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Re Medical Panel

Re Medical Panel

Case [2001] WASCA 280 12 September 2001

Jurisdiction

Judicial Review

Administrative Decisions (Administrative Appeals Tribunal Act)

Administrative Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MEDICAL PANEL; EX PARTE SYMONS [2001] WASCA 280

CORAM: STEYTLER J
WHEELER J
BURCHETT AUJ

HEARD: 6 AUGUST 2001

DELIVERED : 12 SEPTEMBER 2001

FILE NO/S: CIV 1140 of 2001

MATTER :An application for a Writ of Certiorari against the MEDICAL PANEL constituted pursuant to s 93D(11) of the Workers' Compensation and Rehabilitation Act (1981) (WA) consisting of Dr F Heyworth (Chairman), Dr A Tribe and Dr M Prichard

EX PARTE
ERIC JOSEPH SYMONS
Applicant

Catchwords:

Administrative law - Prerogative writs - Writ of certiorari - Determination of degree of disability of worker in relation to action for damages - Workers' Compensation and Rehabilitation Act (1981) - Dispute referred to Medical Assessment Panel - Jurisdictional error - Where no prescribed method of assessing degree of disability applicable - Consideration of distinction between directory and mandatory requirements - Turns on own facts

Legislation:

Workers' Compensation and Rehabilitation Act (1981) (WA), s 33, s 34, s 35, s 36, s 37, s 38, s 93D(2), (5), (6), (8), (11), s 93A, s 93E

Result:

Determination of the Medical Panel quashed

Category: B

Representation:

Counsel:

Applicant: Mr C P Shanahan
Intervener: Mr M J McPhee

Solicitors:

Applicant: Slater & Gordon
Intervener: Michell Sillar McPhee

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re McWilliam; Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Tasker v Fullwood [1978] 1 NSWLR 20

Case(s) also cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Archer v Howell (No 2) (1992) 10 WAR 33
Attorney General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955
B v B [1961] 2 All ER 396
Butler v Attorney General (Vic) (1961) 106 CLR 268
Clayton v Heffron (1960) 105 CLR 214
Della Franca v WA Teachers Financial Society Limited, unreported; FCt SCt of WA; Library No 7454; 23 December 1998
F v F [1970] 1 All ER 200
Grunwick Processing Laboratories Ltd v Advisory Conciliation & Arbitration Service [1978] AC 655
Harvey v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASC 299
Hatton v Beaumont (1978) 20 ALR 314
Howard v Boddington [1877] 2 PD 203
Montreal Street Railway Co v Normandin [1917] AC 170
P v P [1971] 1 All ER 616
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v Minister for Fisheries; Ex parte National Australia Bank [1991] Tas R 70
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
R v Urbanowski [1976] 1 WLR 455
Re Anastas; Ex parte Welsby [2001] WASC 178
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Victoria v Commonwealth (1975) 134 CLR 81

STEYTLER J: This is the return of…

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 Medical Panel

Details

AGLC: Re Medical Panel [2001] WASCA 280
Case: [2001] WASCA 280
Decision Date: 12 SEPTEMBER 2001

CaseChat Overview and Summary

In the case of Re Medical Panel, the dispute involved the determination of a worker's degree of disability in the context of an action for damages, in accordance with the Workers' Compensation and Rehabilitation Act (1981). The matter was brought before the court as a referral from a Medical Assessment Panel. The key issue before the court was whether the panel had acted in a manner that constituted a jurisdictional error when assessing the degree of disability, particularly in the absence of a prescribed method for such assessments.

The court considered whether the panel's failure to adhere to a specific method for assessing disability was a jurisdictional error, focusing on whether the relevant statutory requirements were directory or mandatory. The court examined the nature of the statutory provisions and whether the lack of a prescribed method meant that the panel had no jurisdiction to make the determination. The outcome hinged on the distinction between requirements that are essential to the court's jurisdiction (mandatory) and those that are merely procedural (directory).

The court found that the lack of a prescribed method did not render the panel's determination a jurisdictional error. It held that the statutory requirements were directory rather than mandatory, meaning that the panel's failure to follow a prescribed method did not affect the validity of its determination. The court reasoned that, in the absence of a prescribed method, the panel was still able to exercise its jurisdiction to assess the degree of disability. Consequently, the court dismissed the application for a writ of certiorari, affirming the panel's determination.

Orders