Re Steele;
[2005] WASC 265
•13 DECEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE STEELE; EX PARTE LYALL [2005] WASC 265
CORAM: HASLUCK J
HEARD: 24 & 27 JUNE 2005
DELIVERED : 13 DECEMBER 2005
FILE NO/S: CIV 1053 of 2004
MATTER :Application for a Writ of Certiorari against MR NIGEL STEELE, a Conciliation Officer at WorkCover WA under the Workers Compensation & Rehabilitation Act 1981 (WA)
and
Application for Writs of Certiorari and/or Mandamus against MR F B WEBB, DR JANET RODDY & DR RODNEY MOORE under the Workers Compensation & Rehabilitation Act 1981 (WA)
and
Application for Writs of Certiorari and/or Mandamus against MR ROSS MONGER, Director of WorkCover WA under the Workers Compensation & Rehabilitation Act 1981 (WA)
EX PARTE
ANNE LYALL
Applicant
Catchwords:
Workers compensation - Certiorari - Medical Assessment Panel - Adequacy of reasons - Delay not sufficient to bar relief - Turns on own facts
Legislation:
Interpretation Act 1984 (WA), s 55
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 10B
Workers Compensation and Injury Management Act 1981 (WA), s 84R, s 145A, s 145E, s 145F
Result:
Application for writ of certiorari allowed
No order as to application for writ of mandamus
Category: B
Representation:
Counsel:
Applicant: Mr B L Nugawela
Intervenor/Contradictor : Dr J T Schoombee
Solicitors:
Applicant: Paul O'Halloran & Associates
Intervenor/Contradictor : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Craig v State of South Australia (1995) 184 CLR 163
Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Croser; Ex parte Rutherford [2003] WASCA 8
Re Knezevic; Ex parte Carter [2005] WASCA 139
Re Malone; Ex parte Casey [2003] WASC 266
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte Welsby [2003] WASCA 191
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Re Smith; Ex parte Rundle (1992) 6 WAR 299
Case(s) also cited:
Bailey v Marinoff (1971) 125 CLR 529
Department of Family & Children's Services v Furnace [2001] WASCA 285
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Narula, NG and Hammersley; Ex parte Atanasoski [2003] WASCA 156
R v Young [1999] NSWCCA 166
Re Babban; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford & Anor [2003] WASCA 8
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re National Parks and Nature Conservation Authority; Ex parte McGregor & Anor [2001] WASCA 368
Re Wong & Ors; Ex parte Hays, unreported; SCt of WA; Library No 980575; 5 October 1998
Selby v Pennings (1998) 19 WAR 520
Talbot v Lane (1994) 14 WAR 120
HASLUCK J:
Introduction
The applicant, Anne Lyall, seeks relief by way of certiorari and mandamus in respect of claims for compensation arising under the Workers Compensation and Injury Management Act 1981 (WA) ("the Act").
An order nisi was made on 24 February 2004 calling upon a conciliation officer and a Medical Assessment Panel constituted under the provisions of the Act to show cause why a writ of certiorari should not be issued for the purpose of quashing certain steps taken by these parties in the course of dealing with the applicant's claim. Further, Mr Ross Monger, the director of WorkCover WA, is called upon to show cause why a writ of mandamus should not be issued for the purpose of compelling him to perform certain functions and duties.
The case for the applicant is supported by a lengthy affidavit sworn by her on 15 January 2004 to which is annexed various documents and medical reports bearing upon her claim (the "AL affidavit"). I have before me also the affidavit of Bevan Earl Beaver sworn 22 June 2005. The deponent is the Acting General Manager Housing and Facilities Management employed by the applicant's employer, namely, the State Housing Commission. Written submissions have been filed on behalf of the interested parties.
Background
It emerges from the evidentiary materials that the applicant commenced work at Homeswest, being then an extension of the Department of Housing and Works, as a clerk/typist on 11 June 1993. As nothing turns upon the identity of the employer I will henceforth refer to the employer as the "Commission".
It seems that the applicant progressed through various positions and was required to perform administrative tasks. In mid‑1998 a so‑called "Help Desk" for computer users was created. The applicant worked on this desk and this involved taking complaints by phone and email and typing details into a computer by keyboard and mouse. The applicant was not provided with a headset and was obliged to hold the phone at awkward angles by use of her arm and shoulder. It was at about this time that she developed episodes of soreness in her shoulders and neck.
The applicant complained about her work situation but to no avail. She began experiencing pain in her right elbow and forearm additional to neck and shoulder discomfort. Her condition worsened and she was then referred to various medical practitioners. Her general practitioner, Dr Chris Denz, made a provisional diagnosis in mid‑1999 of "lateral epicondylitis" of her right arm. She made a claim for workers compensation and it seems that in September 1999 RiskCover accepted liability for the right arm claim. On 10 December 1999 a Form 22 application was lodged at WorkCover (for over 30 per cent degree of disability) in respect of her right arm disability.
In the meantime, she had begun to experience pain and discomfort in her left arm. Thus, on 22 May 2000 she lodged an occurrence report with RiskCover in respect of a left arm injury.
On 9 June 2000 she ceased work, as the pain in both of her arms was now continuous, with no relief even with extended rest. On 14 August 2000 RiskCover declined her left arm claim, stating that there was insufficient evidence to suggest that the alleged injury arose out of or in the course of her employment. She lodged an application seeking a determination of disability from the disputed left arm injury.
Subsequent events
On 1 December 2000 a conference was held before a Conciliation Officer, Nigel Steele, in respect of two separate matters bearing upon the applicant's claims under the Act.
The first matter concerned Application No 2887/00H relating to the right arm claim. It appears from the conference note, which is Annexure 22 at page 99 of the AL affidavit, or, put shortly, is to be found at AL22/99, that the insurer sought review of weekly payments of compensation pursuant to s 62 of the Act. I note in passing that by s 62 any weekly payment may be reviewed by the directorate at the request of either party and on such review may be discontinued or reduced having regard to the past or present condition of the worker as the directorate sees fit.
The conference note refers to a report that the worker was suffering from myofascial problems with both upper arms. The insurer relied upon an opinion from Dr Hanrahan suggesting that there was no objective pathology. This was said to create a dispute with the result that the insurer requested that the matter be referred to a Medical Assessment Panel for determination due to the discrepancy in diagnosis between the doctors. The insurer was said to be concerned at the lack of pathology and on‑going and increasing pain symptoms expressed by the worker, despite the fact that she had not been working since June 2000.
The conference notes contains this passage also:
"The insurer confirmed that the worker had also lodged a claim in relation to her left arm, which had been denied by them. Both parties acknowledged that the same medical reports are relevant to the new claim."
It is apparent from the conference note that the Conciliation Officer decided to refer this matter to a Panel.
The second matter concerned Application No 3520/00H relating to the applicant's left arm claim. In this case the conference note describes the relief sought as being determination of liability pursuant to s 58 of the Act. I pause here to note in passing that by s 58 of the Act where a worker has not received certain weekly payments the directorate may, on the application of the worker, hear and determine the question of liability to make the weekly payments claimed.
The conference note concerning the left arm claim appears at AL22/101. It purports to be dated 1 September 2000 but it appears from the contents of both notes that the right arm and left arm claims were considered together and that the conference note should therefore properly be dated 1 December 2000. It appears from the note that in relation to the left arm claim the insurer confirmed its denial of liability, stating that it was relying on the opinion of Dr Hanrahan in support of that decision.
According to the conference note, the parties agreed that the medical evidence was identical in both applications and that a determination by the Medical Assessment Panel was required in respect of both applications.
By letter dated 15 February 2001 signed by the Medical Panel Liaison Officer, but apparently written for and on behalf of the Conciliation Officer, the applicant was advised that a number of questions were referred to the Panel that had been constituted to deal with this matter.
I note in passing that the actual referral to the Panel was not before the Court at the hearing but it was common ground at the hearing that a referral was made with questions being put to the Panel in terms of the letter to the applicant dated 15 February 2001. The parties referred to this letter and date in their submissions. Subsequent to the hearing I was provided with a copy of a Notice of Referral dated 16 January 2001 which asserted that a conflict of medical opinion exists and set out the questions described in the 15 February 2001 letter. For ease of reference, and to facilitate the reading of the written submissions and transcript I will continue to speak of that letter as being the Conciliation Officer's "original referral letter" of 15 February 2001 as nothing appears to turn on the exact form of the letter. It was common ground that the original referral letter posed to the Panel the five questions that I will describe in the next section of this judgment.
The panel
The Panel was comprised of Mr F B Webb, Dr Janet Roddy and Dr Rodney Moore. The questions put to the Panel in the original referral letter were as follows: "What is the nature of the disability suffered by Mrs Lyall? (1); as to the extent of the disability has she recovered and, if not, what is the current extent of the disability (2a and 2b); what is Mrs Lyall's capacity for work with various other queries under that heading (3); does she suffer a permanent residual disability and, if so, what is the degree of disability (4); as to any permanent disability what is the disability in terms of percentage loss of (or loss of the use, or efficient use of the part of) the body or faculty affected by the injury as outlined in Schedule 2 of the Act (5)."
It is apparent from the original referral letter that Mr Webb is an Orthopaedic Surgeon, Dr Roddy is a Rheumatologist and Dr Moore is a General Practitioner. The letter enclosed a copy of the "list of medical reports and other relevant documents" referred to the Panel for their consideration.
By letter dated 26 February 2001 the applicant's solicitors, Bradford & Co, referred to the original referral letter dated 15 February 2001 and to the questions to be posed to the Panel. The solicitors went on to say that they did not agree with some of the questions that were going to be asked, in particular, questions numbered 3(b), (c) and (d) as well as questions 4 and 5.
The applicant's solicitors were of the opinion that the first three disputed questions could not properly be assessed by the Panel in the absence of proper evidence being lead as to the exact duties and the nature of the duties to be performed by the different job descriptions mentioned in the subject letter as well as proper findings of fact being made as to what exactly such officers were required to be able to do. It was only once this had been established that matters could be considered by the Panel.
The solicitors said further that the application in question was an application pursuant to s 58 whereby the worker was seeking a determination of liability. The questions as to the permanency of her disability as well as the degree of disability were not relevant to a s 58 application and should, in their opinion, not be referred to a medical assessment panel as far as the current application was concerned.
The determination
It seems that on 26 March 2001 the Panel examined the applicant and then proceeded to formulate its determination having regard to the examination and the voluminous medical reports that had been submitted to it. The Panel's determination is dated 28 March 2001. It was submitted to the Director, Conciliation and Review and is to be found at AL25/257. It is signed by Dr F B Webb as Chairman of the Panel.
I note in passing that the Panel's determination does not outwardly appear to distinguish between the right arm claim and the left arm claim, and nor does it distinguish between the two forms of application that were before the Conciliation Officer. The determination simply purports to answer the questions put to the Panel in the original referral letter.
As to question 1 (the nature of the disability) the Panel determined that there was no evidence of objective physical disability, but the Panel accepted that there was subjective disability based on her reports of pain. The Panel believed there were psychological factors contributing to her disability.
The Panel said in answer 2 that the applicant had not recovered from the disability. It was said in answer 3(a) that the Panel found no physical limitations on her capacity for work. It was said that in the Panel's belief, for non‑physical reasons, the applicant did not have the capacity to return to her previous employment as a Level 2 Support Officer. As to whether she had the capacity to work either full or part‑time as a Level 2 Customer Services Officer, a Level 2 Finance Officer, a Level 2 Land Asset Verification Officer it was said that the Panel did not believe that she had any physical limitation upon her capacity for work.
The answer given to question 4 (whether she had suffered a permanent residual disability, and if so, the degree) was as follows: the Panel determined that there was a permanent residual disability based on the patient's complaints of pain and psychological factors of 10 per cent total body disability under the Assessment of Disability Guide under the Act having regard to Chapter 15, Pain on page 38 of the AMA Booklet of January 1994.
The reasons for the determination read in part as follows:
"A thorough physical examination was carried out. The members of the Panel all agreed that there was over reaction, and abnormal responses to various diagnostic manoeuvres. The patient claimed tenderness to pressure over the cervical spine, shoulders and virtually the whole of both upper limbs.
In particular there was no objective evidence of any neurological deficit, carpal tunnel syndrome, flexor or extensor epicondylitis or algo dystrophy. There was no evidence of joint disorders in shoulders, elbows or wrists. There was some limitation of passive neck movements felt to be due to voluntary inhibition.
Members of the Panel went through in detail the 39 medical reports and relevant documents submitted by the Commission, and found no evidence of significant objective pathology documented."
Although the Panel's original determination on 28 March 2001 did not outwardly distinguish between the right arm claim and the left arm claim, in due course conciliation certificates signed by Mr Steele were issued on 14 May 2001. The certificate as to the right arm claim (2887/00H) described the dispute as being the insurer seeking a review of weekly payments of compensation pursuant to s 62 of the Act (AL26/259). The outcome of the conciliation was said to be the referral of the application to the Panel with the parties at a conference on 14 May 2001 failing to reach agreement. Thus, the application was referred to review at the request of the insurer.
The second certificate dated 14 May 2001 as to the left arm claim (3520/00H) referred to the worker seeking a determination of liability pursuant to s 58 (AL26/260). The outcome of the conciliation was said to be that after referral of the application to the Panel the parties at conference on 14 May 2001 failed to reach agreement. The application was then referred to review at the request of the worker's solicitor.
Request for reconsideration
By letter dated 18 October 2001 the applicant's solicitor (now Paul O'Halloran) sought to have the matter reconsidered pursuant to s 145F of the Act (AL27/261). This letter suggested that evidence had come to hand in the form of reports from Dr Denz that the applicant "is suffering from thoracic outlet syndrome".
I note in passing that by s 145A a medical assessment panel dealing with the medical issue referred to it for determination by a conciliation officer pursuant to s 84R can only be dealt with if there is a conflict of medical opinion on the question. By s 145F if at least 60 days after the determination a person affected satisfies the Director that there is any new evidence that would be likely to affect the determination if it were to be reconsidered by the Panel the Director may again refer the question to the Panel.
By letter dated 15 November 2001 the Director of Conciliation and Review, Mr Monger, addressed the reconsideration request (AL30/422). He noted that the main thrust of the request was to allow the comprehensive reports and medical review of General Practitioner Dr Denz, and the other medical reports which post‑dated the Panel determination, to be reconsidered (that is; purportedly new evidence to the effect that the worker was suffering from thoracic outlet syndrome). The Director concluded that in his view the information submitted was not new evidence for the purposes of s 145F of the Act. "On that basis therefore I do not need to consider whether I exercise my discretion to again refer the question to the Panel".
In the meantime, it seems that the employer had lodged a further application pursuant to s 71 of the Act seeking recovery of weekly payments made to the applicant. That provision allows for recovery of payments to a recipient who is found to be not lawfully entitled to the same.
On 24 June 2002 the Review Officer (Bullen) dismissed the applicant's s 58 application in relation to her left arm claim. In doing so the Review Officer relied on the Panel's original determination (and a subsequent so‑called "clarification" issued by the Panel) that the applicant had no physical disability in either arm. On the same date as to the right arm he found that "the worker has acquired a recognisable psychiatric condition as a sequelae to her compensable physical disability". He ordered that the conflict as to the extent of the applicant's psychiatric condition and the dispute as to her capacity to undertake employment be referred to a Medical Assessment Panel for determination (AL42/451‑452).
Two fronts
I pause to emphasise that on the Review Officer's view of the matter there was an acceptance that the applicant had no "physical" disability in either arm as a consequence of the original determination. These events resulted in the applicant being obliged to pursue her claim for relief on two fronts being, first, her endeavour to obtain a further referral to the original Panel and a reconsideration of the original determination as to both arms and, second, her endeavour as to the right arm claim to deal with the Review Officer's finding that she had acquired a recognisable psychiatric condition, being a matter that had now been referred to a new Medical Assessment Panel with psychiatric expertise.
As to the second front, I will briefly diverge from the strict chronology to say that in addition to keeping an eye on what was being done by the second Panel (Chaired by Dr Anne Warcholak) the applicant was involved in an appeal against Review Officer Bullen's finding. This appeal was upheld by Compensation Magistrate Brown on 11 June 2003 (AL78/530) who ordered that the matter be remitted to a different Review Officer.
In September and October 2003 the matter came on for hearing before a new Review Officer, Mr Brash (AL80/563). The latter noted that his predecessor had dismissed the applicant's s 58 left arm claim on the basis of the original Panel's findings that she did not have a disability, and this finding was sustained on appeal. He noted also that his predecessor had disallowed the employer's claim for discontinuance and recovery of weekly payments in respect of the right arm claim on the basis that her psychiatric condition had to be assessed, but this finding was overturned pursuant to the employer's appeal. Accordingly, it fell to himself (Review Officer Brash) to rule upon the employer's applications for discontinuance and recovery in respect of the right arm claim. In the end, on 12 December 2003, he found (at par 33) that the applicant was not capable of returning to her pre‑accident occupation (relying upon the determination of the second Panel) with the result that "her weekly payments ought not to be interfered with" and the employer's applications should be dismissed.
It will emerge in later discussion that the Commission is pursuing an appeal against the rulings of Review Officer Brash. However, in the meantime, having summarised the position as to this facet of the controversy, I must now return to the first of the two fronts, namely, the applicant's request for reconsideration (being a matter that related to both arms).
The reconsideration issue
On 25 July 2002 the Director decided to forward further documents to the Panel for its reconsideration pursuant to s 145F of the Act being a referral note of Dr Teasdale dated 20 June 2002 and a report of Dr Milne dated 11 October 2001 (AL48/463). The Director said that "the questions put to the Panel are the same as those originally submitted. A suggested draft determination is enclosed herewith".
These events gave rise to various exchanges as to whether the applicant should be reviewed by a differently constituted Panel. Nonetheless, by letter dated 18 November 2002 the original Panel purported to affirm its original determination (AL67/501). The Director passed on this information to the applicant and her husband. This rather confused sequence of events, plus a realisation by the Director that certain reports had not been delivered to the Panel, led to a further letter from the Director to the Chairman which was characterised by counsel for the parties at the hearing before me as a "further referral".
In essence, by letter dated 3 February 2003 from the Director to Chairman Webb, the Director sought to rectify his oversight and reconstitute his response to the applicant's request for reconsideration pursuant to s 145F under the Act. Thus, having summarised the various toings and froings he said "the Panel should now reconsider its original determination based on the reports of Dr Milne dated 11 October 2001 and Dr Teasdale dated 20 June 2002, in conjunction with the other reports of Dr Teasdale of 10 June 2002 and Mr Smith of 7 December 2001" (AL74/517).
