Martinovic v Workers Compensation Commission of New South Wales & Ors

By summons filed on 29 August 2018 the plaintiff, Tomislav Martinovic, seeks judicial review of three decisions:

Mr Martinovic seeks orders in the nature of certiorari to quash these decisions or, alternatively, declarations setting them aside or declaring them to be invalid. He also seeks other ancillary orders.

For ease of reference I propose to refer to the first defendant as “the Arbitrator”, to the second defendant as “the Appeal Panel” and to the third defendant as the “AMS”. The first, second and third defendants all filed submitting appearances in this matter. Mr Martinovic’s employer at the relevant time, Corporate Projects Pty Limited, is the fourth defendant in these proceedings. It was the only defendant who took an active part in these proceedings. I shall refer to it as Corporate Projects.

By virtue of r 59 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) any summons for judicial review must be filed within three months of any relevant decision. Mr Martinovic, thus, requires an extension of time in relation to the first and second decisions but not the third. I will deal with that application below at [126].

Before turning to set out the factual background to this application, I consider it necessary to first set out the statutory scheme through which Mr Martinovic progressed to bring him to this point.

Workers compensation legislation in NSW relevantly comprises the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) and the Workers Compensation Act 1987 (NSW) (“the 1987 Act”). The 1987 Act is to be read as if it formed part of the 1998 Act in the event of inconsistency. It was accepted that there was no inconsistency relevant to these proceedings. The subordinate legislation includes the Workers Compensation Commission Rules 2011 (NSW), the Workers Compensation Regulations 2016 (NSW) and the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment.

There are two schemes under the workers compensation legislation: compensation awarded by the Commission and modified common law damages awarded by the Court. As to the former, under s 66 of the 1987 Act, the Commission has exclusive jurisdiction to determine an award of compensation for lump-sum amounts as well as weekly benefits and medical expenses. As to the latter, the District Court of New South Wales has a limited jurisdiction to hear and determine claims for modified common law damages for work injuries meeting the criteria set out in Division 2 of Part 5 of the 1987 Act: s 44 of the District Court Act 1973 (NSW). Such decisions are subject to appeal to the Court of Appeal: s 127 of the District Court Act.

Section 151H of the 1987 Act provides that in order for a worker to bring court proceedings for modified common law damages, a threshold of not less than 15% permanent impairment or whole person impairment (“WPI”) must exist. If a worker’s WPI is assessed at less than 15% he or she is not entitled to bring any proceedings for modified common law damages.

Part 7 of the 1998 Act provides for medical assessment of an injured worker seeking workers’ compensation where there is a “medical dispute”. It also provides for an internal review process by way of an appeal panel. As I noted in Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 at [8] “[t]he purpose of the internal review scheme was to remove the function of assessing injury from the adversarial court system”.

Section 321 of the 1998 Act provides that the Registrar may refer a degree of permanent impairment to an AMS. The AMS assessment is made according to the guidelines: s 322 (1). Section 323 of the 1998 Act provides that the AMS is to make a deduction for previous injury, pre-existing condition or abnormality.

Section 324 provides for the powers of an AMS on assessment of a medical dispute including on an appeal or further assessment. Section 325 provides that the AMS is to provide a medical assessment certificate (“MAC”) setting out the reasons and facts on which it is based.

Section 326 provides, inter alia, that the MAC is presumed to be correct as to the degree of WPI of the worker.

A party to a medical dispute may appeal against any MAC but the appeal is not to proceed unless the Registrar is satisfied on the face of the application and any submissions that at least one of the grounds for appeal specified in s 327(3) of the 1998 Act has been “made out". Section 327(3) is in these terms:

It has been held that the Registrar of the Commission acts as a “gatekeeper”: Campbelltown City Council v Vegan [2004] NSWSC 1129, [74] (Wood CJ at CL) and that his or her role is to ensure that the appeal is on its face valid and apparently credible: Campbelltown City Council v Vegan at [8]. See also Mahal v State of New South Wales [2017] NSWWCCPD 41 (11 September 2017) at [42].

If a party proceeds past the “gatekeeper”, then s 328 of the 1998 Act provides that an appeal is to be “by way of review.” The appeal panel may confirm the MAC under review or revoke it and issue a new MAC.

Although one or more grounds under s 327(3) must be “made out” before an appeal can be heard, the appeal panel is not confined to the grounds of which the Registrar is satisfied: Siddick v WorkCover Authority [2008] NSWCA 116 [59]-[104] (McColl JA).

After the MAC is either confirmed or modified by the appeal panel, a certificate of determination (“COD”) is issued. If the COD has not as yet been issued, the Registrar or the appeal panel may reconsider any matter and “rescind alter or amend” any decision: s 378 of the 1998 Act

If a COD has already been issued (as in the present case), then the statutory recourse is s 350 of the 1998 Act which provides as follows:

Section 352 provides for an appeal against the decision of an arbitrator: subs (1)-(5) are in these terms:

The President of the Commission is subject to an appeal to the Court of Appeal on a “point of law” by virtue of s 353 of the 1998 Act.

Decisions of an appeal panel and the arbitrator are also subject to judicial review by this court: s 69 of the Supreme Court Act 1970 (NSW): Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531[2010] HCA1.

