Ingham Enterprises Pty Ltd v Belokoski

The first defendant was employed by the plaintiff. He suffered an injury at work on 25 March 2009. He was carrying a 25kg bag on his left shoulder. After carrying it for about a minute he noticed pain in the left side of his neck going down to his left arm. There was associated swelling over the top of the left shoulder. The plaintiff continued to have pain and discomfort for which he was treated but without much success. He eventually underwent a spinal fusion at C4/5 and C5/6 levels. That operation relieved much of the pain in his left arm and numbness on the left side. It also improved, but did not completely relieve, the pain in the neck. He subsequently had a C3/4 fusion on 4 April 2014.

There was a medical dispute between the first defendant and the plaintiff, including a dispute with respect to permanent impairment and the amount of any deduction for a pre-existing condition.

That led to an examination by an assessor at the Worker’s Compensation Commission, Dr Ho (the AMS). The AMS assessed the first defendant as having a 28% whole person impairment. The assessment was dated 28 June 2017.

The plaintiff filed an appeal against the certificate of the AMS. The grounds of appeal were these:

When completing the application to appeal, the plaintiff’s lawyers answered in the affirmative to the following questions:

The appellant’s submissions to the Appeal Panel relevantly said this:

In the Opposition notice to the appeal against the decision of the AMS, the first defendant indicated in answer to question 2.3 that the appeal could be decided by the Appeal Panel solely on the basis of the written application and any written notice of opposition lodged.

On 13 September 2017 the appeal was referred by a delegate of the Registrar to an appeal panel. That decision noted that the plaintiff had requested an oral hearing which the first defendant opposed. It also noted that the Appeal Panel might also require the worker to be re-examined by the Appeal Panel. The Registrar was satisfied that a ground of appeal was made out in respect of the assessment of the cervical spine and the deductible proportion.

On 10 November 2017 the Appeal Panel confirmed the medical assessment certificate issued by Dr Ho. In the course of so doing the Appeal Panel said:

The Appeal Panel held that there was a failure by the AMS to engage with the evidence or to explain why the deduction of one tenth was made, and that failure was a demonstrable error. The Panel said that the AMS failed to consider the evidence upon which the employer based its submissions and, although he made a deduction of one tenth, the AMS did not indicate his reasoning.

The Panel held, nevertheless, on an independent consideration of the evidence, that they were not satisfied that the assessment should be altered. They held that the plaintiff had not been able to point to any specific opinion that would justify a higher deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The plaintiff by a summons filed 15 December 2017 sought an order in the nature of certiorari quashing the decision of the Appeal Panel and an order in the nature of mandamus remitting the application to a medical appeal panel for determination in accordance with law.

The two grounds for judicial review were these:

Written submissions were filed on both sides. The matter was fixed for hearing on 2 August 2018 before me. On 24 July 2018 my Associate received an email from counsel for the plaintiff, written with the consent of senior counsel for the first defendant saying that the parties had reached an agreement with respect to the appropriate orders. A copy of the orders were attached to the email and provided as follows:

In the light of that email I listed the matter at short notice before me to inform the parties that I considered it inappropriate for the Court simply to rubber stamp consent orders where what was being sought was an order in the nature of certiorari quashing the Appeal Panel’s decision. The parties made brief submissions to the effect that it was sufficient for the consent orders to be made if I was satisfied with the plaintiff’s argument that the Appeal Panel had committed an error of law.

My attention was drawn to the decision of French J when his Honour was a judge of the Federal Court of Australia in Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557. That was a case involving a decision of the Refugee Review Tribunal which affirmed a decision of the Minister to refuse the plaintiff a Protection Visa. Shortly prior to the hearing of an appeal to the Federal Court, the parties submitted to French J a minute of a proposed consent order that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for determination according to law. Justice French noted at [3] that the minute did not specify the basis upon which the matter was to be remitted.

His Honour indicated that he was not prepared to make an order in the terms sought unless and until the following conditions were met:

Subsequently a revised consent order was submitted which identified certain matters that the Tribunal was obliged to do in the particular case including making such findings of fact as were necessary on the material before it to come to a view about the issues in the case. The revised consent order was then made.

Justice French went on to set out a number of reasons why an order disposing of proceedings by consent must be self-explanatory. If the matter is remitted to a tribunal to be decided according to law it is necessary for the court itself to be informed of the nature of the error conceded by the parties. The consent order might then need to be drafted in such a way that the Tribunal understood how it was to go about its task in the circumstances of the instant case.

Finally, French J made two further points relevant to the present matter. His Honour said:

A similar issue arose in Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129; [2001] FCA 459. In that case the Minister, although desirous for the matter to be returned to the Migration Review Tribunal, was not prepared to concede that an error of law had been made in the decision under review, only that the Tribunal had not considered a particular case said to be relevant to the decision of the Tribunal.