The Director went on to say that "the Panel should be mindful of sections 145D and 145E. The questions put to the Panel are the same as those originally referred". For ease of reference, I will call this the "3 February 2003 further referral".
By letter dated 13 February 2003 the Panel responded that "having considered all these reports the panel are unanimous in their agreement not to alter the original determination of 28.3.01" (AL75/521).
In due course, as I have indicated, Review Officer Brash proceeded to hear the State Housing Commission's applications pursuant to s 62 (review of weekly payments with a view to discontinuance or reduction) and s 71 of the Act (recovery of weekly payments where no entitlement) concerning the right arm claim. On 12 December 2003 Review Officer Brash dismissed the Commission's applications.
On 9 January 2004 the State Housing Commission filed a notice of appeal from the decision of Review Officer Brash just mentioned. At that point in time the proceedings of the applicant for certiorari and mandamus had not been instituted. I understand that the appeal has been adjourned sine die on the application of the Commission because the Commission in its appeal seeks to rely on the various findings of the Panel that are under challenge in the certiorari/mandamus proceedings.
I note in passing from the affidavit of Mr Beaver at par 19 that the total amount for weekly payments of compensation paid to the applicant reached $139,995 on 21 October 2004. Weekly payments ceased on 21 October 2004 as the prescribed amount pursuant to the Act had been reached.
It is said on behalf of the Commission that, having regard to the original determination of the Panel of 28 March 2001 (which is thought to be binding on the various adjudicative bodies), the Commission did not arrange for the applicant to be medically reviewed in respect to the alternative diagnosis of thoracic outlet syndrome. It is said that the Commission will be unfairly prejudiced if the Panel's determination is overturned in that it would be futile to now have the applicant examined as to the issue of whether she is suffering thoracic outlet syndrome or some other physical medical condition given the passage of time. It is said the State Housing Commission has relied on the findings of the Panel in a series of long‑running applications at WorkCover and at the Compensation Magistrates Court.
Summary
In summary, then, the upshot of this long and litigious tale, as matters stood at the hearing before me, was as follows.
The original determination of the first panel has not been altered and remains in force. This purports to establish that there is no objective pathology in respect of the right arm and left arm claims but the Panel "believes there are psychological factors contributing to her disability". That determination has led to a finding of 10 per cent total body disability which, being less than 16 per cent, bars the applicant from pursuing a claim for damages at common law. The findings of the second Panel as to the applicant's psychological condition has led to a dismissal of the employer's claim for discontinuance and recovery of weekly payments (now amounting to $139,995) but the discontinue/recovery issue is under appeal (albeit in abeyance until the present application for certiorari and mandamus is resolved).
If the present application fails there is a risk that the applicant may eventually have to pay the amount being claimed by the insurer. If the application succeeds, and the original determination is quashed, the applicant has prospects of pursuing the common claim and better prospects of resisting recovery of the amount being claimed by the insurer.
Overview
It will be useful at this point to provide an overview of the controversy between the parties as a means of understanding the significance of the matters in issue. In doing so, I will draw upon the observations of counsel for the applicant which appear at page 22 of the transcript. It will be necessary also to describe briefly the structure of the Act as it stood at the material time.
The liability of employers to pay compensation to workers for disabilities caused by accidents arising out of or in the course of employment is covered by various provisions of the Act including provisions imposing upon employers an obligation to obtain insurance.
Provision is made for an injured worker to pursue claims at common law in addition to or independent of the Act. However, the broad intention is that both compensation and damages shall not be recoverable. Thus, certain constraints are imposed on awards of common law damages.
More particularly, damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent or that the worker has a significant disability and elects to retain the right to seek damages in accordance with the prescribed procedures. The worker is said to have a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent. An election to retain the right to seek damages for a significant disability is to be made within a strict time limit.
The effect of these provisions is to create three categories of injured workers. The first is that of workers who have a disability of less than 16 per cent. They can only claim workers compensation and have no right of action for common law damages. The second is that of workers who have a disability of between 16 per cent or more but less than 30 per cent. They are required to make an election whether to exercise their right of action at common law provided the election is made within 6 months of the date of commencement of weekly payments under the Act and if it has been agreed or determined that the worker's degree of disability is not less than 16 per cent. The third category comprises workers whose disability has been determined to be 30 per cent or more. They are entitled to exercise their right of action at common law without any limitation on the amount of damages and are entitled to receive statutory benefits in the meantime. No election is required: Re Monger; Ex parte Dutch (2001) 25 WAR 96 at par 24.
In the present case, one of the answers forming part of the Panel's original determination dated 28 March 2001 (Answer 4) was that there was a permanent residual disability based on the patient's complaints of pain and psychological factors of 10 per cent total body disability. This finding has arguably survived the long and rather complicated history of the applicant's endeavours to obtain relief and, in the end, may prove to be decisive, or at least highly influential, as to where the applicant should be placed within the categories allowed for by the Act.
It was against this background that counsel for the applicant submitted that the present application to quash the Panel's original determination and certain related decisions is of considerable significance, notwithstanding that it is now over 4 years since the determination was made. The structure of the Act requires that a determination by a Medical Assessment Panel be treated as final and binding on all courts dealing with the degree of disability issue. Thus, in the circumstances of the present case, if treated as binding, such a determination will prevent the applicant pursuing a claim for damages at common law.
Counsel for the applicant said that it was not just a question of whether or not the applicant was entitled to be placed in the 30 per cent disability category. According to his instructions, there was also a 16 per cent disability issue under notice because a Form 22 election procedure had been activated but was presently standing adjourned sine die, subject to the resolution of these proceedings.
I pause here to note that amongst the various matters being relied upon by the applicant as a basis for quashing the original determination and certain related decisions was a submission that in the circumstances of the present case the Panel should not have been asked to make a determination or express any view as to the degree of disability because the referral giving rise to the determination did not allow for such a finding, even though degree of disability issues are often referred to Medical Assessment Panels. I will return to this aspect of the matter later.
Counsel for the applicant submitted also that one of the matters in issue between the parties is the attempt by the employer to recover all compensation payments made to the worker on the basis that she had no legal entitlement to the same. Accordingly, if the Panel's original determination remains in force then the applicant may be obliged to meet a substantial financial outlay.
Generally described, the position of the applicant was that the original referral and subsequent events had not been dealt with properly with the result that the original determination and certain related decisions should be quashed so that the process of assessing the applicant's right arm claim and left arm claim could be commenced afresh, and in a manner which might ultimately allow her to resist a claim for return of payments previously made and to pursue a common law claim for damages.
The Commission's position as Intervener/Contradictor was that the applicant's claims had been dealt with properly, the original determination and the related decisions were valid and should be upheld. Further, and in any event, in circumstances in which the passage of time was partly due to inordinate delay on the applicant's side, the Court should refuse to grant relieve by way of certiorari in the exercise of its discretionary power.
It is against this background that I must now turn to the applicant's originating motion seeking prerogative relief dated 14 January 2004 and to the order nisi dated 24 February 2004 made by Roberts‑Smith J which reflects the relief sought by the motion.
Paragraph 1 of the originating motion
Paragraph 1 of the applicant's originating motion is directed to the steps taken by the Conciliation Officer, Nigel Steele. The applicant seeks to quash his referral of certain questions to the Panel (purportedly pursuant to s 84R of the Act) on the grounds for application set out in the schedule to the motion.
This brings under notice the original referral letter dated 15 February 2001 and the applicant's objection to the same (by her solicitors Bradford & Co) by letter dated 26 February 2001. In essence, it is said in cl 1.1 of the grounds for application that the Conciliation Officer did not possess the power or jurisdiction to refer questions 3(a), (b), (c), (d), 4 and 5 to the Panel. It is said that if the referral is quashed, then the Panel's determination must be treated as void for jurisdictional error.
More particularly (reflecting the views expressed in the Bradford letter) it is said that question 3(a) (What is the nature of the disability suffered by the applicant?) was not a valid statutory criterion under s 84R and/or s 145A of the Act and was likely to mislead the relevant enquiry. Questions 3(b) (Does she have the capacity to return to her pre‑accident work?), 3(c) (Can she return as a Centre Officer?) and 3(d) (Does she have the capacity to return as a Customer Service Officer, Finance Officer or Verification Officer?) were unanswerable in the absence of any evidence of the exact nature and duties to be performed by the applicant.
It is said further that questions 4 and 5 (as to permanent degree of disability) were not relevant to the disputes before the directorate arising (as they did) under s 58 and s 62 of the Act. It is said that question 5 was not properly referable to the Panel given the requirements of s 145A(2) of the Act (that is; the provision in question indicates that a question may only be referred to the Panel under s 84R if the employer does not agree to pay an amount claimed by the worker by way of an election made for the purposes of s 24 and the worker requests the question be so referred).
Clause 1.2 of the applicant's grounds for application asserts that the Conciliation Officer did not have any power or jurisdiction to refer any questions to the Panel as there was no relevant (or no requisite) "conflict of medical opinion" within the meaning of s 145A(1)(a) of the Act on any relevant statutory question identified in s 84R(1) of the Act.
As to this ground, the respondent submitted that the doubts expressed by Dr Hanrahan (which were later echoed in the Panel's determination) were sufficient to evidence the existence of a conflict of medical opinion.
Paragraph 2 of the originating motion
Paragraph 2 of the applicant's originating motion was to the effect that orders should be made for the purpose of quashing the Panel's original determination (that is, the determination dated 28 March 2001) or subsequent reconsiderations and for orders compelling the Panel to perform its functions or duties pursuant to the Act and according to law.
It was said at cl 2.1 of the applicant's originating motion that the Panel's conclusion in its original determination on 28 March 2001 that "there was no evidence of objective physical disability" was wholly unsupported by the evidence and/or unsustainable and/or Wednesbury unreasonable.
Counsel for the applicant placed reliance upon various medical reports that were delivered to the Panel as part of the referral in support of her contention that there was evidence of objective physical disability and that the finding made by the Panel was patently unsustainable.
It was said further in cl 2.2 of the grounds that the Panel's original determination on 28 March 2001 was not supported by adequate reasons contrary to s 145E(3) of the Act. I note in passing that by s 145E(3) the determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director and are to be given to the Director within 7 days after the day on which the determination is made.
More particularly, it was said in support of this ground that there was no, or no adequate reference to, or discussion of medical reports or opinions favourable to the applicant including those of Mr Smith, Dr Will, Dr Denz, Dr Cook, Ms Young and Ms Domiati. Further, it did not appear from the Panel's determination as to why these latter reports were (as they must have been) rejected or discounted by the Panel. The Panel's reasoning is unclear as to what (if any) weight is attached to the various medical reports (and evidence) placed before it. There was no, or no adequate explanation of the relevance of the so‑called "abnormal responses to various diagnostic manoeuvres". It was not said what exactly these were and how they impacted upon the Panel's determination. To the extent that it was required to do so the Panel did not answer question 5 (that is, as to permanent degree of disability the disability in terms of percentage loss of the body or faculty effected). Moreover, there was no evidence or findings as to the exact physical nature of the applicant's job duties.
The applicant, in her written submissions, contended also that the process of reconsideration and purported redetermination was flawed. In particular, the purported redetermination was undertaken by Dr Webb alone, there was no physical re‑examination of the worker, and it breached the statutory obligation to give adequate reasons.
I pause here to note that in addressing the process of reconsideration the applicant advanced lengthy submissions as to why the so-called first, second, third and fourth purported determinations were flawed. However, it emerged during the course of the hearing before me that the decisions or rulings being challenged by the applicant were essentially the 15 February 2001 original referral; the Panel's resultant or original determination of 28 March 2001; the further 3 February 2003 referral; the Panel's resultant or further determination of 13 February 2003.
In other words, counsel on both sides appeared to recognise that some of the exchanges between the Director and the Panel arising from the applicant's request for reconsideration (especially between the date of the original determination (28 March 2001) and the further referral (3 February 2003) should be characterised as "clarificatory" or "intermediate" steps which set the scene for the further referral and determination pursuant to the reconsideration process. The intermediate steps were not directly under attack, although, on the applicant's case, they supported an inference to be drawn from the further determination of 13 February 2003 that the Panel simply decided to affirm its original determination without giving proper weight to the so‑called "new evidence" which had prompted the applicant's request for reconsideration.
It followed from this analysis that certain of the applicant's grounds for application (especially grounds 4 and 5) which concerned the intermediate steps were thought to be not directly relevant to the matters in issue at the hearing save for the applicant's submission that the exchanges comprising the intermediate steps showed that the Panel was not minded to reconsider or review its original determination and was therefore biased against the applicant.
I note in passing also that counsel on both sides seemed to accept that if the original determination was held to be flawed, and thus invalid, it might not be necessary to rule upon the further referral and determination as they depended essentially upon the validity of the original determination. In other words, a purported reconsideration and affirmation of the original determination could not validate an earlier determination if that determination was flawed.
Paragraph 3 of the originating motion
Paragraph 3 of the applicant's originating motion sought to have a writ of mandamus issued against the Director for the purpose of compelling him to perform his functions and duties pursuant to Reg 10B of the Act.
I note in passing that by Reg 10B when referring a question to a medical assessment panel the Director, a conciliation officer, a review officer or a Compensation Magistrates Court is to provide the Panel with any medical certificates or reports or other documents that the referrer may have that are relevant to the question to be determined by the Panel.
The applicant contended that the Director's decision (on 25 July 2002), to selectively forward only the referral note of Dr Teasdale (dated 20 June 2002) and report of Dr Milne (dated 11 October 2001) to the Panel for its s 145F reconsideration, constituted an error of law or jurisdictional error (denial of natural justice) which (possibly) tainted or affected the Panel's (purported) redetermination.
More particularly, it is said that the Director failed or refused to forward many other reports (post‑dating the Panel's original determination in March 2001) which constituted "new evidence" for the purpose of s 145F of the Act such as those prepared by Dr Denz, Dr Whyte, Dr Goodman, Dr Goodheart, Mr Smith, Dr Quintner, Dr Teasdale (dated 10 June 2002), Dr Watson and Professor Harper. As a consequence, Mr Webb's purported reconsiderations under s 145F (on 8 August 2002 and/or 5 September 2002) were tainted, legally ineffectual or a nullity.
The applicant said in her written submissions (at par 3.1) that in all the circumstances it can be discerned that there was no mere failure to send the relevant documents to the Panel but an actual considered refusal to do so. It is said that the Conciliation Officer's failure, and the Director's continuous refusal to provide certain reports not forwarded to the Panel expeditiously or at all, has tainted the Panel's decision‑making process.
The Commission's stance
It will be apparent from the preceding discussion that the controversy between the parties has had a long and convoluted history. The applicant's originating motion and the order nisi raised many issues.
Against this background, counsel for the Commission made a determined effort to identify the matters thought to be principally in issue. Thus, usefully, the Outline of Submissions by the Intervener/Contradictor (the applicant's employer) commenced in this way:
"1.In issue are essentially two determinations made by the Medical Assessment Panel ('MAP') under the Worker's Compensation and Injury Management Act 1981 (WA) ('the Act'), and the two referrals on which these decisions were based. There are thus only four relevant, operative decisions which could possibly be the object of certiorari – not seven as suggested by the applicant.
2.The four relevant decisions are:
2.1The referral on or about 15 February 2001 of questions to MAP by Conciliation Officer Steele, done pursuant to s 84R and 145A of the Act. The decision or decisions to do so are reflected in the affidavit of the applicant (herein 'A', followed by the relevant page number) at p 100 (in respect of her right arm) and p 102 (her left arm). The questions are set out at A103-4. The actual referral does not appear to be before the Court. [Decision 1]
2.2The resultant determination on 28 March 2001 of the referred questions by MAP in terms of s 145E (A257-8). [Decision 2]
2.3The further referral on 3 February 2003 by the Director of Workcover WA ('the Director'), pursuant to s 145F, of the same questions to MAP in the light of 'new evidence' (A517-520). [Decision 3]
2.4The determination on 13 February 2003 by MAP, pursuant to s 145F, that the answers to the questions remain the same despite the 'new evidence' (A521-2). [Decision 4]
3.The 'decisions' referred to in paragraphs 3, 4 and 5 of the Schedule to the order nisi have been superceded or are no longer operative by reason of the Director's decision in 2.3 above and MAP's decision in 2.4 above. The Director's referral in 2.3 was made to correct earlier, administrative oversights in not including pursuant to s 145F for consideration of MAP medical reports by Mr C Smith, dated 7 December 2001 and by Dr J Teasdale dated 10 June 2002.
See s 55 of the Interpretation Act 1984 (WA)."
Section 55 of the Interpretation Act provides that a statutory power or duty may be exercised or performed as often as is necessary to correct any error in any previous purported exercise or performance of the power or duty.
I feel obliged to mention also that the reference in par 3 above to the "decisions" in pars 3, 4 and 5 of the schedule having been superseded picks up the point I made in earlier discussion concerning the so‑called "clarifactory" or "intermediate" steps. It emerged as the hearing before me proceeded that these intermediate steps could not be characterised as relevant decisions or determinations under challenge, although, arguably, they had a bearing in evidentiary terms upon the further referral of 3 February 2003 (Decision 3) and the further determination of 13 February 2003 (Decision 4).
The Commission's submissions
Counsel for the State Housing Commission by his written submissions dated 22 June 2005 raised issues as to the late application for certiorari and as to the exercise of the Court's discretion in that regard. As I have indicated, counsel submitted that the application before the Court brought under notice four relevant or contentious decisions.
As to the first contentious decision, being the referral of questions to the Panel (or MAP) by the Conciliation Officer on 15 February 2001, counsel submitted that all the questions were properly posed. There was no evidence that the Conciliation Officer failed to forward all the relevant medical reports to the Panel. The Panel recorded that it had gone through in detail the 39 medical reports and relevant documents submitted by the Commission. There was a conflict of medical opinion having regard to the reports of Dr Hanrahan of 11 February 2000 concerning the applicant's right arm and of 28 June 2000 concerning her left arm.
As to the Panel's determination of 28 March 2001, being the second contentious decision, the reasons provided by the Panel were sufficient and satisfied the requirements of s 145E(3) in that they referred to the medical reports and documents before the Panel and expressed a conclusion by reference to the same. Reliance was placed upon certain recently decided cases which suggest that the reasons of a tribunal should not be scrutinized over zealously. The law does not demand that reasons should extend beyond those sufficient to enable the lay reader and, in some circumstances, the medical reader, to determine how the Panel reached its decision.