The hearing of the summons proceeded before me on 28 May 2019. Mr Robinson SC appeared with Mr Blount for Mr Martinovic. Ms Tronson appeared with Mr Cobb-Clark for Corporate Projects. A joint tender bundle was tendered. Both parties relied on written submissions and bundles of authorities. Mr Martinovic also relied upon the affidavit of Mr Vic Petrovich sworn 17 December 2018 setting out the basis for the delay in bringing these proceedings insofar as they pertain to the second and third decisions referred to above. The material before me discloses the following.

On 15 August 2013, Mr Martinovic worked for Corporate Projects as a gyprocker. He is a carpenter by trade. He lifted some heavy exit doors and experienced pain in his lower back. On 21 October 2013, he consulted a neurosurgeon, Dr Bentivoglio.

On 6 December 2013, Corporate Projects’ insurer accepted liability for workers compensation benefits. Dr Bentivoglio provided further reports on 11 December 2013 and 25 February 2014. On 8 August 2014, a further neurosurgeon and spinal surgeon Dr Cam provided a report and on 17 December 2014 Dr Guirgis also provided a report.

On 10 April 2015, Mr Martinovic made a claim for lump-sum compensation benefits on the worker’s compensation insurer claiming 20% WPI. On 24 June 2015, Dr Ryan, Associate Professor of Surgery in Orthopaedics and Spinal Surgery, provided a report disagreeing with the conclusions of Mr Martinovic’s doctors. He assessed Mr Martinovic’s WPI at 11%.

On 30 October 2015, Mr Martinovic filed an application to resolve a dispute with the Commission and on or about 23 November 2015 Corporate Projects filed a reply to the application. The dispute was referred to the AMS, Dr Adler, who examined Mr Martinovic on 10 December 2015.

On or about 16 December 2015, the AMS issued a MAC supported by reasons (“the first decision”) assessing Mr Martinovic’s WPI at 8%.

In his findings on physical examination, the AMS noted that in relation to the cervical spine, there was normal flexion, extension and rotation. There was no focal tenderness with no guarding response. He further stated that he “observed during informal examination that he was able to freely turned [sic] his neck full range in rotation bilaterally, consistent with the objective findings”. His summary of injuries and diagnoses was as follows:

The basis for the assessment of 8% WPI was based on the following criteria:

In relation to the findings of Dr Guigis of 17 December 2014, the AMS noted that he did not agree with the finding of radiculopathy as the basis for Dr Guigis’ finding of radiculopathy was not clear. He stated that he had “carefully evaluated” Mr Martinovic for any residual sensory radiculopathy but could “not confirm any such finding remaining at this now much later time”.

On 11 January 2016, Mr Martinovic filed an Application to Appeal against the MAC supported by reasons. He submitted that there was insufficient information that would allow the MAC to be reviewed in detail, as the MAC contained both “incorrect criteria and demonstrable error”. Mr Martinovic submitted that a further assessment was required with a member of the Appeal Panel.

Mr Martinovic also relied on new evidence about radiculopathy from Dr Techenne. The reports of Dr Techenne were not available at the time of the original complaint to the Commission. Mr Martinovic also relied upon his statutory declaration of 11 January 2016 and that of his wife Renata Martinovic of the same date.

Mr Martinovic further relied on the Workcover Guides for Evaluation of Permanent Impairment and stated that radiculopathy must be assessed within a strict set of guidelines and tests. He submitted:

On 29 January 2016, Corporate Projects filed a notice of opposition supported by submissions. It submitted that the AMS did not apply incorrect criteria, and, in any event, if the issue needed to be addressed, it was for the AMS to reconsider that point. Corporate Projects also submitted that there had been no demonstrable error. Furthermore, Corporate Projects submitted that Mr Martinovic did not demonstrate why the new evidence was relevant.

On 8 February 2016, a Delegate of the Registrar of the Commission found a ground of appeal under s 327(3)(d) of the 1998 Act had been made out on the basis that an error is capable of being shown in relation to the assessment of the WPI of the cervical spine, the lumbar spine and scarring (TEMSKI).

The decision of the Appeal Panel is dated 7 April 2016. The Panel commenced its reasons by noting that it had before it all documents that were before the AMS. None of the new evidence was noted. The Panel observed at [7] that it was not necessary for Mr Martinovic to undergo a further medical examination because it had before it all of the documents and written submissions that were sent to the AMS. The Panel did not explain why Mr Martinovic’s request for a new medical examination was rejected.

After setting out the relevant law, the Appeal Panel concluded that it did not agree with the Mr Martinovic’s submission that the AMS did not provide his findings on examination of the cervical spine in the MAC. It noted that:

In relation to scarring, the Panel confirmed that the AMS had used the proper method of assessment and it was not necessary for the AMS to provide further detail or reasons. In relation to the assessment of WPI, the Panel found that the AMS should have included the medication that Martinovic was taking and also that he had omitted the history in respect of “social activities/ADL”. The Panel disagreed with the AMS’s finding that Mr Martinovic had surgical intervention for the decompression of spinal canal stenosis. It found that “the Appellant underwent decompression discectomy for radiculopathy at the L4/5 level of the lumbar spine as a result of the injury, and not for spinal canal stenosis as reported by the AMS”.

The Panel then determined that Mr Martinovic was entitled to a further 2% WPI as a result of interference with daily activities. It was of the view that the spinal canal stenosis did not contribute to the degree of permanent impairment as a result of the injury. It, therefore, determined that the MAC dated 16 December 2015 should be revoked and a new MAC should be issued. The Appeal Panel assessed Mr Martinovic’s WPI at 12%.

Shortly thereafter, on 12 May 2016, the Commission issued a COD consistent with this finding and Mr Martinovic was paid $17,902.50.

