De Ross v General Medical Assessment Tribunal & Anor [2009] QSC 111

SUPREME COURT OF QUEENSLAND CITATION: De Ross v General Medical Assessment Tribunal & Anor [2009] QSC 111 PARTIES: ALAN GRAEME DE ROSS Applicant v GENERAL MEDICAL ASSESSMENT TRIBUNAL – THORACIC First Respondent and WORKCOVER QUEENSLAND Second Respondent FILE NO/S: No 10548 of 2006 DIVISION: Trial Division PROCEEDING: Application for statutory review under the Workers’ Compensation & Rehabilitation Act 2003. ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 21 April 2009 DELIVERED AT: Brisbane HEARING DATE: 21 April 2009 JUDGE: Byrne SJA ORDER: The decision of the General Medical Assessment Tribunal – Thoracic is set aside and the matter is referred back for determination. CATCHWORDS: STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - where second respondent failed to produce relevant documents to Tribunal - where second respondent breached statutory duty under s 500A Workers’ Compensation and Rehabilitation Act 2003 – where statutory provisions silent as to effect of breach – whether non- compliance caused invalidity of Tribunal’s decision ss 499, 500A, 510C(3) Workers' Compensation and Rehabilitation Act 2003 Workers’ Compensation and Rehabilitation Amendment Bill -- 1 of 3 -- 2 2006 COUNSEL: Mr D V Rangiah SC for applicant Mr G P Long SC and Mr S A McLeod for second respondent SOLICITORS: Maurice Blackburn for applicant Workers’ Compensation Regulatory Fund for second respondent [1] This case raises a difficult question of statutory interpretation. The problem arises because, as not infrequently happens, the Parliament has not spelt out the consequences it wishes to attach to non-compliance with a statutory duty. [2] Here, the second respondent (“WorkCover”) breached the duty imposed on it by section 500A(1)(b) of the Workers' Compensation and Rehabilitation Act 2003 (“the Act”) in failing to supply the General Medical Assessment Tribunal-Thoracic with documents in its possession. Those documents were "relevant to a reference of a matter" (see section 499) that had been made to the Tribunal; namely, whether the applicant's employment was a significant contributing factor to his sarcoidosis. [3] With its reference of that matter to the Tribunal for determination, WorkCover was obliged to supply the documents: journal articles that concerned a possible nexus between workplace conditions like those at the applicant's workplace and his disease. These were, therefore, relevant documents triggering WorkCover’s duty under section 500A of the Act, which requires that: "An insurer refers a matter to a tribunal by - (a) making a reference in the approved form; and (b) giving the tribunal a copy of all relevant documents." [4] Emphasising the scope and importance of the obligation, s 500A(2) required WorkCover to "give the tribunal relevant documents even though otherwise protected by legal professional privilege." [5] The question is whether the statutory non-compliance involves the invalidity of the Tribunal's decision, which was that the applicant's disease was not employment- related. That depends on whether it can be discerned from the Act that it was a purpose of the statute to invalidate a decision of the Tribunal made after such a breach of statutory duty (at least one not effectively cured by the subsequent supply of the omitted material to the Tribunal before its decision was made, which did not happen here). [6] In deciding the question, the extrinsic material is of little assistance. [7] The explanatory note that accompanied the Workers’ Compensation and Rehabilitation Amendment Bill 2006 (which introduced the new section 500A) said: "In addition, the clause clarifies the insurer is required to give the tribunal all relevant information and documents in relation to the matter referred to the tribunal. It is intended that all documents will be disclosed in their entirety except correspondence protected by legal professional privilege." -- 2 of 3 -- 3 [8] The object of this statutory provision is, therefore, plain enough. What is not expressed is whether a failure to comply – at least one which might have affected the outcome – was intended to invalidate the Tribunal’s determination. [9] The consequences which attend the rival constructions may be considered in answering that question of statutory interpretation. [10] WorkCover contends that it is highly improbable that the Parliament intended that a tribunal’s decision should be set at naught merely because of an accidental omission by WorkCover staff to supply some document of mere marginal relevance: still less one which could not have affected the Tribunal's decision had it been made available. [11] On the other hand, and at the other extreme, the applicant argues it is highly unlikely that, in instituting a regime that requires WorkCover to give the Tribunal all the pertinent information it has, the Parliament envisaged that a decision of the Tribunal which the withheld information reveals was clearly wrong should be left to stand. [12] There are inconvenient consequences whatever view is taken of the intention to be imputed to the Parliament. [13] It is no answer to say that the worker can give the Tribunal documents. Vital information that, in a particular case, WorkCover might even inadvertently withhold would not necessarily come to the worker's attention. [14] An exchange of material is envisaged by legislative provisions introduced with section 500A. By section 510C(3): "The tribunal must give the worker a copy of a relevant document given by the insurer to the tribunal..."; and, by subsection (4), within a time nominated, "the worker must give the tribunal and the insurer a copy of any relevant document the worker wants considered by the tribunal." But compliance with that arrangement still runs the risk that the worker may not know about information in WorkCover’s possession that supports his case. [15] Inconvenient results of a kind the Parliament is unlikely to have welcomed could well attend the interpretation the applicant propounds. But to reject that interpretation is to impute to the Parliament an unlikely intention: that a breach of the statutory obligation so significant as to render a tribunal's decision unsound is to have no effect upon it. [16] It must be taken that the Parliament intended that at least where, as here, relevant documents which ought to have been furnished by WorkCover do not reach the Tribunal before its decision is made, such non-compliance with the statutory duty involves the invalidity of the Tribunal's decision. [17] There will, therefore, be an order setting aside the decision of the Tribunal and requiring a reconsideration on proper reference. [18] I will hear the parties with respect to the form of order. -- 3 of 3 --