Re Monger; Ex parte WMC Resources Ltd

[2002] WASCA 129

RE MONGER; EX PARTE WMC RESOURCES LTD & ANOR [2002] WASCA 129

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 129
Court:	THE FULL COURT (WA)
Case No:	CIV:1798/2000	Heard:	24 OCTOBER 2001 & 25 MARCH 2002
Coram:	MURRAY J ANDERSON J SCOTT J	Delivered:	16/05/02
No of pages:	35	Judgment Part:	1 of 1
Result:	CIV 1798 of 2000, Order nisi for certiorari granted, Order nisi for prohibition refused, CIV 2207 of 2001, Leave to appeal on grounds contained in draft notice of appeal granted, CIV 2280 of 2001, Order nisi for certiorari granted, Order nisi for prohibition refused, CIV 2281 of 2001, Order nisi for certiorari granted
Category:	A
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Parties:	WMC RESOURCES LTD HILL 50 GOLD NL RUSSELL SMITH t/as SIMPLY HEALTHY BERNADETTE FRUIN COOKS CONSTRUCTION PTY LTD CITY OF SOUTH PERTH DANIEL MARTIN TORRIJOS
Catchwords:	Workers' compensation Dutch's case Decision by Director of Conciliation & Review to refer dispute to review officer Facts conditioning Director's jurisdiction Medical evidence supporting medical opinion as to relevant level of disability Improper referral Medical evidence insufficient Effect on jurisdiction of review officer Validity of determination by review officer Administrative law Prerogative writs Orders absolute in the first instance Decision of Director of Conciliation & Review to refer dispute to review officer Whether "adjudicative" Whether amenable to prerogative writ Practice and procedure Orders nisi for writs of certiorari Time for application Proceedings of "inferior court or tribunal" Director of Conciliation & Review appointed under Workers' Compensation and Rehabilitation Act 1981 Whether Director a "tribunal" Applicability of time limitation
Legislation:	Rules of the Supreme Court, O 3 r 5, O 56 r 11 Workers' Compensation & Rehabilitation Act 1981 (WA), s 84I, s 84ZD, s 84ZW, s 84ZN, s 93D, s 93E Workers' Compensation & Rehabilitation Regulations 1982, reg 19J(1)(a)
Case References:	Craig v South Australia (1995) 184 CLR 163 Ex parte Savage and Savage [1989] WAR 46 Gallo v Dawson (1990) 64 ALJR 458 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 Re Monger; Ex parte Dutch [2001] WASCA 220; 30 July 2001 Re Monger; Ex parte Ivey [1999] WASC 250 Re Monger; ex parte Western Power Corporation [2000] WASC 271 Re Monger; Ex parte Western Power Corporation [2000] WASC 271; 9 November 2000 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Thorp v City of Wanneroo, unreported; Compensation Magistrate's Court (Packington CM); 31 July 2000 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Darling Casino v NSW Casino Control Authority (1997) 191 CLR 602 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Ex Parte Thomas; re Arnold [1966] 2 NSWLR 197 Federated Engine Drivers' & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 Freebairn v Ryan (1870) 4 SALR 21 Hilton v Wells (1985) 157 CLR 57 Hockey v Yelland (1984) 157 CLR 124 Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175 O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 R v Australian Industry Stevedoring Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 R v Battams (1801) 1 East 298; 102 ER 116 R v Blakeley; ex parte Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 R v Justices of Anglesea  (1846) 10 Jur 817 R v Mayor & Town Council of Sheffield (1871) LR 6 QB 652 R v Paddington Valuation officer; ex parte Peachey Property Corporation Ltd [1966] 1 QB 380 R v Tillett; ex parte Newton (1969) 14 FLR 101 Re City of Melville; ex parte J­Corp Pty Ltd (1998) 20 WAR 72 Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238 Re Monger; ex parte Cargo Enterprises Pty Ltd [2001] WASC 19 Re Monger; Ex Parte Swan Portland Cement Ltd [2001] WASCA 321 Re Wakim; ex parte McNally (1999) 198 CLR 511 Re Western Australia Industrial Relations Commission; ex parte Robe River Mining Co Pty Ltd (1993) 9 WAR 121 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE MONGER; EX PARTE WMC RESOURCES LTD & ANOR [2002] WASCA 129 CORAM : MURRAY J

ANDERSON J
SCOTT J

HEARD : 24 OCTOBER 2001 & 25 MARCH 2002 DELIVERED : 16 MAY 2002 FILE NO/S : CIV 1798 of 2000 MATTER : Application for a writ of certiorari and a writ of mandamus alternatively a writ of prohibition against ROSS MONGER Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE

WMC RESOURCES LTD
First-Named Applicant

HILL 50 GOLD NL
Second-Named Applicant

FILE NO/S : CIV 2207 of 2001 MATTER : Application for leave to appeal from the Compensation Magistrate's Court

BETWEEN : RUSSELL SMITH t/as SIMPLY HEALTHY

Applicant

(Page 2)

AND

BERNADETTE FRUIN
Respondent

FILE NO/S : CIV 2280 of 2001 MATTER : Application for a writ of certiorari against ROSS MONGER Director of the Conciliation & Review Directorate Constituted under the Workers' Compensation and Rehabilitation Act 1981

BETWEEN : COOKS CONSTRUCTION PTY LTD

Applicant

FILE NO/S : CIV 2281 of 2001 MATTER : Application for a writ of certiorari against ROSS MONGER Director of the Conciliation & Review Directorate Constituted under the Workers' Compensation and Rehabilitation Act 1981

BETWEEN : CITY OF SOUTH PERTH

Applicant

Catchwords:

Workers' compensation - Dutch's case - Decision by Director of Conciliation & Review to refer dispute to review officer - Facts conditioning Director's jurisdiction - Medical evidence supporting medical opinion as to relevant level of disability - Improper referral - Medical evidence insufficient - Effect on jurisdiction of review officer - Validity of determination by review officer

Administrative law - Prerogative writs - Orders absolute in the first instance - Decision of Director of Conciliation & Review to refer dispute to review officer - Whether "adjudicative" - Whether amenable to prerogative writ



(Page 3)

Practice and procedure - Orders nisi for writs of certiorari - Time for application - Proceedings of "inferior court or tribunal" - Director of Conciliation & Review appointed under Workers' Compensation and Rehabilitation Act 1981 - Whether Director a "tribunal" - Applicability of time limitation

Legislation:

Rules of the Supreme Court, O 3 r 5, O 56 r 11

Workers' Compensation & Rehabilitation Act 1981 (WA), s 84I, s 84ZD, s 84ZW, s 84ZN, s 93D, s 93E
Workers' Compensation & Rehabilitation Regulations 1982, reg 19J(1)(a)

Result:

CIV 1798 of 2000

Order nisi for certiorari granted
Order nisi for prohibition refused

CIV 2207 of 2001
Leave to appeal on grounds contained in draft notice of appeal granted

CIV 2280 of 2001
Order nisi for certiorari granted
Order nisi for prohibition refused

CIV 2281 of 2001
Order nisi for certiorari granted

Category: A

(Page 4)

Representation:

CIV 1798 of 2000

Counsel:

First-Named Applicant : Mr C L Zelestis QC & Mr J A Thomson & Mr J R Ludlow
Second-Named Applicant : Mr C L Zelestis QC & Mr J A Thomson & Mr J R Ludlow

Amicus Curiae : Ms J C Pritchard

Solicitors:

First-Named Applicant : McAuliffe Williams & Partners
Second-Named Applicant : McAuliffe Williams & Partners

Amicus Curiae : State Crown Solicitor

CIV 2207 of 2001

Counsel:

Applicant : Mr C L Zelestis QC & Mr J A Thomson & Mr J R Ludlow
Respondent : No appearance

Solicitors:

Applicant : McAuliffe Williams & Partners
Respondent : No appearance

(Page 5)

CIV 2280 of 2001

Counsel:

Applicant : Mr C L Zelestis QC & Mr J A Thomson & Mr J R Ludlow

Amicus Curiae : Ms J C Pritchard

Solicitors:

Applicant : McAuliffe Williams & Partners

Amicus Curiae : State Crown Solicitor

CIV 2281 of 2001

Counsel:

Applicant : Mr C L Zelestis QC & Mr J A Thomson & Mr J R Ludlow

Contradictor/Worker : Mr B L Nugawela

Amicus Curiae : Ms J C Pritchard

Solicitors:

Applicant : McAuliffe Williams & Partners

Contradictor/Worker : Leonard Cohen & Co

Amicus Curiae : State Crown Solicitor

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

Craig v South Australia (1995) 184 CLR 163
Ex parte Savage and Savage [1989] WAR 46
Gallo v Dawson (1990) 64 ALJR 458
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171


(Page 6)

Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
Re Monger; Ex parte Dutch [2001] WASCA 220; 30 July 2001
Re Monger; Ex parte Ivey [1999] WASC 250
Re Monger; Ex parte Western Power Corporation [2000] WASC 271; 9 November 2000
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Thorp v City of Wanneroo, unreported; Compensation Magistrate's Court (Packington CM); 31 July 2000

Case(s) also cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Darling Casino v NSW Casino Control Authority (1997) 191 CLR 602
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168
Ex Parte Thomas; re Arnold [1966] 2 NSWLR 197
Federated Engine Drivers' & Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398
Freebairn v Ryan (1870) 4 SALR 21
Hilton v Wells (1985) 157 CLR 57
Hockey v Yelland (1984) 157 CLR 124
Hunt v Multiplex Constructions Pty Ltd [2000] WADC 175
O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132
R v Australian Industry Stevedoring Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
R v Battams (1801) 1 East 298; 102 ER 116
R v Blakeley; ex parte Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
R v Justices of Anglesea (1846) 10 Jur 817
R v Mayor & Town Council of Sheffield (1871) LR 6 QB 652
R v Paddington Valuation officer; ex parte Peachey Property Corporation Ltd [1966] 1 QB 380
R v Tillett; ex parte Newton (1969) 14 FLR 101
Re City of Melville; ex parte J­Corp Pty Ltd (1998) 20 WAR 72
Re Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 179 ALR 238


(Page 7)

Re Monger; ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex Parte Swan Portland Cement Ltd [2001] WASCA 321
Re Wakim; ex parte McNally (1999) 198 CLR 511
Re Western Australia Industrial Relations Commission; ex parte Robe River Mining Co Pty Ltd (1993) 9 WAR 121
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323

(Page 8)

1 MURRAY J: In respect of these matters I have had the advantage of reading in draft the reasons for decision to be published by Anderson J. I am able to shorten these reasons accordingly.

The applications for prerogative relief

2 As to the applications for prerogative writs, I need only note what I regard as the salient features of the history in relation to each one.

3 (1) CIV 1798 of 2000 on the application of WMC Resources Ltd & Anor in respect of a claim by a Mr Taylor, who was not represented before us, is an application for certiorari against the decision of the respondent Director of Conciliation and Review, Mr Monger. A number of his decisions are referred to, but, in my opinion, the operative ones are part of a process by which the Director has put in train the dispute resolution procedures provided by the Workers' Compensation and Rehabilitation Act 1981 (WA).

4 In the first place, the Form 22 for which the Workers' Compensation and Rehabilitation Regulations 1982, reg 19J(1) provides, was received by Mr Monger under the Act, s 93D(5), together with the report of a Dr Hewitt, in purported compliance with s 93D(6). As Anderson J has observed, it must be accepted that Dr Hewitt's report did not constitute "medical evidence" because it was not capable of supporting the doctor's expressed opinion as to the "degree of disability" within the meaning of s 93E(1) and s 93D(2) and, if relevant, Sch 2 to the Act, (but, in any event, a permanent disability) that it was not less than the relevant level.

5 Nonetheless, the Director acted on the Form 22 referral by the issue of the Form 23 notification to the applicant employers under s 93D(7), received the notification of the employers under s 93D(8) that they considered the degree of disability to be less than the relevant level and, upon the basis that a dispute thereby arose and presumably after the process of conciliation for which s 93D(9) provides, referred the dispute to Mr Warwick, a review officer within the Directorate, for its resolution under s 93D(10).

6 The last mentioned act of the Director seems to me to be his operative decision, to which he was led, of course, by his acceptance that there had been a referral of the question of the degree of disability by the worker in the form of Form 22 and the accompanying medical report. The Director's final decision was the referral of the question for resolution by the review officer under s 93D(10). It is not abundantly clear when

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that occurred but, on the evidence, it must have been in about February 2000. The application for certiorari against the Director was made on 30 June 2000.

7 Under the Rules of the Supreme Court 1971 (WA) O 56 r 11 an order nisi for a writ of certiorari:

"shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction or other proceeding, or within such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court to which the application is made."

In my opinion, the need for an extension of time does not arise in this case.

8 The matter having been referred to the review officer (who has advised this Court of his intention to abide the decision of the Court), the only step taken in the review was to adjourn it sine die on 2 May 2000; hence there is now a belated application made on 18 October 2001 for an order nisi for a writ of prohibition against the review officer on various grounds. I will return to the question of the grant of such relief in due course.

9 (2) CIV 2280 of 2001 is a similarly grounded application for certiorari against Mr Monger on the application of Cooks Construction Pty Ltd in respect of an injury to a Mr Barker, who again was not represented before us. Again the same process of decision-making by the Director is impugned. The Form 22 in this case was lodged together with a report by a Dr Kennedy which, as Anderson J has observed, must for present purposes be accepted as failing to comply with the requirement of s 93D(6) in that, on the face of the report, it would not constitute medical evidence capable of supporting the medical practitioner's opinion that the degree of disability was not less than the relevant level within the meaning of the relevant provisions of the statute. Nonetheless, in this case also, the Form 23 issued to the applicant employer. It was returned in a form which indicated that a dispute arose as to the degree of disability. It appears that the conciliation process did not succeed and the Director then referred the question of the degree of disability for resolution by a review officer, who takes no part in these proceedings.

10 Again it is not known with any precision when the dispute was referred to the review officer, but it must have been towards the end of

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March 2000. In this case the application for certiorari was not made until 30 August 2001, for reasons to which I will later have to refer, but it appears that despite the lapse of time there had, in the meantime, been no proceedings before the review officer. The order referring the application for certiorari against the Director to this Court stayed proceedings before the review officer pending the decision of this Court upon the applications for an extension of time and for certiorari. Since then, an application for prohibition against a nominated review officer was made on 18 October 2001. If, in respect of the application for certiorari, the time limit imposed by O 56 r 11 applies, then it would seem to me that the application for certiorari is made at least 11 months out of time.