As to the third contentious decision, being the further referral on 3 February 2003 by the Director, it was said by counsel for the Commission that in terms of s 145F(1) the Director can only make a further reference to the Panel if the Director is satisfied that two prerequisites have been met, namely, that, first, there is new evidence that could not have been submitted to the Panel and, second, that such evidence would be likely to affect the determination of the question if it were reconsidered by the Panel.
It follows from this that the Director cannot simply forward to the Panel all reports which post‑date the prior determination of the Panel. He can forward only those in respect of which he is relevantly "satisfied" that they meet the criteria set out in the previous paragraph. He does not have a duty to forward all reports which have come to hand after the original determination, as the applicant contends. In this case the Director gave detailed consideration to the issue of which report should be sent, as reflected in his letter dated 3 February 2003 at AL517.
I pause to remind myself that by letter to Mr F B Webb of 3 February 2003 the Director acknowledged that there were two reports on the file at the directorate that were not referred to the Panel with the Director's request of 25 July 2002. Such reports being that of Mr C Smith dated 7 December 2001 and that of Dr J Teasdale dated 10 June 2002.
The Director said also that as the above documents were reports held on file for the purposes of Reg 10B then they should have been referred to the Panel with the Director's letter of 25 July 2002 as accompanying documents. The fact that they were not came about as a result of an administrative oversight by the Director. It was thought to be appropriate that the oversight be rectified and the two reports in question be referred to the Panel.
The Director went on to say that the Panel should now reconsider its original determination based on the reports of Dr Milne dated 11 October 2001 and Dr Teasdale dated 20 June 2002, in conjunction with the other reports of Dr Teasdale of 10 June 2002 and Mr Smith of 7 December 2001. This tends to suggest that certain reports were not placed before the Panel.
As to the Panel's further determination on 13 February 2003, being the fourth contentious decision, it is said by counsel for the Commission that none of the applicant's grounds of application set out in par 7 of the Schedule to the order nisi had been made out. The new evidence submitted to the Panel raised the possibility that in February 2003 the applicant was relevantly suffering from thoracic outlet syndrome. The Panel dealt squarely with this issue and did not put up any "super added requirement". The circumstance that thoracic outlet syndrome constituted a relevant disability was rejected by the Panel. It confirmed its earlier answers on an interpretation of the additional medical reports.
Further, there was no basis for saying that Dr Roddy did not participate in the further determination just because she did not actually sign the relevant document. The Act specifically provides that only the Chairman needs to sign the determination. The determination itself recorded (at AL521) that the Panel considered the further reports and at AL522 that the Panel were unanimous in its finding.
I note in passing that this latter criticism of the further determination was not pressed by counsel for the applicant at the hearing before me, and I will therefore not give it any further consideration.
Counsel for the Commission concluded his written submissions by contending that even if grounds of review were found to have been made out then the Court should refuse any relief by reason of the undue and unexplained delay and the prejudice which would result to the employer. The employer is currently involved in an appeal to the Compensation Magistrate premised upon the binding nature of the determinations of the Panel in issue in these proceedings.
It is said further that the live issues in that appeal, and in the determination of the Review Officer under appeal, turn on a determination made by a differently constituted Medical Assessment Panel, that is; the determination of 16 August 2002 of the second Panel (Chaired by Dr Anne Warcholak) mentioned in earlier discussion. That Panel found the applicant to be suffering from psychiatric disorders. It would be futile or without utility, counsel submitted, to quash the referrals or determinations of the first Panel after such a prolonged delay, and where the focus of the dispute between the applicant and her employer has shifted to the psychiatric issues.
Legal principles
Order 56 rule 11 of the Rules of the Supreme Court provides that an order nisi for a writ of certiorari to remove an order or other proceeding of an inferior court or tribunal for the purpose of its being quashed shall not be granted unless the application is made within 6 months. It appears from Seaman Civil Procedure at par 56.11.1D that in other cases undue delay may lead the court to refuse this discretionary remedy and it is suggested that the better view is that r 11 should not be applied by way of analogy.
It appears from Re Smith; Ex parte Rundle (1992) 6 WAR 299 that it is doubtful whether the 6 month time limit applied to decisions of bodies or persons other than inferior courts or statutory tribunals. However, the nature of the remedy of certiorari was such that the Court would require it to be sought promptly because great inconvenience could be caused by permitting a decision to stand and allowing people to act on the assumption that the decision was valid.
Seaman Civil Procedure indicates that the Director of the Conciliation and Review Directorate, acting pursuant to s 93(6) of the Act, is not a Tribunal within the meaning of the rule: Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129. Further, in considering whether, in terms of r 11, delay is accounted for to the satisfaction of the Court the quality of the applicant's explanation is not viewed in isolation but is to be weighed in the balance with any other relevant considerations. Generally, mere delay will not debar an applicant from obtaining relief and if there is no prejudice it may not be difficult to conclude that it is just and equitable to extend the time. The merit may be relevant as may the general importance of the issue raised and the overriding public interest in maintaining the rule of law: Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385.
The courts are inclined to hold that bodies entrusted with the power of affecting legal rights are required to act judicially. They must act within jurisdiction and will be obliged to observe the rules of natural justice by acting impartially and by allowing to the party likely to be affected an opportunity to be heard. If such a body falls into error then relief can be obtained by way of certiorari.
Thus, the High Court held in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 that a recommendation made by a Mining Warden, if it is one which constitutes a condition precedent to an exercise of power that will affect legal rights, will have the requisite legal effect upon rights to attract certiorari.
A body obliged to act judicially falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers and thereby misconceives the nature of the function it is performing: Craig v State of South Australia (1995) 184 CLR 163. The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580.
It emerges, then, from these cases, that the decision or determination to be quashed is that which is capable of having an effect upon the rights of an interested party.
A consideration of the legislative scheme applicable to the circumstances of the present case establishes that the relevant decisions identified in earlier discussion, being the original and further referrals and the original and further determinations of the Panel, affected or had the propensity to affect rights and are therefore subject to review by way of certiorari: Re Knezevic; Ex parte Carter [2005] WASCA 139. Let me explore this point.
By s 84R of the Act a Conciliation Officer may if permitted to do so by s 145A of the Act refer a question as to the nature or extent of a disability, whether a disability is permanent or temporary, or a worker's capacity for work for determination by a Medical Assessment Panel.
Section 145A relevantly requires a conflict of medical opinion on the question between a medical practitioner engaged by the worker and a medical practitioner provided and paid by the employer. The following provisions of the Act provide that a Panel may comprise two or three medical practitioners included in a register maintained under the Act. In determining the questions, a 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.
Further, by s 145D(2) a Panel may, for the purpose of assisting it in determining the question, require the worker concerned to attend before the Panel, answer questions put by a Panel, produce documents, or consent to another person producing documents, and submit to medical examination by a Panel.
A Panel must make its determination as soon as practicable but in any event within 28 days after the date on which a medical examination of the worker is carried out by the Panel. By s 145E(3), the determination and the reasons for making it are to be given in writing signed by the Chairman in a form approved by the Director. By s 145E(5), the determination is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant.
As I indicated in earlier discussion, s 145F provides that if at least 60 days after the determination is made a person who is affected by the determination satisfies the Director that there is any new evidence that could not have been submitted to the Panel, and would be likely to affect the determination of the question if it were to be reconsidered by the Panel, the Director may again refer the question to the Panel. In that event, the Panel may vary its previous determination or rescind it and make a new determination.
It emerges from the reasoning in Re Monger; Ex parte Welsby [2003] WASCA 191 that if an applicant is not personally re‑examined in circumstances where there is a need for a further determination or reconsideration there is a risk that the reasons expressed by the Panel on the second occasion may have been overtaken by events subsequent to the initial examination and may not accurately reflect the applicant's current condition.
This Court has considered the nature and scope of a Panel's duty to give reasons on various occasions in recent years. Not all of the decisions can be reconciled: Re Knezevic; Ex parte Carter (supra) per McLure JA at par 22. However, a number of guidelines can be discerned in the decided cases.
The extent and content of the reasons to be given by a Panel will necessarily depend upon the circumstances of the particular case, including (but not limited to) the material before it, the nature of any conflict in the medical reports, the issues in dispute and the findings of any examination by the Panel itself.
The adequacy of the reasons is to be assessed against the statutory purpose of requiring them, which is to enable the persons concerned to understand why the Panel came to the conclusion it did and to enable them to discern whether there has been reviewable error.
Where provided with conflicting opinions, the Panel should explain the way in which it has dealt with those conflicts. The reasons must be sufficient to enable the reasoning process to be followed, by which is meant the essential intellectual process by which the conclusions are arrived at. In considering whether the reasoning process is adequately disclosed, regard should be had to what is expressly stated and what can be reasonably inferred.
The reasons do not need to be lengthy nor elaborate nor take the form of a judgment of the Court. They must lead to or explain the determination of the question actually referred to the Panel and must explain each discrete determination made.
It was held by the Full Court in Re Croser; Ex parte Rutherford (2001) 25 WAR 170 that the provision of inadequate reasons for making a determination constitutes an error of law, as it is a failure to comply with the provisions of s 145E of the Act, and confound prerogative relief.
It was said in that case also that in order for reasons to be adequate they must convey, on a fair construction, the basis of a determination. What will suffice will vary from case to case, dependant upon the nature of the areas of contention to be addressed.
In Re Croser; Ex parte Rutherford (supra) the Panel failed to provide adequate reasons as there was no explanation of how and why it arrived at its conclusions, against the background of conflicting medical reports. The Full Court held that while the Panel did not have to explain in analytical detail why it accepted or rejected the content of each medical report before it, it was required to indicate its independent assessments in light of the various medical reports and the reasons why it had arrived at them.
