Sydney Night Patrol & Inc Co v Absolom

1. [1]

   HER HONOUR: This is an application for judicial review and involves whether the Appeal Panel failed to consider the plaintiff’s oral submissions.

2. [2]

   By amended summons filed 10 October 2014, the plaintiff seeks a judicial review of the decision of a Medical Appeal Panel due to its failure to convene an open oral assessment hearing. The plaintiff seeks an order in the nature of certiorari quashing the decision of the Medical Appeal Panel made on 28 March 2014, and an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision. The plaintiff also seeks an order in the nature of mandamus, remitting the application to the third defendant for reallocation of the matter to an Appeal Panel, for determination according to law.

3. [3]

   The plaintiff is Sydney Night Patrol & Inc Co (“Sydney Night Patrol”). The first defendant is Beryl Ruth Absolom (“Ms Absolom”). The second defendant is an Appeal Panel of the Workers’ Compensation Commission constituted pursuant to s 328(1) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (“the WIMWC Act”) (“the Appeal Panel”). The third defendant is the Registrar of the Workers Compensation Commission (“the Registrar”). The second and third defendants have filed submitting appearances.

4. [4]

   Sydney Night Patrol relied on the affidavit of Paul H Macken sworn 16 June 2014. Ms Absolom relied on the affidavit of her solicitor Grant Edward Avery affirmed 11 November 2014.

Factual and procedural background

1. [5]

   On 15 February 1994, Ms Absolom underwent a L5/S1 disc excision performed by Dr Stevenson at the Queen Elizabeth hospital, Adelaide for sciatica. The following year, she had a relapse of pain and was readmitted to Clare hospital where it was noted that her ankle reflex was still depressed. She was retrained and managed to obtain employment as a security guard with Sydney Night Patrol.

2. [6]

   On 12 December 2003, Ms Absolom was working as a security guard with Sydney Night Patrol at a venue in Newcastle where she had to stand for a prolonged period. There was no seating. Over the ensuing two days, she was unable to sit down and developed increasing lower back pain with right sciatica. She consulted her general practitioner, Dr Quedding, at Singleton.

3. [7]

   On 16 March 2004, a CT scan was performed which showed degeneration at the L5/S1 level with calcification surrounding the right S1 nerve root foramen.

4. [8]

   On 8 April 2004, an MRI was performed. It found a “post-discectomy collapse of the disc now impinging the right S1 nerve root.”

5. [9]

   At the end of 2004, Ms Absolom was referred to Dr Ghabrial. She was then working part time but finding it very difficult. Her situation had not improved when he saw her again in 2007.

6. [10]

   In March 2010, Dr Ghabrial performed a L5 decompression laminectomy and one level fusion. Ms Absolom has not returned to full time work since.

7. [11]

   On 12 December 2012, Ms Absolom filed an Application to Resolve a Dispute in relation to the injury she suffered to her back in 2003.

8. [12]

   The Registrar referred the medical dispute to the Approved Medical Specialist (“the AMS”), Dr David O’Keefe, for assessment.

9. [13]

   The AMS noted that there had been a previous s 66(a) settlement or award of 11 per cent whole person impairment (“WPI”). In making that assessment, the AMS made a deduction for the proportion of the impairment that he considered was due to previous L5/S1 disc excision in 1994. The AMS assessed the contribution at 4/5ths. He did not believe there was any specific injury on 12 December 2003, her back became sore after standing for a prolonged period and without the previous surgery she would not have developed the symptoms and required a spinal fusion.

10. [14]

    On 11 November 2013, the AMS issued a Medical Assessment Certificate (“MAC”). The AMS assessed Ms Absolom’s WPI for the injury to her lower back at 5 per cent.

11. [15]

    On 9 December 2013, Ms Absolom lodged an application to appeal the decision of the AMS. On 28 March 2014, the Appeal Panel revoked the MAC of the AMS and issued a new MAC assessing Ms Absolom’s WPI at 14 per cent.

12. [16]

    Ms Absolom’s application to appeal was based on two grounds, namely, on the grounds that the assessment was made on the basis of incorrect criteria (s 327(3)(c)) and also on the basis that the MAC of the AMS contained a demonstrable error (s 327(3)(d)). On 18 December 2013, Sydney Night Patrol lodged a notice of opposition to the appeal.

13. [17]

    It is necessary to briefly refer to the contents of the notice of opposition.

14. [18]

    Part 2 of the notice of opposition is headed “PART 2 – Supporting Documentation”.

15. [19]

    Question 2.2 of that notice reads:

16. [20]

    In answer to 2.2 Sydney Night Patrol answered “Yes”.

17. [21]

    Question 2.3 reads:

18. [22]

    In answer to 2.3 Sydney Night Patrol answered “No”.

19. [23]

    Sydney Night Patrol did not attach reasons as to why the appeal should not be determined by an Appeal Panel on the papers and why a hearing was necessary. Its written submissions at paragraph [2] stated:

20. [24]

    On 14 January 2014, the matter came before the Registrar who stated that “on the face of the application and submissions made, I am satisfied to the standard of gatekeeper that a ground of appeal as specified in s 327(3)(d) is made out in the AMS’s assessment of the lumbar spine.” (at [5]). The matter was referred to the Appeal Panel.

21. [25]

    The Appeal Panel was comprised of Arbitrator P H Molony and Approved Medical Specialists Drs R Pillemer and J Scougall. The Appeal Panel in its written reasons dated 28 March 2014, under the heading “Preliminary Review” at [8] - [9] stated:

22. [26]

    The Appeal Panel at [21] - [22] continued:

23. [27]

    The first sentence in [22] is incorrect. Sydney Night Patrol did request an oral hearing. I accept that in its submissions, aside from reiterating that there should be an oral hearing before the Appeal Panel, Sydney Night Patrol did not provide any reasons in support of this request.

24. [28]

    Sydney Night Patrol seeks a judicial review of the decision on two grounds, first, that the Appeal Panel failed to take into account a matter which it was required to take into account, when it determined not to hold a hearing on the erroneous understanding that both parties consented to the matter being determined “on the papers” (AP [22]); or secondly, the mistake regarding Sydney Night Patrol’s request for a hearing gave rise to a failure to accord it procedural fairness. I will deal with each ground in turn.

25. [29]

    Sydney Night Patrol contends that the Appeal Panel failed to take into account a matter which it was required to take into account when it determined not to hold a hearing on the erroneous understanding that both parties consented to the matter being determined “on the papers” (AP [22]).

26. [30]

    The parties referred to two authorities, Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 and Ah-Dar v State Transit Authority of New South Wales; Registrar of the Workers Compensation Commission [2007] NSWSC 260 (“Ah Dar”). I shall briefly refer to both cases.

27. [31]

    In Lakovska, one of the grounds of judicial review was whether the Appeal Panel had erred in failing to take into account the request of the employer for an oral hearing, in deciding not to grant an oral hearing. In the Appeal Panel’s reasons, it expressly noted the application for an oral hearing and the reasons articulated by the employer in favour of its application.

28. [32]

    In referring to this ground of judicial review, the Court of Appeal per Basten JA (with whom Barrett and Gleeson JJA agreed) at [17] stated:

29. [33]

    Basten JA stated at [48] to [53] refers to the Guidelines and the role of the Appeal Panel by saying:

30. [34]

    In Ah-Dar, an employer appealed against the AMS’s assessment of an employee’s WPI resulting from a work injury. The Registrar referred the appeal to an Appeal Panel, which upheld the appeal and made a lower assessment. The employee sought judicial review of both the Registrar’s referral decision and the Appeal Panel’s determination.

31. [35]

    In Ah-Dar, Bell J at [63] to [69] stated:

32. [36]

    Counsel for Sydney Night Patrol submitted that if a party affected by a decision indicates that they want to be heard orally then that has to be taken into account by the Appeal Panel and the Appeal Panel failed to take into account its request to make oral submissions.

33. [37]

    Counsel for Ms Absolom referred to Lakovska and submitted that under the Guidelines it is the Appeal Panel that has an obligation to make an assessment of the documents and determine whether there is a need to order a hearing; it is not for the parties to make that determination. While he accepted that when the Appeal Panel stated, “neither party sought an assessment hearing” it made a misstatement, he submitted that the Appeal Panel had actually turned its mind to whether or not an oral hearing should take place. This is demonstrated because the Appeal Panel examined the documentary evidence, namely, the application and submissions, the original reply and attachments, the response and its attachments; and that they reviewed the AMS’s reasons. After doing so, it established that the ground of appeal involved solely a medical matter.

34. [38]

    The factual situation in these proceeding differs from Lakovska. It is almost identical to that in Ah-Dar. Sydney Night Patrol, in its notice of opposition, indicated that it did not agree that the appeal should be determined on the papers it also indicated its desire to make oral submissions at a hearing. Whether or not to conduct a hearing where a party can make oral submissions is a mandatory consideration and one that that the Appeal Panel was bound to take into account. It did not. The failure to take into consideration the request of a party to make oral submissions at a hearing constitutes a jurisdictional error.

35. [39]

    As McCallum J observed in Workers Compensation Nominal Insurer v Bui [2014] NSWSC 832 at [6], the results of such an assessment, be it by the AMS or the Appeal Panel, are important to both parties because such an assessment is conclusively presumed to be correct in any proceedings before a court or the Workers Compensation Commission as to the degree of permanent impairment.

36. [40]

    As I have already decided that there is jurisdictional error, it is unnecessary to determine whether there has been a failure to afford procedural fairness.

37. [41]

    As to whether or not I should not exercise my discretion to quash the decision, counsel for Ms Absolom gave three reasons why I should not. They are first, that the amount in dispute is modest (about $4,500), second, the fact that Sydney Night Patrol should have outlined what oral submissions it wished to make to the Appeal Panel and it did not do so and finally, that no different result could occur should the decision be remitted.

38. [42]

    Counsel for Sydney Night Patrol responded by referring to what was said in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [55] where Gaudron and Gummow JJ stated that “the discretion with respect to [such] remedies … is not to be exercised lightly against the grant of a final remedy, particularly where … there is no avenue of appeal …” Counsel for Sydney Night Patrol submitted that the sum of about $4,500 reflects the entirety of the assessment.

39. [43]

    In order to exercise my discretion to not quash the Appeal Decision I need to be satisfied that if the matter is remitted a different result could not be produced: see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. I am not satisfied that a different result could not be produced as I cannot be satisfied that the oral submissions would not make any difference. While I agree that the amount is modest it does represent the full amount of Ms Absolom’s assessment.

40. [44]

    For these reasons, it is my view that I should exercise my discretion to quash the decision of the Appeal Panel. I do so and remit the decision to the Workers Compensation Commission for determination according to law.

41. [45]

    I should add that had the Appeal Panel considered the request for an assessment hearing and declined to grant it on the basis that no reasons had been proffered by Sydney Night Patrol, the result would have been different.

42. [46]

    Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.