11 (3) CIV 2281 of 2001 is an application for a writ of certiorari against Mr Monger as Director, made by the City of South Perth in respect of the claim of an injured worker, a Mr Torrijos, for whom Mr Nugawela appeared as counsel. In this case the Form 22 was supported by a medical report of Dr Kennedy in the same form as that the subject of the Form 22 in CIV 2280 of 2001. For present purposes, the same conclusion about its adequacy for the purposes of s 93D(6) is to be drawn, but, in any event, on 23 June 2000 the Form 23 issued, it was returned with the employer's objection and the Director referred the dispute for resolution by a review officer.

12 It is not known when that occurred, but I would imagine that it must have been some time in early July 2000, and in this case the review officer conducted the review and issued his determination on 27 March 2001. Again in this case the application for certiorari against the Director was not made until 30 August 2001, at least seven months after the expiry of the six-month time limit provided by O 56 r 11, if that rule applies, and, of course, five months after the next stage of the proceedings had been completed by the determination of the review officer. In this case, of course, that having occurred, there is no application for prohibition.

The time limited for applications for certiorari

13 I need not, at this stage, discuss any matters relevant to the application for leave to appeal in CIV 2207 of 2001, Smith v Fruin. It is convenient, first, to consider the question whether O 56 r 11 applies to import a time limit in respect of the applications for certiorari made in CIV 2280 and 2281 of 2001, bearing in mind the conclusion which I have expressed that the application in CIV 1798 of 2000 is not demonstrated to require an extension of time.

(Page 11)

14 The applicant first argues that the rule does not apply to these cases. So far as material to the argument, r 11(1) provides:

"An order nisi for a writ of Certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justices, for the purpose of its being quashed, shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction or other proceeding, … or … the delay is accounted for to the satisfaction of the Court to which the application is made."

15 It is argued that the decision required of the Director under s 93D(6) which leads under the subsequent subsections to notification of the employer, to the receipt of the employer's response, to the consideration of the dispute by the Director in consultation with the parties and, if there is no agreement, to the referral of the question for resolution under the provisions of Part IIIA (other than Division 2) to a review officer, involves no adjudicative function in the sense that the Director has any function to resolve a dispute about the relevant degree of disability in a particular case. It is submitted that it is to a person or body of that kind to whose decisions O 56 r 11 applies rather than to the totality of the cases which may generate an application for an order nisi for a writ of certiorari.

16 I found the annexure to the applicants' outline of argument, tracing the history and derivations of O 56 r 11, to be interesting but, in the end, not particularly helpful as to the proper construction of the rule because, in my opinion, it must not be forgotten that the rule has remained substantially in its present form for many years, while the exposition by the courts of the circumstances in which the remedy will be available has broadened considerably to now encompass decisions of a kind that would not readily fall within the classical formulation of the availability of the remedy taken from R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171, 205.

17 Both the type of body in respect of whose decisions certiorari may be available and the grounds upon which it will lie may now be expansively stated, sufficiently for present purposes, in the words of the High Court in Craig v South Australia (1995) 184 CLR 163 at 175 - 176:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts

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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'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

18 The breadth of the circumstances in which the writ will run may perhaps, for present purposes, be illustrated by reference to Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 where the decision quashed was that of a Warden recommending approval of the grant of mining tenements, a decision which had no direct legal effect upon rights but which was held to affect those rights, because in the exercise of his discretion to grant or refuse the application the Minister was required to consider the Warden's recommendation.

19 The question of the application of r 11 was considered, but not decided, by Malcolm CJ in Re Smith; Ex parte Rundle (1991) 5 WAR 295 at 319 where his Honour referred to the justification for the rule as lying:

"… in the need to act promptly in relation to proceedings to quash the decision of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid."

20 After referring briefly to the 1740 statute which appeared to be the origin of the rule, his Honour remarked:

(Page 13)

"The court has an express power to extend the time under the rule. In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals. If it does not, the rule would not apply to a decision such as that made by the Minister in the present case. Even if the rule does not apply, however, the nature of the remedy of certiorari is such that the court would require it to be sought promptly."

21 The idea that the remedy of certiorari should be sought promptly in relation to the decision-making process to which I have referred involving the Director, is one which I would adopt. A brief perusal of the statutory scheme reveals that it is designed to resolve disputes of this kind expeditiously and without undue formality. In cases where the worker must at the end of the process make an election to continue to receive workers' compensation or to sue for damages at common law, there is a statutory "termination day" six months after the day on which weekly payments commenced, by which time the election is to be made. There is only a limited capacity to obtain an extension of time.

22 I note that in Re Monger; Ex parte Dutch [2001] WASCA 220; 30 July 2001, upon which the applicants rely for the purposes of their substantive arguments, applications were made for extensions of time under O 56 r 11. There appears to have been no argument presented to the Court of the kind now advanced by the applicants, and Malcolm CJ, with whom Wallwork and Owen JJ agreed, dealt with those applications which, it was suggested, were out of time, on the merits rather than by holding that no extension of time was required.

23 The applicants submit that while what occurs involving the Director under the statutory scheme might for the purposes of r 11 be described as a "proceeding", the Director is not properly described as falling within the phrase "an inferior court or tribunal, or of a magistrate or justices". If he does so, it would be because he is properly described as a tribunal within the meaning properly to be given to that word in the context of the rule and an application for an order nisi for a writ of certiorari.

24 The applicants argue that because of the broad circumstances in which certiorari may be available, it can be seen that the rule will not apply to all those decision-makers who might be subject to the writ and so it should be held that the rule will only apply in a case where, not only is the decision-maker involved in the performance of an adjudicative function, but that person or body does so for the purpose of finally

(Page 14)

resolving a dispute. However the Director's function is described, it would seem to be clear that he does no more than exercise an adjudicative function tending towards the resolution of a dispute about the degree of disability rather than himself resolving that dispute.

25 For myself, I can see no reason to confine the meaning of the word "tribunal" in r 11 to a body whose proceedings are directed towards the adjudicative function of the final resolution of disputes. To my mind, it does not strain ordinary language to hold that a tribunal is, as Anderson J has observed, "a person or body exercising judicial or quasi-judicial functions outside the regular judicial system". I would accept the statement by Prof Wade in "Administrative Law" (5th ed) that "a quasi-judicial decision is … an administrative decision which is subject to the principles of natural justice".

26 That seems to me to accurately describe the aspect of the function of the Director upon which attention is focused in these applications. His decision is not purely administrative, but one in which he performs an adjudicative function of examining the medical evidence submitted with the Form 22 to determine whether, in the context of the statutory scheme, it is capable of supporting the expressed opinion of the medical practitioner that the degree of disability is not less than the relevant level. To that degree, the Director is obliged to afford a hearing or consideration of the issue as to whether the question of the degree of disability is properly referred by the worker to activate the statutory processes for the resolution of a dispute about that question.

27 In Ex p Dutch at [26] Malcolm CJ accepted as properly made concessions on behalf of workers in those cases 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 precondition to exciting 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."

(Page 15)

At [52] his Honour said that 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". In support of that view of the legislative scheme Malcolm CJ referred to the earlier decision of Miller J in Re Monger; Ex parte Ivey [1999] WASC 250 at [19 - 22].

28 In Ex p Dutch at [113] Owen J expressed the same view by saying:

"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."

In my opinion, in performing that limited quasi-judicial role, the Director is undoubtedly subject to have his decision to accept a referral and, in the absence of agreement, to refer it to the review officer, quashed upon grounds which will support a writ of certiorari and in so functioning, the Director is a "tribunal" within the meaning of O 56 r 11.

29 That there was no argument about the application of O 56 r 11(1) in Ex p Dutch is perhaps not surprising in view of the earlier decision of Owen J in Re Monger; Ex parte Western Power Corporation [2000] WASC 271; 9 November 2000. The case involved the decision of preliminary issues arising in the employer's application for orders nisi for the writs of certiorari, mandamus and, alternatively, prohibition in the case of Mr Dutch. His Honour held that the performance of the function and the decision of the Director under discussion was a proceeding of a tribunal for the purposes of O 56 r 11. His Honour pointed out that under the Act itself there was a recognition in s 104B(1) that the Director was not only the principal officer of the Conciliation and Review Directorate responsible to the Executive Director of the Workers' Compensation and Rehabilitation Commission "in administrative matters concerning the Directorate" but also that the Director had responsibilities and functions to perform "in matters concerning the resolution of disputes" in respect of which he was responsible directly to the Minister. It will be clear from what I have written on this topic that in my opinion this Court should decline the invitation of the applicants to overrule that decision.
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The grant or refusal of extensions of time

30 It is necessary then to consider the basis upon which the question of an extension of time should be dealt with against the background that I have mentioned, that in relation to the decision-making process now under discussion in which the Director plays an early and essential part, there is a statutory focus upon the need for a degree of expedition. In the two cases in which the question arises it is argued that the delay has been adequately explained and, there being no relevant prejudice to the position of the workers, the extension of time ought to be granted to enable referrals which were patently invalid to be quashed.

31 A number of affidavits have been filed to explain the delay, including in the matter CIV 1798 of 2000 where the referral to the review officer occurred in about February 2000 and the application for certiorari was made on 30 June 2000. The effect of the affidavits in short is that the employers have the one insurer and are represented by common solicitors. Once it occurred to them that there may be a difficulty in respect of the medical evidence supporting the forms referring disputes about the degree of disability of workers to the Director, the insurer reviewed the files and decided that there were over a hundred matters of a similar kind in respect of which the proposition might be tested. It was run first in the case of Thorp v City of Wanneroo, unreported; Compensation Magistrate's Court (Packington CM); 31 July 2000 before a review officer. There was an appeal from that decision to a Compensation Magistrate. In that case the employer's insurer did not achieve the result required. The decision was given on 31 July 2000.

32 It was decided that a number of cases should be taken by way of applications for prerogative writs. Those cases became Ex p Dutch, in the decision of which, delivered on 30 July 2001, the point taken by the employers succeeded. Meanwhile, other cases were left in abeyance, although it seems upon the evidence that over a hundred applications for prerogative writs were made. I assume that the application CIV 1798 of 2000 was one such, although I note that in that case the application for certiorari was made before the decision in Thorp was delivered. As I understand the position, however, the application in 2280 of 2001 and that in 2281 of 2001 were both held back until the delivery of the decision in Ex p Dutch.

33 In the meantime of course, although the review officer did not deal with the first such matter, in the matter concerning the City of South Perth and Mr Torrijos the review officer completed his task and made his

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determination that the degree of disability was not less than 16 per cent. The applicants do not deny that they could have made their applications earlier. They say, however, that because Ex p Dutch was run as a test case, no other matters raising the same point would have been brought on earlier than they have, but their hearing would simply have been deferred had the applications been made earlier.

34 Whether or not that would be so is to a degree speculative in my view. At least if the applications had been made earlier, they would have been subject to the case management procedures of the Court and would undoubtedly have had an earlier start to the process of final disposition. To my mind, the arguments justifying the course taken by the applicants are not strong.

35 In Gallo v Dawson (1990) 64 ALJR 458 an application for an extension of time to appeal from a judgment of a single Judge of the High Court dismissing an action brought in the original jurisdiction of the court was made by an unrepresented applicant who was over 16 months out of time for lodging the appeal as of right. Her explanation was that she wished to research the issues involved before deciding to appeal. The extension of time was refused by McHugh J who at 459 pointed out that prima facie such time limits are to be obeyed and the power to grant an extension of time such as that provided in O 65 r 11(1) is intended to be employed "for the sole purpose of enabling the Court or Justice to do justice between the parties". The discretion would therefore be exercised when to apply the time limit strictly would be tantamount to making the rules operate as an instrument of injustice.

36 His Honour said that with such a lengthy delay, he doubted that he would have been persuaded to exercise the discretion in favour of granting an extension of time even if it appeared, as it did not, that the applicant had real prospects of success in the proposed appeal. McHugh J continued:

"A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved."

It seems to me that, having regard to the explanation provided in these cases, a similar approach should be taken.

37 McHugh J applied his decision in Gallo specifically in respect of an application for an extension of time to apply for writs of certiorari and

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mandamus in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470. In that case, the delay was 17 months. The relevant rule of the High Court Rules 1952 provided, as does our r 11(1), a time limit of six months.

38 The headnote accurately summarises the judgment at 473 – 4 pars [13] and [15]. McHugh J held that the relevant factors in determining whether an extension of time should be granted include the prospect of the applicant's success in the appeal, the explanation for the delay, the history of the matter, the conduct of the parties, the nature of the litigation, the consequences of a grant or refusal to the parties and the public interest which requires that there be an end to litigation about the efficacy of the acts or decisions of public bodies or officials.

39 In Ex parte Savage and Savage [1989] WAR 46, a case referred to with approval by Malcolm CJ in Ex p Dutch at par [68], Nicholson J made the point at 52 that the correct approach to O 56 r 11 was that the six months provided "should be regarded as a maximum rather than a yardstick." His Honour was making the point that even in a case where the application is made within the six-month period, the discretionary nature of the remedy of certiorari might justify its refusal on grounds of delay. In addition, his Honour referred to the relevance of evidence of "lying by" for a period during which the applicant was aware of the existence of grounds to make the application for prerogative relief, particularly if, in the meantime, the applicant actively participated in the proceedings below.

40 In my opinion, that is very much the case at least in CIV 2281 of 2001 where not only did the applicant return the Form 23, notifying that it was in dispute with the worker in respect of the relevant degree of disability, but it also participated in the review proceedings which resulted in a determination that the relevant level of disability was not less than 16 per cent, a finding adverse to its interests. On behalf of the worker, the submission is made that this Court should frown upon that process which is wasteful of the dispute resolution resources of the Directorate and harmful to the worker who has, by his participation in the process, incurred costs and suffered prejudice.

41 Mr Torrijos, we are told in affidavits filed in these proceedings, has elected to pursue a common law claim and so the payment of his weekly compensation and statutory allowances has ceased. He may not now recommence proceedings by filing a fresh Form 22 supported by medical evidence in appropriate form. It should not be overlooked, I think, that

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the original Form 22 in this case notified that the degree of disability was not less than 30 per cent and that the review officer's determination that it was not less than 16 per cent, thereby requiring the worker to make his election, depended on reliance upon medical reports adduced by the applicant employer before the review officer, in particular those of a Dr Bannan.

42 I would not be prepared to grant orders nisi for certiorari in the proceedings CIV 2280 of 2001 and CIV 2281 of 2001 because of the lengthy delays, the lack of a sufficient explanation for them on the applicant's part and the other matters to which I have referred, even on the basis that the grounds upon which the applications for certiorari depend are fairly arguable, and I have already indicated that I accept that view. That being the case, there is, in my opinion, no need to consider the availability of prohibition now sought in CIV 2280 of 2001 and I would refuse that application.

43 I am persuaded to that view not only having regard to the matters to which I have thus far referred, but also by the points made by Ms Pritchard in argument that the denial of an extension of time will cause the applicant to lose the opportunity to ensure in the case where that has not occurred, that the review process does not proceed, whereas the grant of an extension of time may well, given the arguable nature of the applicants' cases, be to deny to the worker in each case the opportunity to have the dispute about their degree of disability resolved in such a way as to allow them, whether by election or otherwise, to pursue a claim for damages at common law. That is a particularly noteworthy consequence in the case of Mr Torrijos who has made his election.

The question of prohibition in CIV 1798 of 2000

44 What I have written thus far does not, in my opinion, apply to resolve the applications made in CIV 1798 of 2000 and this Court was invited to conclude that that matter was so clear that pursuant to the Rules of the Supreme Court, O 56 r 1(6), the Court should now grant in the first instance orders absolute for certiorari against the Director and for prohibition against the review officer, Mr Warwick. I have noted that the review officer has informed the Court that he will abide the decision which we shall make. I take that notice effectively as an undertaking that if this Court was to quash the Director's decision to refer the dispute as to the degree of disability to him for resolution pursuant to s 93D(10), the proceeding which I have described as the operative decision, then

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Mr Warwick would not purport to pursue a review upon any ground that such an order would not be directed to him, but to the Director.

45 That understanding makes it unnecessary that I should consider the arguments presented to the Court for the view that the privative provision, s 84ZN(1), should not be construed so as to preclude the use of prohibition to restrain a review officer from proceeding with a review in the absence of established jurisdiction to do so. I merely allow myself the tentative observation that those arguments would need to be considered in the light of the fact that the subsection expressly provides inter alia that "proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court." However, without finally determining the validity of the arguments presented, in my view, the discretionary nature of the prerogative remedy and the undertaking given by the review officer makes it unnecessary to further consider making an order nisi for prohibition and I would refuse that application accordingly.

The question of certiorari in CIV 1798 of 2000

46 The application for certiorari proceeds upon the following grounds:

"The Applicant seeks relief by way of Certiorari on the grounds that:

(a) by virtue of Section 93D(6) of the Act, the Director was required to examine any alleged medical evidence of the Claimant produced to the Director in support of the Form 22 (which Form 22 was purportedly made in accordance with Regulation 19J(1) of the Regulations);

(b) the Claimant's alleged medical evidence did not comply with the requirements of subsections (2) and (6) of Section 93D of the Act in that it:


(i) gives no indication that the medical practitioner had made an assessment in accordance with the method of assessment prescribed by Section 93D(2); alternatively

(ii) contains no reasoning justifying the conclusion reached by the medical practitioner and therefore

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is not "medical evidence" of the type required by Section 93D(6) of the Act; alternatively

(iii) contains no clinical findings and therefore is not "medical evidence" of the type required by Section 93D(6) of the Act;

(c) the Director should have rejected the Form 22 on the basis that it did not comply with the Act;

(d) the Director should not have issued the First Named Applicant with a Form 23 'Notice of Referral of Question of Degree of Disability' pursuant to Section 93D(7) of the Act;

(e) the Director should not have determined that a dispute pursuant to Section 93D(8) of the Act had arisen for the purposes of Part IIIA of the Act;

(f) the Director should not have referred under Section 93D(1) of the Act, the question of the Claimant's degree of permanent disability for resolution under the provisions of Part IIIA (other than Division 2) of the Act."

47 The grounds rely upon the decision of this Court in Ex p Dutch and, as I have already observed, the medical report relating to this particular Form 22 was made by Dr Hewitt, a doctor who provided a report considered in Ex p Dutch, in the same form as the report in that case, a report which was held to be inadequate to satisfy the requirement of s 93D(6) that it indicate, in support of the opinion offered by the medical practitioner, that the degree of disability of a permanent character is not less than the relevant level.

48 Ex p Dutch is 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. Because an error of the kind referred to is established, the Director can be seen to have misdirected himself as to the nature of the legal process which he was to perform. In embarking upon his part in the dispute resolution process in those circumstances, he makes a jurisdictional error. He acts in excess of jurisdiction when he wrongly concludes that the requirements of s 93D(6) are satisfied having regard to the nature of the medical evidence relied upon in support of the Form 22. If he proceeds then to exercise his

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statutory function of notification to the employer, conciliation and referral of the dispute for resolution, he does so in a jurisdictional vacuum and the whole process will be liable to be quashed upon the grant of a writ of certiorari. There is also considerable discussion in that case of the sort of characteristics which such medical evidence should possess if it is to satisfy the requirement of s 93D(6) that it indicate the way in which under the statutory scheme the medical practitioner's opinion about the degree of disability is supported. In my opinion, the case is authority for no wider proposition than that stated above.

49 Ex p Dutch was the return of orders nisi. Two of the workers involved in that case were unrepresented, but the court felt able to proceed to its final judgment because it had, as we have had, the considerable benefit of argument by Ms Pritchard as amicus curiae. She did not seek to present any argument that in CIV 1798 of 2000 there was some feature of the case which would dictate a result different from that in Ex p Dutch. In my opinion, the point is abundantly clear. I would not at this stage be inclined to make an order nisi for certiorari in the hope that upon its return the court would have available to it the benefit of argument by the worker as a true contradictor. In my opinion, this is a case, rare though such cases may be, where an order absolute for a writ of certiorari should be granted in the first instance. The interests of justice are advanced by such a resolution of a clear case.

50 In so holding, however, I would wish to make it clear that, in my opinion, Ex p Dutch has nothing to say about the legal requirements for the valid exercise of jurisdiction by a review officer. Although at two points in his Honour's reasons Malcolm CJ makes observations which at first sight bear upon the exercise of jurisdiction by a review officer, it does not seem to me that that was the matter which was argued and the remarks seem to me to be strictly obiter dicta. They are not taken up by the other members of the Court.

51 At par [30] his Honour says that:

"… 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."

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My initial reaction was to think that the reference to the review officer was intended to be a reference to the Director, but it has to be said that at par [85], in dealing with the case of Mr Dutch in particular, his Honour expressed his conclusion as being "that, in the circumstances of this case, the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer."

52 For myself, I would prefer to leave to another day and to a case which provides an appropriate vehicle to determine the question, the issue of what, if any, jurisdictional facts are necessary preconditions to the exercise of the statutory functions of a review officer, or for that matter the jurisdiction of a Compensation Magistrate. In my opinion, it is unnecessary and undesirable in this case to address the arguments which were presented upon this question, in particular by Ms Pritchard, although I may say that I am of the view, in the absence of complete argument in an appropriate case, that while the sufficiency of the medical evidence in terms of s 93D(6) conditions the valid exercise of the jurisdiction or power of the Director, it is at least fairly arguable that the valid conduct of proceedings by a review officer has as its jurisdictional precondition only the referral of the question of the degree of disability by the Director under s 93D(10) and s 84Z. In that event a determination by a review officer could not be struck down by the conclusion that the Director acted in excess of his jurisdiction.

53 No more should be said because of the application for leave to appeal from a Compensation Magistrate in CIV 2207 of 2001, Smith v Fruin. In that case a Form 22 was lodged together with a medical report. The Director issued his Form 23. The employer gave notice that it disputed the level of disability. The question was referred to a review officer (ie not the dispute of course, but the question of the level of disability). The review officer conducted a review and determined that the level of disability was not less than 16 per cent. From that determination, the employer took an appeal to the Compensation Magistrate. The appeal was heard and on 1 August 2001 dismissed. From that decision, a further appeal lies on a question of law to this Court by leave under the Act, s 84ZW and s 84ZX.

54 It is contended that the Compensation Magistrate erred in law in failing to set aside the determination of the review officer upon the ground that the review officer lacked jurisdiction because he should have held that the question of the degree of disability had not been validly referred to him by the Director, and that such a valid referral was a condition of his jurisdiction. It would be argued that the Director's reference was invalid

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because, having regard to Ex p Dutch, the medical evidence was inadequate to comply with the requirements of s 93D(6). There is a further point sought to be raised which is also a question of law, whether the review officer was deprived of jurisdiction because it was too late for the worker to make an election at the end of the process, having regard to the Act, s 93E(3)(b) and the regulations. The two points are obviously related.

55 To my mind, having perused the reasons of the review officer and those of the Compensation Magistrate, the proposed grounds of appeal are clearly arguable and of some importance. There are no apparent countervailing factors which would cause the Court to refuse leave and I would grant leave to appeal in this case upon the grounds contained in the draft notice.

56 ANDERSON J: There are four matters before the Court, all involving the proper construction of the sections of the Workers Compensation and Rehabilitation Act 1981 (WA) which provide for the resolution of disputes relating to the degree of disability of a worker. In three of the matters there are motions for an extension of time within which to apply for orders nisi for writs of certiorari and applications for orders nisi for writs of certiorari and in two of those matters there are also applications for orders nisi for writs of prohibition. In the fourth matter there is a motion for leave to appeal from a compensation magistrate's decision on the particular point in question.

Background and history

57 Each of the applicants is an employer (a) who is liable to make payments of workers' compensation under the Act in respect of injury sustained by a worker in the course of his or her employment, and (b) against whom each worker may wish to bring proceedings at common law to recover damages in respect to his or her injuries.

58 The three motions for extensions of time and for orders nisi came before Wheeler J in chambers on 7 September 2001 and her Honour directed that the motions and applications be returned before the Full Court to be heard at the same time as the motion for leave to appeal in the fourth matter. When the matters were called on, we were urged by senior counsel for the applicants, Mr Zelestis QC, to finally decide the applications for prerogative writs by making orders absolute in the first instance. Without committing the Court as to how it would ultimately dispose of the matters, counsel were invited to, and did, make submissions

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on the proper construction of the sections in question which were fuller than would have been necessary if the proceedings were only for orders nisi. It should be noted that only one worker was represented before us. Mr Nugawela appeared for him, nominally as contradictor, with the Court's leave. The Court also granted leave to Ms Pritchard to appear as amicus curiae, instructed by the Attorney General for the State of Western Australia in the three prerogative writ applications.

59 We are told that these cases are representative of a large number of other cases in which it is desired to challenge on the same grounds the validity of proceedings for the determination of the degree of disability of workers under the October 1999 amendments to Pt IV of the Act. The amendments have proved to be rather troublesome, to say the least. They are complex and extensive, and have received extensive consideration in earlier cases in this Court. The effect of the amendments is to prohibit courts in Western Australia from awarding damages in work accident cases contrary to the provisions of Div 2 of Pt IV of the Act which provide, amongst other things, that damages can only be awarded if it is agreed or determined that the degree of disability of the worker is not less than 30 per cent, or the worker has a "significant disability" (defined by s 93E(4) as a degree of disability agreed to be or determined to be not less than 16 per cent) and the worker has elected, in the prescribed manner, to retain the right to seek damages. The four cases now before the Court bring into particular focus the provisions for the resolution of disputes as to whether a worker's disability is not less than the relevant level.

The legislative scheme

60 The proceedings begin when a worker asserts a claim under the Act that he has sustained injury by accident in the course of his employment. This he does by submitting a claim in the prescribed form (Form 2B) and complying with the requirements of s 84I(1). Then, if he wishes to protect his right to claim damages at common law he must seek an agreement from the employer or a determination under the Act that his degree of disability is not less than the relevant level. This is made necessary by s 93E(3) which provides:

"(3) Damages can only be awarded if -

(a) it is agreed or determined that the degree of disability is not less than 30 per cent … or

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(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages … "

61 By s 93D(5), if the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may "refer" the question to the Director of Conciliation & Review (at all material times, Mr Monger). This he does by delivering a completed form (Form 22) to the Director stating the degree of disability claimed: Workers Compensation and Rehabilitation Regulations 1982, reg 19J(1)(a). By s 93D(6), the worker must also produce to the Director, medical evidence in support of his claim. Section 93D(5) and s 93D(6) are in the following terms:

"(5) If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.

(6) A question can only be referred under subsection (5) if 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."

62 Having received a referral accompanied by the requisite medical evidence, the Director must notify the employer of the worker's claim as to the degree of his disability, which the Director does by issuing a Form 23. If, within 21 days, the employer notifies the Director that the employer considers that the degree of disability is less than the relevant level, a "dispute" arises. The Director must then endeavour to conciliate the dispute or to use the words of s 93D(9) "consider the dispute in consultation with the parties". By s 93D(10), it is provided that, if the dispute is not resolved by agreement, "the Director is to refer the question for resolution under the provisions of Part IIIA (other than Div 2)".

63 Officials to whom the question may be referred for resolution under Pt IIIA are a compensation review officer or, if the parties prefer, a conciliation officer. If the matter is referred to a review officer, he or she undertakes the task of determining the relevant level of disability, informing himself or herself "in such manner as the review officer thinks fit": s 84ZD.

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Dutch's case

64 No doubt in order to cope with the volume of requests for s 93D(6) opinions, the opinions written by doctors came to follow a more or less standard form and were usually exceedingly brief, and it was common for the opinions to express a degree of disability of the "whole body". Thus, it was (and perhaps still is) quite common for the opinions to say no more than that the doctor had examined the patient and as a result of the examination believes that the patient has a degree of disability of the whole body of a particular percentage. The Conciliation & Review Directorate accepted opinions in this form as sufficient to comply with s 93D(6), and therefore as sufficient to start the conciliation and review process. This was challenged in five applications for prerogative relief heard together in Re Monger; ex parte Dutch & Ors [2001] WASCA 220. The Full Court (Malcolm CJ, Wallwork and Owen JJ) held that the medical evidence referred to in s 93D(6), that is, medical evidence submitted by the worker with his referral to the Director, must comply with certain criteria. It was held that the Director was bound to consider the question whether the dispute was properly referred to him and this required him to be "satisfied" that the medical evidence which the worker produced to him fulfilled the requirements of s 93D(6): ex parte Dutch (supra) par 26. This, in turn, was held to be an adjudicative function amenable to judicial review by prerogative writ. It was further held that such evidence as the worker produces will not be "medical evidence … indicating … [a] … degree of disability" as required by s 93D(6) if the evidence does not indicate a degree of permanent disability of the kind contemplated by s 93D(2). It was held that a purported assessment of a degree of disability expressed in terms of a percentage function of the whole body, or which did not say that the disability is permanent, did not indicate a degree of disability of the kind contemplated by s 93D(2). It was also held that there must be "material of a medical kind" capable of supporting the opinion expressed by the medical practitioner so that a bare expression of opinion in the form of an unsupported conclusion as to the relevant degree of disability was, without more, not "medical evidence … indicating that in the medical practitioner's opinion, the degree of disability is not less than the relevant level". And it was held that a dispute referral from a worker which was not accompanied by medical evidence meeting these criteria did not confer any "jurisdiction" on the Director to refer the dispute to a compensation review officer for resolution; and a decision, nevertheless, to refer the dispute to a review officer was liable to be quashed for invalidity.

