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Incorrect criteria

Marina Pitsonis v Registrar WCC [2008] NSWCA 88. Mason P, Beazley and McColl JJA agreeing.

AMS psychiatrist Dr Julian Parmegiani returned MAC 7% for a teacher who had notified common law intention after a student attacked her in 2002.

The Registrar's delegate declined medical appeal panel under WIM s327. Malpass AsJ declined review: [2007] NSWSC 50.

Mason P delivered reasons with which Beazley and McColl JJA agreed.

The president said [20]:

"The role of the Registrar, or the Registrar's delegate, is that of a gatekeeper. In Riverina Wines PL v Registrar WCC [2007] NSWCA 149, this Court pointed out, at [73], that the criterion for the appeal proceeding past the gatekeeper was not the objective existence of the grounds of appeal, but the opinion of the Registrar concerning whether one of those grounds existed.

Later [23], "The correctness in law of the delegate's decision is to be judged by reference to the material placed before him in the application."

Mason P noted 'incorrect criteria' and 'demonstrable error' in s 327(3)(c) and (d) were in point.

His Honour [40]:

"The expression 'incorrect criteria' is undefined in the Act. In Campbelltown CC v Vegan [2004] NSWSC 1129, Wood CJ at CL referred to a statement in the minister's second reading speech to the effect that s 327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides including guides issues by Workcover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made "in accordance with the Workcover Guidelines".

"The Chief Judge's decision went on appeal to this Court: Campbelltown CC v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284. Basten JA, with whose reasons McColl JA agreed, said that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the certificate, may be 'demonstrable errors' within s 327(3)(d), they would not usually satisfy the 'incorrect criteria' ground. His Honour observed that the latter ground: 'must refer to such matters as the tests set out in the Guidelines, where they are applicable'."

Instantly the appellant's position was that the AMS had erred in facts applied to the criteria, as distinct from engaging other than correct criteria.

On demonstrable error, from [47], Mason P said: "The word demonstrable means capable of being demonstrated (The Macquarie Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia, 2005, New Penguin English Dictionary 1st ed, Penguin, London, 2000). If the word 'contained' in para (d) were read as no more than 'have within itself' (Macquarie Dictionary), then it would follow that s 327(3)(d) would confer the equivalent of a right of appeal on all grounds subject only to the persuasive burden being carried by the appellant. This would render para (c) redundant and would tend to trespass over the areas addressed in paras (a) and (b).

"One thing, I think, is clear, namely that the appeal to the appeal panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the appeal panel being invited to decide the application afresh. I agree with the observations of Basten JA in Vegan [above] at [137] when he stated that two factors suggested that the jurisdiction and powers of the appeal panel are limited.

"I am therefore driven to conclude that s 327(3)(d) uses 'contained' in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal.

"This conclusion accords with that reached by Hoeben J in Merza v Registrar WCC [2006] NSWSC 939 at [39]: 'An error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment'."

The president said [59]: "Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.

"I do not exclude the possibility that a certificate might be capable of challenge by way of judicial review on the ground that there was, for example, a denial of procedural fairness. Sometimes, but only sometimes, the failure of a decision-maker to hear or address relevant factual material or arguments will ground a successful challenge upon this ground."

A: S Norton SC, EE Welsh, inst MacMahon Associates PL. 1R: Crown Solicitor's Office. 2R: CE Adamson SC, JW Catsanos, inst Moray & Agnew.

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