be maintained by any official or others performing that administrative process? They are not arbitrators, nor on this approach would it seem that their role is performance of any arbitral or judicial function.
25 In such circumstances, there is much to be said for a view that the applicant is entitled to insist that the question posed, supported by arguable materials, be submitted for dispute resolution. Once that occurs, it might quickly become apparent to an arbitrator that there is no basis for the referral because of want of compliance with the requirements of s 93D(6) and in such circumstances the arbitrator could dispose of the dispute summarily after hearing from the parties. That would entail a recognition that a condition precedent for such a referral had not been satisfied, with the result that the question or dispute could be rejected at the arbitral or adjudicative phase. That would involve the performance of a judicial function and would generate entitlements to an appeal to the Commissioner if an aggrieved applicant considered that he or she had grounds. It would also be consistent with the desire for an efficient procedure because it would permit the administrative role practised by the directorate, as this litigation reveals, to continue to be performed but, in the case of serious dispute about satisfaction of the requirements of s 93D(6) would ensure that any determination of that issue would not take
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- place without the observance of the rules of natural justice and subject to a right of appeal with leave.
26 This characterisation of the role to be performed when an application for determination of a degree of disability above a relevant threshold is 'referred' by a worker demonstrates, however, that the function of proceeding with the referral of a question to a Director under s 93D(5) by some unnamed official, is not judicial or arbitral but merely administrative. This would have not inconsiderable implications for the nature of the relief which could be granted by the court when reviewing a failure or a refusal to perform that function. If the obligation to proceed with a 'referral' does not involve any judicial or semi-judicial function, non-performance or wrongful performance of the function would not ordinarily attract the prerogative remedies of certiorari or prohibition - although this case is not one in which the latter remedy is being sought.
27 In Re McBain; Ex parte Australian Catholic Bishops' Conference [2002] HCA 16; (2002) 209 CLR 372, the bases of the entitlement to the prerogative remedies of certiorari and prohibition, but particularly the basis for the constitutional remedies of mandamus and prohibition, were examined extensively by the court, especially by McHugh J at [95] - [110] and by Hayne J at [253] - [285]. As was said in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 - 176:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. 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'.
28 Nevertheless, the exercise of certain procedural powers by a tribunal may have such an impact on the rights or entitlements of a person that, if aggrieved, judicial review in the form of certiorari may lie. Common examples are breaches of the requirements of natural justice, of which Stollery v The Greyhound Racing Control Board[1972] HCA 53; (1972) 128 CLR 509 is one example but decisions, including decisions in the exercise of prerogative powers to deny or interrupt the enjoyment of other rights, such as membership of a trade union, are also recognised as giving rise to the prerogative remedy: Council of Civil Service Unions v Minister For The Civil Service [1985] AC 374. This would mean that, as
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- for example in the present case where some decision, even if only of an administrative nature, had the effect of denying an applicant access to a legal right (the right to have this dispute about whether or not the extent of his alleged disability exceeded a relevant threshold) then the consequent denial of the access to that right caused by the administrative decision is sufficient in my view to entitle the applicant to prerogative relief if the case of wrongful denial of access to the remedy is made out.
29 It follows, therefore, that upon the approach so far outlined the applicant would be entitled to prerogative relief to ensure that he has access to the legal rights conferred by the Act, but there are still some incongruities in granting certiorari to quash a 'decision' or 'order' for which there may be little if any statutory warrant. To do so by implication gives legitimacy to the assumed right of the unnamed official to refuse, even in plausible cases, to proceed with the 'referral' of a disputed question of whether or not there was a degree of disability exceeding a relevant threshold for determination by the statutory means. As I have not had the benefit of full argument on this point and have not heard from the Director, it seems desirable that I should refrain from further exploration of these issues because it seems to me that more might be said on that subject than necessarily arises for decision in this present case. This is, no doubt, due to the existing state of authority on these issues which is binding on the parties and upon me at this level. As described later, some questions about that linger but this is not the occasion to address them.
30 I am reassured in this approach because the applicant has also sought the remedy of mandamus which is available for non-performance of a duty, including a statutory duty. In the event of a conclusion that, on the materials submitted to the Director, the applicant was entitled to refer his dispute over the extent of his alleged degree of disability for determination in accordance with the dispute resolution procedure under Part XI of the Act, there can be no doubt that mandamus would lie to compel the performance of that duty. Also, because of s 24(7) of the Supreme Court Act 1935 (WA) this court is entitled, indeed required, to give all remedies available necessary consideration for the resolution of the proceedings and to avoid multiplicity of proceedings, so that this court could and, if necessary, should, grant alternative remedies such as a mandatory injunction requiring the performance of the obligation or make a declaration that, in the events, the applicant was entitled to have his dispute resolved in accordance with the dispute resolution procedure - see Willison v Van Ryswyk [1961] WAR 87 per Virtue J at 89; Roberts v Gippsland Agricultural and Earth Moving Contracting Pty Ltd [1956] VLR 555, 564; McLaren v Schuit [1983] 33 SASR 139, 147 - 154; and
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- Ellwood v Darling Downs Investments Pty Ltd [1987] 14 FCR 580;(1987) 75 ALR 47 per Spender J at 56.
The medical evidence of opinion submitted
31 The opinion from Dr David Kennedy, a specialist in musculoskeletal medicine, dated 5 December 2006, comprises three and a half typescript pages. It sets out a relevant history obtained from Mr Atanasio and describes eight current complaints expressed at the time of consultation, including persistent and constant low back pain radiating down into the buttocks and down the back of the leg, right shoulder pain and stiffness, difficulty when reaching and sitting up with the right arm, inability to bend, twist or turn under any stress or load and other related complaints. The report describes a detailed physical examination which confirmed restriction of movement of a significant degree. The report also made reference to x-ray examinations which had been conducted in April and September of 2000; that is, after the work accident at the Kwinana refinery on 13 March 2000. These showed marked swelling of the subacromial bursa in the right shoulder and disc degeneration at L4-5 and L5-S1, a right posterolateral disc protrusion and annular tear at L4-5 and a small central disc protrusion and annular tear at L4-S1.
32 After describing these findings, in more detail than I have here repeated, Dr Kennedy proceeded to express his opinion as follows:
Opinion
Mr Atanasio sustained an injury to his lumbar spine at work on 13 March 2000, involving damage to the lower lumbar and upper sacral intervertebral disc and posterior facet joints as well as the myofacial structure supporting his lower lumbar spine. Whilst engaging in a physiotherapy co-ordinated exercise programme for his back in the gymnasium, Mr Atanasio sustained an injury to his right shoulder joint, with involvement of the rotator cuff tendon and the subacromial-subdeltoid bursa with impingement affecting the functioning of his right arm at the shoulder joint.
Mr Atanasio continues to have problems with respect to the functioning of his lumbar spine, and also his right arm at the shoulder joint, which has occurred as a direct consequence of the occupational duties and the rehabilitation programme for the work injury sustained to his lumbar spine.
Mr Atanasio is unfit to engage in his pre-injury occupational duties as a trade's assistant and will need to undergo re-training as part of his rehabilitation if he is to return to modified occupational duties in the foreseeable future.
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- Mr Atanasio was assessed in accordance with the Workers' Compensation and Rehabilitation Act 1981 (as amended in October 1999) utilising the 2nd Schedule of the Act.
Mr Atanasio has sustained a permanent disability with respect to the functioning of his lumbar spine and his right arm at the shoulder joint.
Mr Atanasio, pursuant to Item 36A, has a permanent loss of efficient use of his back of 22%, and pursuant to Item 13 has a permanent loss of efficient use of his right arm at and above the elbow joint of 16%.
These assessments are based upon the clinical evaluation of Mr Atanasio, the history elicited from Mr Atanasio, and my clinical experience and expertise of injuries and disabilities similar to those of Mr Atanasio's.
…
33 The second report was from Dr A G Linde FRANZCP and involved a detailed psychiatric report of the applicant running to four pages. There was a second report from Dr Linde of 18 May 2007 running to one and a half pages.
34 Dr Linde's reports set out a history taken from Mr Atanasio about his medical background prior to the accident, an account of the accident of 13 March 2000 and a review of his then current health. Dr Linde described an examination of the patient conducted at the consultation and then reported on diagnosis, disability, treatment and prognosis. I shall set out only those parts of Dr Linde's first report which purport to state his opinion about the applicant's disability. These are:
Diagnosis: Serious back disc injury and serious right shoulder injury both work related. He has understandable dismay, demoralisation, sadness, and anger reactive to his work injury, the post-injury workers compensation processes and the realisation that his future work prospects are poor. He now has a major depressive illness secondary to the ongoing pain, disability and inescapability from the injury and its losses. These occur in an otherwise formerly healthy man from a good background, and who is by nature dutiful, responsible, and not prone to anxiety nor histrionics. He now might have neuropathic pain as well as tissue damage pain, and the magnification of pain by depression.
