Re McWilliam & Ors - [2002] WASCA 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE McWILLIAM & ORS; EX PARTE PAJDAK [2002] WASCA 203

CORAM: MURRAY J
ANDERSON J
PARKER J

HEARD: 7 MAY 2002

DELIVERED : 7 MAY 2002

PUBLISHED : 2 AUGUST 2002

FILE NO/S: CIV 2118 of 2001

MATTER :Application for a Writ of Certiorari against ROBERT McWILLIAM, ROBERT KOSKY and ANN BELL under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
ADAM PAJDAK
Applicant

Catchwords:

Prerogative writ - Certiorari - Workers' compensation - Medical Assessment Panel - Failure to give adequate reasons for conclusion that worker's psychiatric disability is temporary

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 93D, s 145C, s 145D

Result:

Order nisi for writ of certiorari made absolute

Category: B

Representation:

Counsel:

Applicant: Mr B L Nugawela
Amicus Curiae : Mr G T Smith

Solicitors:

Applicant: Leonard Cohen & Co
Amicus Curiae : Crisp Civitella Smith

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

Re Anastas; Ex parte Welsby [2002] WASCA 83

Case(s) also cited:

Dobree v Hoffmans (1996) 18 WAR 36
Palazzolo v Brown & Ors [2002] WASCA 49
Re Wong & Ors; Ex parte Hays, unreported; SCt of WA; Library No 980575; 5 October 1998

JUDGMENT OF THE COURT: This is the return of an order nisi for a writ of certiorari granted by McLure J on 30 August 2001. The order nisi called upon the three members of a Medical Assessment Panel constituted under s 145C of the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against the Panel to quash its determination of 9 February 2001 that the applicant's psychiatric disability was "temporary - up to six months".
The Court came unanimously to the view that the order nisi should be made absolute and that order was made on 7 May 2001, with reasons to be delivered later. These are the reasons of the Court.
The applicant, an injured worker, sought an order quashing the determination of the Medical Assessment Panel on the following grounds:
(a)The Panel did not state or analyse what medical reports or evidence it relied upon.
(b)There is no explanation of the relevance of the statement "Mr Pajdak is an unreliable historian", nor the extent to which such "unreliability" had an impact on the Panel's decision.
(c)The reasoning of the Panel is unclear as to whether any weight was attached to any of the medical reports before the Panel and, if so, why.
(d)There is no explanation of the nature and extent of the relevant discussions that were exchanged between the Panel members.
(e)The Panel failed to give any, or any adequate, reasons for its conclusion that the psychiatric disability is "temporary - up to six months".
McLure J did not accept ground (d) as a proper ground on which to challenge the adequacy of the reasons of the Panel. There was an appeal from that decision which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re McWilliam & Ors

Details

AGLC: Re McWilliam & Ors [2002] WASCA 203
Case: [2002] WASCA 203
Decision Date: 2 AUGUST 2002

CaseChat Overview and Summary

The case of Re McWilliam & Ors involved the applicant, an injured worker, seeking a writ of certiorari to quash the determination of a Medical Assessment Panel, constituted under the Workers' Compensation and Rehabilitation Act 1981, that the applicant's psychiatric disability was temporary, up to six months. The order nisi for a writ of certiorari was granted by McLure J on 30 August 2001, and subsequently made absolute by the Full Court on 7 May 2001.

The legal issues before the court included whether the Panel had adequately provided reasons for its conclusion that the applicant's psychiatric disability was temporary. The applicant argued that the Panel had failed to provide adequate reasons for its determination, including failing to state or analyse the medical reports or evidence it relied upon, to explain the relevance of the statement that the applicant was an unreliable historian, to clarify the extent of any weight attached to medical reports, and to explain the nature and extent of discussions between Panel members. Additionally, the applicant contended that the Panel had not provided any adequate reasons for concluding that the psychiatric disability was temporary.

The Court rejected several of the grounds of challenge raised by the applicant. It clarified that the Panel was not obligated to provide detailed reasons in every case, particularly as the Panel members were medical practitioners applying their specialist knowledge. The Court also noted that some reference to particular medical reports might be necessary to explain the determination and that it might be necessary in some cases for the Panel to indicate which medical opinions it preferred. However, the Court held that the Panel's failure to provide any adequate reasons for its conclusion that the psychiatric disability was temporary was a valid ground for quashing the determination. The Court concluded that the order nisi should be made absolute, thereby quashing the Panel's determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

JUDGMENT OF THE COURT: This is the return of an order nisi for a writ of certiorari granted by McLure J on 30 August 2001. The order nisi called upon the three members of a Medical Assessment Panel constituted under s 145C of the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against the Panel to quash its determination of 9 February 2001 that the applicant's psychiatric disability was "temporary - up to six months". The Court came unanimously to the view that the order nisi should be made absolute and that order was made on 7 May 2001, with reasons to be delivered later. These are the reasons of the Court. The applicant, an injured worker, sought an order quashing the determination of the Medical Assessment Panel on the following grounds:(a)The Panel did not state or analyse what medical reports or evidence it relied upon.(b)There is no explanation of the relevance of the statement "Mr Pajdak is an unreliable historian", nor the extent to which such "unreliability" had an impact on the Panel's decision.(c)The reasoning of the Panel is unclear as to whether any weight was attached to any of the medical reports before the Panel and, if so, why.(d)There is no explanation of the nature and extent of the relevant discussions that were exchanged between the Panel members.(e)The Panel failed to give any, or any adequate, reasons for its conclusion that the psychiatric disability is "temporary - up to six months". McLure J did not accept ground (d) as a proper ground on which to challenge the adequacy of the reasons of the Panel. There was an appeal from that decision which counsel for the applicant rightly abandoned during the course of argument. The Court made it clear to counsel for the applicant that it did not regard grounds (a), (b) and (c) above as tenable. Ground (a) assumes that there is an obligation on the Medical Assessment Panel in every case to "state or analyse what medical reports or evidence it relied upon". We do not accept that this is so. Section 145C(1) of the Workers' Compensation and Rehabilitation Act provides, in effect, that a Medical Assessment Panel is to be constituted by "two or three medical practitioners, one of whom is to be its chairman", and by s 145D it is provided that in determining the question referred to it the panel is to "act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and is not bound by rules of practice, nor evidence". It is quite obvious that Parliament never intended that the reasons in support of a Medical Assessment Panel's determination are to be lengthy or elaborate or take the form of a judgment of a court. Obviously there may be cases in which some reference to particular medical reports may be necessary in order to properly explain the determination and it may be necessary in some cases for the Panel to say which of the various medical opinions it has preferred in reaching its conclusion. But it is also to be borne in mind that the members of the Medical Assessment Panel are themselves medical practitioners and it is clear that the legislation contemplates that they may come to their own conclusion on the question referred for their determination by applying their own specialist knowledge. There would otherwise be no point at all in requiring, as does s 145C(2), that at least one of the members of the Panel is to be a specialist in the particular branch of medicine or surgery that is relevant to the question and in requiring by s 145D(2)(d) that, if required by the Panel, the worker concerned is to submit to medical examination by the Panel.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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