Nothing then appears to have happened in the matter until 25 May 2017 when Mr Martinovic’s then solicitor wrote to the insurer requesting that it proceed on the basis that Mr Martinovic’s WPI was 15% so that he could make a claim for common law damages. The insurer wrote back confirming that the COD made a finding of only 12% WPI which was insufficient for a claim in common law damages to be made.

After hearing no further from his solicitor, Mr Martinovic engaged a new solicitor, Mr Petrovich, 13 March 2018.

On 15 March 2018, Mr Martinovic, by his new solicitor, made an application to the Appeal Panel for reconsideration of the MAC under s 378 of the 1998 Act. That application was supported by submissions.

On 22 March 2018, Mr Martinovic was informed that s 378 was not applicable in circumstances where a COD had been issued.

On 27 March 2018, Mr Martinovic made an application to the Commission for reconsideration under s 350 of the 1998 Act supported by submissions. He submitted that it was remiss of the Appeal Panel not to have undertaken a further physical medical assessment to determine whether or not there were residual symptoms of radiculopathy as required. He submitted, inter alia, that he should have been physically examined by the Appeal Panel. Overall, he submitted that were errors that were not remedied by the Appeal Panel, which included:

On 30 May 2018, the Commission issued a COD supported by reasons, dismissing Mr Martinovic’s application under s 350 of the 1998 Act to reconsider the COD dated 12 May 2016 (“the third decision”).

The Arbitrator, Mr Egan, first set out the findings of the AMS and the Appeal Panel. He noted that the relevant matter was that the AMS did not properly examine for post-surgery radiculopathy from the lumbar spine or provide proper reasons for concluding that there was no radiculopathy. He stated that:

As stated above, the significance of this omission is that a finding of persisting radiculopathy after lumbar surgery would entitle Mr Martinovic to a further 3% WPI which would increase his WPI to 15%.

When considering his discretion under s 350(3), the Arbitrator set out the relevant legal principles in some detail. I will consider those principles in my consideration below. After summarising the respective submissions, he noted that there was a “vexing question” concerned the lumbar spine.

The Arbitrator went on to state at [32] that he accepted that there is a “reasonably obvious error” in the reasons of the Appeal Panel: the panel did not deal with Mr Martinovic’s request for re-examination nor did it deal with the presence or otherwise of radiculopathy in the lower limbs. He then went on to state:

The Arbitrator went on to accept that he was not “authorised” to make any findings nor to determine whether or not the merits of the appeal based on lumbar radiculopathy would or would not succeed for the purposes of s 350(3). He then stated:

On 22 August 2019, a summons was filed in this court seeking judicial review of all three decisions.

Fifteen separate grounds of review are specified in the summons as follows:

The relevant procedures for bringing proceedings for judicial review in this court are set out in UCPR r 59 which commenced from 15 March 2013.

UCPR r 59.3(1) provides that judicial review proceedings are to be commenced by summons. UCPR r 59.4(c) provides that the summons must state “with specificity, the grounds on which the relief is sought”. UCPR r 59.8 provides for the procedure in relation to the court book and submissions. Relevantly, r 59.8(1) (b) provides that the court book must contain “a summary of the plaintiff’s argument (not exceeding 10 pages)”.

UCPR r 59.8(4) provides that the plaintiff must, “at least 1 working day before the hearing, file and serve a summary of the plaintiff’s argument in reply if the plaintiff considers a reply is needed (not exceeding 5 pages)”. UCPR r 59.8(5) provides that UCPR r 59.8 is subject to any directions given by the court. As a matter of practice, a timetable is fixed by the registrar. Given the existence of UCPR r 59.8(5) it is always open to a party to seek leave to file submissions exceeding 10 pages.

UCPR r 59.10 provides for the time in which proceedings for judicial review must be brought. It is in these terms:

I will address the submissions of the parties below in my Consideration.

There is no statutory right of appeal to this court from a decision of an AMS, an appeal panel or an arbitrator exercising his or her statutory power under s 350 of the 1998 Act. These proceedings are for judicial review. The court is being asked to exercise its supervisory jurisdiction. This is not an appeal and does not involve any review of the merits of the decision of the review panel.

A privative clause applies to the decision of the Commission under s 350(3) of the 1998 Act: s 350(1). Therefore, consistent with the principles in Kirk, the proceedings for judicial review against the decision of the Arbitrator are confined to the establishment of jurisdictional error. A failure to afford procedural fairness to a party constitutes both jurisdictional error and error of law within jurisdiction: Kirk at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170]. It was not contended on the part of Corporate Projects that if the court was satisfied that any of the errors had been established that they were not jurisdictional errors; the position of Corporate Projects was that no error is established.

As for the decision of the Appal Panel no privative clause applies. Accordingly, Mr Martinovic will be able to obtain the (discretionary) relief he seeks against that decision if he can establish that the Appeal Panel either fell into jurisdictional error or there is error on the face of the record: s 69(4) of the Supreme Court Act. As noted above, an extension of time is required to seek review of the decision of the Appeal Panel.

Of the fifteen grounds of review I have extracted above, only four were directly addressed in Mr Martinovic’s summary of argument filed pursuant to UCPR r 59.8(1)(b). Corporate Projects contended in its written submissions that the Court should proceed on the basis that those 11 grounds were abandoned.

In his written reply, Mr Martinovic submitted that UCPR r 59.8 requires only a “summary” of submissions and given that there were several decisions under review relating to the same facts, error at one level infects the next level and so on.