Justice Nicholson appeared to take the view at [24]-[27] that it was necessary for the court to find an error of law before the Court could exercise the power under s 481 of the Migration Act 1958 (Cth). His Honour noted the concession that the particular authority had not been considered, and held that that amounted to an error law. In those circumstances he was prepared to make the consent orders. His Honour considered (at [23]) that it was not necessary for the consent orders to state the nature of the reviewable error where that was made clear in any reasons for making the consent orders.

Inghams Enterprises Pty Limited v Vojnikovich [2014] NSWSC 1519 was a case where the parties sought to have Schmidt J make consent orders quashing an appeal panel’s decision and remitting the matter to the Registrar for referral to a differently constituted appeal panel to be decided according to law. While the parties agreed that the matter should be returned to the tribunal to be determined, the defendant did not agree that a legal error had been made. The plaintiff in that case, who was also the plaintiff in the present case, submitted that if the Court was satisfied that the interests of justice demanded that the consent orders be made then the Court had power to quash the Appeal Panel's decision, even if not satisfied that error had been established.

Justice Schmidt said in response to that submission:

Her Honour briefly examined the argument put forward by the plaintiff and said at [34] that it was not clear that the error on which the plaintiff’s case rested was in truth an error of law but was rather an error of fact. In those circumstances her Honour was not satisfied that the Court had jurisdiction to make orders quashing the Appeal Panel's decision.

In the present case, the first defendant does not concede that there is legal or jurisdictional error. He simply says that he is mindful of the risk of defending the summons including a potential costs order. That was why the consent orders had been agreed to. On one view, that leaves the parties in the same position as in Inghams Enterprises v Vojnikovich.

It seems to me, however, that I can be comfortably satisfied by an examination of the submissions that the plaintiff in the present case establishes that an error of law has occurred as a result of the failure of the Appeal Panel to have regard to the plaintiff’s request for an examination by an assessor on the Panel. The plaintiff eschewed any suggestion that the failure on the Panel’s part was a breach of procedural fairness. Rather, it was said to be a failure to take into account a relevant consideration that the Panel was obliged to take into account. The ground can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

The plaintiff’s case receives support from the judgment of Bell J when her Honour was a judge of this Court in Dar v State Transit Authority of NSW [2007] NSWSC 260. In that case the plaintiff, who had been the respondent to the appeal to the Appeal Panel, had expressly requested in their submission opposing the appeal that the matter be determined “on a hearing basis so as to allow further oral submissions”. The Appeal Panel in that case said this in their reasons:

Justice Bell noted at [64] that the defendant in that case acknowledged that the Appeal Panel proceeded upon a factually wrong basis, namely, that the plaintiff did not object to the determination of the matter without an assessment hearing and that the plaintiff supported an assessment on the papers. The plaintiff in that case asserted that the Appeal Panel’s failure was one of not taking into account a relevant consideration.

Justice Bell said:

Although there was no concession in the present case that a factual error had been made, it is difficult to see how no factual error was involved. The plaintiff had clearly answered in the affirmative to question 4.3.

The appellant did not fail to attach submissions. In those submissions it was said that the issue as to whether the worker should be reassessed by the Appeal Panel was an issue which should be addressed at the oral hearing which is sought by the appellant. The fact that paragraph 6(d) of the submissions deals with the inaccuracy in the history provided to the AMS could be seen as being related to the need for a re-examination of the worker by a member of the Appeal Panel.

In her written submissions the first defendant says that the word “application” in question 4.3 should be construed as meaning the application to re-examine the worker, whereas the word “application” when used in question 4.2 should mean the application for an appeal. Such an approach would be contrary to ordinary principles of construction of documents. The whole document was called “Application” and there is nothing to suggest that a more limited meaning should be given to that word where it was said in a number of places that a failure to attach submissions may result in the application being rejected. Question 4.3 spoke of a “request” for a worker to be re-examined and not an “application”. No conclusion can be drawn that, in effect, no submissions were made. Nor can it be concluded, as the first defendant submitted in writing, that there was effectively no request.

The position is not different from that which obtained in Dar. The Appeal Panel made a factual error. They were obliged to take into account the request for re-examination and the request for an oral hearing. No reasons were given by them for rejecting either of those matters. Together they were a relevant consideration that needed to be taken into account. That was an error of law as identified in Craig v South Australia (1995) 184 CLR 163 at 179.

The outcome in the present case differs from what occurred in Kovalev because no concession was made with regard to an error of law. Like Nicholson J in Xiao and Schmidt J in Inghams Enterprises v Vojnikovich, it was necessary for me to examine the decision of the Appeal Panel to identify if an error of law was made. I am satisfied that there was such an error.

Accordingly, I make the following orders by consent: