15 July, 2009
Article by: Cherilyn Ribbons and Peter Hunt.
www.curwoods.com.au
Bojko v ICM Property Service Pty Limited & Ors [2009] NSWCA 175
(2 July 2009) Allsop P, Giles JA, Handley AJA
In Brief
The quality and clarity of reasons given by an administrative law maker
continue to be informed by the High Court's decision in Minister for
Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259
("MIA v Liang") where a Court should not be concerned with the
"looseness in the language" invoked by an administrative decision maker.
A statutorily constituted Authority has no duty to provide cogent reasons
as to its decisions unless such a requirement is contained within the constituting
legislation and supporting regulations.
Background
This decision was handed down by the NSW Court of Appeal on 2 July 2009.
The application before the court was concerned with the Workplace Injury
Management Act 1998 (NSW) and the associated Workcover Guidelines,
and the procedure for medically assessing workers.
In the first instance the worker sought an order from the Supreme Court
to have the Appeal Panel's Statement of Reasons dismissed by way of judicial
review on the basis that the decision represented an abridgement of the
worker's right to procedural fairness and the panel had erred in law by
operating outside its jurisdiction in applying the relevant statutory and
regulatory provisions in a discretionary manner.
The worker was unsuccessful at first instance and sought relief from the
Court of Appeal.
Facts
The worker sought a reassessment by an Approved Medical Specialist.
The original assessment had resulted in a Medical Assessment Certificate
which assessed the worker as not exceeding the relevant statutory threshold,
disentitling the worker to general damages. The Appeal Panel declined to
refer the worker to Approved Medical Specialist as there was sufficient
evidence to make an assessment on the papers.
Judgment
By way of summary – Allsop P and Giles J A agreed with the decision of
Handley AJA in its entirety.
The worker challenged the decision of the Appeal Panel not to re-examine
the worker on two grounds.
1. The Appeal Panel had failed to accord procedural fairness by failing to
take into account a relevant consideration, or failing to give reasons for an
aspect of its decision thus erring as to jurisdiction.
2. The Appeal Panel erred in law in exercising its discretion not to conduct
a further medical examination.
Counsel for the worker submitted that the worker's request for an
examination was not specifically addressed in the Panel's reasons and
therefore, in the worker's submission, the request for examination was
treated as an "irrelevant consideration, or one of no weight and was simply
ignored".
His Honour stated that the relevant guidelines (Paragraph 45 of the
WorkCover Guidelines) provides that that the panel may "adopt any of
the following procedures in accordance with the needs of the individual case".
With respect to the case at hand, His Honour stated that the Statement of
Reasons given by the Appeal Panel indicated that they had "addressed in a
preliminary way the statutory task or function" and therefore all the
statutory duty was discharged. As the remainder of paragraph 45 relates
to procedures which "may" be carried out in individual cases, the procedures
are "discretionary".
His Honour stated that with respect to the statutory provision that "the
language is inelegant" but it is clear that a preliminary review must take
place in all cases.
His Honour further stated that the Appeal Panel's statement that" it was not
necessary" to have a further medical examination did not require any further
enquiry as to whether a further examination would be desirable or appropriate,
even if not strictly necessary, because by conducting preliminary review,
"they had addressed themselves to the whole of the statutory task".
His Honour referred to High Court principles contained in Minister for
Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA6 185 CLR 259
where it was stated that "a Court should not be concerned with looseness in
the language nor with unhappy phrasing of the reasons of administrative
decision maker....the reasons for the decision under review are not to be
construed minutely and finely with an eye keenly attuned to the perception
of error".
His Honour did concede that in future a Panel would be most helpful if a
Statement of Reasons would include a clear statement that they had
considered and dealt with the whole case before them including applications
for a further medical examinations, to receive further evidence, or to have
an assessment hearing. This would go some way to reducing the challenges
on judicial review and remove the perception held by an unsuccessful party
that the case had not been properly considered by the panel.
The appeal was dismissed.
Implications
The subject legislation and judicial findings have implications for claims
managed under the Motor Accidents Compensation Act 1999 (NSW).
Paragraph 1.20 of The MAA Permanent Impairment Guidelines, issued
pursuant to 44(1)(c) provides that an assessment involves three stages,
one of which includes an interview and clinical examination:
It is notable that the Guides do not insist that an assessment and clinical
examination be carried out. Indeed, the Authority does have the discretion
to refer the evidence to an Assessor and seek a paper assessment without
advising or seeking the consent of both parties.
The subject case confirms that the statutory duty is discharged by merely
considering the application and publishing the Statement of Reasons to the
parties advising of the outcome of the decision.
However, regard should be had to the recent decision of Rahme v Bevan
[2009] NSWCA 528 in which' the Supreme Court was critical of a MAS
Review Panel's failure to give proper reasons.
The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
circumstances.
Specific Questions relating to this article should be addressed directly to
the author.
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