At the hearing, senior counsel for Mr Martinovic submitted that “it is not necessary for submissions to rehash the same alleged error in each of the decisions”. The following exchange then took place:

Despite the fact that it was submitted that the grounds did not need expanding, that was not in fact the case. Later during the hearing, when the error in relation to the decision of the Commission was being addressed, the following exchange ensued in regard to Ground 17(1)(d):

And later:

Thus, it was not until well into oral submissions that it became clear what Mr Martinovic’s argument was under Ground 17(d). I pointed this out in the following exchange:

I pause here to make two observations. First, the fact that UCPR r 59.8 requires a party to file a “summary” of argument does not relieve that party from the obligation to address each ground in that summary of argument. If a party is unable to address each ground in the 10 page limit then leave can always be sought to file submissions that run to over 10 pages. Second, it is undesirable for a party to set out 15 grounds of review in the summons requiring his or her opponent to consider them all then abandon half of them at the hearing. The grounds of review required to be set out by UCPR r 59.4(c) are not submissions and ought not to be treated as such.

In any event, senior counsel for Mr Martinovic ultimately did not press Grounds 17 (b), (c), and (e), Ground 18 (d) and Grounds 19 (a), (b), (c) and (d). That is, judicial review of the first decision was not pressed

Even after abandoning the eight grounds of review I have referred to above, Mr Martinovic still relied upon seven grounds of review and sought to quash two separate decisions, that of the Appeal Panel and that of the Arbitrator. The review of the decision of the Appeal Panel was brought two years out of time. Before seeking judicial review of the decision of the Appeal Panel, Mr Martinovic had already sought his statutory right of “review” under s 350 of the 1998 Act. There is also an alternate statutory right of appeal, albeit limited, from a decision of an arbitrator under s 352 of the 1998 Act.

Corporate Projects relied on these discretionary arguments militating against granting the relief sought, in the event that error was established. It also relied on the excessive delay. An extension of time was opposed in relation to judicial review of the decision of the Arbitrator.

Despite the discretionary hurdles Mr Martinovic must overcome in order to be granted the relief sought, I propose to deal with the grounds of review first and then turn to consider the questions of an extension of time regarding the decision of the Appeal Panel and the discretionary considerations. The relevance of discretionary considerations, such as alternate statutory avenues, will only come into play if I am satisfied that jurisdictional error has been established. Similarly, one of the relevant considerations in determining whether to extend time is whether Mr Martinovic has an arguable case. Thus, the evaluation I make of the strength of his claim will then be relevant to whether an extension of time should be granted.

Mr Martinovic having abandoned Grounds 17 (b), (c), and (e) at the hearing relies upon the following three grounds of review in relation to the decision of the Commission:

Mr Martinovic’s contention under this ground was that the Arbitrator “wholly failed to deal with the substantial argument of the plaintiff below, namely, the presence or otherwise of radiculopathy”. As I indicated during the hearing, I am not satisfied that the Arbitrator failed to deal with this issue. His Reasons disclose that he dealt with Mr Martinovic’s submissions, found in his favour regarding error and then went on to exercise his discretion in a manner unfavourable to Mr Martinovic.

It was also contended under this ground that the Arbitrator wrongly failed to determine that the omissions concerning radiculopathy and re-examination vitiated the Panel decision and were fundamental legal errors. It was submitted that the Arbitrator was bound to find that the identified errors vitiated the decision of the Appeal Panel. The decision in Boyce v Allianz Australia Insurance Ltd (2018) 83 MVR 483 was relied upon as authority for the proposition that a decision not to examine and interview an appellant is an essential step in the assessment process.

In Boyce, the Court of Appeal considered a motor accident victim that had been assessed with 10% WPI. The respondent insurer was granted a review of the assessor’s certificate. The worker was notified of this review and told that she should advise them if she objected to the panel proceeding without re-examining her. The worker’s solicitor wrote to the authority advising that the worker did object to this. Although this correspondence was received by the authority, the review panel was not made aware of the objection, and the panel made its assessment without conducting an interview or clinical examination with the worker.

The worker commenced judicial review proceedings on the basis that if she had been notified of the fact that the panel was to proceed without a re-examination she would have provided further documentation. Basten and Macfarlan JJA held at [73]-[76] that while the need for a re-examination was a factual issue for the panel, the failure to inform the victim that one would not occur was a breach of the requirements of procedural fairness.

Corporate Projects contended that the decision in Boyce was not applicable. Critical differences in the regimes between the Motor Accidents scheme and the Workers Compensation scheme were identified which it was submitted rendered Boyce “inapt” for consideration of this ground of review. It was submitted that the Motor Accidents regime involves review of the decision of a single medical assessor to “a review panel of medical assessors” rather than an appeal to an appeal panel which includes an arbitrator. It was submitted that s 63 of the Motor Accidents Compensation Act 1999 (NSW) makes it clear that the Motor Accidents Regime involves such a review: see Boyce at [8]-[9] per Basten JA. It was submitted that what his Honour later said at [56]-[58], [66] and [95] of Boyce must be understood in the context.

I accept the submission of Corporate Projects that there are certainly differences between the schemes, although the requirement for procedural fairness applies to both schemes. But Boyce was also relied upon by Mr Martinovic as authority for the proposition that it is an integral part of a review to conduct a new medical assessment. I am not satisfied that is the case. As I observed recently in Lu v AAI Ltd t/as AAMI [2019] NSWSC 368 at [67] in relation to the Motor Accidents scheme:

Nor am I satisfied that Midson v Workers Compensation Commission 7 Ors [2016] NSWSC 1352 assists Corporate Project’s argument under this ground. In Midson the AMS determined that a worker’s WPI was 15%. The employer’s insurer appealed to the Appeal Panel. The Appeal Panel ordered a new examination as a matter of course. The new examination arrived at a lower WPI of 12%. It was in that context that I held in Midson that the Panel needs to find an error relevant to the medical examination before a further examination is ordered by the Panel. The principle derived from Midson does not apply to a situation where a worker seeks a new assessment and that request is ignored without reasons.

For these reasons I am not satisfied that it was mandatory for the Arbitrator to quash the decision of the Appeal Panel after being satisfied that it had failed to consider, inter alia, Mr Martinovic’s request for a further medical examination. As I will discuss further under my consideration of Ground 17(e), the Arbitrator has a broad discretion under s 350 of the 1998 Act. He dismissed the review on the “merits” having determined that he had done “justice” between the parties. Although Mr Martinovic submitted that “there can be no justice here because the law is wanting” and that “[t]here are no identifiable merits because a valid decision was not made below”, those submissions misapprehended the statutory task the Arbitrator was undertaking.

I am not satisfied that the Arbitrator failed to engage with Mr Martinovic’s submissions or that he failed to appreciate the significance of the Panel’s failure to re-examine Mr Martinovic.

Ground 17(a) is not.established.

This complaint concerns a failure to afford procedural fairness to Mr Martinovic by the Arbitrator. Mr Martinovic contends that he was completely taken by surprise by the process of reasoning by which the Arbitrator disposed of his application; that is, he had no notice that the Arbitrator could or would dismiss his review even if clear error was found. Mr Martinovic’s written submissions to this court did not squarely address this argument; it was articulated for the first time as part of Ground 17(e) during the hearing. Despite this, no objection was taken to this argument being relied upon under Ground 17(e); Corporate Projects’ arguments focussed on why error was not established and the discretionary reasons why relief ought to be refused in any event.

The particular procedural unfairness alleged by Mr Martinovic is a breach of the “hearing rule” denoted by the Latin expression, audi alteam partem, which means “hear the other side”. This rule requires the decision-maker to hear a person before making a decision affecting his interests. The High Court considered this aspect of procedural fairness in the context of sentencing proceedings in DL v The Queen (2018) 358 ALR 666; [2018] HCA 32 at 772 [39].

Procedural fairness is implied as a condition of the exercise of a statutory power. That is, as a matter of statutory construction, any statute conferring a power that can affect the interests of an individual is to be construed as conferring the power conditionally in that it must be exercised in a manner that affords procedural fairness to that individual. This presumption operates unless a contrary intention is clearly indicated: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [75].

Corporate Projects accepted that the Arbitrator was required to afford Mr Martinovic procedural fairness. It’s contention was that procedural fairness had clearly been afforded in this case and that Mr Martinovic’s arguments misapprehended the nature of a review under s 350 of the 1998 Act.

The issue upon which Mr Martinovic contends he was denied procedural fairness was the options available to the Arbitrator in the event that he found error. Having considered the written submissions made to the Arbitrator by the parties I am satisfied that neither party addressed this issue at all; Mr Martinovic’s submissions to the Arbitrator focussed on establishing error whereas the submissions filed by Corporate Projects focussed on establishing that no error could be established and that discretionary factors militated against the review being successful. I am satisfied that at no time did either party squarely address the question of what should happen in the event that the Arbitrator found error in the decision of the Appeal Panel.

It seems to be that determination of this ground of review turns on whether the Arbitrator was required by principles of procedural fairness to invite submissions from the parties on what course was open to him should he find clear error was established. This question requires a consideration of the scope of s 350 of the 1998 Act.

Section 350(3) of the 1998 Act provides that “[t]he 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”.

The parties both submitted that the relevant principles applicable to a review under s 350 are to be found in the decision of Roache ADP in Samuel v Siebel Furniture Ltd [2006] NSWWCPD 141. At [58] of Samuel, Roche ADP set out the principles applicable to such applications. At 58(e) (in a passage set out in full in the Arbitrator’s decision) Roache ADP noted the following:

The Arbitrator applied the test set out at (9) above: he proceeded on the basis that he was required to consider the “substantial merits of the case in accordance with his duty to do justice between the parties”.

Mr Martinovic did not contend that the Arbitrator misstated the relevant principles. The Arbitrator set out the relevant principles in some detail at [19]–[25] of his reasons, including the passage from Samuel extracted above. The Arbitrator also referred to the decision in Nan v Country Road Freight Services proprietary Limited [2006] NSW WCC PD 160 where ADP Snell observed at [58]:

This Court has dealt with other decisions concerning s 350 of the 1998 Act on the basis that the principles in Samuel are applicable: McCallum J in Ljubisavljevic v Workers Compensation Commission of New South Wales [2019] NSWSC 1358 at [43], Stevenson J in Ali Ali v Rockdale City Council [2015] NSWSC 1481 at [43]-[44] and Harrison AsJ in Rail Corp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 at [54]-[56]. In Rail Corp NSW her Honour stated the following at [56]:

The principles stated by Roache ADP in Samuel relied heavily on the decision of the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413. But Schipp did not concern s 350 of the 1998 Act. In Schipp, a worker made application for an award of compensation pursuant to 36(2) of the Workers' Compensation Act 1926 (NSW) alleging that he had suffered an injury in the course of employment which had caused him to suffer an intracerebral haemorrhage. After oral argument was heard before Gibson J, the worker obtained a short adjournment. After this the worker applied to withdraw the application to s 36 (2). This was denied. Gibson J went on to make a finding adverse to the worker.