McLure JA observed in Re Knezevic; Ex parte Carter (supra) at par 31 that the Panel is required to reach its own opinion on the questions for determination. It is also not bound to accept the opinion of any of the medical experts relied on by the parties. The Panel does not perform an adjudicative function. Its function is investigative in nature; the Panel descends into the arena to make its own assessment, having regard to the medical opinions in the reports.
In the second Croser case, being Re Croser; Ex parte Rutherford [2003] WASCA 8 Rolfe AJ observed at par 46 that the determination of a Panel has some close similarity to a medico legal report, which usually sets out the history obtained, the symptoms complained of, the examination carried out, what that examination discloses and a view of the extent, nature and severity of the medical condition supported by the doctor's reasons for reaching that conclusion. The Panel's task is to determine from all the medical reports before it, its examination of the worker and its own experience, the conclusion as to which of those differing opinions it favours in the case before it.
However, Rolfe AJ went on to say that the expression of the conclusion is made insufficient by the Act. The Act demands that the Panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader and, in some cases, the medical reader, to determine how the Panel reached its decision. In these circumstances, one task for the Panel is to determine which medical reports its accepts and which it does not. However, it is insufficient simply to make that statement.
Barker J made these observations in Re Malone; Ex parte Casey [2003] WASC 266 at 63 in the course of holding that the reasons in question, being more a set of conclusions than considered reasons for determination, were inadequate for the purposes of the Act:
"63.The difficulty with the Medical Panel stating whether a worker is fit for a particular type of work is that it has a tendency to border on the expression, not of a medical opinion, but a factual assessment, of what a person can do, having regard to the person's medical condition. If the expression of such an opinion is an expression of medical opinion, as it must be under the Act, then, given the important consequences flowing from the expression of such a medical opinion under the Act, it must be an informed opinion based upon material facts concerning the particular types of employment being considered and be supported by appropriate reasoning.
64.Here, there is no development of the reasoning, save that the Panel have presumed that, because the applicant had indicated to them an ability to do certain types of physical work, he would therefore have the ability to undertake the list of possible occupations referred to in question 2. The applicant says that the Panel have incorrectly stated what he informed them. Even if that were not in issue, it remains incumbent upon the Panel adequately to demonstrate that a worker has a full unrestricted capacity for work of a nominated kind. It must display in its reasoning some knowledge of the particular duties and skills required in the performance of particular occupations, otherwise its expression of opinion will be tantamount to speculation and not a considered opinion. The reasons for the answer to question 2 must disclose some appreciation of the work duties involved in the nominated jobs. In this case, the reasons of the Panel do not do that."
I note in passing that in Re Malone; Ex parte Casey (supra) there was an issue before the Court as to whether the Panel's finding was unreasonable. His Honour construed this as meaning unreasonable in a Wednesbury sense, that is to say that no reasonable Panel properly instructed could have come to that view: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Let me now return to the issues in the present case.
Delay issue
Counsel for the Commission submitted that a Medical Appeal Panel is a "Tribunal" within the meaning of O 56 r 11(1) of the Supreme Court Rules in that it operates in a formalised decision‑making context and has to give reasons for its decisions which constitute a record for the purposes of certiorari. Moreover, as appears from s 145E(5) a determination by the Panel is to be regarded as final and binding.
It follows from this view of the matter, counsel submitted, that an application for an order nisi had to be instituted within 6 months of the original determination of the Panel made on 28 March 2001 (Decision 2) and within 6 months of the further determination made on 13 February 2003 (Decision 4). Counsel accepted that the original and further referrals initiated by the Conciliation Officer or the Director would not appear to be the decision of a Tribunal with the result that the 6 month rule did not apply in respect of the referral decision.
The Commission's stance was that the present application for relief by way of originating motion was only instituted on 19 January 2004, being well outside the time limit of 6 months in respect of the subject determination. Further, in any event, any application for certiorari has to be brought within a reasonable period and the Court has a discretion, which is regularly exercised, to refuse relief even if the grounds for review have been made out. Factors going to the exercise of this discretion were said to be undue delay on the part of an applicant, prejudice to other parties and the futility of granting the relief.
On the other hand, counsel for the applicant submitted that the Court had been provided with a persuasive and sufficient explanation for the alleged delay in instituting the proceedings. He referred to the matters set out in the affidavit of David Lyall sworn 4 July 2005 which was filed and served pursuant to directions made at the hearing of the application. Counsel submitted also that the issue concerning the 6 month time limit or other issue as to delay was a matter to be dealt with at the order nisi stage. An order nisi having been granted, it was not open to the parties to revisit the question of delay at this stage.
I will not traverse the entirety of the matters referred to in the affidavit of the applicant's husband, David Lyall. In essence, he said that the applicant's condition and mounting legal costs resulted in him taking over the conduct of his wife's increasingly complicated endeavours to obtain relief in the period following the original determination. This was a daunting task owing to the convoluted history of the matter and, being a layman, he was not fully conversant with the various legal procedures and the importance of time limits. By the time he eventually found his way to a new legal adviser it proved to be an exceedingly difficult task to reconstruct the narrative in an orderly way and to draw together the evidentiary materials that would be required for an affidavit supporting the application for prerogative relief.
Finding as to delay issue
I am not persuaded that the determinations of the Panels should be characterised as rulings or orders made by a Tribunal within the meaning of O 56 r 11 of the Supreme Court Rules, notwithstanding that such determinations are described in s 145E(5) as "final and binding". It is important to understand that a determination can be rescinded pursuant to a review undertaken pursuant to s 145F of the Act. Further, as I noted in my survey of the relevant legal principles, the decided cases suggest that the Panel undertakes an investigative rather than an adjudicative function. Its determination has an effect upon the rights of the parties but is not finally determinative of those rights. I give weight also to the reasoning in Re Monger; Ex parte WMC Resources Ltd (supra).
Accordingly, in my view, it was not necessary for the subject application to be instituted within 6 months of the original and further determinations. The crucial question as to those determinations and the related referrals turns upon whether there was an unreasonable degree of delay on the part of the applicant.
The Commission's argument proceeds from the premise that a very lengthy period of some years has now elapsed since issue was drawn between the parties. It is said that the employer and others with an interest in the matter have proceeded on the assumption that the original determination, having survived the convoluted history of the matter, has had operative effect, and steps have been taken pursuant to that assumption. Moreover, it is said that the controversy is now proceeding along a different course in that, as a consequence of other rulings and determinations, attention is now being focused upon the applicant's psychological condition.
I am minded to give considerable weight to the facts and matters adverted to by the applicant's husband in his affidavit and the explanation for delay he has provided. This matter has an exceedingly convoluted history and I can well appreciate the difficulty facing any person who is obliged to review all of the materials, and especially the voluminous medical reports, in order to reconstruct the exact sequence of events with a view to presenting the history of the matter to legal advisers, and ultimately to a court, in a coherent form. I add to this the consideration adverted to in the decided cases that the merits may be relevant as may the general importance of the issue raised and the overriding public interest in maintaining the rule of law: Highway Hotel Pty Ltd v City of Bunbury (supra).
The process of assessing and reviewing claims made pursuant to provisions of the Act is often a protracted process with various diversions along the way. Accordingly, the present situation cannot be compared to an attempt to overturn the decision of a Planning Commission or some other administrative body many years after the event when the interested parties have assumed that the decision was valid. The statutory context within which claims of the present kind are advanced suggests that the interested parties will make allowance for the possibility of diversions and reversals.
Further, if the applicant is able to establish that the original determination and related decisions were flawed, this may serve to explain why attention is now (erroneously on the applicant's case) being focused upon the applicant's psychological condition rather than upon her physical condition. I cannot see that the present interest in her psychological condition, of itself, is a basis for denying relief upon the ground of delay.
It will be apparent from earlier discussion in which I endeavoured to provide an overview of the matters in issue that the question of whether the original determination and related decisions can be quashed is a matter of real significance to the applicant. It will be apparent from discussion to this point, and the discussion which follows, that there are persuasive arguments in her favour in respect of various issues.
For all these reasons, having regard to the explanation for delay, the merits of the applicant's case and the public interest in maintaining the rule of law in the sense of ensuring that prescribed procedures are observed, I consider that the delay issue should not be allowed to stand in the way of the applicant's claim for relief. Moreover, I consider that it is not open to the Commission to raise this objection now that the order nisi has been granted.
However, if it be held that the determinations of the Panel should be characterised as the rulings or orders of a Tribunal, with the result that the 6 month time limit applies, I am of the view that, in any event, the time limit should be extended, so that the claim for relief can proceed. To my mind, the reasons excusing delay I have just described are sufficient to justify an extension of the time limit.
The original referral (Decision 1)
It emerges from earlier discussion that Conciliation Officer Steele, as appears from his conference note, had before him on 1 December 2000 the Commission's application for review of weekly payments of compensation pursuant to s 62 of the Act in respect of the right arm claim. As a discrete matter, he had before him also an issue concerning the determination of liability pursuant to s 58 of the Act in respect of the left arm claim. According to his conference note the parties agreed that the medical evidence was identical as to both applications.
