Supreme Court

New South Wales

Case Name: CSR Limited v Busbridge

Medium Neutral Citation: [2015] NSWSC 1268

Hearing Date(s): 15 July 2015

Date of Orders: 10 September 2015

Decision Date: 10 September 2015

Before: Hamill J

Decision:(1) The summons is dismissed.(2) The plaintiff to pay the first defendant’s costs of the proceedings.

Catchwords: CIVIL LAW – workers compensation – merits review of work capacity decision – calculation of post-injury earnings – jurisdictional error – where plaintiff put different basis for calculation before the decision maker – whether delegate erred by failing to consider alternative basis not put by either party – procedural fairness – whether delegate denied plaintiff opportunity to put alternative case

Legislation Cited:Workers Compensation Act 1987 (NSW)Workplace Injury Management and Workers Compensation Act 1988 (NSW)

Cases Cited:

Allesch v Maunz [2000] HCA 40; 203 CLR 172Ansett v Minister (1987) 72 ALR 469Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35; 196 ALR 692Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280Hoffmann-La Roche v Trade Secretary [1975] AC 295Jamal v Director of Public Prosecutions [2013] NSWCA 355Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah [2001] HCA 22; 206 CLR 57Rodger v De Gelder [2015] NSWCA 211Sinnathamby v Minister for Immigration (1986) 86 ALR 502SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9

Texts Cited: Guidelines for Work Capacity Decision, Internal Reviews by Insurers and Merit Reviews by the Authority

Category: Principal judgment

Parties:

Plaintiff – CSR LimitedFirst Defendant – Stephen BusbridgeSecond Defendant – WorkCover Authority of NSW

Representation:

Counsel:Plaintiff - C JacksonFirst Defendant – P R Stockley Solicitors:Plaintiff - Leigh Virtue & AssociatesFirst Defendant – Steve Masselos & Co

File Number(s): 2014/355100

Publication Restriction: Nil

JUDGMENT1 The plaintiff seeks judicial review of a decision made by a delegate of the

WorkCover Authority of New South Wales (the second defendant) by which the

first defendant (Mr Busbridge or the defendant) was found to be entitled to

weekly payments of compensation in a maximum amount of $610.30 per week

in accordance with s 37(2) of the Workers Compensation Act 1987 (NSW). The

decision was made following a merit review of a “work capacity decision” made

by the plaintiff in accordance with s 44(1)(b) of the Act.

2 The decision was made in the context of significant amendments made to the

Act in 2012. The parties agree that it is not necessary to consider in detail the

history of the workers compensation system or to dwell upon the overall nature

of the scheme as it exists following the amendments. The parties also agree

that the current dispute is a relatively confined one. It concerns whether the

delegate fell into jurisdictional error in her application of sections 32A and 35 of

the Act.

3 The plaintiff’s contention is that the delegate fell into jurisdictional error in that

she failed to understand or apply properly the statutory test to be applied in

assessing weekly payments under s 35 (ground 1), that she erred by taking

into account irrelevant considerations (ground 2) and, in the alternative, that

she failed to afford the plaintiff procedural fairness in the conduct of the merits

review (ground 3).

4 The background facts of the matter are not in dispute. Mr Busbridge worked for

17 years as a production operator. His exposure to cement dust over a number

of years gave rise to an allergy or dermatitis and he developed a rash. He was

unfit to work in the job he had held for 17 years. A doctor certified him to be fit

for normal duties provided that he was not exposed to cement dust. However,

the plaintiff was unable to provide work that did not so expose him. As a result,

Mr Busbridge was unable to return to his pre-injury employment and, for a

period, the plaintiff made payments of workers compensation to him in

accordance with the Act. In the meantime, Mr Busbridge obtained alternative

employment as an assistant miller.

5 On 10 June 2011 the plaintiff conducted a work capacity assessment and

made a work capacity decision (to use the terms of the statute) reducing Mr

Busbridge’s entitlement to weekly payments to $64.50 per week under s 37 of

the Act. Following the defendant’s application dated 2 July 2014, the plaintiff

conducted an internal review. It notified Mr Busbridge of the result of that

review by letter dated 20 July 2014. He remained dissatisfied with the outcome.

On 26 August 2014, he made an application to the second defendant for a

review of the decision. A delegate of the second defendant identified correctly

that the nature of that review was a merits review rather than a review of the

processes of the insurer. She was required to consider all of the information

before her on its merits and make findings and recommendations in the light of

that information. There is no dispute on the part of the plaintiff that this is what

the delegate attempted to do. However, in one quite particular yet important

respect, the plaintiff says that she fell into jurisdictional error. That was in

respect of her assessment of the first defendant’s ability to earn income in

suitable employment.

