DIFFERENTIAL DIAGNOSIS: HOW MERIT, PROCEDURAL AND JUDICIAL REVIEW DIFFER WAYNE COOPER DIRECTOR WORK CAPACITY REVIEWS

“No man but a blockhead ever wrote, except for money.” - Samuel Johnson Quoted by James Boswell in The Life of Samuel Johnson [1795]

Not so fast: Part 19I, clause 8 of Schedule 6 to the 1987 Act says this:

Schedule 6, Part 19I Clause 8 A legal practitioner is not entitled to be paid or recover any amount for a legal service provided to a worker or an insurer in connection with a review of a work capacity decision for which an application is made under section 44 of the 1987 Act before the commencement of section 44BF of that Act (as inserted by the 2015 amending Act).

There is no section 44BF

FOUR POSSIBLE REVIEWS: Internal Review by insurer Merit Review by SIRA Procedural Review by WIRO Judicial Review by Supreme Court

Section 44BB provides for internal, merit and procedural review. The Supreme Court can review any decision under the prerogative power in section 69 of the Supreme Court Act [See also section 23 SCA 1970]

Section 43(1) provides that work capacity decisions of insurers are binding and are: “not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court.” [emphasis added]

44BB Review of work capacity decisions (1) An injured worker may refer a work capacity decision of an insurer for review:(a) by the insurer in accordance with the Workers Compensation Guidelines within 30 days after an application for internal review is made by the worker, or

(b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or

(c) to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.

Merit Review v Judicial Review

“The object of merits review is to ensure that the ‘correct or preferable’ decision is made on the material before the review body.” Bennett, D – ‘Balancing Judicial and Merits Review’ (2010) 53 Admin Review 3,4

Merit review is a de novo review

CSR Limited v Busbridge [2015] NSWSC 1268

Merit Review v Procedural Review

44BB(1)(c) Describes procedural review as: “a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision”

No text book No leading cases

The Trustees of the Sisters of Nazareth v Simpson [2015] NSWSC 1730

33. Unfortunately, all of the Defendants including the injured worker filed Submitting Appearances. Accordingly, there was no contradictor in respect of the submissions made by the Plaintiff. This was especially unfortunate because this appears to be the first time that the provisions governing a review such as that made by the Independent Reviewer have been reviewed in this Court.

Not limited to, but including, procedural fairness

No broad principle Review extends to reasons

Continuing uncertainties

HIS HONOUR: Supposing, just for argument's sake, this Court doesn't interfere. That does mean that you would be immediately able to put in train the procedures all over again or do you have to wait some period of time? JACKSON: Look, I shouldn't answer that on the run. I suspect that notice would have to be given. I'm not sure. (transcript 4/11/2015, p 9)

Judicial Review

'although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' Cooper v Wandsworth Board of Works [1863] EngR per Byles, J

“ … a quasi-judicial function is vested with powers which must be exercised in accordance with the statutory procedures and in compliance with the principles of natural justice. Obviously the former often embody the latter. To the extent that these requirements precondition the jurisdiction and are not complied with, the action is ultra vires and thus invalid or void ab initio.” Ridge v Baldwin [1964] AC 40 - per Lord Reid at

No discretion is unreviewable

In summary: Internal review: can review everything Merit review: can make a recommendation de novo based on new evidence Procedural review: statutory provisions and procedural fairness Judicial review: can review discretion of decision- makers but cannot consider new evidence

A little Learning is a dang'rous Thing; Drink deep, or taste not the Pierian Spring: There shallow Draughts intoxicate the Brain, And drinking largely sobers us again. Alexander Pope – Essay on Criticism [1711]

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