Whether the omission of ‘relevant documents’ flawed the decision of the MAT

De Ross v General Medical Assessment Tribunal & Anor [2009] QCA 327

His Honour Justice Keane, with whom Holmes and Fraser JJA concurred, dismissed the appeal of WorkCover Queensland, upholding the decision of the learned primary judge’s decision.

Central to this discussion was whether failure by WorkCover to furnish articles provided by Mr de Ross’ legal representatives, which supported the contention that there is a causal nexus between occupational exposures to dust and sarcoidosis, fell foul of section 500A of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) and so impugned the Medical Assessment Tribunal’s decision.

WorkCover conceded the documents were relevant but submitted the High Court in Project Blue Sky v Australian Broadcasting Authority was authority for the proposition for (at paragraph 22)

…it is the legislative purpose, rather than a formal characterization of statutory provisions as mandatory or directory, which is determinative of whether non-compliance with a statutory requirement renders a subsequent act or decision invalid.

His Honour noted this proposition could be accepted, but at the same time reject WorkCover’s argument on the basis:

[24] In this case, the Tribunal did not have all relevant documents before it when it made its decision adverse to Mr de Ross. The Tribunal’s decision was made without information which it is conceded was relevant to that decision. The legislature’s intention in this regard having been frustrated, the obvious inference is that the decision should not be regarded as effective. In my respectful opinion the learned primary judge was clearly correct to reject the argument put to him by WorkCover.

His Honour rejected the notion of Mr Ross’ legal representative’s failure to disclose the material themselves absolved WorkCover:

[35] It is not sufficient for WorkCover to point to Mr de Ross’ non-compliance with the provisions of s 510C(4) of the Act. The provisions of s 510C(4) are predicated upon compliance with s 510C(3) which is in turn dependent on compliance by the insurer with s 500A of the Act. To note that this is so is not to become embroiled in metaphysical questions as to whether WorkCover’s non-compliance with s 500A(1) means that there has been no reference at all which might lawfully proceed to a decision: it is simply to observe that non-compliance with s 500A(1) is apt to affect the process of “exchange” contemplated by s 510C(3) and (4) of the Act.

[36] In this case that process of exchange was adversely affected by WorkCover’s non-compliance with s 500A(1)(b) of the Act. The process contemplated by s 510C was defeated, at least in part, by WorkCover’s non-compliance. That is not less the case because the process might arguably have been rescued had Mr de Ross’ legal representatives been more alert. The fact is that the decision made by the Tribunal was not authorised by the Act because all relevant documents were not placed before the Tribunal. Accordingly, the Tribunal’s decision was apt to be set aside under s 20(2)(d) of the JR Act.

His Honour concluded:

[38] In the upshot, I have concluded that the decision which was made by the Tribunal was not authorised by the Act within the meaning of s 20(2)(d) of the JR Act. It was not a decision made by reference to a consideration of all relevant documents. The absence of all relevant documents from the Tribunal was not the result of a deliberate decision by the aggrieved worker not to rely upon the documents but was due, in part at least, to WorkCover’s failure to comply with s 500A(1)(b) of the Act.

Brisbane Barrister – David Cormack

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