Batshon v Sydney Trains

HIS HONOUR: My earlier judgment in this matter was delivered on 30 June 2020: see Batshon v Sydney Trains [2020] NSWSC 831. After hearing Mr Batshon’s appeal, I formed the view that it was appropriate to receive further submissions. The proceedings thereafter came before me on 29 July 2020 for argument upon the question of whether or not Mr Batshon should be given leave to amend his summons and what should follow if he were. Sydney Trains opposed the grant of leave to amend but contended that the appeal should be dismissed in any event.

I had indicated at [12] in my decision that Mr Batshon's solicitor attached submissions in support of his request to be examined by the Medical Appeal Panel. I included those submissions in terms in the body of my decision. For reasons that will become apparent, I propose to repeat the relevant portion of those submissions here:

When the matter returned to me for further submissions, Mr Dodd of counsel for Sydney Trains maintained that Mr Batshon had not in fact attached a submission to his original application addressing why he should be re-examined by an Authorised Medical Specialist who is a member of the Appeal Panel and that my reference in the judgment to him having done so was wrong. In order that Mr Dodd’s submissions can be fully understood, the following transcript excerpt may be of assistance:

With the utmost respect to Mr Dodd, I think the error is his, not mine. The words in the submissions provided to the Medical Appeal Panel by Mr Batshon’s solicitor were “that if the Applicant’s impairment was assessed on the basis of an incorrect diagnosis he should be re-assessed by an AMS who is a member of the Medical Appeal Panel”. I accept that Mr Batshon’s solicitor was clearly not being paid by the word, but there is something extremely unambiguous about the few words that he used: Mr Batshon wished to be re-examined. (The fact that the submissions refer to him being “reassessed” as opposed to “re-examined” is not significant having regard to the fact that the box requesting a re-examination was ticked on the Application to Appeal). The issue at hand is not whether the submissions were or were not sufficient to convince the Medical Appeal Panel that Mr Batshon should be re-examined by one of their number: the Medical Appeal Panel simply failed entirely to address this issue, a proposition that I do not understand to be controversial. The question then becomes whether the failure of the Medical Appeal Panel to deal with Mr Batshon’s request was one that generates any remedy for him in this Court.

In my opinion, the Medical Appeal Panel was obliged to consider Mr Batshon’s request. It amounted in the circumstances to a relevant mandatory consideration that the Medical Appeal Panel failed to take into account. The conclusion that it was mandatory follows from the fact that the opportunity to be re-examined by an Approved Medical Specialist who is a member of the Medical Appeal Panel is specifically contemplated by the form that Mr Batshon was required to complete when seeking to appeal from the original decision of the Approved Medical Specialist. That form reflects the procedure for an appeal prescribed by the Work Injury Management and Workers Compensation Act 1998 and the Workers Compensation Guidelines. The inference that Mr Batshon’s request was not considered or taken into account arises clearly from the fact that there is no reference to it at all in the Medical Appeal Panel’s reasons. It cannot be inferred that consideration was given to the request but that it was refused.

An established failure by the Medical Appeal Panel to have regard to a mandatory consideration constitutes a jurisdictional error, as it amounts to a failure to exercise the decision-making power in accordance with the terms on which jurisdiction was conferred: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 at [73]; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]. What is required on the part of a decision-maker in respect of mandatory factors was explained by the Full Court of the Federal Court of Australia in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 (at [44]):

In my opinion, this is a case in which the total absence of any reference to Mr Batshon’s request gives rise to the very strong inference that the Medical Appeal Panel did not consider it. There is no indication that it was given even cursory consideration. This amounts to a jurisdictional error, being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred.

What should occur? In my opinion, Mr Batshon’s disappointed expectation that his request to be re-examined would be heeded calls for the grant of relief. The following orders should therefore be made: