Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation)

[2006] NSWSC 739

Reported Decision: 66 NSWLR 206

New South Wales

Supreme Court

CITATION:	Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation) and Ors [2006] NSWSC 739
HEARING DATE(S):	18/07/2006
JUDGMENT DATE :	25 July 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	Summons dismissed; The plaintiff is to pay the first defendant's costs.; No order as to the costs in relation to the second and third defendants.
CATCHWORDS:	ADMINISTRATIVE LAW - Judicial review - whether Registrar and Medical Appeal Panel correctly exercised their functions under the Workplace Injury Management and Workers Compensation Act 1998 - obligations of Registrar under s327(4) - admission of fresh evidence by Medical Appeal Panel - relationship between s324 and s328(3) - exercise of court's discretion.
LEGISLATION CITED:	Supreme Court Act 1970 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549 at 559 Bruce v Cole (1998) 45 NSWLR 163 at 183-184 Buck v Bavone (1976) 135 CLR 110 Campbelltown City Council v Vegan [2004] NSWSC 1129 Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Craig v South Australia (1994-1995) 184 CLR 163 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 Inghams Enterprises Pty Limited v Iogha & Ors [2006] NSWSC 456 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 Re Minister for Immigration and Multi-Cultural Affairs ; Ex Parte Applicant S 20/2002 (2003) 77 ALJR 1165 Shanahan v Trojan Workforce Recruitment (No 4) Pty Limited [2005] NSWSC 610 Smith v Browne (1974) VR 842 at 847 Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949 78 CLR 389 Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 Wice v Sardale Pty Limited [2005] NSWSC 1264
PARTIES:	Peter Zuanic - Plaintiff Gypro-Tech (Australia) Pty Limited (in liquidation) - 1st Defendant The Registrar of the Workers Compensation Commission of NSW - 2nd Defendant Mr Rory O'Moore, Dr David Bowers and Dr Brian Williams Constituting the Medical Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 - 3rd Def
FILE NUMBER(S):	SC 30059/2005
COUNSEL:	Mr D Shoebridge - Plaintiff Mr J Kearney - 1st Defendant Submitting Appearances - 2nd and 3rd Defendants
SOLICITORS:	Taylor & Scott - Plaintiff Rankin Nathan - First Defendant IV Knight, Crown Solicitor - 2nd and 3rd Defendants
LOWER COURT FILE NUMBER(S):	WCC-7363-2004
LOWER COURT DATE OF DECISION:	22/06/2005

- 33 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HOEBEN J

Tuesday, 25 July, 2006

30059/2005 – Peter ZUANIC v GYPRO-TECH (AUSTRALIA) PTY LIMITED (in liquidation) & Ors

JUDGMENT

1 HIS HONOUR:

Nature of Claim
By summons dated 25 July 2005 the plaintiff sought the following declarations and orders:

“1. A declaration and order that the decision of the third defendant before the Workers Compensation Commission of NSW in the matter of Peter Zuanic v Gypro-Tech (Australia) Pty Limited dated 22 June 2005 involved:
(a) Jurisdictional error and was beyond power.
(b) An error on the face of the record; and
(c) a denial of natural justice to the plaintiff.
2. A declaration and order that the decision of the second defendant in matter No WCC7363 of 2004 before the Workers Compensation Commission of NSW in the matter of Peter Zuanic v Gypro-Tech (Australia) Pty Limited dated on or about 28 April 2005 involved:
(a) Jurisdictional error and was beyond power.
(b) An error on the face of the record; and
(c) a denial of natural justice to the plaintiff.
3. An order that the decisions referred to in Nos 1 and 2 above be quashed.
4. An order that the second and third defendants carry out their functions in accordance with ss327 and 328 of the Workplace Injury Management and Workers Compensation Act 1998 and otherwise in accordance with law.”

2 The plaintiff alleges that he suffered injury in the nature of industrial hearing loss whilst employed by the first defendant (hereafter called Gypro-Tech). Gypro-Tech through its workers compensation insurer, GIO Workers Compensation (NSW) Pty Limited (hereafter called GIO), has appeared to oppose the plaintiff’s claim for relief. The second defendant (hereafter called the Registrar) and the third defendants (hereafter called the Medical Appeal Panel (MAP)) have submitted to the orders of the Court.

Factual background

3 There was no real dispute between the parties as to the factual background to the claim, except in relation to what orders were made by the arbitrator on 5 August 2004. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs. The parties provided the Court with an agreed bundle of documents. References to the evidence will be made by reference to the contents of that agreed bundle (AB).

4 The plaintiff (date of birth 28 June 1942) was employed by Gypro-Tech as a ceiling fixer for approximately three and a half – four years. He ceased that employment on or about 24 July 2002. While employed by Gypro-Tech he was required to work on building sites and as a result was exposed to general construction noise, including excavators, bulldozers, backhoes and machinery such as jackhammers.

5 Before his employment with Gypro-Tech, the plaintiff had worked for at least ten years for other employers as a ceiling fixer also in circumstances where he was exposed to general construction noise. After leaving the employ of Gypro-Tech in July 2002, the plaintiff continued to work as a ceiling fixer with other employers and was again exposed to general construction noise, at least until August/September 2004. The precise dates of that subsequent employment were not clarified.

6 On or about 24 July 2002 the plaintiff submitted a compensation claim form to GIO as the workers compensation insurer of Gypro-Tech. That claim form alleged that the plaintiff had developed industrial deafness as a result of his employment with Gypro-Tech (AB 47). In accordance with the provisions of s17 of the Workers Compensation Act 1987 (WCA) such a claim is made against the last “noisy” employer regardless of whether or not employment with that employer actually caused the industrial deafness. In support of that compensation claim, the plaintiff also served on GIO an audiogram of Dr A Eshragi, dated 19 July 2002. That audiogram indicated a binaural hearing loss of 6.5% (AB 51).

7 It is not clear what happened in relation to that claim. It does not appear to have progressed. Certainly no payments were made in response to it by GIO. I infer from subsequent events that apart from the service of the compensation claim form and audiogram, to which I have referred, nothing further was done by the plaintiff to pursue that claim.

8 On 16 December 2003 the plaintiff, at the request of his solicitors, was examined by Dr Peter Noyce who assessed his binaural hearing loss at 18.1% which was equivalent to a whole person impairment (WPI) of 9% (AB 22).

9 By letter dated 19 February 2004 the plaintiff made a claim for lump sum compensation on Gypro-Tech in respect of 9% WPI in addition to medical expenses pursuant to s60 WCA.

10 By correspondence in reply GIO, on behalf of Gypro-Tech, disputed the claim on the basis that the report from Dr Noyce revealed that the plaintiff had worked in “noisy” employment after leaving Gypro-Tech and accordingly Gypro-Tech was not the last “noisy” employer for the purposes of s17 WCA.

11 Proceedings were commenced in the Workers Compensation Commission (WCC) on 6 May 2004 by way of Application to Resolve a Dispute. A Reply was filed on behalf of Gypro-Tech on 27 May 2004 disputing the claim. Ms Ann Britton was appointed as arbitrator for the matter under the Workplace Injury Management and Workers Compensation 1998 (the 1998 Act).

12 The matter was listed before the arbitrator for teleconference on 5 August 2004. There is a dispute as to what orders were made by the arbitrator on that occasion. There is no dispute that the plaintiff was given leave to amend his Application to Resolve a Dispute to plead a deemed date of injury of 24 July 2002, ie the day on which he had originally made a claim for compensation. Nor is there a dispute that the assessment of the industrial hearing loss was referred to an approved medical specialist (AMS), Dr Scoppa.

13 It seems clear from correspondence and from the affidavits that in 2004 the legal advisers of Gypro-Tech were unaware of the previous claim and were unaware of the existence of the July 2002 audiogram. The legal advisers of the plaintiff appear to have been aware of this material since they had requested and received from GIO in June 2003 a copy of the GIO file in relation to the plaintiff which included a copy of the 24 July 2002 claim form and the 19 July 2002 audiogram (exhibit C).

14 The competing positions as to what happened on 5 August 2004 are as follows. On behalf of the plaintiff it is submitted that the plaintiff sought from the arbitrator and was granted leave to serve and file with the WCC within 7 days a copy of the claim form dated 24 July 2002 and the audiogram dated 19 July 2002 together with an amended statement as to the plaintiff’s employment after he left Gypro-Tech.

15 On behalf of Gypro-Tech it was submitted that the plaintiff’s solicitors were directed by the arbitrator to file and serve within 7 days the original claim form, the audiology report of 19 July 2002 and an amended statement of the plaintiff setting out in detail his employment history.

16 The persons who attended the teleconference were Ms Britton, the arbitrator, Ms Allard, on behalf of the solicitors for the plaintiff and Ms Andrews, on behalf of the solicitors for Gypro-Tech.

17 Ms Andrews swore an affidavit dated 18 April 2006 in which she deposed that she had no independent recollection of the orders made by the arbitrator in the conference. She relied upon her subsequent report to the client which recorded:

“The applicant has been referred to Dr Scoppa AMS for assessment. Leave was granted to the applicant to amend the date of injury to 24 July 2002. The applicant is to file and serve an amended statement regarding his employment history within 7 days. The applicant is to serve an audiology report dated 19 July 2002 within 7 days.”

18 Ms Allard did not swear an affidavit on this issue. Tendered in the plaintiff’s case (exhibit A) were her notes of the teleconference which included the following notation:

“Applicant seeks to amend application to amend date of 24/7/02 for claim for compensation.
Matter referred to AMS – Dr Scoppa.
Applicant to file and serve claim and report within 7 days.
Applicant to provide amended statement.”

19 Two documents were produced by the arbitrator. The first is headed “Teleconference arrangements and outcomes”. That document, which is an annexure to the affidavit of Ms Allard of 11 July 2006, relates to the teleconference of 5 August 2004. It concludes with the following notation:

“Orders by Consent:
1. Leave is granted to the applicant to amend the date of injury and notice of injury from 19 February 2004 to 24 July 2002 respectively.
2. The applicant to file and serve within 7 days a further statement detailing his work history post 24 July 2004. These documents to be forwarded to the AMS.
3. The applicant is referred to AMS Dr Scoppa for assessment of permanent impairment.”

20 The arbitrator also prepared a document headed “Request for Medical Assessment by Approved Medical Specialist” dated 5 August 2004. (AB 126-127) On the first page of that document, the following is recorded:

“Original claim was not provided with the application. Applicant has been directed to file it.”

On the second page of that document in response to the request “list any late evidence admitted into proceedings to be sent to AMS” the following is recorded:

“1. Further statement by applicant detailing his work history post 24 July 2002.
2. Original claim form and audiogram (7/02).
Directions were made on 5.8.04 directing applicant to file and serve above documents within 7 days.”

21 No oral evidence was given on this issue. The Court was invited to determine this factual question based on the above documents and submissions. I have concluded that the submissions on behalf of Gypro-Tech are to be preferred on this question. In my opinion, a direction was made by the arbitrator to the plaintiff’s legal advisers requiring them to file and serve a copy of the claim form and the audiogram within 7 days, ie on or before 12 August 2004.

22 I have reached this conclusion because it is consistent with all of the notations made in relation to the teleconference. Such a conclusion is also consistent with the notes of the arbitrator which appear to be contemporaneous. Although there is no specific reference to the claim form and audiogram in the record of “orders by consent”, I consider this to be an oversight by the arbitrator. The sentence “These documents to be forwarded to the AMS” in the notation of order 2 suggests that the arbitrator had in mind not just the statement but other documents. I take those other documents to be the claim form and the audiogram.

23 It is common ground that the legal advisers of the plaintiff did not file and serve any of these documents. In particular the audiogram of 19 July 2002 was not filed and served. The importance of this was that since a copy of the audiogram was not filed, it was not included in the documents forwarded to the AMS for him to consider.

24 On 21 September 2004 the AMS examined the plaintiff. A certificate was issued by the AMS assessing the plaintiff as having a binaural hearing loss as a result of his employment of 20.2% which converted to 10% WPI. The solicitors for Gypro-Tech received that certificate on 5 October 2004 and for the first time realised that the audiogram on 19 July 2002 had not been included in the medical material sent to the AMS. After further requests the solicitors for Gypro-Tech received a copy of the audiogram of 19 July 2002 from the solicitors for the plaintiff in late October 2004.

25 On 3 November 2004 Gypro-Tech filed an application with the WCC to appeal against the decision of the AMS, pursuant to s327 of the 1998 Act. Submissions were filed in support of the application which relied upon subss 327(3)(b), (c), (d) of the 1998 Act. On 8 November 2004 submissions were filed on behalf of the plaintiff opposing the application to appeal.

26 On 29 March 2005 a delegate of the Registrar of the WCC made a determination pursuant to s327(4) as follows:

“Having read the submissions of the applicant I am satisfied that the applicant complies with s327(5) and that at least one of the grounds of appeal under s327(4) of the Workplace Injury Management and Workers Compensation Act 1998 appears to exist.”

27 On 22 June 2005 the MAP delivered its decision. It admitted as fresh evidence the audiogram of Dr Eshragi, dated 19 July 2002. It revoked the certificate issued by the MAS and issued a new certificate which determined the plaintiff’s binaural hearing loss at 7.3% which converted to 4% WPI.

28 It is the latter two determinations which have been challenged in these proceedings.

Relevant legislation

29 The following provisions of the 1998 Act are relevant:

“3. The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a) To assist in securing the health safety and welfare of workers and in particular preventing work related injury,
(b) To provide:

· Prompt treatment of injuries, and

· Effective and proactive management of injuries, and

· Necessary medical and vocational rehabilitation following injuries,

In order to assist injured workers and to promote their return to work as soon as possible,
(c) To provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) To be fair, affordable, and financially viable,
(e) To ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) To deliver the above objectives efficiently and effectively.”
“ 320 Definitions
In this Act:
Approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
Medical Dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable. “
“320 Appointment of approved medical specialists

(1) The President is, in accordance with criteria developed by the Minister in consultation with the Council, to appoint medical practitioners to be approved medical specialists for the purposes of this Part.
(2) The terms of any such appointment may restrict an approved medical specialist to medical disputes of a specified kind.
(3) The President is to ensure that, as far as reasonably practicable, arrangements are in place to facilitate the taking place of assessments under this Part in the regional areas of the State.
(4) The Authority may arrange for the provision of training and information to approved medical specialists to promote accurate and consistent assessments under this Part.
(5) The Registrar may from time to time issue a list of the medical practitioners who are for the time being appointed as approved medical specialists under this section. The list is evidence of the appointments concerned.
(6) A matter or thing done or omitted to be done by an approved medical specialist in the exercise of functions under this Act does not, if the matter or thing was done or omitted in good faith, subject the approved medical specialist personally to any action, liability, claim or demand. “


“321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.

322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
Note: Section 65A of the 1987 Act provides for impairment arising from psychological/psychiatric injuries to be assessed separately from impairment arising from physical injury.
(4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made. “

“324 Powers of approved medical specialist on assessment
(1) The approved medical specialist assessing a medical dispute may:
(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c) require the worker to submit himself or herself for examination by the approved medical specialist.
(2) If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination:
(a) the worker’s right to recover compensation with respect to the injury, or
(b) the worker’s right to weekly payments,
is suspended until the examination has taken place.
(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.

325 Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a "medical assessment certificate") as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.
(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.

326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.
(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.
328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.

329 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(2) A certificate as to a matter referred again for further assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. “


“331 Guidelines
Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments. “

“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. “

“357 Power of Commission to require information
(1) The Commission may give a direction in writing to any person (whether or not a party to a dispute before the Commission) requiring the person:
(a) to produce, at a time and place specified in the direction, specified documents in the possession of the person, or
(b) to furnish specified information within a time specified in the direction.
(2) The direction may require the documents to be produced or the information to be furnished:
(a) to the Commission or to another party to a dispute before the Commission, in the case of a direction given to a party to the dispute, or
(b) to the Commission in the case of a direction given to a person who is not a party to a dispute before the Commission.
(3) A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.
Maximum penalty: 50 penalty units.
(4) If a person fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Commission or a court have the document or information admitted in the proceedings.
(5) The Commission may exercise powers under this section at the request of a party to a dispute before the Commission or of the Commission’s own motion.
(6) The Registrar has and may exercise any power of the Commission under this section.
(7) The regulations or Rules may make provision for or with respect to any of the following matters:
(a) exempting specified kinds of documents or information from the operation of this section,
(b) specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,
(c) specifying cases and circumstances in which the Commission is not to exercise the Commission’s powers under this section.
358 Power of Commission to provide documents and information to a party
(1) When documents or information relevant to proceedings before the Commission are produced or furnished to the Commission by a party to the proceedings or another person (whether or not pursuant to a requirement under this Act), the Commission may produce or furnish the documents or information to:
(a) any other party to the proceedings, or
(b) any other party’s legal representative, or
(c) a medical practitioner (including an approved medical specialist).
(2) The Commission may, when furnishing or producing information or documents to a legal practitioner or medical practitioner, direct that the person must not cause or permit disclosure of the information, or the information in the documents, to another party.
(3) A legal practitioner or medical practitioner must not contravene the Commission’s direction under this section.
Maximum penalty: 50 penalty units.
(4) The regulations may make provision for or with respect to any of the following matters:
(a) exempting specified kinds of documents or information from the operation of this section,
(b) specifying cases and circumstances in which the Commission is required to exercise the Commission’s powers under this section,
(c) specifying circumstances in which documents or information produced or furnished to the Commission may not be produced or furnished by the Commission to another party to the proceedings or to a legal practitioner or medical practitioner. “

Relief under s69 Supreme Court Act 1970

30 There is no statutory appeal from the determination of the Registrar’s delegate or from the determination of the MAP. Accordingly, the plaintiff seeks relief under s69 Supreme Court Act 1970. In the last two years there have been a number of applications for such relief in respect of these provisions of the 1998 Act: Campbelltown City Council v Vegan [2004] NSWSC 1129 (Wood CJ at CL); Shanahan v Trojan Workforce Recruitment (No 4) Pty Limited [2005] NSWSC 610 (James J); Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 (Hislop J); Wice v Sardale Pty Limited [2005] NSWSC 1264 (Hislop J); Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 (Studdert J); Inghams Enterprises Pty Limited v Iogha & Ors [2006] NSWSC 456 (Latham J); Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515 (Johnson J).

31 The principles are clear. Their application is less so. Craig v South Australia (1994-1995) 184 CLR 163 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore the relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

32 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] clarified the kinds of error identified in Craig:

“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as a decision maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

33 Relief may be granted in the case of error of law on the face of the record where the face of the record includes the reasons expressed by the tribunal for its ultimate determination (Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28], Vegan at [39], s69(4) Supreme Court Act 1970.)

34 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119, Bruce v Cole (1998) 45 NSWLR 163 at 183-184, Vegan at [41].

Plaintiff’s submissions
Arbitrator’s direction

35 I propose to deal with the submissions put on behalf of the plaintiff in a different order to that in which they were set out in the written submissions and in oral argument. It seems to me more convenient to deal with the matters by reference to the timeframe in which they occurred.

36 It was submitted on behalf of the plaintiff that the direction by the arbitrator to the plaintiff that he file and serve an amended work history, the original claim form and a copy of the audiogram was beyond power. As an alternative, it was submitted that even if the arbitrator had such power such direction was of no effect since it was not “in writing” as required by s357 of the 1998 Act.

37 There is a preliminary difficulty with this submission. No challenge has been made in the summons to this direction of the arbitrator. Even if such a challenge had been raised in the summons, it would have to overcome the privative provisions in s350 of the Act. In that regard it was common ground that for the purposes of s350 the arbitrator was the Commission. Section 350 prevents any appeal from a decision of the Commission except as provided by the Act.

38 In any event, it seems clear from the provisions of ss357 and 358 that the direction by the arbitrator was within power. Section 357 gives power to order production of documents to the Commission or to another party at a time and place specified in the direction.

39 It is true that due to an oversight the direction which I have found related to the audiogram of July 2002 was not in terms recorded on the “teleconference arrangements and outcomes” document completed by the arbitrator and therefore, strictly speaking, was not “in writing”. It needs to be kept in mind, however, that the order was made by consent and was duly recorded by both sides. Accordingly, the failure to issue a formal direction in writing by the arbitrator (if it be a failure) is at most “a want of form” and accordingly in accordance with s350(2) it is not vitiated.