Disability:
(1) In anecdotal human terms, he is unable to work in his familiar work areas - 'he is stuffed in finding suitable employment' because of his inability now of using his body as a work tool and the length of time he has been disabled, with failed rehabilitation. His serious degree of depression reactive to his bodily disability will further magnify his distress, and lower his coping with mental as well as
- physical work and life enjoyment, while his body is disabled. In addition, he now has the physiological shift features of major depression, further lessening his resiliency and life capabilities. He seems not to be qualified nor practised in the abstract mental skills, at least not in English, to enable different work such as office work.
- (2) Psychiatric impairment according to the Social Security Act. He would be at the level of impairment weighting of at least 30 - ie serious psychiatric illness with major impairments in several areas. He could be at 40 in some areas - severe symptoms, unable to achieve relief from distress. Major difficulties in daily functioning, social withdrawal, loss of interest in recreational pursuits.
(3) Psychiatric impairment as calculated by the PIRS WorkCover 2002 method. According to this method, he obtained a percentage Psychiatric impairment of 24%. Median class equals 3. Aggregate of 19. He was compromised in 11.1, his self care equals 3, 11.2 social life equals 4, 11.3 travel equals 3, 11.4 social function equals 2, 11.5 concentration/persistence equals 3, 11.6 employability equals 4. Percentage impairment equals 24%.
35 Dr Linde then described past forms of treatment and newly prescribed medication and went on to state his prognosis as follows:
Prognosis: His reactive depression, bitterness, general distress and sense of depression will last as long as he is in pain, and disabled by his body. This reactive depression will further 'institutionalise' him at home, and lessen any incentive to sit or stand at work, thereby acquiring more pain. The major depression component, now on its own biochemical momentum, triggered by the work injuries, will lessen with antidepressants, and be controllable. However, controlling this will not alone allow resolution of his disabilities in day to day life, nor guarantee work. Currently, I see his employment prognosis as 'gloomy'.
36 Among the reasons expressed for not accepting Dr Linde's evidence, the letter from Mr D Whitford-Harvey, the Director's delegate, of 27 April 2007, already quoted, says that:
I take that view as Dr Linde has used an inappropriate method of conversion to produce a percentage impairment of 24%. I also note that Dr Linde has not addressed the permanency of your client's condition.
37 It was this reaction which prompted the solicitors for the applicant to obtain the second report from Dr Linde and, for this purpose, Dr Linde saw the applicant at a further consultation on 16 May 2007. Relevantly, that second report set out Dr Linde's opinion as follows:
WorkCover said that in my report, (a) I had used an inappropriate method of conversion to produce a percentage of impairment of 24%, and (b) I had
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- not addressed the permanency of Mr Atanasio's condition. In assessing the percentage impairment, I followed WorkCover's Guides June 2002 to work out the 24% impairment.
In the AMA Guidelines 1994 page 35 cautions the reader against relying on precisely measured interval scales, hence the use of the Social Security Act: Psychiatric Impairment. I again emphasise that by this method, I estimated between a 30 and 40 rating and now say that he has a 35% permanent impairment.
38 At this point Dr Linde repeated a number of the findings and opinions expressed in his first report and then went on to say:
I must emphasise that Mr Atanasio has a significant depression that negatively interacts with his bodily injuries. In my opinion, the injuries received on 13.3.2000 triggered his loss of work due to bodily injury and pain. While I stated in my original report that the Psychiatric condition was secondary to the ongoing pain, it is also due to the accident removing him as a breadwinner and enjoyer of a happy lifestyle. The depression is also primary to his work related accident, and the unsuccessful attempts at rehabilitation over the last six years.
…
Prognosis: In my opinion, Mr Atanasio is unlikely to be able to work again in paid employment. I see him as being permanently impaired in being able to sustain full-time or part-time paid employment.
39 In terms, therefore, Dr Kennedy expressed the opinion that the applicant had a permanent loss of the efficient use of his back of 22% and a permanent loss of efficient use of his right arm at and above the elbow joint of 16%. In addition, the opinions from Dr Linde state that the applicant's psychiatric impairment is a 35% permanent impairment for the reasons so expressed. The second letter from the Director's delegate of 21 June 2007, already set out above, includes the observation:
I remain of the view that the issue of whether the psychiatric impairment is permanent at the level assessed, has not been addressed.