It appears to be inherent in the Conciliation Officer's view of the matter that as the insurer's adviser, Dr Hanrahan, could not find any objective pathology and was unable to make a diagnosis, there was a dispute as to the nature and extent of the worker's disability and her capacity to perform her duties. It was against this background that the original referral to a Panel was effected by the letter dated 15 February 2001 (AL23/104). That referral put five questions to the Panel being first, the nature of the disability; second, the extent of the disability; third, the applicant's capacity for work; fourth, whether there was a permanent residual disability and, if so, the degree of disability; and, fifth, as to any permanent disability the percentage loss of the faculty affected.
The Commission submitted that a Conciliation Officer has wide powers to refer questions to a Panel which may relate to the existence of a compensable disability and to the relevant entitlements. The referral was made pursuant to s 84R which provides that, if permitted by s 145A to do so, a Conciliation Officer may refer a question as to the nature or extent of a disability, whether a disability is permanent or temporary or a worker's capacity for work for determination by a Medical Assessment Panel.
In essence, s 145A provides that a question may be referred for determination only if there is a conflict of medical opinion on the question to be referred between a medical practitioner engaged by the worker and a practitioner provided by the employer, and one of the parties wishes the proceedings to continue.
Counsel for the Commission submitted that the precondition of a referral alluded to in s 145 had been fulfilled in that the questions referred to the Panel were of the kind contemplated by s 84R and there was a conflict of medical opinion with respect to the same in that the applicant sought to rely upon medical reports which brought into issue Dr Hanrahan's opinion that there was an absence of pathology.
The applicant's grounds for application in pars 1.1(b) and 1.3 suggested that the referral was invalid because the third question was unanswerable in the absence of any evidence as to the exact nature and duties performed by the applicant because certain relevant medical reports were not forwarded to the Panel. These grounds were largely abandoned at the hearing. However, the applicant contended that the third question as to the applicant's capacity for work and the extent of any physical limitations upon her capacity was not a valid question having regard to the statutory criteria under s 84R and/or s 145A and was likely to mislead the relevant authorities.
Further, it was said that the Conciliation Officer did not have any power to refer any questions to the Panel as there was no relevant conflict of medical opinion. It was said also that in the circumstances of the present case, s 145A(2) represented an important qualification upon the power to refer and had not been complied with in the circumstances of the present case.
As to this aspect of the controversy, I see merit in the Commission's submissions and am not persuaded to the applicant's point of view. I do not consider that s 145A(2) qualifies the operation of s 84R and s 145A(1) in the manner contended for by the applicant in the circumstances of the present case. To my mind, the questions referred to the Panel fell within the ambit of the criteria set out in s 84R and could be characterised as a legitimate endeavour to clarify the matters in issue by reducing such matters to their constituent parts by means of a series of precise questions.
I am of the view that in circumstances where the dispute between the parties, as manifested at the conference before the Conciliation Officer, seemed to turn on whether there was any pathology or (in layman's terms) a specified physical injury or affliction affecting both arms, with a different view as to that central controversy being taken by those medical practitioners who had examined the applicant, there was essentially a conflict of medical opinion as to each of the questions referred to the Panel. Accordingly, in my view, the Panel had jurisdiction to deal with the questions put to it and the Conciliation Officer and/or Director cannot be held to have misconceived the nature of the powers underlying the reference.
It follows that I am not persuaded that the original referral (Decision 1) should be quashed upon the basis contended for by the applicant.
Before leaving this aspect of the controversy, I have to say that the concession made by counsel for the applicant concerning the capacity to perform duties issue was not made clearly, and it certainly appears from the transcript that various submissions were made about this aspect of the matter. It was said that the list of duties being performed by the applicant was not put before the Panel. However, in the event of any question being raised as to the nature and effect of the concession, I have to say that, in any event, I did not see merit in the objection referred to at cl 1.1(b) of the applicant's grounds for application. The nature of the duties being performed were described in the medical reports and the Panel itself examined the applicant. Accordingly, in my view, it was in a position to formulate an answer to the question put to it concerning this aspect of the matter.
The original determination of 28 March 2001 (Decision 2)
The answer given by the Panel to the first question referred to it concerning the nature of the disability suffered by the applicant was to this effect:
"There was no evidence of objective physical disability, but the Panel accepted that there was subjective disability based on her reports of pain. The Panel believes there are psychological factors contributing to her disability."
The answers given by the Panel to the other questions seem to have been influenced by this central finding. Thus, the Panel found that the applicant had no physical limitations on her capacity for work. The Panel believed that for non‑physical reasons she did not have the capacity to return to her previous employment. The Panel determined that there was a permanent residual disability based on the patient's complaints of pain and psychological factors of 10 per cent total body disability. It was said that members of the Panel went through in detail the 39 medical reports and relevant documents submitted by the Commission, and found no evidence of significant objective pathology documented.
The Commission contended that the reasons provided by the Panel were sufficient and satisfied the requirements of s 145E(3) bearing in mind that the essential requirement was to provide reasons sufficient to enable the lay reader and, in some circumstances, the medical reader, to determine how the Panel reached its decision: Re Croser; Ex parte Rutherford (supra). Counsel submitted that the reasons of a Tribunal should not be scrutinised overzealously to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
As to this aspect of the dispute, I am of the view that the Panel's original determination was not supported by adequate reasons. It is apparent from my review of the decided cases bearing upon this issue that it is necessary for a Panel to provide adequate reasons as to how and why it arrived at its conclusions, against the background of conflicting medical reports. The Full Court in this State has held that while the Panel does not have to explain in analytical detail why it accepted or rejected the content of each medical report, the Panel was required to indicate, at least in general terms, the reason why certain reports or expressions of opinion were accepted and others rejected. To my mind, it is not sufficient simply to assert that the Panel has been through the medical reports and documents placed before it in detail.
This conclusion is reinforced when one looks at a number of the reports. Dr Cook spoke of the applicant's injury as being a chronic bilateral upper limb neuropathic pain syndrome supported by objective tests and evidence (AL155); Dr Denz referred to his examination demonstrating marked tissue tenderness in the right upper limb (AL157); Dr Smith referred to myofascial problems with both upper arms (AL167) and went on to refer to the applicant having multiple sites of tenderness and reduced sensation which are partly objective and partly subjective findings.
It therefore appears that there was some basis in the evidence for concluding that there was an objective physical disability and in these circumstances one would expect the Panel's reasons to go into greater detail as to why the opinion of these and other medical practitioners was rejected and a finding made that there was "no evidence of significant objective pathology documented". The Panel's reasoning is unclear as to what, if any, weight it attached to the various medical reports and evidence placed before it.
It emerges from my view of the decided cases that a failure to provide adequate reasons can be characterised as an error of law sufficient to support the provision of relief by way of certiorari. Accordingly, I am satisfied that relief should be provided on this ground.
Before leaving this aspect of the dispute, I have to say that I am not persuaded by the applicant's contention that the original determination was Wednesbury unreasonable. Such a conclusion requires that no reasonable Panel properly instructed could have come to the view it in fact formed. However, the evidence does not support a conclusion of that gravity. The Panel had examined the applicant. After that examination, and having regard to the reports before it, the Panel was arguably in a position to arrive at a conclusion similar to that of Dr Hanrahan. However, its examination of the applicant and review of the medical reports before it do not relieve the Panel of its obligation to set out in good and sufficient reasons why it arrived at the answer given to Question 1 which proved to be central to its assessment of the applicant.
The further referral of 3 February 2003 (Decision 3)
I must begin by reminding myself that by s 145F it was open to the applicant after the making of the original determination of 28 March 2001 to seek a reconsideration of the questions referred to the original Panel. If the applicant was able to satisfy the Director that there was any new evidence that could not have been submitted to the Panel and would be likely to affect the determination of the question previously referred if it were to be reconsidered by the Panel, the Director may again refer the question to the Panel. In the event of a further referral it was open to the Panel to vary its previous determination or rescind it and make a new determination.
I will not return to the evidence concerning this issue at any length. However, in essence, it seems that, as appears from the report of Mr Smith dated 7 December 2001 (being a report which included reference to MRI evidence and pictures of the scalene muscles) the possibility emerged that the applicant's problems might be due to thoracic outlet syndrome. On the applicant's case, there were various reports bearing upon this thesis which constituted "new evidence" for the purposes of s 145F of the Act. Moreover, it might be thought that the earlier reports and medical reports generally concerning the applicant had to be evaluated in the light of the thoracic outlet syndrome thesis, and should therefore be regarded as part of the new evidence.
The applicant contended at cl 3 of her grounds for application that the Director's decision on 25 July 2002 to selectively forward only the referral note of Dr Teasdale dated 20 June 2002 and report of Dr Milne dated 11 October 2001 to the Panel for its s 145F reconsideration constituted an error of law or jurisdictional error which possibly tainted or affected the Panel's purported further determination.
The applicant placed reliance upon reg 10B which requires the Director to forward all relevant reports to the Panel. It was said that the Director failed or refused to forward many other reports post‑dating the Panel's original determination in March 2001 which constituted new evidence such as those prepared by Dr Denz, Dr Whyte, Dr Goodman, Dr Goodheart, Mr Smith, Dr Quintner, Dr Teasdale, Dr Watson and Professor Harper.
As I indicated in earlier discussion, some reliance was placed on the events that I have characterised as the intermediate steps preceding the further referral of 3 February 2003. It was said that the intermediate steps including the various exchanges between the Chairman of the first Panel and the Director suggested that the referral was tainted because the surrounding circumstances made it inevitable that the Panel would not be inclined to alter its original determination.
I pause to remind myself that in its final form, after the toing and froing comprising the intermediate steps, the further referral of 3 February 2003 made by the Director was expressed in terms that "the Panel should now reconsider its original determination based on the reports of Dr Milne dated 11 October 2001 and Dr Teasdale dated 20 June 2002 in conjunction with the other reports of Dr Teasdale of 10 June 2002 and Mr Smith of 7 December 2001". The Director went on to say that it would be appreciated if the Panel would consider these reports and provide a determination. In doing so the Panel was to be mindful of s 145D and s 145E of the Act. The questions put to the Panel were to be the same as those originally referred.
The Director then said in his letter:
"Attached for your information is a list of medical reports and other relevant documents. It indicates the documents submitted with the original referral, then the subsequent documents, and finally the two remaining documents. It details the documents that had been referred to the Panel in accordance with the provisions of Regulation 10B.
I understand that during the course of the proceedings the Panel received some documentation directly from other sources such as Dr C Denz and Dr K Hames. These documents are not part of the documents or reports for the purposes of Regulation 10B. Accordingly any consideration you have given to them should be explained in your determination."
Counsel for the applicant referred to the withholding of certain materials referred to in the report of Dr Smith; that is, a CT scan and important MRI results plus reports interpreting these against the background of the Panel's historical position that there was no evidence of objective physical disability or no evidence of significant objective pathology demonstrated. Counsel submitted that if the Director was satisfied that Dr Smith's report satisfied the requirements in s 145F then he ought to have been equally satisfied that the identified withheld materials were equally referrable. His decision not to present these was arbitrary and constituted a jurisdictional error and a denial of procedural fairness resulting in jurisdictional error.
It was said further that the report of Dr Denz (which included the Denz compilation of various evidentiary materials) was not referred by the Director, and it was immaterial that certain of the materials preceded the original determination. Dr Denz's supplementary report dated 30 August 2001 was similarly not referred.
The Commission's stance was that the Director was not obliged to forward all reports or even all reports post‑dating the original determination but only those in respect of which he was relevantly "satisfied" that they met the criteria established by the statutory provisions. It was said that the reference in reg 10B to the provision to the Panel of any medical certificates or reports or other documents that the Director may have that are relevant to the question to be determined should be read as applying only to documents which satisfied the statutory criteria. In other words, reg 10B is referring only to relevant documents in this context. It is said that the Director's letter of referral of 3 February 2003 represented a fair and appropriate summation of what was required by way of reconsideration.
It is apparent from the terms of the further referral of 3 February 2003 that, notwithstanding some initial hesitation, the Director was ultimately persuaded that there were sufficient grounds for a reconsideration upon the basis of new evidence, and this inevitably meant, when the matter was eventually referred to the Panel, that materials bearing upon the thoracic outlet syndrome thesis had to be placed before the Panel as part of the reconsideration process.
I am of the view, for the reasons relied on by the applicant, that the further referral was flawed because the Director failed to place before the Panel the materials required to give a full and proper reconsideration of the questions previously submitted to the Panel. The instruction given by the Director that the Panel was to consider only the further reports specifically mentioned in his referral letter was not justified by the terms of the statutory provision or reg 10B, having regard to the new evidence bearing upon the thoracic outlet syndrome to be considered, and thus amounted to a jurisdictional error.
It follows that, in my view, Decision 3 (which is said to be constituted by the further referral of 3 February 2003) should be quashed.
The further determination of 13 February 2003 (Decision 4)
As to this issue, I must begin by reminding myself that the effect of the further referral was to allow the Panel to affirm its original determination or to vary it or to rescind it. By s 145F(2) the Panel was at liberty to refer to anything that was available to it when previously determining the matter as well as doing anything that it could do if the question were referred to it for determination in the first instance. The process provided for by s 145D and s 145E continued to apply with the result that the Panel was to act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms. It was not bound by rules of practice nor evidence. It was at liberty to re‑examine the applicant.
It is apparent from the Panel's further determination dated 13 February 2003 that the Panel did not require the applicant to attend before the Panel again. The Panel referred to what I have called the intermediate steps and to a conclusion the Panel had arrived at in the course of those steps that the original determination should stand. It went on to say that it had considered the two further reports of Mr C Smith dated 7 December 2001 and Mr J Teasdale dated 10 June 2002. It summarised some of the reasoning in earlier reports. It reminded the Director that by its original determination the Panel had determined that there was a permanent residual disability of 10 per cent total bodily disability based on the patient's complaints of pain and psychological factors having regard to the Assessment of Disability Guide.
The Panel then said that "having considered all these reports the Panel are unanimous in their agreement not to alter the original determination of 28.3.01".
At the hearing before me counsel for the Commission submitted that the Panel dealt squarely with the thoracic outlet syndrome issue and proceeded to reject it. However, I have to say that this does not appear expressly from the reasoning of the Panel in its further determination. The relevant letter does not contain any discrete passage in which the Panel purports to weigh up the pros and cons bearing upon the thoracic outlet syndrome issue or in which it says explicitly why the reports bearing upon that thesis are thought to be unconvincing and rejected.
In one or two places in the relevant letter the Panel has emphasised or highlighted qualifying adverbs such as "most likely" or "probably" as if to suggest a degree of scepticism about the opinions being advanced by Mr Smith and Dr Teasdale. For example, in dealing with Dr Teasdale's report of 10 June 2002, after quoting a passage purportedly dealing with some of the medical evidence, the Panel has emphasised in capital letters the passage "This suggests a possibility of a thoracic outlet syndrome". The word "possibility" is underlined.
The inference to be drawn from this process of emphasising and underlining seems to be that the opinions of Mr Smith and Dr Teasdale about the thoracic outlet syndrome as a cause of the applicant's problems are expressed in a cautious or qualified way, and are therefore not sufficiently forthright to be given much weight or acted upon. An inference of this kind might well be drawn by an experienced medical practitioner who was accustomed to reading between the lines or deconstructing the veiled meaning of medical reports presented to him.
However, the fact remains that the Panel's line of thought about the thoracic outlet syndrome issue is not entirely clear upon the face of its determination. The Panel does not provide specific reasons as to why the reports relied upon in support of the thoracic outlet syndrome thesis should be rejected, and little or no weight given to the thesis itself. Moreover, the sequence of events and exchanges that I have called the intermediate steps strongly suggest that the Panel was simply not minded to alter its original determination.
The indications are that the Panel was of the view that a burden of proof lay upon the applicant to make out a strong or convincing case that the original determination should be varied or rescinded and that she had failed to discharge that burden. However, the statutory provisions did not place such a burden upon the applicant. The task of the Panel was to arrive at a proper determination as to the questions placed before it in the light of the new evidence and, in doing so, to comply with the procedures applicable to the original determination including the requirement in s 145E(3) that reasons are to be provided with respect to the determination made. The Panel is an investigative body and in dealing with the reconsideration process was obliged to proceed accordingly.
It follows from all of this that, in my view, the Panel misconceived its task and this amounted to a jurisdictional error. The review was not conducted in a manner that complied with the requirements of the Act and the reasons provided by the Panel were not sufficient to explain why it was minded to reject the thoracic outlet syndrome thesis and to affirm its original determination.
Accordingly, I consider that the further determination of 13 February 2003 should be quashed.
Mandamus
Paragraph 3 of the applicant's originating motion was to the effect that the Director should be required to show cause, if necessary, as to why a writ of mandamus should not be issued against the Director for the purpose of compelling him to perform his functions and duties pursuant to reg 10B of the Act on the grounds for applications set out in the schedule to the order nisi.
It emerges from earlier discussion that, in my view, there was a failure on the part of the Director to deliver certain documents to the Panel in the course of the further referral. However, I am of the view that it is unnecessary to explore the question of whether a writ of mandamus should issue at any length. It follows from my earlier findings that the original determination is to be quashed. The consequence of that appears to be that the referrals contemplated by the Conciliation Officer initially will have to be commenced afresh and with a new Panel being constituted. Accordingly, the referral in each case will have to be commenced afresh with the reports and other materials to be delivered to the new Panel being determined at that time.
Accordingly, I will not pursue this aspect of the matter unless I am pressed to do so by either party for the sake of completeness pursuant to liberty to apply.
Summary
I am of the view that in the circumstances of this case the applicant is not precluded from applying for relief by way of a writ of certiorari, notwithstanding that the application was not instituted within 6 months after the decisions sought to be challenged and a degree of delay on the part of the applicant in instituting the proceedings. I consider that the original referral of certain questions to the Medical Assessment Panel on 15 February 2001 (described in this judgment as Decision 1) was valid. I consider that the original determination of the Panel of 28 March 2001 (Decision 2) can be impeached for jurisdictional error, and the order nisi for a writ of certiorari should be made absolute in respect of that matter as to quash the original determination.
In strict analysis, the conclusion I have just expressed makes it unnecessary for me to make findings as to the further referral of 3 February 2003 (Decision 3) and the further determination of the Panel of 13 February 2003 (Decision 4) because the validity of these decisions is dependent upon the validity of the original determination. However, for the sake of completeness, I have reviewed the issues concerning Decisions 3 and 4 and am of the view that errors of law amounting to jurisdictional error have been identified and that these decisions should be quashed also.
For the reasons given in the judgment, I do not presently consider that it is necessary for me to make any order in respect of the application for a writ of mandamus, but I will hear from the parties in that regard. With that thought in mind I will allow to the applicant and to the Commission liberty to apply.
I will hear from the parties also as to whether any further orders or directions are required.
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