Two years later, the worker applied for rescission of the award. In the Court of Appeal, Samuels JA (Reynolds JA agreeing) was of the opinion that in refusing the application to withdraw Gibson J had erred in law. However, he found that his Honour was nonetheless permitted to dismiss the application for several reasons. Those reasons included that the worker had failed to use a statutory right of appeal under s 47 of the Workers Compensation Act, there had been a delay of two years. Issue estoppel was also held to be a relevant consideration. The public interest in litigation not continuing indefinitely was also relied upon.

The other member of the Court, Mahoney JA, did not come to a definite conclusion in relation to whether there had been a legal error. However, he agreed that even if there was, such an error did not mean that the award was a nullity. As his Honour noted:

​His Honour then later noted:

The decision in Schipp was relied upon by Corporate Projects as authority for the proposition that an arbitrator considering s 350 of the 1998 Act has the power to refuse to rescind a COD, notwithstanding the identification of an error of law: 414 per Reynolds JA, at 426 per Samuels JA and at Mahoney JA at 437G, 439B-440B. The decision in Schipp can be distinguished in a number of ways. It is a 1975 decision determined long before the present statutory scheme for workers’ compensation was established. In addition, the relevant administrative law principles regarding jurisdictional error and invalidity have developed considerably since that time. In Schipp the Court of Appeal gave weight to issue estoppel when determining that the lower decision was not a nullity. This was because the original application was before Gibson J who made an unfavourable award and the subsequent application was also before Gibson J. That is not the case when a matter is considered under s 350.

Despite this, although there is no express reference in Samuel to any principle to the effect that in a review under s 350, an arbitrator may decline to intervene even if “clear” error is noted. Both Mr Martinovic and Corporate Projects accepted that the principles in Samuel were applicable. Those principles include that an arbitrator exercising his or her power under s 350 has a “duty to do justice between the parties according to the substantial merits of the case”. I am satisfied that the reference to the “merits of the case” in this context of balancing competing interests necessarily implies that it is open, within the broad discretion conferred in s 350(3), to find error and yet dismiss the application.

Having had regard to the broad discretion under s 350, I am satisfied that Mr Martinovic should have contemplated that this was one way in which the review could have been disposed of. He was afforded procedural fairness to the extent that he was able to put any arguments he wished to the Arbitrator. Despite this, the Arbitrator was not obliged to seek further submissions once he was satisfied, when determining where the merits of the case lay, that error was disclosed. I am not satisfied that any such obligation arose given the nature of review under s 350.

This ground of review is not made out.

It was contended under this ground of review that the decision of the Arbitrator was void because the decision of the Appeal Panel was void due to jurisdictional error. Reliance was placed on the decision in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (“Bhardwaj”), support of this ground of review.

In Bhardwaj, Gaudron and Gummow JJ made the following observation about the effect of jurisdictional error on the validity of an administrative decision:

The High Court’s decision in Bhardwaj was later considered by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288. Their Honours stated:

In Jackson v Purton [2011] TASSC 28, Wood J referred to Jadwan with approval when considering the same issue:

More recently in Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58, McWilliam AsJ ­­stated:

Her Honour went on to hold that the legal and factual consequences of a decision will depend on its statutory context. In relation to Bhardwaj, she commented that:

As the authors of Aronson, Groves and Week, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) note, the usual result of a jurisdictional error is that the relevant decision is a nullity. However, this requires judicial determination and relies on context. As they state: “the High Court has said that labels such as nullity, voidness, invalidity, and vitiated have no fixed meaning, but announce conclusions about the legal effects of a challenged decision and about the legal powers of the court to say so".

To the extent that it was argued under this ground that the Arbitrator erred in not concluding that the decision of the Appeal Panel was void for jurisdictional error I would dismiss this ground. To the extent that it was argued under this ground that the decision of the Arbitrator is invalid because the Appeal Panel’s decision is vitiated by jurisdictional error, it is necessary for me to now consider whether jurisdictional error is in fact disclosed in the decision of the Appeal Panel.

Four errors were said to be apparent from the reasons of the Appeal Panel:

As stated above, the Arbitrator correctly noted that he was not authorised to make any findings as to whether or not an appeal to the Appeal Panel “would or would not succeed” if the COD was quashed. Rather, he considered the question of any error in the decision of the Appeal Panel was relevant in the context of his role to determine whether the decision of the Appeal Panel was made “on the real merits and justice of the case”: at [29] and [34]. In performing that statutory task the Arbitrator was satisfied that three out of the four errors were established.

At [16] of his Reasons the Arbitrator noted that in the Statement of Reasons, the Panel did not deal with either the application to rely upon the fresh evidence or the submission regarding he presence or otherwise of radiculopathy. He went on to note at [17] that the relevance of the latter omission was that if radiculopathy persists after lumbar surgery he would be entitled for a further 3% WPI as a modifier under the DRE method: clause 4.27 and Table 4.2.

The Arbitrator went on at [32] to note that he accepted that there was a “reasonably obvious” error in the Appeal Panel’s Reasons in that it “did not deal with the applicant’s request for re-examination, nor did it deal with the presence or otherwise of radiculopathy in the in the lower limbs”. Although the Arbitrator stated that the Appeal Panel did not deal with the fresh evidence, he found at [31] that he did not consider it to be fresh evidence in any event.