40 I wish to make it clear that there is nothing in the above analysis which runs counter to the decision of James J in Shanahan v Trojan Workforce Recruitment (No 4) Pty Limited [2005] NSWSC 610. His Honour was there dealing with an entirely different question. There had been an attempt by an arbitrator to restrict the information going to an AMS and this was held to have been beyond power and consequently to have affected the ability of the AMS to properly carry out the function prescribed under the Act.

41 It follows that it is not open to the plaintiff to challenge the direction of the arbitrator in this Court.

Decision of Registrar

42 The plaintiff submitted that the matters relied upon by Gypro-Tech in its application to appeal were “hopelessly unarguable” and on the basis of the material before him, it was not open to the registrar’s delegate to make the decision required by subs327(4) before the appeal could progress.

43 It was common ground that the Registrar in performing the s327 function was not “the Commission” for the purposes of s350 and consequently the privative provisions of s350 did not apply to prevent the intervention of this Court pursuant to s69 of the Supreme Court Act if appropriate.

44 The material which was before the registrar was the decision of the AMS (AB37-43) and its supporting documentation, Gypro-Tech’s appeal document and submissions (AB 80-89) and the plaintiff’s submissions in reply and supporting documents (AB 90-112).

45 The plaintiff submitted that there was no basis on which the Registrar’s delegate could form an opinion that a ground of appeal under s327(3)(b) existed. The only “additional relevant information” relied upon by Gypro-Tech was the 19 July 2002 audiogram. It was clear from the material before the registrar that this was available to Gypro-Tech or could have been reasonably obtained by Gypro-Tech before the medical assessment because it had been served in July 2002. There was no issue that Gypro-Tech had received those documents in July 2002.

46 It was submitted that there was no basis whereby the registrar could form an opinion that a ground of appeal existed under s327(3)(c). This ground could only succeed, it was submitted, if the 19 July 2002 audiogram was before the AMS but had been disregarded by him.

47 On behalf of the plaintiff it was submitted that the Registrar had no basis for forming an opinion that a ground of appeal existed under s327(3)(d) since no demonstrable error had been identified in the medical assessment certificate.

48 As an alternative submission the plaintiff submitted that the Registrar’s determination (AB 130) was defective in form in that it referred to “grounds of appeal under s327(4)” whereas it should have referred to “grounds of appeal under s327(3)”.

49 The extent and nature of the Registrar’s function under s327 has been the subject of a number of decisions of this Court. The effect of those decisions is that the Registrar is not obliged to give reasons for a decision to implement the appeal process. No submission to the contrary was made on behalf of the plaintiff.

50 Studdert J in the Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors approached the registrar’s function under s327 as follows:

“29 In essence, Mr Jackson submitted that an appeal could only proceed if one of the grounds of appeal specified in sub-s (3) existed, and there was no available basis here for the registrar to have found any of the grounds in s 327(3) existed. Whilst he acknowledged that there were no reasons expressed by the registrar exposing how he came to err, nevertheless he submitted that the conclusion is inescapable that none of the grounds for appeal set out in s 327 was available.
30 I am not attracted by the plaintiff's submissions concerning this ground.
31 Firstly, the language of s 327(4) provides for a subjective approach as opposed to an objective one. The appeal is not to proceed “ unless it appears to the Registrar ” that one of the grounds for appeal exists. The language of the provision seems to me to be intended to discourage appellate review of the type here sought by the plaintiff. Further, I consider it to be effective in doing so.
32 Section 327(4) enables the registrar to constitute an appeal panel provided it appears to the registrar that one of the grounds for appeal specified in s 327(3) exists. The registrar may be wrong in concluding that there is an available ground. This does not invalidate the appeal.
33 The Registrar's role was considered in Vegan (supra) where Wood CJ at CL accepted a submission (recorded at para [74]) "to the effect that s 327 provides a gatekeeper role for the Registrar whose task it is to consider pursuant to s 327(4) whether "at least one of the grounds for appeal specified in subsection (3) exists". Consistently with that approach in Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954, Associate Justice Malpass said (at [25]):
"It seems to me that the section requires the Registrar to make a determination (that is, that it appears that at least one of the specified grounds for appeal exists). When that determination is made, the barrier to the appeal proceedings is removed".”