6 Put simply, the weekly payments to which the worker was entitled was to be

calculated by deducting the amount he was able to earn in “suitable

employment” after the injury from his “pre-injury average weekly earnings.”

Suitable employment is defined in s 32A as follows:

"suitable employment", in relation to a worker, means employment in work for which the worker is currently suited:

(a) having regard to:

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker’s age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the WorkCover Guidelines may specify, and

(b) regardless of:

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker’s pre-injury employment, and

(iv) the worker’s place of residence.

7 The definition of suitable employment was inserted by the 2012 amendments

to the Act and constituted a significant change to the manner in which such

payments are calculated. Prior to the amendments, the post-injury earning

capacity was essentially determined by the amount that the worker was

actually earning. It will be seen by the matters that are now to be disregarded

(such as whether the work or employment is available and the worker’s place

of residence) that the calculation is now based on the worker’s capacity to

undertake suitable work rather than their ability to find such work.

8 Section 35 provides the formula by which the weekly payments are to be

calculated:

“35 Factors to determine rate of weekly payments

(1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week: "AWE" means the worker’s pre-injury average weekly earnings. "D" (or a "deductible amount") means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker. "E" means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:

(a) the amount the worker is able to earn in suitable employment,

(b) the workers current weekly earnings.

"MAX" means the maximum weekly compensation amount.

(2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.”

9 There was (and remains) no controversy as to Mr Busbridge’s pre-injury

average weekly earnings. As the delegate put it:

“52. It would appear that the Insurer has calculated Mr Busbridge's pre-injury average weekly earnings in accordance with section 44C(l)(b) of the 1987 Act to be $1,464 70 per week. Further, the Insurer has applied section 82A of the

1987 Act and indexed Mr Busbridge's pre-injury average weekly earnings to $1,530 per week.

53. Mr Busbridge makes the following submission in his application for merit review:

“I think it [the decision] should be changed to be increased to the difference between my AWE of $1,530 per week and my current wage (whatever that might be) as there is no evidence to suggest that I am able to earn more than I am currently earning.”

54. Having considered Mr Busbridge's application for merit review, it is clear that he does not dispute the figure arrived at by the Insurer for his pre injury average weekly earnings. Rather, he disputes the figure the Insurer has arrived at for the amount to be taken into account as his earnings after the injury ("E").

55. In these circumstances, I do not consider a review of the amount of Mr Busbridge's pre-injury earnings is required, and I make no finding or recommendation in that regard. The effect of this is that the Insurer's decision about the amount of Mr Busbridge's pre-injury average weekly earnings remains unchanged.”

10 The controversy arises in relation to the other side of the equation, that is “E”;

“the amount to be taken into account as the worker’s earnings after the injury”.

11 The delegate had a number of sources of information available to her in

relation to Mr Busbridge’s capacity for work and his incapacity to work in an

environment which exposed him to cement dust. She also had information as

to his successful attempt at obtaining alternative employment and a variety of

employment options which were held to be, or not to be, suitable employment

for the purpose of the application of s 32A and 35. The delegate analysed

those options in her comprehensive and cogent reasons. The following

passages of her findings are not subject to dispute:

“34. Mr Busbridge's transferable skills are documented as the ability to receive and count stock items, pack and unpack items, verify inventory, store items, mark stock items, clean and maintain supplies, tools, equipment and storage areas, determine proper storage methods, keep accurate records and examine and inspect stock. Mr Busbridge also has the ability to provide assistance and direction, operate machinery, observe equipment operations, lift raw materials, finished products and packed items either manually, or while using a hoist and mark or tag identification on parts. Finally, Mr Busbridge is able to load and unload items, assist production workers, clean and lubricate equipment, drive a forklift and perform data entry/administrative duties.

35. The role of Warehouse Administrator has been identified as suitable employment for Mr Busbridge. A Warehouse Administrator administers and coordinates storage and distribution operations within an organization. The vocational assessment notes that Mr Busbridge disclosed that he had three months of Warehouse Administration experience while at CSR on suitable duties. While I acknowledge this, I do not consider three months experience in

a suitable duties capacity to be sufficient evidence to determine that Mr Busbridge possesses the necessary skills, education and experience to undertake this role in the open labour market. Further, I have not been provided with any further information in regards to the role of Warehouse Administrator that would allow me to determine whether Mr Busbridge would in fact have the necessary education, skills and experience to undertake this role. Accordingly, I am not satisfied the role of Warehouse Administrator is suitable employment for Mr Busbridge.

36. The role of Production Manager has been identified as suitable employment for Mr Busbridge. A Production Manager plans, organises, directs, controls and coordinates the manufacturing activities of an organisation including physical and human resources. AW Workwise note that Mr Busbridge has 17 years of experience as a Production Operator and as a result, considers he has the transferable skills to perform this role. While I acknowledge 17 years as a Production Operator would be advantageous, I am not satisfied that this experience is transferable to a Production Manager role. Mr Busbridge's work history does not indicate that he has held a management role, particularly in production, and in the absence of any further information in relation to the specific requirements of this role, I am not of the view that the role of Production Manager is suitable employment for Mr Busbridge.

37. Finally, the role of Production Operator has been identified as suitable employment for Mr Busbridge. A Production Operator records and coordinates the flow of work and materials between departments, examines goods for orders and prepares production schedules. Mr Busbridge was employed as a Production Operator for CSR for 17 years and I note that AW Workwise have indicated that Mr Busbridge was able to return to his pre-injury role provided he was not exposed to cement dust in the workplace. I accept that one could reasonably infer that given Mr Busbridge has had 17 years experience in a Production Operator role, he would possess the necessary skills, work experience and education to be suited to the role. Further, in view of Dr Woolnough having imposed only one restriction on Mr Busbridge's capacity for employment, that being, to avoid exposure to cement dust, I am satisfied that Mr Busbridge would be able to undertake a role outside of this particular environment, having regard to the nature of his incapacity.

38. In view of the above, I find that the role of Production Operator to be suitable employment for Mr Busbridge in accordance with section 32A of the 1987 Act.

39. I consider it appropriate to note that the role of Production Clerk was identified as suitable employment for Mr Busbridge in the vocational assessment of 17 May 2013, however, was replaced by Production Operator in the amended vocational assessment of 7 August 2013. Upon review of both assessments, I have concluded that the information provided for both Production Operator and Clerk are identical and as such, I have assessed Production Operator as suitable employment for Mr Busbridge, as documented in the most recent amended vocational assessment. For this reason, I do not consider it necessary to assess the role of Production Clerk as suitable employment.”

12 The delegate went on to find that the job of assistant miller (the job that Mr

Busbridge had obtained and in which position he was actually working) was

also suitable employment:

“42. Dr Woolnough places no restrictions upon Mr Busbridge other than he is not to work around cement products. The description of duties above does not indicate that Mr Busbridge works with cement dust, therefore, I am satisfied that he is not contravening this particular restriction. Further, Mr Busbridge has been able to maintain this role for almost a year with no reported difficulties. Accordingly, I consider that Mr Busbridge's current employment as an Assistant Miller is suited to the nature of his incapacity.

43. Accordingly, I find that Mr Busbridge is able to, and has, returned to work in suitable employment. I therefore find that Mr Busbridge has current work capacity pursuant to section 32A of the 1987 Act.”

13 The delegate then set out the entitlement periods for ongoing weekly payments

and the basis upon which such entitlements were to be calculated:

“Calculation of Entitlement

47. "E" is described in section 35 of the 1987 Act as:

E means the amount to be taken into account as the worker's earnings after the injury, calculated as whichever of the following is the greater amount

(a) the amount the worker is able to earn in suitable employment

(b) the workers current weekly earnings

MAX means the maximum weekly compensation amount

48. "D" is the amount of any non-pecuniary benefits which in Mr Busbridge's case is nil.

49. "AWE" means the worker's pre-injury average weekly earnings.

50. "Pre-injury average weekly earnings" is defined by section 44C of the 1987 Act.

51. Mr Busbridge is not an existing recipient of weekly payments of compensation, therefore his pre-injury average weekly earnings are to be calculated using the definition provided by section 44C of the 1987 Act.”

14 I have already set out the delegate’s consideration of Mr Busbridge’s pre-injury

average weekly earnings in [9] above. It is clear that the delegate identified and

applied correctly the legislative parameters of her statutory function. There is

nothing up until that point in the delegate’s report that is controversial as

between the parties to the present litigation. The difficulties and dispute arises

in relation to what follows:

“Ability to earn in suitable employment

56. As noted above, I have found the role of Production Operator to be suitable employment for Mr Busbridge to perform. Upon review of the vocational assessments produced by AW Workwise, particularly the Labour Market Analyses, I note that I have been provided with three amounts aProduction Operator may be remunerated as follows:

(1) Job Markets Australia - $1,389 per week

(2) Manufacturing and Associated Industries Occupations Award 2010 - $670 20 per week

(3) Local Labour Market - $1,000 per week

57. In assessing the amount that Mr Busbridge may earn in "suitable employment', I am required to have regard to the matters contained in the definition of "suitable employment" in section 32A of the 1987 Act. That definition requires that I take into consideration, among other things,the nature of Mr Busbridge's incapacity, his age, his education skills and experience. In my view the best information that is before me that reflects Mr Busbridge's ability to earn in suitable employment, as defined, is his current rate of pay. In view of the vastly differing amounts I have been provided in the vocational assessments for the role of Production Operator, I consider it appropriate to assess Mr Busbridge's current employment as an Assistant Miller, which I have also determined to be suitable employment, with respect to his ability to earn in suitable employment.”