40 With all respect, that appears to me to be an extremely semantic interpretation of Dr Linde's reports. As s 93D(6) says, it is the indication of the medical practitioner's opinion about the extent of the disability which is the sole requirement - not some third person's impression about the cogency of that opinion.
41 The second report from Dr Linde is emphatic that the level of disability is 35% on psychiatric grounds and that this is a permanent impairment. That is stated expressly in the doctor's words. Not only do I
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- consider that the Director's delegate has quite clearly wrongly interpreted the opinions expressed by Dr Linde but I consider that the delegate has attempted to usurp the function of the dispute resolution process by adjudicating upon the sufficiency of the evidence in a manner which involved him in rejecting, for his own reasons, the opinion expressed by the applicant's doctors. As already stated, the requirement of s 93D(6) is that the opinion of the doctor should indicate the extent of the disability at or above the relevant threshold and I am quite satisfied that this is what the report of Dr Linde has done. To reject that opinion on its merits because of a belief that the doctor was somehow mistaken in the opinion which he had reached or had utilised an inappropriate methodology, constitutes a significant misuse of the function of scrutinising the reports and a refusal to proceed with the referral of the disputed question as to the extent of disability. It is a conspicuous breach of duty.
Applicable authority
42 The course of established authority on these points while presently binding is not without difficulty or doubt. A limited role by the Director in the processing of an application where the worker and the employer are unable to agree on an alleged degree of disability was recognised by the Full Court in Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96. In that case the applicant employer sought relief by way of certiorari to question the decision of the Director to treat the material produced to him as sufficient to refer for determination a question of the extent of a worker's disability under s 93D(5) and s 93D(6) of the Act. In the absence of any provision for an appeal from a decision of the director to make, or to decline to make, a referral, relief by way of prerogative writ was accepted to be the only appropriate remedy [67]. Malcolm CJ found that the issues which had been identified [at 10], including whether the Form 22 referred complied with s 93D(6) of the Act and whether the Director was required or entitled to refer the Form 22 to the employer:
[R]aises a question of law so that certiorari will lie where there is an error of law on the face of the record, or where there was an error of law or in relation to some relevant fact in determining whether the jurisdiction or power to refer the matters to a review officer had arisen: Craig v South Australia (1995) 184 CLR 163, 175 - 176 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Where the ground on which certiorari is sought is based on jurisdictional error such as a wrongful assumption of jurisdiction, the court to which the application is made may take into account any relevant material that is put in evidence: Craig v South Australia at 176. A jurisdictional error is an error of law which causes the tribunal to identify an irrelevant issue, to ask
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- itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion: Craig v South Australia (supra) 179. [14] - [15]
43 The same approach was taken in Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129 [24] - [28] (Murray J) where his Honour refers to Dutch as 'authority for the proposition that for the director to make a mistake about or to err in his conclusion that the requirements of s 93D(6) are satisfied, involves a question of law [48]'.
44 In Dutch Malcolm CJ noted that where the worker and the employer were unable to agree that the degree of disability was not less than the requisite level, the worker may, subject to s 93D(6) refer 'the question' to the director under s 93D(5). The learned Chief Justice continued:
The question is whether the 'degree of disability' is not less than the requisite level. The question can only be referred if the relevant 'evidence' required by s 93D(6) is produced to the Director.
It was conceded on behalf of the worker … that the Director's task upon receipt of the referral was not purely an administrative one, because the Director must first be satisfied that the medical evidence does 'indicate' that the degree of disability is not less than the requisite level. While this involved an essentially administrative function, it was also conceded that it involved a limited adjudicative function in the sense that his decision is a pre-condition to exiting the jurisdiction of the review officer. In essence, what the Director does is to determine whether the medical evidence does 'indicate' that the degree of disability is not less than the requisite level. So muchwas conceded by counsel for the workers ... It is the performance of this limited function which it was also conceded to be subject to judicial review by way of prerogative writ: Re Monger; Ex parte Ivey [1999] WASC 250 at [19] – [22] per Miller J. In my opinion, these concessions were properly made. It is only if the Director is so satisfied that he is required to notify the employer. If the employer does not agree that the disability is not less than the requisite level, and the dispute about the degree of disability is not resolved by agreement with the assistance of the Director in consultation with the parties, the Director's function is to refer the dispute for resolution under the provisions of Pt IIIA (other than Div 2): see s 93D(7) – (12). [25] - [26]
45 Malcolm CJ continued:
[I]f the 'medical evidence' is not such as is sufficient to be capable of supporting or justifying the opinion expressed, it follows, in my opinion, that there would be a failure to establish that the degree of disability was not less than the requisite level. The question whether the medical evidence is capable of supporting the opinion expressed is a question for
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- the Director. There is an issue whether such a question is a question of law or a question of fact. The existence of a particular level or degree of disability is in the end a question of fact. In my opinion, however, the absence of any evidence of any examination, observations, tests or other steps taken to arrive at the diagnosis or condition related to the worker raises an issue whether there is any evidence capable of sustaining a finding of the relevant fact or facts, namely, in this case, the diagnosis or opinion about the degree of disability of the worker. In my opinion, the issue so raised is or involves a question of law: Australian Iron and Steel Pty Ltd v Luna (1969) 125 CLR 305 per Windeyer J at 320 – 321; McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 per Jordan CJ at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 per Glass JA at 157; Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205 at 214.
The question in such a case is whether the conclusion of the relevant tribunal was reasonably open on the facts as found. If it was not the Court is entitled to conclude that the Tribunal must have misdirected itself with respect to the law applicable to the case at hand: R v Connell; Ex parte Helton Bellbird Collieries Ltd (1944) 69 CLR 407 per Williams J at 456; Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 per Hope JA at 3; Harris & Ors v McKenzie & Ors (1986) 9 NSWLR 139 per Kirby P at 148; Haines v Leves (1987) 8 NSWLR 442 per Kirby P at 470.
Further, the existence or otherwise of the relevant level of disability is a 'jurisdictional fact' in the sense that the Director has to determine whether the medical evidence is capable of supporting the opinion to that effect. This is a 'jurisdictional fact' to the extent that its existence conditions the jurisdiction of the review officer. For example, in Sutherland Shire Council v Finch (1970) 123 CLR 657 per Gibbs J at 663 – 667 the Minister was empowered to direct that compensation be paid to a dismissed employee, but only if a necessary report which was a condition precedent to the exercise of the power was "substantially favourable" to the employee.
The consequence of the characterisation of a particular state of affairs as a "jurisdictional fact" is that the decision of the relevant decision maker will be liable to be quashed for excess of jurisdiction because the non-existence of the jurisdictional fact precludes a finding that there was jurisdiction. Certiorari will lie to quash the decision for excess of jurisdiction as much as for an error of law within jurisdiction and on the face of the record: Parisienne Backet Shoes Pty Ltd v Whyte (1938) 5 CLR 369 per Dixon J at 391 [The correct reference is Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369]; R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 per Mason ACJ and Brennan J at 419; and per Deane and Dawson JJ at 429; R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 per Fullagar J at 91; and Kitto J at 97 – 98. [27] - [31]
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46 Malcolm CJ then goes on to consider what is meant by 'medical evidence' in s 93D(6) of the Act:
In my opinion, the reference to "medical evidence indicating an opinion" necessarily requires something to be added to support the expression of an opinion indicating a particular degree of disability for the purposes of s 93D(6). If that were not the case the provision could and should have referred simply to an "opinion by a medical practitioner" indicating that the degree of disability was not less than the relevant level. Further, the use of the expression "medical evidence" is significant, as the subsection could simply have referred to "evidence from a medical practitioner". However, in my opinion, the use of "indicating" in the relevant provision requires the Director to make an examination of the medical evidence referred to in support of the opinion to determine whether it was objectively capable of so indicating. [43]
47 His Honour then continues by considering the purpose of s 96D(6) of the Act and the role of the director:
In this context, the purpose of s 96D(6) is to ensure that the dispute resolution procedure, relating to the restrictions on damages and compensation, is only invoked where there has first been laid a proper foundation for the contention by the worker that he or she has suffered a degree of disability of not less than the level specified. In my opinion, that purpose would not be fulfilled. If all that is required by s 93D(6) is the expression of an opinion by a medical practitioner that the worker's "degree of disability" was not less than a stated percentage. If all that was required was a bare statement of opinion assessing the degree of disability, it is difficult to see what useful purpose would be served by the subsection. [46]
- And, further:
The purpose of s 93D(6) is that the Director should carry out a screening function to ensure that frivolous, vexatious or fanciful assertions or claims of liability are not accepted, but referred for adjudication to review officers before being allowed to pass through the system to a superior court as claims for damages: Thorp v Wanneroo City Council, supra, per Packington CM at [46]. In this context, the function of the Director under s 93D(6) is not purely administrative. In other words, it is not his function simply to receive the medical evidence and, if it indicates some level of disability, to act in accordance with s 93D(7) and the other relevant provisions: R v Monger; Ex parte Ivey, supra, at [22] per Miller J. On the contrary, the Director is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level, namely, whether it is not less than 16% or not less than 30%: R v Monger; Ex parte Ivey, supra, at [21] - [23] per Miller J. [52]
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48 His Honour then proceeds at [53] - [62] to address what is sufficient by way of medical evidence to enable the Director to ascertain whether there is a basis for the worker's claim to have suffered a degree of disability not less than the relevant level and, thereby, warrant the referral of the question of degree of disability and notification of it to the employer pursuant to s 93D(7).
49 Owen J, who agreed with the reasons for decision of Malcolm CJ (as did Wallwork J), also accepted a role of the Director under s 93D(5) of the Act at [112]. For Owen J, the 'critical question is the meaning to be ascribed to the phrase "medical evidence" in s 93D(6)':
While the decision-making role of the Director under s 93D is limited, he or she is more than just a clerical functionary. The functions are designed to identify whether there really is a question in issue between the parties, to assist them to resolve the question by agreement and, if that is not possible, to refer it to the review officer or the medical panel. That is the relevant context and it is against that background that the meaning of the phrase 'medical evidence' falls to be construed.
Had the legislature intended that the obligation on the worker under s 93D(6) could be satisfied by the provision of nothing more than a written confirmation that a medical opinion existed, it could very easily have said so. If that were the case, I would have expected the section to read something like this:
'A question can only be referred under subsection (5) if the worker produces to the Director a certificate from a medical practitioner stating that the practitioner holds the opinion that the degree of disability is not less than the relevant level.'
That is not what s 93D(6) says. In my view the context that I have described compels the conclusion that something more is required. That "something more" need not be the entirety of the material of a medical nature on which the worker intends to rely. Given the limited nature of the role which the Director is required to carry out at that stage it might be very brief indeed and it will certainly vary from case to case. But it must, in my view, be capable of being characterised as "medical evidence". I can do no better than to adopt the description used by the Chief Justice at par [44], namely "material of a medical kind which is logically capable of supporting the opinion". His Honour has gone on to indicate, in a general sense, what should (and need not) be included. I repeat my concurrence with those remarks. [113]
50 Subsequently, the requirements for complying with s 93D(6) were again considered by the Court of Appeal in Girrawheen Tavern v Joseph [2003] WASCA 244. This case also considered, among other things, the application of s 93D(6) of the Act. Wheeler J expressly noted at [30] that the correctness of Dutch, which had been applied in a number of
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- decisions of that court, was not being challenged – and that that case is 'authority for the proposition that the Director and the review officer lack jurisdiction to make and to accept a referral which does not comply with s 93D(6)'.
51 Her Honour then provides reasons why a relatively non-technical and generous approach should be used in determining whether a medical report complies with s 93D(6) of the Act, including:
[T]he unfairness inherent in having the availability of common law rights depend upon a close analysis of a document produced by a medical practitioner, who is not legally trained and whose primary focus must necessarily be diagnosis and treatment, rather than satisfaction of detailed legal requirements. [32]
52 Her Honour concluded at [31] that it was not a requirement of s 93D(6) that a report of a medical practitioner make express reference to an assessment according to applicable statutory criteria. See also Parker J at [11] - [12].
53 The issue again came up for consideration by the Court of Appeal in Casserley v Alcoa of Australia Ltd[2006] WASCA 150. Steytler P summarised at [15] - [16] the decision in Dutch:
Malcolm CJ (with whom Wallwork and Owen JJ agreed) concluded (at [26]) that the Director's task, upon receipt of a referral, was not merely administrative but involved a limited adjudicative function in that he must, before referring the matter to a review officer, be satisfied that the medical evidence does "indicate" that the degree of disability is not less than the relevant level. He went on to say (at [28]) that, if the medical evidence was insufficient to be capable of supporting or justifying the opinion expressed, it followed that there would be a failure to establish that the degree of disability was not less than the requisite level. He said (at [30]) that the existence or otherwise of the relevant level of disability was a "jurisdictional fact" and (at [31]) that, as a consequence, "the decision of the relevant decision maker will be liable to be quashed for excess of jurisdiction because the non-existence of the jurisdictional fact precludes a finding that there was jurisdiction".
Malcolm CJ went on to say (at [54]) that, on the proper construction of s 93D(6) of the Act, that section requires the provision of a medical report which, on its face, states the medical practitioner's opinion as to the degree of disability or contains information which permits a conclusion from the opinion expressed that the medical practitioner has formed a relevant opinion. He also said (at [46]) that the purpose of s 93D(6) is to ensure that the relevant dispute resolution procedure is only invoked where there has first been laid a proper foundation for the contention by the worker that he or she has suffered a degree of disability at not less than the level
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- specified. He considered that, if all that is required by s 93D(6) is an expression of an opinion that the worker's "degree of disability" was not less than a stated percentage, it would be difficult to see what useful purpose would be served by the subsection. He went on to say (at [52]) that the purpose of the subsection is that the Director should carry out a "screening function" to ensure that frivolous, vexatious or fanciful assertions or claims of liability are not accepted. He said that the Director "is required to examine the medical evidence and to make some analysis of it so as to confirm whether it indicates a degree of disability not less than the relevant level". He commented (at [57]) that it was not necessary for the medical evidence to be comprehensive, or to set out any detailed clinical findings or the detailed process of reasoning by which the medical practitioner formed his or her opinion (see also at [59] - [62]).
54 Steytler P then observed that Dutch remains good law, especially in regard to the role of the Director in deciding whether or not to refer a dispute over an alleged degree of disability to the dispute resolution process. The learned President observed:
In Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129, both Anderson and Scott JJ raised some doubts as to whether the issue of the characterisation of the Director's role as an adjudicative one as opposed to an administrative one should be revisited by a five judge coram: see Anderson J at [78] and Scott J at [91]. A five judge coram was subsequently convened in Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253. However, the parties in that case did not ask the Court to reconsider the correctness of Dutch and it consequently proceeded upon the assumption that it still represented the law (at [21] per Anderson J, with whom Malcolm CJ, Wallwork J and Templeman J agreed). Dutch has not since been reconsidered: see Re Burvill; Ex parte Bains Harding Industries Pty Ltd [2005] WASCA 181 at [12] per McLure JA. We were not invited to reconsider it in this case. [18]
55 Later in Re Monger; Ex parte Cross [2004] WASCA 176 Malcolm CJ referred to Re Monger; Ex parte WMC Resources Ltd, Re Monger; Ex parte Dutch and Re Monger; Ex parte United Construction Pty Ltd by saying of those decisions that they:
[H]ave made it clear that the adequacy of the medical evidence, which is required to accompany the Form 22 referral, conditions the jurisdiction of the Director to consider a dispute about the degree of disability of a worker, as well as the ability of the Director to refer such a dispute to a review officer for determination under s 93D(10).
56 Nevertheless, there remain signs of lingering doubts about the decision in Dutch, and the subsequent cases following it, that have determined that the jurisdiction of the Director to refer a dispute under s 93D(5) involves an adjudicative role or satisfaction by the Director of
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- compliance with s 93D(6) is a condition of the jurisdiction to refer or to determine a dispute. I alluded to this without directly questioning the authority of Dutch in Re Monger; Ex parte Cross at [185] - [191] and in that same case Wheeler J observed, at [115] of Dutch, Re Monger; Ex parte United Constructions Pty Ltd that:
Each of those decisions is wrong, and each should be reconsidered, not only because of the conclusions reached by Malcolm CJ and E M Heenan J in the present case, but for other reasons which I briefly outline below. (See [116] - [123]).
58 One of the problems with the approach in Dutch, is the view that the Director exercises a 'decision … to refer a Form 22' (per Malcolm CJ at [67]) when by s 93D(5) the power of referral clearly is confined to the worker. Another is the abjuration of Dixon J against treating a statutory condition for some fact or facts as importing a jurisdictional condition for the exercise of a court's powers unless such an intention is most clearly expressed - see Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 391. These are not insignificant problems and underlie the doubts which have been voiced about Dutch formulations.