51 Latham J followed a similar approach in Inghams Enterprise v Iogha and Ors:

“19 Since Vegan , a number of decisions of this Court have considered s 327 of the Act and the role of the Registrar. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors . [2005] NSWSC 1260, Hislop J followed Vegan and Wikaira v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 954 in holding that the application under s 327 is in the nature of an application for leave to appeal. Relevantly, Assoc. Justice Malpass in the latter case rejected a submission that the Registrar’s power under s 327 was a discretionary one, and that the Registrar was required to determine whether or not it appeared that there was an arguable specified ground of appeal. It was sufficient if the Registrar determined that a ground of appeal existed. In Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Ltd & Ors . [2006] NSWSC 235, Studdert J reviewed these decisions in the course of rejecting the plaintiff’s argument that there was no available basis for the Registrar to have found a ground of appeal (a submission advanced by the plaintiff in the present case). Studdert J placed particular emphasis on the subjective language of s 327(4), that is, “unless it appears to the Registrar”. This construction was intended to discourage appellate review. Moreover, even if the Registrar is wrong in concluding that there is an available ground of appeal, that does not invalidate the appeal.
…
23 The plaintiff must establish that the Registrar’s decision to allow the appeal to proceed was based on factual determinations which were “illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds”. This is the appropriate test where the relevant statutory function calls for a state of satisfaction on the part of the Registrar, that is, a state of satisfaction that one of the grounds under s 327(3) exists ; Re Minister for Immigration and Multi-Cultural Affairs ; Ex Parte Applicant S 20/2002 (2003) 77 ALJR 1165. See also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [59].
24 The plaintiff argues that, in the absence of reasons, the only available inference is that the Registrar acted on the basis that one or more of the submissions advanced by Ms Iogha was capable of establishing the existence of a ground of appeal under s 327(3). Further, the submission that the AMS erred in disregarding the fact that an “injury” was in the nature of an aggravation of a disease, entirely missed the point ; the AMS found no permanent impairment, whatever the nature of the injury. Next it is said that the submission regarding the application of the wrong standard of proof was “misconceived and rightly rejected by the Appeal Panel”.
…
27 However, that does not, in my view, lead inexorably to the result that the Registrar has acted irrationally. As Studdert J observed in Brockmann, the language of s 327(4) is entirely subjective. There is no basis for concluding that it did not appear to the Registrar that the AMS erred in his assessment of Ms Iogha’s impairment as temporary. There is no basis for restricting the Registrar’s function under s 327(4) to a consideration of an appellant’s submissions.

The plaintiff has not discharged the weighty onus referred to by the Court of Appeal in Bragg . I would not be prepared to find that the Registrar’s decision under s 327 was illogical or irrational. In so far as the summons seeks a declaration that there is error on the face of the record, the absence of reasons from the Registrar precludes a finding to that effect.”

52 Johnson J in Summerfield v Registrar of the Workers Compensation Commission, although considering a different point, had occasion to examine the function to be performed by the registrar under s327.

“44 The second sentence in s 327(4) provides that the appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in s 327(3) exists . In Ingham Enterprises Pty Ltd v Iogha , Latham J at paragraph 22 described the Registrar’s power under s 327 as being of a “very limited and restricted kind” .
45 Where a statute involves a decision maker acting when a state of affairs “appears” to that person, it has been said that the decision maker is not required to conduct a preliminary hearing to satisfy himself that evidence is available to allow an applicant to prove his case: Smith v Browne (1974) VR 842 at 847; Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549 at 559; Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 120-123. In a different statutory context, it has been held that it is sufficient that it appears or seems from documentary materials that a state of affairs exists, and it is not necessary that it be established to be the case before a decision maker may act with respect to a statutory function requiring the appearance of a fact or matter as the foundation for action: Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 at 292.
46 The test to be met to satisfy the second sentence in s 327(4) appears to be a relatively slender one. Exercising the gatekeeper or filtering function, the Registrar will examine the documents to see if it appears, or seems to be the case, that at least one of the specified grounds for appeal in s 327(3) exists. The Registrar, of course, is not undertaking or determining the appeal. Nevertheless, it is the task of the Registrar under s 327 to examine the documents provided in support of the appeal to see whether it appears, or seems to be the case, that a specified ground of appeal exists.

47 It is noteworthy that if it appears to the Registrar that the ground contained in s 327(3)(b) exists (and the Registrar determines not to refer the matter for further assessment under s 327(6)), then the appeal will go forward, but the Appeal Panel itself is empowered to exercise a fresh evidence test under s 328(3) WIM Act.
…
56 Section 327(3)(b) contains the phrases “availability of additional relevant information” and “evidence that was not available to the appellant before the medical assessment appealed against”. According to the Macquarie Dictionary, the word “availability” means “the state of being available”. The word “available” is defined in the same dictionary in the following way (page 155):

“1. Suitable or ready for use; at hand; of use or service; available resources. …”
57 In my view, the word “or” in s 327(3)(b) WIM Act ought be treated as a disjunctive term. This is the ordinary meaning of the word. The Act gives the Registrar some flexibility in s 327(3)(b) cases to refer the person for further assessment under s 327(6). The Appeal Panel will itself apply a fresh evidence test under s 328(3) WIM Act for the purposes of the appeal. The Registrar’s decision under s 327(3)(b) and (4) does not have the result that the additional relevant information which appears to exist will necessarily be admitted by the Appeal Panel at the hearing of the appeal.
…
66 The function of the Registrar under s 327(4) is to examine the documentary material provided and to apply the statutory test as to whether it appears to the Registrar that at least one of the grounds specified in s 327(3) exists. Where a ground under s 327(3)(b) is sought to be raised, the Registrar is to consider whether it appears that a ground asserting availability of additional relevant information exists. The word “relevant” provides the Registrar with some latitude. To take an obvious example, if the additional information provided related to a problem with the Plaintiff’s foot when the injury which was the subject matter of the claim was one to the Plaintiff’s hand, the Registrar may determine readily that the additional information proffered is not relevant. However, in a case such as this where the CT scan points to abnormalities in the Plaintiff’s cervical spine and left shoulder and where these areas of the body were considered in the medical assessment certificate, it would be open to the Registrar to conclude that the information was relevant within the meaning of the sub-section. The absence of further specialist medical evidence elaborating upon the particular abnormalities is not, in my view, decisive. The Registrar is an officer within a specialist tribunal who may be taken to have some understanding of a range of matters relevant to the exercise of the Registrar’s statutory functions: ss 369(3) and 371 WIM Act. Further, where a s 327(3)(b) ground appears to exist, it is open to the Registrar to refer the person for further medical assessment under s 327(6) as an alternative to an appeal to the Appeal Panel.”

53 On the approach followed by Studdert J and Latham J it is only necessary for the registrar to perform the process of making a subjective assessment of whether it appears that a ground for appeal in subs (3) exists. It matters not whether that assessment is correct or not. On that approach the plaintiff’s submission must fail. There is nothing to suggest that the registrar’s delegate did not carry out the process required of him.

54 The approach of Johnson J to s327 is a little different and is open to the interpretation, at least implicitly, that under s69 of the Supreme Court Act this Court can assess on a prima facie basis the correctness of the registrar’s determination. Even on that approach which is more favourable to the plaintiff, the submission still fails.

55 As Johnson J decided in Summerfield ground of appeal s327(3)(b) divides the “additional relevant information” into two categories:

(i) Evidence that was not available to the appellant before a medical assessment appealed against.

(ii) Evidence that could not reasonably have been obtained by the appellant before that medical assessment.

56 Although the 19 July 2002 audiogram was not in the hands of Gypro-Tech in the sense that Gypro-Tech could place it before the AMS, it did exist and it was in the possession of Gypro-Tech. As was conceded by counsel for Gypro-Tech, the audiogram report was somewhere in the GIO system. Given the contrast between the two alternatives in the ground of appeal in s327(3)(b) there is no justification for inserting the word “readily” or some similar concept before the word “available” as used. Accordingly, it seems to me that the July 2002 audiogram was “available” to Gypro-Tech before the medical assessment and that this was made clear to the registrar on the material before him.

57 The second alternative in that ground of appeal is less clear. It depends upon what meaning is given to the word “reasonably”. From the material before the registrar’s delegate it is clear that had Gypro-Tech or GIO conducted a full search of its records it would have been able to locate the audiogram. Was it reasonable to expect Gypro-Tech to carry out that exercise when it knew that the plaintiff’s legal advisers had a copy of the document and that the plaintiff had been directed by the arbitrator to not only file a copy of that document but serve a copy on Gypro-Tech? On that line of reasoning and because Gypro-Tech did not become aware that the July 2002 audiogram had not been filed and placed before the AMS until after the AMS certificate issued, I am of the opinion that it was open to the registrar to find on a preliminary basis or to determine that it was arguable that the audiogram could not reasonably have been obtained.

58 In submissions it was also argued on behalf of Gypro-Tech that the registrar was entitled to have regard to the failure of the plaintiff to file and serve a more detailed statement of his work history as a basis for that ground of appeal. I do not agree.

59 The precondition for the ground of appeal is “availability of additional relevant information”. Such a statement as was directed to be provided by the plaintiff never came into existence. It was not in existence at the time when the Registrar considered the application to appeal. It was never “available”. Consequently the statement could not constitute “additional relevant information which was available”.

60 I am of the opinion that it was open to the registrar’s delegate to find that ground of appeal s327(3)(c) existed, at least as an arguable proposition.

61 As Wood CJ at CL in Vegan pointed out, it is difficult to know what is meant by that ground of appeal because no guidelines or criteria existed. Since Vegan was decided WorkCover guidelines have been issued for the purpose of enabling an AMS to assess an injured worker and the AMS is required to perform that function in accordance with those guidelines (s322(1), s331). Assessments of industrial hearing loss are dealt with in accordance with Chapter 9 of the WorkCover Guides for the evaluation of permanent impairment.

62 Para 9.1 provides:

“… the medical practitioner performing the assessment must examine the worker. The medical practitioner’s assessment must be based on medical history and ear, nose and throat examination, evaluation of relevant audiological tests and evaluation of other relevant investigations available to the medical assessor …”

63 Using the same approach to the word “available” as in subs327(3)(b), it is clear that the July 2002 audiogram was “available” to the AMS but was not placed before him because of the failure on the part of the plaintiff to comply with the direction of the arbitrator. Because the AMS did not have regard to that investigation, as he was required to do under the Guidelines, it was open to the registrar to find that the assessment was made on the basis of incorrect criteria.

64 Accordingly, even on a less restrictive approach to the function of the registrar under s327, this submission on behalf of the plaintiff fails.

65 As regards the plaintiff’s alternative submission, I do not accept that the registrar’s determination under s327(4) is bad in form. Section 327 does not require the determination to be expressed in any particular way. All that is required is that subs327(4) be satisfied, ie that one of the grounds of appeal relied upon appears to the registrar to exist. It is clear from the document (AB 130) signed by the delegate of the registrar that this process took place. The document sets out the three grounds of appeal under s327(3) relied upon by Gypro-tech. In those circumstances if the reference in the document to “grounds of appeal under s327(4)” is incorrect and should be “grounds of appeal under s327(3)” that mistake does not demonstrate jurisdictional error or error on the face of the record. This submission fails.

Decision of Medical Appeal Panel

66 It was submitted on behalf of the plaintiff that the MAP had committed an error on the face of the record by admitting as fresh or additional evidence the audiogram of 19 July 2002. Alternatively, it was submitted, the MAP by relying upon that improperly admitted evidentiary material had committed jurisdictional error as identified in Craig v South Australia, ie relying upon irrelevant material.

67 The part of the MAP decision which is challenged is in the following terms:

“ FRESH EVIDENCE
9. Section 328(3) of the 1998 Act provides that the Appeal Panel is not to receive evidence that is fresh evidence or evidence in addition to, or in substitution for, the evidence received in relation to the medical assessment appealed against, unless the evidence was not available to the appellant before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment.
10. The Panel has determined that the following “fresh evidence” should be received in the appeal;

Audiogram of Dr A Eshragi dated 19 July 2002.
11. The Panel has determined that the “fresh evidence” should be received in the appeal because:

· Dr Scoppa accepted in September 2004 that Mr Zuanic had a hearing loss “for the past few years”.

· Dr Scoppa accepted Mr Zuanic had worked in industrial noise from July 2002 to September 2004.

· Dr J Scoppa accepted in his MAC that the worker “had an audiogram performed on site towards the end of his employment with Gypro-Tech and that this hearing test had revealed evidence of hearing loss”. The MAP noted Dr Scoppa accepted the audiogram as evidence of hearing loss at the notional date of injury.

· The MAP considered the audiogram dated 19.7.2002 is very relevant to assessing the nature and extent of permanent impairment of hearing due to an injury with a notional date of injury of 24.7.2002.

· The Appeal Panel approved medical specialists would have used their powers under s324 and called for the audiogram dated 19.7.2002 in this appeal if it was not available.

· There was no reason to suggest that the audiogram dated 19.7.2002 is invalid, and it is contemporaneous to the date of injury.”

68 It was common ground that the MAP was not the commission and therefore was not covered by the privative provisions in s350. It was also agreed that the relevant provisions in relation to the admissibility of evidence before the MAP were ss324 and 328(3).

69 It was submitted, on behalf of the plaintiff, that there was a tension between the two sections. That tension could be resolved by reading s324 as a general provision which was subject to the express prescription in s328(3). According to this submission, the powers of enquiry granted to a member of the MAP by s324(3) could only be exercised where the evidence was “not available or not reasonably available” at the time of the initial AMS assessment.

70 I do not agree with this interpretation of the two sections.

71 Section 324 is fundamental to the scheme of medical assessment in Part 7 of the 1998 Act. The medical expert is not restricted to material which is placed before him or her by the parties or by the Commission, but can make his or her own inquiries. The decision of James J in Shanahan v Trojan Workforce Recruitment (No 4) Pty Limited sets out why that is so. Because the function of the MAP is to conduct a full review de novo if the requirements of s327 are satisfied, it is sensible and necessary that it have the same powers as the AMS. Such powers are given to individual members of the MAP pursuant to s324(3).

72 Section 328(3) performs a very different function. It refers to and restricts evidence to be given by the parties to the appeal in the appeal. That is clear from the use of the words “may not be given on an appeal” in subs 328(3). If the subsection were to have the wider meaning and effect sought to be given to it by the plaintiff, one would have expected words such as “may not be admitted” to be used.

73 Using that interpretation the two sections can easily be read together, they complement each other and fulfil the apparent purpose of Part 7 of the Act. A medical specialist who is a member of the MAP retains the wide powers of inquiry given by s324. The parties to the appeal, however, cannot run a case different to that presented to the AMS unless fresh or additional evidence sought to be adduced by them on the appeal satisfies the test in subs328(3).

74 It follows that the MAP had power to admit as evidence properly before it the audiogram of 19 July 2002. This submission fails.

Discretion

75 In view of the conclusions which I have reached in respect of the plaintiff’s submissions, it is not necessary to deal with the question of discretion. Since the matter was fully argued before me, I propose to indicate what my decision would have been had the plaintiff succeeded on any of his submissions.

76 The principles applicable to the exercise of the discretion in Supreme Court Act s69 were set out in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Limited (1949 78 CLR 389 at 400:

“… The writ of mandamus is not a writ of right nor is it issued as of course. There are well recognised grounds upon which the court may, in its discretion, withhold the remedy.
For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld. The question whether there are any grounds for refusing the remedy will be discussed after the question of the jurisdiction of the Court of Conciliation and Arbitration has been considered.”

77 Had any of the submissions on behalf of the plaintiff been successful, I would have refused to grant the relief sought in the exercise of my discretion.

78 The genesis of this dispute is the failure by the plaintiff to comply with any appropriate direction by the arbitrator to file and serve documents, including the audiogram of 19 July 2002. It was that failure which led to the audiogram not being before the MAS. The failure to comply with the order of the arbitrator has not been explained. I do not accept that the legal advisers of the plaintiff misinterpreted or failed to understand the direction given by the arbitrator. This is apparent from the note by Ms Allard:

“Applicant to file and serve claim and report within 7 days.”

Conclusion

79 The orders which I make are as follows:

(1) Summons dismissed.

(2) The plaintiff is to pay the first defendant’s costs.

(3) I make no order as to costs in relation to the second and third defendants.
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