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The sufficiency of the medical evidence in these cases

65 On behalf of the applicants in the matters before us, it is contended that in no case did the medical reports, which were submitted to the Director by the worker with his or her Form 22, comply with the requirements of s 93D(6) as those requirements were defined in ex parte Dutch. This must be accepted. In CIV 1798 of 2000, which is the case involving the employers WMC Resources Ltd and Hill 50 NL, and the worker Mr Taylor, the medical report of Dr Hewitt is not materially different from the medical report (also, incidentally, a report of Dr Hewitt) submitted to the Director by one of the workers whose case was considered in ex parte Dutch and, applying the decision in that case to the facts of this case, it must be held that Dr Hewitt's report in this case did not constitute "medical evidence" for the purposes of s 93D(6).

66 In CIV 2280 of 2001, involving the employer Cooks Construction Pty Ltd and the worker Mr Barker, and in CIV 2281 of 2001, involving the employer the City of South Perth and the worker Mr Torrijos, the medical reports of Dr Kennedy purport to make a determination of the degree of disability in terms of a percentage function of the whole body. These reports of Dr Kennedy therefore suffer from one of the deficiencies identified in ex parte Dutch as fatal and on the authority of that case cannot constitute "medical evidence" for the purposes of s 93D(6).

67 In CIV 2207 of 2001, in which we have an application for leave to appeal and which involves the employer Mr Smith and the worker Ms Fruin, the medical report of Dr P C Anderson also suffers from the deficiency mentioned above. It purports to express an opinion on the degree of disability in terms of "total body permanent disability rating" so is not in conformity with the assessment called for by s 93D(2) and, applying ex parte Dutch, it cannot constitute "medical evidence" for the purposes of s93D(6).

68 Ms Pritchard submitted that, in order to provide guidance to doctors in future, it would be helpful if we were to, in effect, settle a form of medical report which would pass muster in most cases. In my opinion, we should not attempt to do so. It would be tantamount to giving an advisory judgment, and that is not one of the functions of this Court. The ramifications of the judgments in ex parte Dutch must be left to work themselves out case-by-case.

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Validity of proceedings before review officer where Director did not have proper "medical evidence"

69 The cases with which we are concerned are not all at the same stage. In each case, the Director has acted upon the medical evidence in the sense that he has accepted it as "medical evidence … indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level" within the meaning of s 93D(6) and he has referred each case for review, presumably after attempting conciliation. In the case involving the employers WMC Resources Ltd and Hill 50 Gold NL and the worker Mr Taylor, and in the case involving the employer Cooks Construction Pty Ltd and the worker Mr Barker, proceedings are ready to commence before the review officer, but are stayed by order of Wheeler J, pending the outcome of these applications. In these two cases, certiorari is sought to quash the decision of the Director to refer the dispute to the review officer and prohibition is sought against the review officer. In the case involving the employer the City of South Perth and the worker Mr Torrijos, the matter has proceeded to review and the review officer handed down a determination on 27 March 2001, determining the degree of disability of Mr Torrijos as being not less than 16 per cent. In this case, certiorari is sought to quash the decision of the Director to refer the dispute to the review officer. In the case involving the employer Mr Smith and the worker Ms Fruin, the matter proceeded to review and the review officer handed down a determination on 29 June 2000, determining the degree of disability of the worker as being not less than 16 per cent. The employer took the matter on appeal to the compensation magistrate on the ground that the review officer had no jurisdiction to proceed with the review because the matter had not been validly referred to him due to the deficiencies in the medical evidence. The compensation magistrate dismissed that appeal on 1 August 2001, holding that the review officer was not required to go behind the Director's reference to consider for himself the validity of the reference. Leave is sought under s 84ZW to appeal to this Court from the decision of the compensation magistrate.

70 The question which arises in all of the applications with which we are dealing is this: if the Director has not received a proper reference from the worker because the worker did not produce to the Director proper "medical evidence" as required by s 93D(6), but the Director, nevertheless, has made a referral to the review officer for review, are the review proceedings invalid?

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71 It is obviously an important question which needs to be answered, if, as the parties seem to accept, it has not been answered in ex parte Dutch. As I indicated at the commencement of this judgment, Mr Zelestis asked us to finally decide the question in each of the three applications for prerogative writs by granting orders absolute in the first instance because the question is "there to be decided", as he put it.

Procedural issue; extension of time; applicability of O 56 r 11

72 It is convenient to deal next with the applications for extensions of time for the grant of orders nisi for certiorari. These applications are made in the light of RSC O 56 r 11 which provides:

"(1) An order nisi for a writ of Certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justices, for the purpose of its being quashed, shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction or other proceeding, or within such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court to which the application is made."

73 On behalf of the applicants, it was argued that the time limits prescribed in O 56 r 11 do not apply to writs of certiorari to quash a decision of the Director of Conciliation & Review to refer a question to a review officer, because that is essentially an administrative action; and O 56 r 11 is intended only to apply to bodies exercising a judicial or quasi-judicial function. Mr Zelestis submitted that the decision of Owen J in Re Monger; ex parte Western Power Corporation [2000] WASC 271 that the Director is a "tribunal" within the meaning of O 56 r 11 is erroneous and should not be followed.

74 Obviously, O 56 r 11 is not intended to cover all order nisi proceedings for certiorari. It does not cover proceedings involving the acts and decisions of bodies which do not satisfy the description of "an inferior court or tribunal, or … a magistrate or justices". As Malcolm CJ pointed out in Re Smith; ex parte Rundle (1991) 5 WAR 295 at 319:

"The time limit in O 56 r 11(1) of six months has its justification in the need to act promptly in relation to

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proceedings to quash the decisions of an inferior court or tribunal. Great inconvenience could be caused by permitting the decision to stand and allowing people to act on the assumption that the decision was valid. The six months time limit was introduced in England in 1740 by the statute 13 Geo II C 18 s 5 which provided that no certiorari should issue for the removal of orders made by justices of the peace after six months … In my opinion it is, at the least, extremely doubtful whether the rule applies to decisions of bodies or persons other than inferior courts or statutory tribunals."

75 The only category presently relevant amongst those which are enumerated in O 56 r 11 is "tribunal". The Director is plainly not within the other categories; that is, "inferior court", "magistrate", or "justices".

76 I would accept Mr Zelestis' submission that the Director, exercising his statutory duty to decide whether a dispute has been properly referred to him under s 93D(5), is a not "tribunal". The word in its ordinary meaning signifies something more than an official performing this function. The dictionaries tell us that, in its primary sense, "tribunal" means a place or seat of judgment (Shorter Oxford Dictionary), a body appointed to adjudicate disputes (Butterworths Australian Legal Dictionary) and (according to the Dictionary of English Law) a person or body exercising judicial or quasi-judicial functions outside the regular judicial system, and, in these senses, the word is quite inapt to describe the office of Director in the performance of the essentially administrative task of examining doctors' reports for compliance with the medical evidence requirements of s 93D(6) of the Workers' Compensation and Rehabilitation Act and deciding whether they do or do not comply. To my mind, confirmation that "tribunal" is intended to have its primary meaning in O 56 r 11(1) is to be found in the syntactical arrangement of that rule; the word "tribunal" appears between the words "inferior court" and "or of a magistrate or justice". I would accept the submission made on behalf of the applicants that the arrangement of the words and phrases in the rule strongly suggests that the word "tribunal" is intended to signify a body of the same genus as "inferior court", "magistrate" and "justices".

77 The Director is not a judicial officer. He does not perform any judicial or quasi-judicial function. He has no duty to evaluate the worth of medical evidence that is presented to him by the worker. He merely sees that it is in the form required by s 93D(6). (If it is not, presumably the worker can get another report.) He does not conduct a hearing. The view to which the Director comes is not definitive of any legal rights. He

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does not resolve adverse claims. The consequence of his decision (right or wrong) that the worker's reference is supported by the requisite medical evidence is only that the conciliation and review process starts. If the dispute goes to review, which it may or may not do, the review officer will make up his/her own mind on the question of the worker's level of disability. The Director has no role to play in that process of review. The "medical evidence" upon which the review officer acts may or may not include the medical evidence on which the Director acted. There is no duty on the Director to supply the review officer with that evidence. The review officer starts afresh as regards evidence. In my opinion, the applicants' submission that it is going too far to hold that the Director is a "tribunal" within the meaning of O 56 r 11(1) when forming a view that a matter has been properly referred to him must be accepted. It follows that, in my opinion, Re Monger; ex parte Western Power Corporation should not be followed and extensions of time are not required.

Whether orders absolute for prohibition and for certiorari should be made in the first instance

78 This brings us to the question whether this Court should consider whether to grant orders absolute for prerogative writs in the first instance. In my opinion, we should not do so. We should do no more than consider the applications which are before us. The main reason for this is that, putting discretionary considerations to one side, the questions which must be answered in deciding whether to grant orders absolute in the prerogative relief applications may depend on the correctness of some statements that were made by the Full Court in ex parte Dutch and so may involve a reconsideration of that case; and this may be better done by a Full Court of five Judges. I say this for the following reasons. Although neither Mr Zelestis, Mr Nugawela nor Ms Pritchard positively invited us to depart from ex parte Dutch, I think that to accept all that Mr Zelestis and Ms Pritchard submitted would require us to do so. I would refer to three submissions or sets of submissions of this character, although there are others.

79 In ex parte Dutch, the following important passages appear in the judgment of Malcolm CJ (with whose judgment on these points both Wallwork and Owen JJ agreed). These passages (to which I have supplied the emphasis) would appear critical to the result in that case. At par 26, it was said:

"It was conceded on behalf of the workers … that the Director's task upon receipt of the referral was not purely an

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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 … "

80 At par 30, it was said:

"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."

81 The three submissions or sets of submissions which I have in mind which seem to challenge the correctness of these passages are as follows:

82 (1) Concerning the first sentence in the second of the two passages, both Mr Zelestis and Ms Pritchard submitted that it could not be correct to regard the existence or otherwise of the relevant level of disability as a jurisdictional fact going to the jurisdiction of the Director, if this is what the sentence is intended to mean. This is because the level of disability is the ultimate fact which the review officer must determine and he cannot do so unless the dispute as to the existence of that fact has been referred to him. The authority to refer the dispute to him therefore, logically, cannot depend on the existence of the fact.

83 (2) Mr Zelestis further submitted that the Director's satisfaction that the medical evidence was in accordance with s 93D(6) was not a jurisdictional fact. He argued that it was the sufficiency of the medical evidence itself which was the jurisdictional fact, not the Director's opinion about it. The Director, so it was submitted, has the very limited task of seeing whether, as a matter of simple objective fact, the doctor's report put in by the worker with his referral is "medical evidence" indicating a relevant level of disability. If it is, the Director may act on it, including by referring the dispute for review. If it is not, he may not do so. In either case, his state of subjective satisfaction is irrelevant. Now, that is to say he has no discretion in the matter. Therefore, I think the submission raises for consideration the correctness of the view that the particular function of the Director really is adjudicative and amenable to judicial review.

84 (3) As to the last sentence in the second of the two passages from ex parte Dutch set out above, Ms Pritchard submitted that the jurisdiction

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of the review officer cannot depend on a matter that does not concern him; and he is not concerned with the quality or form of the medical evidence that is submitted to the Director or the correctness of the Director's opinion about that medical evidence, because the medical evidence on which the Director acted is not required to be submitted to the review officer and is not part of Form 23. So, it was submitted, the Act and regulations do not provide the review officer with the opportunity to examine the correctness of the Director's decision. Ms Pritchard submitted that the authority of the review officer to proceed with a review, and hence his "jurisdiction" to do so, is full and complete simply upon the matter being referred to him by the Director. He is not required to look behind that referral. She referred us to s 84ZN(1) in support of this submission, a section not directly considered in this context by the court in ex parte Dutch. It is the privative provision protecting review officers from challenge by prerogative writ and it provides:

"84ZN(1) Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court."

85 In my opinion, the particular submissions referred to above are not without substance and do bring into question the correctness of ex parte Dutch and it would not be appropriate to finally decide them at the order nisi stage of the proceedings presently before the Court.

86 The other reason why I consider it to be inappropriate to grant orders absolute in the first instance is that, whilst no doubt in appropriate cases the court will proceed in that manner, the court must first be satisfied that "it appears necessary for the advancement of justice" to do so: O 56 r 1(6). I am not persuaded that it is, in this case. There appears to be no special urgency attending the applications and it is not as if the question or questions which are presented for determination fall into a narrow compass or admit of an obvious answer. The applications raise important, and to my mind difficult, questions in the field of workers' compensation and administrative law concerning the proper construction of the 1999 amendments and concerning the proper reach of prerogative relief. They are questions with respect to which the court should have the benefit of the fullest argument and without in any way intending to diminish the most helpful and informative arguments we have heard, I would not be prepared to say that further assistance may not be

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forthcoming if the ordinary processes are followed. Now that ancillary matters such as the applicability of O 56 r 11 are no longer in issue, the opportunity exists to put forward arguments which are focused entirely on the substantive questions. Furthermore, for obvious reasons, we heard no submissions on behalf of Mr Taylor or Mr Barker as to the prejudice which they may suffer if orders absolute are made in their cases. I would not be confident that, merely because they did not wish to appear as contradictors at the order nisi stage, they will not wish to appear to oppose the making of orders absolute.

87 I would grant orders nisi for the issue of writs of certiorari in each of the three applications for prerogative writs, returnable before the Full Court. Whether that court should be comprised of three or five Judges, is a matter for the parties to take up with the Chief Justice should they see fit.

88 Concerning the application for orders nisi for prohibition directed to the review officer in the cases of Mr Taylor and Mr Barker, I would refuse orders nisi because it seems to me that no prerogative relief is available against a review officer: s 84ZN. I would add that we did not hear argument as to whether, in the light of that section, the orders made by Wheeler J staying the proceedings before the review officer are effective or should be removed.

89 As to the application for leave to appeal in CIV 2207 of 2001, I am of the opinion that, as the proposed grounds of appeal do involve questions of law which are arguable and important, leave to appeal on each of the grounds set forth in the draft notice of appeal should be granted; I would so order. Whether the Court which hears that appeal should be comprised of three or five Judges is also a matter for the parties to take up with the Chief Justice, should they see fit.

90 SCOTT J: I have had the opportunity of reading in draft the reasons to be published by Anderson J. I am grateful to his Honour for his careful analysis of these problems.

91 I agree with the reasons and the conclusion reached by him. This may well be a case where a Full Court bench of five Judges would be appropriate if the decision in Re Monger; Ex parte Dutch & Ors [2001] WASCA 220 is to be revisited. That, however, is a matter for the parties.