59 Accordingly, the prevailing state of authority, despite expressions of judicial opinion indicating a possible basis for that authority to be reconsidered, is binding upon me, sitting as a single judge of this court. That current state of authority makes it clear that, as a result of Dutch, and its acceptance in subsequent cases, the role of the Director, upon receipt of a referral, is not merely administrative but involves a limited adjudicative function in that he or she must, before forwarding the matter to a review officer, be satisfied that the medical evidence indicates that the degree of disability is not less than the relevant level. The authorities reveal that the making of a referral in circumstances where there is non-compliance with s 93D(6) of the Act is a decision in respect of which certiorari lies. Logically, the converse of that proposition must also hold.
60 It is also clear, however, that the Director should adopt a moderate approach in assessing whether the medical evidence meets the requirements of s 93D(6) of the Act. This has been reinforced in cases subsequent to Dutch, perhaps to ameliorate the effect of that decision. Further, the medical evidence need not address the question of causation or other issues ordinarily determined at trial or in a dispute resolution
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- process: BHP Billiton Pty Ltd v Gomes [2007] WASCA 140 [35] (Wheeler & Pullin JJA) and (Steytler P) [15].
Permanent disability
61 The requirement for the degree of disability to be not less than the threshold has always been accepted as a reference to a degree of permanent disability - see s 25, sch 2 and s 93D(2)(b). This was confirmed by the Court of Appeal in Clough Engineering v Thomas [2004] WASCA 36 [4] (Steytler J) where other authorities to that effect are collected.
62 The question of the permanence of the disability, especially when it involves a psychiatric disability, has also come under attention. In Clough Engineering v Thomas Steytler J observed in this regard:
In this case the Review Officer appears to me to have applied the correct test in finding, on the medical evidence, that the psychiatric illness suffered by the respondent was permanent in the sense that it was expected to endure indefinitely into the future. [5]
63 Hasluck J, with whom Steytler J expressly agreed, after examining the course of authority, concluded:
Thus, the notion of a permanent disability means a disability which will continue indefinitely (ie, for the foreseeable future) or which is enduring, as opposed to temporary. [87]
64 On the issue of the method of converting an assessment of psychiatric condition to a percentage for the purposes of a worker's 'degree of disability' the approach to be followed is described in detail in Clough Engineering v Thomas by Hasluck J at [92] - [101]. Without descending to the mathematical calculations it is clear in the present case that if the opinions expressed by Dr Kennedy and Dr Linde in their respective reports are accepted at face value, the opinions 'indicate' a permanent degree of disability of not less than the threshold of 30%. See also Girrawheen Tavern v Joseph, [41] - [55] (Wheeler J).
65 It is to be noted that in this case the applicant did not contend for, nor did the Director's delegate in any way mention, an issue of whether or not the degrees of disability mentioned respectively by Dr Kennedy (back and shoulder disability) and Dr Linde (psychiatric disability) related to separate disabilities which could be added together or aggregated, in whole or in part, to satisfy the threshold requirement. The circumstances under which aggregation, in whole or in part, may or may not be
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- permitted were discussed fully in Casserly v Alcoa of Australia Ltd [2006] WASCA 150, [20] - [24] (Steytler P) and [32] (Pullin JA) where a reference was made to the provisions of s 93D(2)(a)(ii) which, as his Honour said:
[S]tates unambiguously that if two or more items in the Second Schedule apply to the disability, then the sum of the percentages of the prescribed amount provided for by those items will be the degree of disability expressed as a single percentage
or, as may now be said for other cases, a process of accumulation in accordance with the other provisions of s 93D(2).
66 For those reasons, I am of the view that the applicant has made out his grounds for prerogative relief and that this court should, therefore, order that:
(a) the order to show cause made on 5 September 2007 be made absolute;
(b) the decisions of the Director by way of letters from her delegate of 27 April and 21 June 2007 not to accept the Form 22 lodged by the applicant be quashed;
(c) it be declared that the applicant has by the Form 22 which he lodged with the WorkCover directorate and by the three medical reports submitted produced to the Director medical evidence from medical practitioners indicating that, in the medical practitioners' opinions, his degree of disability is not less than the relevant threshold of 30% and that, as a consequence, the Director is obliged to notify the employer in accordance with the regulations under s 93D(7) and then to proceed, as may be necessary, to determine that question under the provisions of s 93D(8) and pt XI of the Act;
(d) a writ of mandamus do issue to compel the director to proceed with the referral of the question of the applicant's claimed degree of permanent disability as required by s 93D(5) of the Act and further determination as provided therein.
67 I will hear from counsel as to the precise form of the orders to be made and all issues as to costs.