Seddon v Medical Assessment Panel

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SEDDON -v- MEDICAL ASSESSMENT PANEL [2015] WASC 286

CORAM:   MITCHELL J

HEARD:   30 JULY 2015

DELIVERED          :   7 AUGUST 2015

FILE NO/S:   CIV 2737 of 2014

BETWEEN:   RAOUL THOMAS SEDDON

Applicant

AND

MEDICAL ASSESSMENT PANEL
First Respondent

REGISTRAR, ARBITRATION SERVICE OF WORKCOVER WA
Second Respondent

MIRVAC (WA) PTY LTD
Third Respondent

Catchwords:

Judicial review - Failure to determine question in accordance with statute - Misunderstanding the nature of a statutory power - Whether inadequate reasons a jurisdictional error - Mandatory relevant considerations - Discretionary grounds for refusing certiorari - Delay - Abuse of process - Futility

Workers' compensation - 1993 scheme - Degree of disability - Question referred to Medical Assessment Panel by arbitrator - Effect of 2004 amendments limiting access to judicial review

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 210

Result:

Application granted
Certiorari issued

Category:    B

Representation:

Counsel:

Applicant:     Mr R E Lindsay

First Respondent          :     No appearance

Second Respondent      :     No appearance

Third Respondent        :     Mr M A Tedeschi

Solicitors:

Applicant:     S C Nigam & Co

First Respondent          :     No appearance

Second Respondent      :     No appearance

Third Respondent        :     SRB Legal

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491

Craig v South Australia (1995) 184 CLR 163

Donges v Ratcliffe [1975] 1 NSWLR 501

Drysdale v WorkCover WA [2014] WASC 270

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Hammond Worthington v Da Silva [2006] WASCA 180

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation [2015] WASC 237

Milwain v Sim [2009] VSC 75; (2009) 31 VAR 53

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Public Service Association (SA) v Industrial Relations Commission (SA) [2011] SASCFC 14; (2011) 109 SASR 223

Public Service Association (SA) v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 249 CLR 398

Re Anastas; Ex parte Welsby [2002] WASCA 83

Re Bannan; Ex parte Suleski [2001] WASCA 289

Re Croser; Ex parte Rutherford [2001] WASCA 422; (2001) 25 WAR 170

Re Croser; Ex parte Rutherford [2003] WASCA 8

Re Gillett; Ex parte Rusich [2001] WASCA 111

Re Knezevic; Ex parte Carter [2005] WASCA 139

Re Malone; Ex parte Casey [2003] WASC 266

Re McWilliam; Ex  parte Juras (Unreported, WASC, Library No 960637, 11 October 1996)

Re McWilliam; Ex parte Pajdak [2002] WASCA 203

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212

Re Monger; Ex parte Welsby [2003] WASCA 191

Re…

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Details
Case
[2015] WASC 286
Decision Date

CaseChat Overview and Summary

In the case of Seddon v Medical Assessment Panel, the applicant sought judicial review of decisions made by a Medical Assessment Panel under the Workers' Compensation and Rehabilitation Act 1981 (WA). The dispute centred on the validity of answers provided by the panel to questions referred to them by an arbitrator. The applicant argued that the panel failed to determine the questions in accordance with the statute, misunderstood the nature of their statutory power, and that the inadequate reasons provided constituted a jurisdictional error. Additionally, the applicant contended that the panel failed to consider mandatory relevant considerations, and that there were discretionary grounds for refusing certiorari, including delay, abuse of process, and futility. The case also considered the effect of amendments made to the Act in 2004, which limited access to judicial review.

The primary legal issues before the court were whether the panel's failure to validly answer certain questions led to the invalidity of the other answers provided, and if so, the extent to which these invalid answers could be severed from the valid parts of the decision. The court also needed to determine whether the panel's failure to consider mandatory relevant considerations amounted to a jurisdictional error, and whether there were any discretionary grounds for refusing to grant certiorari. The court further needed to assess the impact of the 2004 amendments on the applicant's right to seek judicial review.

The court found that determining the validity of the answers to questions 1 to 5 in the June 2014 determination required considering the validity of the earlier answers given in June 2013. If the questions were validly answered in June 2013, the panel could only reconsider the answers under section 145F of the Act. However, the court held that the process under section 145F was not engaged in this case. Instead, the panel only had the power to answer questions 1 to 5 in June 2014 if the questions were not validly answered in the June 2013 determination. The court concluded that the panel could discharge its unperformed duty to answer the questions in June 2014 if they were not validly answered in June 2013. The court granted leave for a writ of certiorari to quash the earlier answers, and issued certiorari to quash the answers given to questions 1 to 5 in the June 2013 determination. However, given the agreement as to the degree of psychiatric disability, the court found no utility in issuing certiorari to quash the answer given to question 6 in the June 2013 determination.

The court's decision hinged on the interpretation of the relevant statutory provisions and the principles of severability of administrative decisions. The court found that the invalidity of certain answers did not necessarily render the entire decision invalid, and that invalid parts of an answer to a single question referred to a panel could be severable from other parts of the same answer. The court also held that the 2004 amendments did not affect the applicant's right to seek judicial review in this case. The court's decision provided clarity on the scope of judicial review in cases involving medical assessment panels and the impact of jurisdictional errors on administrative decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Determining the validity of the answer to questions 1 - 5 in the June 2014 determination necessarily entails considering the validity of the earlier answers. If the questions were validly answered in June 2013, then the panel could only reconsider the answers under s 145F of the Act. The process under s 145F was not engaged in the present case. The panel only had power to answer questions 1 ‑ 5 in June 2014 if the questions were not validly answered in the June 2013 determination. If questions were not validly answered in June 2013, the panel could discharge its unperformed duty to answer the questions in June 2014.[20][20] Minister for Immigration v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [51] - [53]; [155] - [156]; Interpretation Act s 55; Re Monger; Ex parte Welsby [2003] WASCA 191 [58] - [60]. It is, therefore, necessary to determine the validity of the answers given in June 2013 in dealing with the challenge to the validity of the answers given in June 2014. That is particularly so for question 4. Given that the issue of their validity must be determined in any event, leave should be granted to apply for a writ of certiorari to quash the earlier answers. For the above reasons, certiorari should issue to quash the answers given to questions 1 - 5 in the June 2013 determination. In light of the agreement as to the degree of psychiatric disability, there is no utility in issuing certiorari to quash the answer given to question 6 in the June 2013 determination. In Seddon [No 2], Edelman J granted certiorari quashing the whole of the September 2010 determination, although he found jurisdictional error to have been committed only in the answer to question 4. There does not appear to have been any debate before him as to whether jurisdictional error in answering one of the questions affects the validity of the answers to the balance of the questions. In my view, there is no reason why it should do so, particularly when it has been recognised that invalid parts of an answer to a single question referred to a panel may be severable from other parts of the same answer in an appropriate case.[21][21] United Construction Pty Ltd v Maketic [2003] WASCA 138 [38]-[39]; Hammond Worthington v Da Silva [2006] WASCA 180 [68]. Section 210 of the Act enables an arbitrator to refer 'a question' as to specified matters to a medical assessment panel. Where, as occurred in the present case, more than one question is referred to a panel the failure by the panel to validly answer one of the questions does not inevitably lead to the conclusion that other questions have not been validly answered. In the circumstances of the present case, certiorari can issue to quash the answers to questions 1 - 5 in the June 2013 determination. The parties have reached agreement in relation to the subject matter of question 6, and the error I have identified in the answers to questions 1 - 5 does not affect the answer to question 6. The applicant submitted that the decision in Bhardwaj was inconsistent with the proposition that invalid parts of an administrative decision affected by jurisdictional error could be severed from other parts of the decision. The reasons of the High Court do not have that effect.