15 The delegate identified three apparently conflicting bases upon which to

determine the “amount the worker is able to earn in suitable employment” as a

production operator. These figures came from an appendix to an amended

vocational assessment report prepared by a rehabilitation consultant working

for “AW Workwise”. At the lower end of that range was the award of $670.20

per week. The middle of the range was represented by what was described as

the “local labour market” in which production operators were paid $1,000 per

week. The high end of the range, and the figure which the plaintiff now

contends ought to have guided the delegate’s application of s 35, was the “Job

Markets Australia” figure of $1,389 per week.

16 The plaintiff contends that the award wage was “not a relevant consideration”

because it represented nothing more than the defendant’s minimum legal

entitlement if he worked as a production operator. The plaintiff then contends

that the “local labour market” figure was also an irrelevant consideration

because the definition of suitable employment in s 32A excludes from

consideration the worker’s place of residence. Thus, the plaintiff argues that

the only relevant figure was the Job Markets Australia figure of $1,389 per

week. According to the plaintiff, that was the figure that the delegate was

obliged to consider in determining the rate of weekly payments to which the

first defendant was entitled. The plaintiff says that by taking into account the

“vastly differing amounts” (as it was put by the delegate) and thereby putting

them to one side in favour of the known amount that the defendant was

actually earning, the delegate took into account irrelevant considerations (the

local labour market figure and the award wage). By failing to take into account

the Job Markets Australia figure, the delegate failed to apply the formula

required in s 35 and failed to give effect to the definition of suitable employment

in s 32A.

17 The defendant submits that the delegate performed the function required of

her. He contends that the figures contained in the Work Wise report (from

which those varying possible weekly earnings as a Production Operator were

derived) were meaningless and without substantive content. It was said that

the Job Markets Australia figure failed to take into account factors such as the

nature of the industry. It was, according to the defendant, simply not known

whether his skills as a Production Operator working in the cement industry

were transferable to the 7,250 production operator jobs referred to in the

report. According to the defendant, the only reliable figure concerning the

worker’s post injury earnings was the amount that he was actually earning. All

of the other figures were either less than that (in which case the definition of “E”

in s 35 meant that they were irrelevant) or in the case of the higher amount,

devoid of any real content. In those circumstances, it was open to the delegate

to adopt the approach that she did, that is, to use the amount of the first

defendant’s actual earnings in his job as an assistant miller to apply the

relevant calculation. The defendant’s submission is that it is significant that the

delegate found that Mr Busbridge’s job as an assistant miller was suitable

employment, a finding that remains uncontroversial.

18 The position advanced by the plaintiff as to the proper approach to an

assessment of the defendant’s ability to earn in suitable employment is

different to the position it took in its internal review and in its submissions to the

delegate.

19 In the letter dated 30 July 2014, the plaintiff advised of its decision following the

internal review. Relevantly, it said in paragraph 2.4:

“You have confirmed that you are capable of securing alternative employment and have demonstrated a capacity to earn up to at least $1,413 gross per week.”

20 On 29 August 2014, the plaintiff provided its reply to the defendant’s

application for a merits review. It confirmed that it approached the matter on

the basis that the “the worker has demonstrated that he is capable of earning

up to and at least $1,413 per week”. It explained the basis of this conclusion as

follows:

“(d) The worker was paid weekly compensation for more than 52 weeks, therefore his current AWE is calculated to be $1,464.70 gross per week. It is noted that in week ending 8/6/2014, the worker earned $1,413 per week in his current employment.”

21 While the plaintiff referred to the AW Workwise assessment that “the worker as

having capacity to return to pre-injury duties as a production operator provided

he is not exposed to cement dust” and that his skills were transferrable, the

response made no reference to the Job Markets Australia figure ($1,389). The

plaintiff did not contend that the $1,389 figure contained in the annexure to the

AW Workwise report (and which had informed its original decision) was a

relevant figure by which to determine the worker’s post-injury weekly earning

capacity. Nor did it attempt to give content to that figure or to explain why the

other figures in the report were not relevant.

22 Essentially, the plaintiff relied on what it contended to be the defendant’s actual

earnings. The delegate followed that approach. However, she took a different

approach in calculating what his current weekly earnings actually were.

23 In this Court, counsel for Mr Busbridge submitted:

“CSR had submitted that Mr Busbridge had no entitlement to ongoing weekly benefits having ‘a full capacity for work’ and having demonstrated that he was capable of earning up to at least $1,413.00 per week in his employment as an Assistant Miller over the previous 10 months (Macken p 76). (CSR appears to accept now that this submission was wrong as it was made by reference to Mr Busbridge’s fortnightly, rather than weekly pay).”

24 There is an error in this submission concerning the approach that CSR took on

the merits review. From my reading of the material, the plaintiff did not

mistakenly take into account the defendant’s fortnightly pay as his weekly pay.

Rather, it took one particularly high earning week and contended that this

represented his weekly earnings.

25 The delegate approached her task by determining his current weekly earnings

as an assistant miller by reference to the formula in s 44I of the Act:

“44I Definition-current weekly earnings

44I. In this Act, "current weekly earnings" of a worker in relation to a week means:

(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:

(i) the worker’s earnings calculated at that rate for the ordinary hours worked during that week,

(ii) amounts paid or payable for overtime or shift allowances in respect of that week,

(iii) amounts paid or payable as piece rates or commissions in respect of that week, or

(b) in any other case, the worker’s actual earnings in respect of that week but not including any amount that is a base rate of pay exclusion unless it is:

(i) paid or payable for overtime or shift allowances in respect of that week, or

(ii) paid or payable as piece rates or commissions in respect of that week.”

26 The material before the delegate concerning Mr Busbridge’s actual current

earnings came in the form of 17 Pay Advices dated from November 2013 to

July 2014. As the delegate correctly observed, “Mr Busbridge’s current weekly

earnings fluctuate from week to week dependent upon the hours he may

perform”. She calculated his earnings based on his “base rate of pay” which

was $21.08. She found that he had a capacity to work 40 hours per week and

calculated his ability to earn in suitable employment (as an assistant miller)

thus:

“$21.08 per week x 40 hours per week = $843.20.”

27 I do not understand the plaintiff now to contend that this calculation was wrong.

However, as has been seen, the approach that the plaintiff took in the merits

reviews was to take a single payslip (dated 11 June 2014) and extrapolate from

the earnings for the week ending 8 June 2014. In that week, the payslip

recorded Mr Busbridge’s earnings as follows:

TITLEPERIO

D END

RAT

E

HOU

RS

PAY

RATE

TOT

AL

Allied

Mills –

08/06/

14

Mon-

Fri

24 20.30

00

487.2

0

Picton

Mill

Assista

nt Level

1

Norm

al

Time

Sat –

Norm

al

Time

1220.30

00

243.6

0

Sun

–

Norm

al

Time

1220.30

00

243.6

0

Nightshi

ft

Allowan

ce

243.050

073.20

Saturda

y

Allowan

ce

1210.15

00

121.8

0

Sunday

Allowan

ce

1220.30

00

243.6

0

1,413

28 On that basis, the plaintiff put to the delegate that “the workers earnings after

the injury” – “E” in s 35(1) – was $1,413 per week. On no reasonable approach

could this figure be described as his “current weekly earnings” or weekly

earnings after injury. The very next payslip showed that in the week ending 6

July 2014, Mr Busbridge earned just $487.20. The delegate correctly

approached the matter by reference to s 44I.

29 The plaintiff now contends that the delegate fell into jurisdictional error by

failing to take into account the Job Markets Australia figure of $1,389 on the

basis that this amount is “the greater amount” as between it and the current

weekly earnings properly calculated.

30 It appears (from paragraphs 57-58 of her report) that the basis upon which the

delegate disregarded the Job Markets Australia figure was that the AW

Workwise report contained “vastly differing amounts”. That was a reference to

the variation between the Job Markets Australia figure ($1,389), the award

wage ($760.20) and the local labour market average wage ($1,000). The

plaintiff did not make any submission to the delegate as to how to reconcile

those varying figures because it sought to rely on an actual pay period where

Mr Busbridge earned more than $1,389 (ie $1,413).

31 The defendant’s approach in this Court was to describe the Job Markets

Australian figure as “meaningless”. He argued that the Job Markets Australia

figure was devoid of any real content because it referred to the earnings of a

“production operator” in general terms without any reference to, or identification

of, any industry that might be relevant to Mr Busbridge’s history of employment

and skills acquired in the particular industry in which he had worked for many

years. The defendant argued that while such a generic approach might be

applicable to a job such as a teacher or a nurse, it was unhelpful for a job

where wages might vary greatly depending on the industry in which one

worked. An analogy was drawn with a company director whose income earning

capacity is entirely different depending on the industry, size of the company

and other variables.

32 The defendant made no similar submission before the delegate which is

unsurprising given that the decision he sought to have reviewed made no

reference to the Job Markets Australia figure (although the original decision

did). The form that the defendant filled out stated simply:

“I think [the work capacity decision] should be changed to be increased to the difference between my AWE of $1,530-00 per week and my current wage (whatever that might be) as there is no evidence to suggest that I am able to

earn more than I am currently earning. Also, due to being casual, any time off sick I do not get paid at all.”

33 The delegate was placed in a difficult position in coming to a conclusion as to

the worker’s earnings after the injury (“E”) for the purpose of s 35. Neither party

addressed the Labour Market Analysis contained in Appendix 1 of the AW

Workwise reports or contended that it was relevant. The unrepresented worker

left an assessment of his weekly earnings after injury to the delegate,

(“whatever that may be”). The employer, at [2.4] of the decision subject to the

merits review before the delegate and in its reply to the merits review stated

that the worker was “capable of securing alternative employment and [had]

demonstrated a capacity to earn up to and at least $1,413 gross per week”.

That figure was based on a single pay period during which the worker had

made $1,413 and was not representative of his average earnings. Neither party

made reference to, or relied upon, the Job Markets Australia figure of $1,389

per week figure or explained how it did (or did not) come within the terms of s

35(1)E(a) as an “amount the worker is able to earn in suitable employment.”

34 The delegate was aware of the Job Markets Australia figure but concluded that

it was difficult to use that figure in view of the “vastly differing amounts” in the

same report concerning the average wage and local labour market. The

plaintiff now says that the average wage was irrelevant altogether and that the

local labour market was not relevant because the definition of suitable

employment in s 32A excludes consideration of the worker’s place of

residence. In many, if not most circumstances that submission may be correct

but there is a real difficulty in asserting jurisdictional error on the part of the

delegate in circumstances where the Job Markets Australia figure was not

referred to in the letter of 30 July 2014 notifying Mr Busbridge of the result of its

internal review or in its reply to the application for a merit review dated 29

August 2014. On each occasion the plaintiff relied on the single pay slip for 8

June 2014. Its initial decision (dated 10 June 2014) was based on the Job

Markets Australia figure but by the time the matter went to the delegate it

appeared to have abandoned its reliance on that figure. No explanation for this

was provided to the delegate and there was no reference to the Job Markets

Australia figure.

Ground one

35 Under ground 1, the plaintiff contends that the delegate “misunderstood the

statutory test to be applied in assessing weekly payments”, “erred as to her

jurisdiction”, “misconceived the task” she had to perform “and/or” failed to take

into account a relevant consideration.

36 The starting point for a consideration of this ground is the recognition that not

all factual or legal errors give rise to an appropriate case for judicial review.

The Workers Compensation scheme, and the legislative framework under

which it operates casts the responsibility of the merits review of the employer’s

decision upon the WorkCover Authority and not on this Court. It is not

appropriate to parse the language of the delegate or examine her reasons with

a critical eye attuned to error: see, for example, Minister for Immigration and

Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272,

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43

FCR 280 at 287.

37 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-272:

"When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints of judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued: ‘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’.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that

they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'"

38 See also, for example, Muralidharan v Minister for Immigration & Ethnic Affairs

(1996) 136 ALR 84 at 94-95 (Sackville J), Bojko v ICM Property Service Pty Ltd

[2009] NSWCA 175 at [36] (Handley AJA), Campbelltown City Council v Vegan

[2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] (Basten JA).

39 However, there are limits to the proposition that an administrative decision

maker's reasons should be construed beneficially. Stone J in SZCBT v Minister

for Immigration and Multicultrual Affairs [2007] FCA 9 at [26] said:

"The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked."

40 Further, while to "fulfil a minimum legal standard, the reasons need not be

extensive", "where more than one conclusion is open, it will be necessary for

the [decision maker] to give some explanation of its preference for one

conclusion over another": Campbelltown City Counsel v Vegan (supra) at

[121]-[122] (Basten JA).

41 On a fair reading of the delegate’s reasons, she was keenly aware of the

statutory requirements of her jurisdiction. The “consideration” that the plaintiff

contends that the delegate failed to take into account was the Job Markets

Australia wage for Production Operator. It was submitted that the amount was

“taken to be capable of earning as a Production Operator … was a mandatory

consideration” as a matter of statutory construction. The distinction between a

relevant consideration for judicial review purposes and relevant material was

emphasised by Gleeson JA in Rodger v De Gelder [2015] NSWCA 211 at [84]-

[86]. In spite of the fact that neither party sought to draw her attention to the

Job Markets Australia wage (or even refer to it) the delegate did make

reference to it and explained her reason for concluding that it should not be

used in the calculus. Those reasons were not irrational or unreasonable.

42 While a different decision maker may have taken a different approach, the fact

that the delegate did not simply find the highest possible wage, having correctly

(if implicitly) dismissed the plaintiff’s urging to take into account the amount that

the defendant earned in a single pay period, did not constitute a misconception

of her task or a failure to exercise her jurisdiction lawfully.

43 Insofar as there was more than one conclusion open on the evidence, the

decision maker explained her reasons for preferring the actual weekly

earnings. Again, it would have been open to the delegate to come to a different

conclusion, but the decision that she made was within her jurisdiction. In

circumstances where the plaintiff had not contended that the Job Markets

Australia figure should be used, even in the alternative, I am unable to

conclude that the delegate failed lawfully to exercise the jurisdiction.

44 I would reject ground 1.

Ground two

45 The plaintiff contends that the references that the delegate made to the award

wage and the local labour market wage meant that she took into account

irrelevant considerations. That assertion may have had more substance if the

delegate had settled on, or used, either of those figures directly in calculating

the rate of weekly payments. However, her use of those figures was simply to

highlight the anomaly, or as she put it the “vastly differing amounts” in the AW

Workwise report. It raised a question in her mind as to the validity of the Job

Markets Australia wage and its applicability as “an amount the worker was able

to earn in suitable employment” (my emphasis).

46 Taking these figures into account in this way did not amount to a jurisdictional

error. The delegate’s reasons were transparent and the figure that she used as

“E” in the equation was a figure contemplated by the terms of s 35(1)E(b).

47 I would reject ground 2.

Ground three

48 The third ground of appeal asserts that the plaintiff was denied procedural

fairness and/or that the delegate failed to comply with procedures mandated by

the Guidelines for Work Capacity Decision, Internal Reviews by Insurers and

Merit Reviews by the Authority (“the Guidelines”). The Guidelines are

delegated legislation issued pursuant to s 44(1) of the Act and s 376(1) of the

Workplace Injury Management and Workers Compensation Act 1988 (NSW).

49 Guideline 10.6 allows a “Merit Reviewer” (such as the delegate in this case) to

determine their own procedures and provides that the rules of evidence do not

apply. However, the guideline provides that the merits review is subject to the

requirements of procedural fairness. To a substantial degree the content of

procedural fairness is defined by the Guidelines. The plaintiff relies on 10.2 and

10.7 in particular:

“Acknowledgement of insurer’s reply

10.2 The Authority will write to the worker and insurer as soon as practicable and preferably within 7-days of receiving the reply from the insurer to acknowledge receipt of the reply and to:

10.2.1 advise whether any further information is required from either of the parties for the purposes of the review; and

10.2.2 confirm that a review of a work capacity decision does not operate to stay the decision or otherwise prevent the taking of action based on the decision.”

“Merit Reviewer and findings – Section 44(3)(e) 1987 Act

10.7 The Merit Reviewer is to take such measures as are reasonably practicable to ensure that the parties understand the nature of the application, the issues to be considered and the role of the Reviewer as an independent decision-maker, and that the parties have had an opportunity to have their submissions and any relevant documents or information considered”

50 The plaintiff submits that the delegate breached these guidelines and in so

doing breached the requirement for procedural fairness by denying the plaintiff

the opportunity to be heard. The amended summons asserted that once the

delegate determined that she should assess the weekly earnings in the way

that she did “the second defendant should have alerted the parties to the

perceived deficiency in the evidence, because it was an issue identified by the

second defendant on the review, and allowed the parties to make submissions

on the question or provide further evidence.” Alternatively, “the second

defendant should have requested further evidence pursuant to clause 10.2.1 of

the Guidelines.”

51 The plaintiff submitted in writing that “procedural fairness and the delegated

legislation required the [delegate] to alert the parties (and in particular the

insurer) to the issue that it had identified and to the deficiency or ambiguity in

the evidence, or to request further information in order to resolve that issue,

and to make an assessment.” In the alternative, given her inquisitorial powers,

the delegate should have obtained evidence herself (and provided it to the

parties for comment), or requested further evidence from the parties (and

allowed the parties to comment).

52 The defendant submitted that the delegate did not identify any deficiency in the

evidence. Rather, she concluded that part of the evidence was not probative

and “in broad terms accepted the approach argued for by Mr Busbridge.” (The

defendant also submitted that “CSR saw fit to first rely upon and then argue on

the basis of the limited material contained in the AW Workwise report.” That is

not correct. CSR did not rely on the amounts referred to in the annexure to the

AW Workwise report. Rather, it relied on the actual earnings of the defendant

in the week ending 8 June 2014.)

53 I am unable to accept, in the circumstances of this case, that clause 10.2 made

it mandatory (or “required”) the delegate to seek further evidence or further

submissions from the parties or that she ought to have embarked on an

evidence gathering exercise of her own. The evidence was not ambiguous and

nor were the submissions of the parties. There is no suggestion that “any

further information is required from either of the parties” in order for the

delegate to undertake the review. There is nothing to suggest that the plaintiff

did not understand the process or was denied the opportunity to be heard. The

form of “reply to an application for merit review” included in part 3 the

opportunity for “RESPONSE TO THE WORKER’S APPLICATION” which was

explained as follows:

“Now that you have received the worker’s application, outline your response to the request that the decision(s) should be changed, as clearly as you can. Tell us what you want. Outline your reasons for any opposing view, and what you base it on. You can refer to and attach new information.”

54 This was an opportunity for the plaintiff to put its case, including an alternative

case based on the annexures to the AW Workwise reports including the Job

Markets Australia figure of $1,389. Its reply was as follows:

“CSR Limited maintain their current decision that the worker has full capacity for work and therefore his entitlement to weekly compensation is nil. The reasons to maintain the decision are as follows:

(a)   The worker is certified for normal hours with the restriction or, ‘avoid all contact with products involved in cement manufacture’.

(b)   The vocational assessment with AW Workwise of 16/05/2013 assessed the worker as having capacity to return to pre-injury duties as a production operator provided he is not exposed to cement dust, that the worker has 17 years of experience in the industry and therefore has extensive knowledge and transferrable skills to obtain employment as a production operator, warehouse administrator and production manager with a different employer.

(c)   The worker has been employed with BDS Recruitment Regional Pty Ltd, working for Allied Mills as an Assistant level 1 on casual basis since 29/10/2013 and working more than 15 hours per week. He has been able to sustain this employment for the last ten months.

(d)   The worker was paid weekly compensation for more than 52 weeks, therefore his current AWE is calculated to be $1,464.70 gross per week. It is noted that in week ending 08/06/2014, the worker earned $1,413 per week in his current employment.

(e)   The Nominated Treating Doctor, confirms that the worker can work in any position provided that contact with concrete dust is avoided.

(f)   The worker has not submitted any additional documents to support his request for further review.

As a result of the above information, CSR Limited do not accept that the worker has an entitlement to ongoing weekly benefits for the following reasons:

- The only restrictions on the worker’s capacity is to avoid cement based products

- The worker has been assessed as having extensive knowledge, experience and transferable skills to maintain his current employment

- The worker has demonstrated that he is capable of earning up to and at least $1,413 per week

- The worker has been able to maintain his current employment with BDS Recruitment Regional Pty Ltd, working for Allied Mills as a Mills Assistant Level 1 for the last 10 months

- As of 30 July 2014, AW Workwise advise that there are approximately 2,235 Production Operator positions within Sydney region of which the vast majority will be environmentally suited for the worker

- There is no current medical information that support the workers absence from work due to his work-related condition

- The worker has not submitted any additional information to support his request for review for our work capacity decision.”

55 The plaintiff had the opportunity to put its case before the delegate. It elected

not to place any reliance on the Job Markets Australia figure but to rely on the

higher figure that it suggested, based on a single pay slip, that the plaintiff was

earning in suitable employment. As Gleeson JA said in Jamal v Director of

Public Prosecutions [2013] NSWCA 355 at [39]:

“The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. However, a party's failure to make proper use of that opportunity cannot be used to support the claim of procedural unfairness: Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; (2001) 52 NSWLR 213 at 219 [37] per Mason P.”

56 Similarly, in Allesch v Maunz [2000] HCA 40; 203 CLR 172 Kirby J said at [38]:

“Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

57 Similarly, procedural fairness does not require a decision maker to disclose

what she is minded to decide or to invite comment on her process of

reasoning: see, for example, Hoffmann-La Roche v Trade Secretary [1975] AC

295 at 369, Re Minister for Immigration and Multicultural Affairs and Anor; Ex

Parte Miah [2001] HCA 22; 206 CLR 57 at [31], Sinnathamby v Minister for

Immigration (1986) 86 ALR 502 at 506, Ansett v Minister (1987) 72 ALR 469 at

499, Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35 196

ALR 692. In Asiamet Emmett J explained at [79]:

“79. A person who would be affected by the exercise of a statutory power is entitled to rebut or qualify further information, and comment by way of submission upon adverse material, from other sources that is before the decision-maker. A decision-maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion that has been arrived at, which would not obviously be open on known material. Subject to those qualifications, however, a decision-maker is not obliged to expose his or her mental processes or provisional views for comment before making the decision in question (Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (`Alphaone Case')). Nor is there any duty to disclose draft or preliminary views. Within the bounds of rationality, a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case. It is only if the decision-maker proposes to reach an adverse conclusion that is not an obvious and natural evaluation of the material supplied by the applicant,

that the applicant is entitled to be told of the tentative conclusion (Alphaone Case at 591).”

58 In the present case, no additional material came before the delegate and the

adverse conclusion that she reached was not one that was not obviously open

on the known material. It was in effect the conclusion to which the defendant

invited the delegate to come and in relation to which the plaintiff was given the

opportunity to respond. The delegate was not required to disclose her mental

processes or provisional views for the comment of the parties.

59 I would reject ground 3.

Orders

60 None of the grounds for review are established. Accordingly I make the

following orders:

(1) The summons is dismissed.

(2) The plaintiff to pay the first defendant’s costs of the proceedings.

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