The Arbitrator was not satisfied of the fourth error regarding the cervical spine: at [28].

Thus, the Arbitrator was satisfied that three out of the four errors contended for by Mr Martinovic were apparent form the reasons of the Appeal Panel. Despite this, he went on to dismiss the review on the basis that, in effect, none of these matters would have made any difference to the WPI.

I have examined these four alleged errors for myself. I am satisfied that the first three of them are apparent from the terms of the decision. All three errors concern matters that were not dealt with by the Appeal Panel: Mr Martinovic’s application for a new medical examination was not addressed at all, the new evidence was not addressed at all and the question of whether there should be an additional 3% for radiculopathy was not addressed at all.

Corporate Projects’ primary submission regarding the failure of the Appeal Panel to medically examine Mr Martinovic was to contend that this was not a ground under s 327(3) of the 1998 Act which sets out the only grounds on which an appeal may be made. Section 327(3) does not include a complaint that a worker should have been examined. It was submitted that the relevant ground was the availability of additional information: s 327(3)(d) and the effect of s 328(2), citing Midson, is that the appeal panel’s role is to look for an error and only when it identifies error does it move to the question of how to deal with it.

It is to be accepted that Mr Martinovic’s Application to Appeal against the decision of the MAS was stated to be on grounds 327(c) (the assessment was made on the basis of incorrect criteria) and (d) (the medical assessment certificate contains a demonstrable error). The “gatekeeper” decision of the Registrar was that error was capable of being shown in relation to the assessment of WPI of the cervical spine, the lumbar spine and scarring but that Mr Martinovic had not made out a ground that he could rely on additional information.

Corporate Projects also disputed that the Appeal Panel had failed to consider the question whether a re-examination is required. It was submitted that it could be inferred that the Appeal Panel was satisfied that it did not need to re-examine because they were satisfied what the AMS had said. Despite this submission, Corporate Projects accepted that it would have been better had the Panel made itself more clear in this respect. It was further submitted that it is essential to look at what Mr Martinovic put before the panel on the appeal because once the panel finds error it must make its own decision.

The difficulty with Corporate Projects’ argument is that it does not address the nub of the complaint made by Mr Martinovic which is that his complaint about his assessment by the AMS and request for a re-examination was completely ignored by the Appeal Panel. This complaint was closely connected with the radiculopathy complaint which the Appeal Panel also ignored. In these circumstances it is no answer to say that it could only have been if the Panel was satisfied of error that any re-examination ought to have been ordered; no finding of error could have been made if the complaint was not even addressed.

An alternate submission put by Corporate Projects under this ground was to note that at [8] of the reasons the Appeal Panel stated that it did not consider a re-examination necessary. Having considered a number of decisions concerning Appeal Panels, I accept Mr Martinovic’s submission that this is a pro forma paragraph and does not suggest that the separate argument raised by Mr Martinovic was considered. This is supported by the fact that no reasons were provided as to why Mr Martinovic’s request was rejected.

I am satisfied that, consistent with the “findings” of the Arbitrator, these three errors are clearly established.

The fourth error contended for is that the Appeal Panel was satisfied with the examination conducted by Dr Adler even though Dr Adler had not properly applied the test he was required to do so by failing to test for lateral flexion. No finding was made by the Arbitrator in relation to this and I do not consider it necessary to consider that fourth alleged error in order to determine this ground.

I am satisfied that three jurisdictional errors have been established. Whether they be classified as a failure to engage with Mr Martinovic’s arguments (Dranichnikov v Minister for Immigration and Cultural Affairs 92003) 77 ALJR 1088) or as a failure to provide reasons (Campbelltown City Council v Vegan (2006) 67 NSWLR 272), jurisdictional error is established. It follows that there are grounds to quash the decision of the Appeal Panel for jurisdictional error(s).

I am satisfied that the decision of the Appeal Panel is vitiated by jurisdictional error. On this basis the decision of the Arbitrator cannot stand and is liable to be quashed as well. This can only occur if an extension of time is granted to Mr Martinovic to seek judicial review of the decision of the Appeal Panel. Corporate Projects opposed an extension of time being granted. I will now turn to consider these arguments and the principles pertaining to them

Mr Vic Petrovich, Mr Martinovic’s new solicitor, swore an affidavit 17 December 2018 and exhibited a large number of documents addressing the reasons for the delay in this matter.

His evidence was that on 13 March 2018 he first saw and took instructions from Mr Martinovic. He noted that Dr Adler had failed to test lateral flexion movement of the cervical spine and that the findings of the Appeal Panel’s Determination of 7 April 2016, revoking the assessment of Dr Adler, necessitated a physical assessment of Mr Martinovic. On 15 March 2018, he sought Mr Martinovic’s authority to obtain a copy of the file from his previous lawyers and also made the Application to the Commission for Reconsideration under s 378 of the 1998 Act.

By email on 22 March 2018, he was advised by the Commission that the matter could not be referred back to the Panel pursuant to s 378 of the 1998 Act. On 27 March 2018, he made an Application to the Commission under s 350 of the 1998 Act. On 24 April 2018, he obtained Mr Martinovic’s file that he had sought on 19 March and 4 April 2018. On 23 May 2018, the teleconference with Arbitrator Egan of the Commission was conducted and he issued his decision on 30 May 2018. On 29 August 2018, he commenced proceedings for judicial review in this court.

On 9 October and 5 November 2018, Mr Petrovic made further requests on Mr Martinovic’s previous lawyers to release their full files and they were received on 9 and 20 November 2018.

Overall, it was submitted that Mr Martinovic acted reasonably in seeking assistance from lawyers after observing that the matter was not progressing, Mr Petrovich took immediate action after Mr Martinovic instructed him and any delay for reconsideration of judicial review were occasioned by both legal uncertainty in relation to making more than one claim for lump sum following the introduction of Workers Compensation Legislation Amendment Act 2012 and a failure to identify particular breaches relating to the assessment of whole person impairment.

Corporate Projects opposed an extension of time, citing the public interest in litigation not continuing indefinitely. It was submitted that Mr Martinovic’s case is not an exceptional one and he did not give an explanation for the delay in bringing the judicial review claim in respect of the Appeal Panel decision.

Reliance was placed on the observations of McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, 495-49; [2000] HCA 67 and Gallo v Dawson (1990) 93 ALR 479 at 481, to the effect that a mere inability to obtain favourable advice is not an adequate reason for delay. In this case the delay is two years. Finally, it was submitted that Mr Martinovic’s claim did not have strong prospects of success because there was no error in the Appeal Panel decision.

As stated above, UCPR r 59.10(1) provides that proceedings for judicial review must be commenced within three months of the date of the decision but r 59.10(2) provides that the Court may “at any time” extend that time. Rule 59.10(3) provides some factors that “should” be taken into account when considering whether to extend time under r 50.10(2), namely any particular interest of Mr Martinovic in challenging the decision, possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, the time at which Mr Martinovic became or, by exercising reasonable diligence, should have become aware of the decision, and any relevant public interest.

There was no issue taken as to Mr Martinovic having an interest in challenging the decision; if a further 3% was added to his WPI he is eligible to seek common law damages. Although Corporate Projects did not identify any particular prejudice, reliance was placed on general principles in this regard. No particular matter of public interest was identified by the parties.

As for UCPR r 59.10(3)(c), this is addressed by the evidence of Mr Petrovic. It was not explained why Mr Martinovic could not have, by exercising reasonable diligence, become aware of the decision prior to the effluxion of two years. The reason advanced was that his solicitors were slow to respond so he secured a new solicitor.

In addition to the discretionary factors set out in UCPR r 59.10(3), in Dyason v Butterworth [2015] NSWCA 52, McColl JA (with whom Barrett and Gleeson JJA agreed) identified (at [65]) two further relevant factors to which it is necessary to have regard on this question: the length of the delay and whether the plaintiff has a “fairly arguable case”.

It is to be accepted that, insofar as the decision of the Appeal Panel is concerned, the delay of two years in not insignificant and there is an interest in the finality of the statutory scheme which was created in order to make claims for workers compensation speedier and more efficient. But the delay must be weighed against the merits of the case and I consider the merits to be strong. I am also satisfied that, although no particular prejudice was identified by Corporate Projects, it is nonetheless prejudiced in the general sense in that it is had the benefit of a particular COD for two years.

I have weighed up the competing arguments concerning an extension of time. In particular, I have had regard to Corporate Projects’ argument that “a mere inability to obtain favourable advice” is not a satisfactory excuse of delay. I am not satisfied that is what occurred in this case. Mr Martinovic’s lawyer ceased corresponding with him so he approached a new solicitor. Once he did so, things moved reasonable quickly.

When Mr Martinovic sought review of the decision of the Appeal Panel on 27 March 2018, he could have instead sought judicial review of the decision. Judicial review of such decisions is regularly sought in this court. Despite this, Mr Martinovic sought to have an arbitrator review the decision under s 350 of the Act instead. Had he not, no doubt it would have been put against him that relief should be refused (in the event that error as shown) on the basis that there was an alternate statutory basis for seeking the relief.

A further relevant consideration is that I am satisfied that the Appeal Panel fell into jurisdictional error. When the Arbitrator concluded his reasons for dismissing the review he stated “I specifically note that I’m not conducting an administrative review of the Panel’s reasons, but determining whether or not to exercise my discretion assured [sic] to s 350 (3) to revoke the COD”. The Arbitrator was clearly aware that the result of finding error in judicial review proceedings differs to the consequences of finding the same error under s 350 of the 1998 Act.

For these reasons, I am satisfied that it is appropriate to extend time to seek judicial review of the decision of the Appeal Panel. I am also satisfied there are no additional discretionary reasons militating against granting the relief sought in relation to that decision.

Corporate Projects submitted that the relief sought by Mr Martinovic in relation to the Arbitrator’s decision should be denied on the basis that there is an alternate appeal process under s 352 of the 1998 Act. As set out above at [19], s 352 allows for an appeal against the decision of an arbitrator in limited terms. That appeal is well out of time. Although it is to be accepted that there was no evidence before the Court as to why such an appeal was not made within 28 days as required under the 1998 Act, it was submitted that the scope of the appeal was more limited than judicial review of the decision, particularly given the nature of the identified error.

In circumstances where I have arrived at the conclusion that the Arbitrator’s decision should be quashed only after being satisfied that the decision of the Appeal Panel is vitiated by jurisdiction error, I am not satisfied that the existence of a limited (out of time) alternate statutory avenue against the decision of the Arbitrator militates against the granting of the relief sought in relation to the decision of the Arbitrator.

Having weighed up all of these matters, I am satisfied that it is appropriate to grant the relief sought.

Accordingly, I make the following orders: