Ballas v Department of Education (State of NSW)

[2020] NSWCA 86

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ballas v Department of Education (State of NSW) [2020] NSWCA 86

Hearing dates:

18 February 2020

Date of orders:

06 May 2020

Decision date:

06 May 2020

Before:

Bell P and Payne JA at [1]; Emmett AJA at [134]

Decision:

1.   Appeal allowed with costs.

 

2.   Leave to rely on ground 4 of the Notice of Contention refused.

 

3.   Set aside the decision of the primary judge and, in lieu thereof:

 

(i) declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and decision of the Third Defendant dated 17 July 2018 is void and of no effect;

 

(ii)   order the decision issued by the Second Defendant, constituted by the Third Defendant on 17 July 2018 be set aside;

 

(iii)   remit the matter back to the Second Defendant for referral to a different Delegate to determine the dispute according to law;

 

(iv)   order the Certificate of Determination issued by the Fourth Defendant on 22 August 2018 be set aside;

 

(v)    order the reconsideration determination made by the Fourth Defendant on 8 April 2020 be set aside; and

(vi)   order that the First Respondent to pay the Appellant’s costs of the proceedings before the primary judge.

Catchwords:

ADMINISTRATIVE LAW – judicial review – whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar – whether Delegate’s decision contained jurisdictional error – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations – whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion.

  WORKERS COMPENSATION – Workers Compensation Guidelines – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment – whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion.

Legislation Cited:

Supreme Court Act 1970 (NSW) s 69
Workers Compensation Act 1987 (NSW) ss 4, 9, 65(1), 65A(3), 66(1), 151H
Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) Sch 1.1 cl 22
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 121(1), 287(1), 288(1), 293, 294, 321A, 322(1), 324, 325, 326, 327, 328, 350(2), 369(3), 371, 376(1)(a), Ch 7 Pt 7
Workers Compensation Legislation Amendment Bill 2001 (NSW)
Workers Compensation Commission Rules 2011 (NSW) r 15.9
Workers Compensation Guidelines 2016 (NSW) ss 11.1, 11.11-11.20, Ch 11

Cases Cited:

Ali Ali v Rockdale City Council [2015] NSWSC 1481
Bunnings Group Ltd v Hicks [2008] NSWSC 874
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Campbelltown City Council v Vegan [2004] NSWSC 1129
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Haroun v Rail Corporation of NSW [2008] NSWCA 192; 7 DDCR 139
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523
Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136
Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149; (2007) 4 DDCR 607
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8

Category:

Principal judgment

Parties:

Fiona Ballas (Applicant/Appellant)
Department of Education (State of NSW) (First Respondent)
Arbitrator of the Workers Compensation Commission of New South Wales (Second Respondent)
Delegate of the Registrar of the Workers Compensation Commission of New South Wales (Third Respondent)
The Registrar of the Workers Compensation Commission of New South Wales (Fourth Respondent)

Representation:

Counsel:
D Hooke SC and B McManamey (Applicant/Appellant)
M Allars SC (First Respondent)
Submitting appearances (Second, Third and Fourth Respondents)

  Solicitors:
Turner Freeman (Applicant/Appellant)
Moray & Agnew (First Respondent)
Crown Solicitor’s Office (Second, Third and Fourth Respondents)

File Number(s):

2019/106555

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 234

Date of Decision:

8 March 2019

Before:

Wright J

File Number(s):

2018/282756

Headnote

[This headnote is not to be read as part of the judgment]

The applicant (Ms Ballas) was employed by the first respondent (the Department) and worked as a primary school teacher at Yagoona Public School from 1999. From 2011 to 2016, she was exposed to a series of events that resulted in a significant psychological injury. On 24 October 2016, Ms Ballas brought a claim for permanent impairment compensation. Liability was not disputed. However, under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), where the degree of impairment is in dispute, the assessment is made by an Approved Medical Specialist (AMS) in accordance with the Workers Compensation Guidelines (the Guidelines), and results in the issue of a Medical Assessment Certificate (MAC).

Chapter 11 of the Guidelines, styled “Psychiatric and psychological disorders”, laid out the method for assessing psychiatric impairment, the evaluation of which requires a medical examination. Sections 11.11 and 11.12 of the Guidelines are concerned with what is described as the “Psychiatric impairment rating scale” (PIRS), by which behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment, being (1) self-care and personal hygiene; (2) social and recreational activities; (3) travel; (4) social functioning (relationships); (5) concentration, persistence and pace; and (6) employability. Section 11.12 of the Guidelines outlines that impairment in each of these six areas is rated using class descriptors, with classes ranging from 1 to 5, in accordance with severity.

The availability in New South Wales of permanent impairment compensation in respect of a psychiatric or psychological disorder suffered in connection with a worker’s employment depends upon a person’s whole person impairment (WPI) as a result of that injury being assessed at 15% or more: s 65A(3) of the Workers Compensation Act 1987 (NSW) (the 1987 Act).

Ms Ballas was assessed by Dr Michael Hong (Dr Hong) as having a WPI of 8%. In relation to the category of “social and recreational activities”, Dr Hong assessed Ms Ballas as falling within class 2, noting, amongst other things, that Ms Ballas “[g]ambles on poker machines… spends around 1 hour at the club”. That assessment had two major consequences; namely (1) Ms Ballas fell under the statutory WPI threshold of 15% and was thereby not entitled to compensation for permanent impairment in respect of her injury; and (2) she was precluded from seeking common law damages in respect of her injury.

On 8 June 2018, pursuant to s 327(4) of the 1998 Act, Ms Ballas lodged within the Registrar of the Workers Compensation Commission (WCC) an application to appeal against the medical assessment, on the basis that when making the assessment of “social and recreational activities”, Dr Hong had made a “demonstrable error” and “applied incorrect criteria”, adopting the terminology of ss 327(3)(c) and (d) of the 1998 Act. Ms Ballas contended that contrary to Dr Hong’s assessment, social and recreational activities were “not directed to solitary activities that do not involve interactions with other people”. She contended that Dr Hong’s consideration of Ms Ballas’s attendance at the RSL club monthly, to gamble on the poker machines for one hour, was not “relevant to the assessment of social and recreational activities” and that Dr Hong had therefore applied incorrect criteria in that he had not properly applied the Guidelines, and had made a demonstrable error. Ms Ballas contended that the result of properly assessing social and recreational activities would have been a class 3 rating, resulting in a 17% WPI.

The decision of a delegate (the Delegate) of the Registrar was made on 17 July 2018, in which she refused the application. The Delegate held that the PIRS categories “are generic and general in description”, and to some extent were “overlapping”. She held that the “categorisation of which category applies is a matter within the AMS’s discretion based on his or her clinical assessment”.

On 22 August 2018, an Arbitrator of the WCC issued a Workers Compensation Commission Certificate of Determination (Certificate of Determination) pursuant to s 294 of the 1998 Act, determining:

“(1)   The applicant suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 24 October 2016.

(2)   The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 24 October 2016.”

Subsequent to the hearing in the Court of Appeal, the WCC refused an application to reconsider its decision to issue the Certificate of Determination.

On 14 September 2018, Ms Ballas commenced proceedings in this Court for judicial review of the decision of the Delegate, pursuant to the Supreme Court Act 1970 (NSW) s 69. Wright J (the primary judge) refused judicial review of this decision: [2019] NSWSC 234. The primary judge held that the Delegate had not misunderstood Ms Ballas’s submissions, nor had she failed to address it. Further, the primary judge concluded that the Delegate did not err in her observation as to the generality of the PIRS categories, and that the application of such categories in accordance with the Guidelines involved the AMS using his or her professional expertise and judgment. Ms Ballas appealed this decision.

The principal issues before the Court of Appeal were:

1. Whether the primary judge erred in misconstruing s 327(4) of the 1998 Act.

2. Whether the primary judge erred in holding that the Delegate did not err in her application of s 327(3) of the 1998 Act, in respect of the assessment of WPI by the application of the PIRS categories.

3. Whether the Court had power to set aside the Certificate of Determination.

The Court held (Bell P and Payne JA, Emmett AJA agreeing), allowing the appeal with costs:

1. The Delegate misconstrued the “gatekeeper” nature of the task ascribed by s 327(4) of the 1998 Act to the Registrar and that, rather than looking to whether the appeal grounds were capable of being made out, she erred in proceeding to determine the appeal, a role which is instead to be performed by a Medical Appeal Panel: [70]-[73] (Bell P and Payne JA); [151] (Emmett AJA).

2. The primary judge erred in failing to hold that the Delegate’s decision was infected by jurisdictional error. The Court held that the Delegate had erred in her application of s 327(3) of the 1998 Act, had conflated the concepts of “scales” and “classes” in the Guidelines, and had misconstrued the nature of the error that Ms Ballas had identified as a “demonstrable error”, within the meaning of s 327(3)(d): [73], [75]-[76] (Bell P and Payne JA); [151] (Emmett AJA).

3. Neither the Certificate of Determination issued by the WCC pursuant to s 294 of the 1998 Act, nor the WCC’s refusal to reconsider its decision to issue a Certificate, placed the Delegate’s decision beyond the Court’s supervisory jurisdiction pursuant to s 69(3) of the Supreme Court Act. The Court held that the Certificate of Determination and the reconsideration determination, themselves being affected by jurisdictional error, should be set aside: [104]-[105], [128] (Bell P and Payne JA); [151] (Emmett AJA).

Judgment

1. BELL P AND PAYNE JA: The applicant (Ms Ballas) was employed by the first respondent (the Department) from 1991, and worked as a primary school teacher at Yagoona Public School from 1999. From 2011 to 2016, she was exposed to a series of events that resulted in a significant psychological injury.

2. On 24 October 2016, Ms Ballas brought a claim for permanent impairment compensation. Liability was not disputed.

3. The availability in New South Wales of permanent impairment compensation in respect of a psychiatric or psychological disorder suffered in connection with a worker’s employment depends upon a claimant’s whole person impairment (WPI) as a result of that injury being assessed at 15% or more: s 65A(3) of the Workers Compensation Act 1987 (NSW) (the 1987 Act). An assessment below 15% WPI also operates to preclude consideration of a claim in work injury damages arising out of the circumstances in which the injury was sustained: s 151H of the 1987 Act.

4. Under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), where the degree of impairment is in dispute, the assessment is made by an Approved Medical Specialist (AMS) and results in the issue of a “medical assessment certificate” (MAC), explained in more detail at [18] below.

5. The assessment is not “at large” as it were in the form of a single and conclusory expert pronouncement as to the percentage of the injured person’s impairment. Rather, it results from a far more structured and directed process in accordance with the Workers Compensation Guidelines 2016 (NSW) (the Guidelines) issued by the State Insurance Regulatory Authority (the Authority). An understanding of that process is critical to the disposition of this appeal.

6. Ms Ballas was assessed by Dr Michael Hong (Dr Hong) as having a WPI of 8%. That assessment had two major consequences:

(i)   Ms Ballas fell under the statutory WPI threshold of 15% and thereby was not entitled to compensation for permanent impairment in respect of her injury; and

(ii)   she was precluded from seeking common law damages in respect of her injury.

7. The present appeal, brought pursuant to a grant of leave on 29 October 2019, is from a decision of Wright J (the primary judge) sitting in the Administrative List of the Common Law Division of this Court. His Honour relevantly refused judicial review of a decision of the delegate (the Delegate) of the Registrar (the Registrar) of the Workers Compensation Commission (WCC) by which the Delegate refused an application to appeal from Dr Hong’s 8% WPI assessment: Ballas v Department of Education (State of NSW) [2019] NSWSC 234.

8. The Delegate’s decision was given on 17 July 2018.

9. On 22 August 2018, and before Ms Ballas had commenced her judicial review proceedings (which she did on 14 September 2018), Ms Annette Farrell, an Arbitrator of the WCC, issued a Workers Compensation Commission Certificate of Determination in accordance with s 294 of the 1998 Act. That Certificate was in the following terms:

“Matter No:   1594/18

Applicant:   Fiona Ballas

Respondent:   Secretary, Department of Education

Date of Determination:   22 August 2018

The Commission determines:

1.   The applicant suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 24 October 2016.

2.   The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 24 October 2016.

Brief statement of reasons

3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998. 

4. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987. 

5.   The proceedings were commenced after 2 April 2013 and therefore no    order is made as to costs.” 

10. To do justice to the careful and detailed arguments presented, and in order to understand the basis of the appeal to this Court, it is necessary to set out at some length:

(i)   the statutory framework by reference to which medical assessments are made;

(ii)   the statutory provisions relating to challenges to such assessments;

(iii)   the detail of Dr Hong’s assessment;

(iv)   the terms of the application to the Registrar for leave to appeal to the Medical Appeal Panel (the Appeal Panel);

(v)   the decision of the Registrar’s Delegate; and

(vi)   the decision of the primary judge refusing the applicant’s application for judicial review.

Assessments of impairment under the 1987 Act

11. Section 4 of the 1987 Act provides that “injury”:

“(a)   means personal injury arising out of or in the course of employment,

(b)   includes a disease injury, which means—

(i)   a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and   

(ii)   the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c)   does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

12. Section 9 of the 1987 Act provides that:

“(1)   A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2)   Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”

13. Section 65(1) of the 1987 Act provides that:

“For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

14. Although s 66(1) of the 1987 Act, which is headed “Entitlement to compensation for permanent impairment”, provides that a “worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section”, s 65A(3) contains special provisions for psychological and psychiatric injury, and provides that:

“No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.”

15. Assessment of impairment is governed by the 1998 Act. If there is a medical dispute concerning the permanent impairment of an injured worker, there is a process pursuant to s 321A of the 1998 Act, and the Regulations made under that section, by which the worker is referred by the Registrar to an AMS who examines the worker, and issues a MAC.

16. Section 322(1) of the 1998 Act provides that:

“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose”.

The Guidelines are explained in more detail below, at [19]ff.

17. Section 324 of the 1998 Act outlines the powers of an AMS on assessment, including that they may consult with any medical practitioner or other health care professional who is treating or has treated the worker, call for the production of medical records and other information as the AMS considers necessary, and require the worker to submit himself or herself for examination by the AMS.

18. Section 325(1) of the 1998 Act requires the AMS, to whom a medical dispute has been referred, to give a MAC as to the matters referred for assessment. Under s 325(2), the MAC is required to set out details of the matters referred for assessment, a certification of the AMS’s assessment, the reasons for that assessment and the facts on which that assessment is based. Under s 326, an assessment certified in a MAC is conclusively presumed to be correct as to, amongst other things, the degree of permanent impairment of the worker as a result of the injury.

Workers Compensation Guidelines

19. The power to issue the Guidelines is vested in the Authority and is sourced in s 376(1)(a) of the 1998 Act.

20. The Guidelines which were in force at the time that Dr Hong made his assessment of Ms Ballas were issued on 1 April 2016 and applied to assessments of permanent impairment conducted on or after that date.

21. Chapter 11 of the Guidelines, styled “Psychiatric and psychological disorders”, is relevant for the purpose of the current appeal, and, to employ the language of s 11.1, “lays out the method for assessing psychiatric impairment. The evaluation of impairment requires a medical examination.”

22. Sections 11.11 and 11.12 of the Guidelines are concerned with what is described as the “Psychiatric impairment rating scale”, which is given the acronym “PIRS” in the Guidelines. Section 11.11 provides:

“Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:

1.   Self care and personal hygiene (Table 11.1)

2.   Social and recreational activities (Table 11.2)

3.   Travel (Table 11.3)

4.   Social functioning (relationships) (Table 11.4)

5.   Concentration, persistence and pace (Table 11.5)

6.   Employability (Table 11.6)”.

Section 11.12 states that:

“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”

23. The “class descriptors”, numbered 1 to 5, for each of the six scales are identified in the tables referred to in s 11.12 of the Guidelines. The most relevant of those tables for the purpose of this appeal are the following:

Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

24. Section 11.13 of the Guidelines provides that rating psychiatric impairment using the PIRS is a two-step procedure, involving determination of the “median class score” and calculating the “aggregate score”. Sections 11.14–11.20 then detail how these two scores are used to determine percentage impairment, with worked examples provided. For present purposes, it suffices to observe that Ms Ballas’s argument on appeal, if correct, has the potential to result in a recalculation and a WPI of greater than 15%.

Statutory provisions relating to challenges to assessment

25. Section 327 of the 1998 Act provides for an appeal against a medical assessment, as follows:

“(1)   A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2)   A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3)   The grounds for appeal under this section are any of the following grounds—

(a)   deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c)   the assessment was made on the basis of incorrect criteria,

(d)   the medical assessment certificate contains a demonstrable error.

(4)   An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5)   If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6)   The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Note.  Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section)...”. (emphasis added).

26. Notwithstanding the language of s 327(4) of the 1998 Act, the appeal to which s 327 refers is one to an Appeal Panel, with s 328(1) providing that “[a]n appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.” The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made (s 328(2)), and the Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned: s 328(5).

27. As outlined at [18] above, s 326(1)(a) of the 1998 Act states that the degree of permanent impairment of the worker as a result of an injury is one of the matters as certified in a MAC which is conclusively presumed to be correct, and thus is appealable under ss 327(1) and (2) of the 1998 Act.

28. The terms of s 369(3) of the 1998 Act, dealing with the qualifications for appointment of a Registrar, should also be noted:

“A person is eligible to be appointed as the Registrar or as an Arbitrator only if the person –

(a)   is an Australian lawyer, or

(b)   has such qualifications, skills or experience as may be determined by the Minister”.

29. Section 371 of the 1998 Act deals with the functions of the Registrar, with sub-section (2) specifying that the “Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation”.

Dr Hong’s assessment

30. As has been noted at [6] above, Ms Ballas was referred to Dr Hong who assessed her as having an 8% WPI.

31. In making this assessment, Dr Hong completed a prescribed form which is reproduced below in its entirety:

Psychiatric diagnoses	1. major depressive disorder (possible psychotic features)	2. panic disorder
3.	4.
Psychiatric treatment	Psychologist, psychiatrist, antidepressant medication
Is impairment permanent?	Yes
PIRS Category	Class	Reason for Decision
Self-care and personal hygiene	2	Reduced self-care. Capable of basic self-management independently.
Social and recreational activities	2	Frequency of social recreation reported to have reduced Sees one friend regularly. Goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.
Travel	2	Does not like leaving her home, due to her anxieties. Capable of going to familiar places unaccompanied.
Social functioning	4	Has lost friendships due to her anxieties. Slapped husband when frustrated. Children become apprehensive, and no longer living with her. Separated from her second husband 8 months.
Concentration, persistence and pace	2	She reported reduced concentration. No performance issues at the new school raised. They don’t know about her mental health history.
Employability and Adaptation	3	Can not manage previous job, change of job. May need to reduce her work duties or hours, as reported difficulty coping with current work.

Score						Median Class
2	2	2	2	3	4	=2

Aggregate Score Impairment							Total	%
+	+	+	+	+	+	15	8

The application to the Registrar

32. On 8 June 2018, pursuant to s 327(4) of the 1998 Act, Ms Ballas lodged with the Registrar an application to appeal against the medical assessment, on the basis that when making the assessment of Social and Recreational Activities, Dr Hong had made a “demonstrable error” and applied “incorrect criteria”, adopting the terminology of ss 327(3)(c) and (d) of the 1998 Act.

33. Ms Ballas’s application was accompanied by submissions styled “Draft Appellant’s Submissions”. It was submitted in this Court that both the form prescribed for the making of applications to appeal to the Appeal Panel, and the practice before the Commission, required that such submissions accompany the application to the Registrar but were for the benefit of the Appeal Panel, if the Registrar permitted the appeal to pass through the gateway. This submission would appear to be consistent with the submissions being styled “Draft Appellant’s Submissions” in much the same way as an applicant in this Court who requires leave to appeal is required to file a Draft Notice of Appeal with any application for leave.

34. In truth, the Draft Submissions which accompanied the application to the Registrar were required for dual purposes: first, consideration by the Registrar in the discharge of the statutory task assigned to the Registrar by s 327(4) of the 1998 Act; and, secondly and contingently, for the benefit of the Appeal Panel if the gateway was passed.

35. For the purpose of understanding the decision of the Delegate of the Registrar, and the basis for the application for judicial review, it is necessary to set out in full the Draft Appellant’s Submissions which accompanied the application to the Registrar. They were as follows, subject only to the fact that for ease of later consideration, we have assigned paragraph numbers to the submissions:

“1.   The Appellant was referred to the Approved Medical Specialist, Dr Hong, to assess whole person impairment resulting from a psychiatric/psychological disorder with a deemed date of injury of 24 October 2016. The AMS assessed an 8% whole person impairment. In arriving at that assessment, the AMS assessed social and recreational activities as Class 2. In doing so, the AMS has made a demonstrable error and applied incorrect criteria.

2.   In respect of social and recreational activities, the AMS took a history that when the Appellant is not working she usually stayed at home and does not do much. About once a month, she would go to the RSL club by herself, where she would gamble on the poker machine. He recorded that prior to her injury, she was sociable and took pride in her appearance. She used to enjoy entertaining guests at home. In his history, he did not record any other social interactions.

3.   Despite the fact that he did not record it in his history, when commenting on Dr Rastogi’s assessment the AMS added that the Appellant would attend to family activities particularly Christmas and birthdays. He made no record of the circumstances in which the Appellant would attend those family activities. In particular, he did not record whether the Appellant went out to attend those activities of whether they occurred within her home. He also did not record if the Appellant only attended because she was encouraged to by her family. It should be noted that she continues to live with her second husband although they are separated. Otherwise, the AMS observed that the Appellant would attend the RSL club by herself typically once a month and would spend an hour there.

4.   When completing the PIRS rating form, the AMS cited as his reasons for assessing social and recreational activities as Class 2 as ‘frequency of social recreation reported to have reduced, sees one friend regularly, goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.’

5.   By assessing social and recreational activities in the way that he has, the AMS has both failed to take into account relevant considerations and has taken into account an irrelevant consideration.

6.   The assessment of social and recreational activities is carried out in accordance with Table 11.2 of the NSW Worker’s Compensation Guidelines for Evaluation of Permanent Impairment 4th Edition. It should first be observed that social and recreational activities are not travel and are not social functioning. It is apparent from a reading of the table that social and recreational activities is directed to the kind of activities that involve interactions with other people. For example, Class 1 refers to being actively involved with clubs or associations. Class 2 refers to being actively involved, e.g. dancing, cheering favourite team.

7.   The table is not directed to solitary activities that do not involve interactions with other people.

8.   It is apparent from the reasons given in the medical assessment certificate, that the AMS placed great significance on the fact that the Appellant would attend the RSL club about once a month to gamble on the poker machines for one hour. The major feature of such an activity is that it is a solitary activity that does not involve interactions with other people. It does not require any of the type of participation which is contemplated by social and recreational activity. The fact that the Appellant is able to travel to the RSL club is relevant to the assessment of travel and is consistent with the assessment of Class 2 for that category. It is not, however, relevant to the assessment of social and recreational activities. By including that matter in his assessment, the AMS has both applied incorrect criteria in that he has not properly applied the guidelines and has made a demonstrable error.

9.   When assessing social and recreational activities, the AMS also refers to the Appellant seeing one friend regularly. There is no reference to this in the history and accordingly, it is unknown in what circumstance[s] this contact occurs. In any event, the AMS has repeated the same error of taking into account an irrelevant consideration. The issue of ability to maintain friendships is relevant to the Class of social functioning not social and recreational activities. To the extent that it is relevant to social and recreational activities, it is only to the extent that the appellant responds to prompting by a close friend or tolerates the company of a close friend. It should be noted that the ability to tolerate the company of a close friend is consistent with a rating of Class 4.

10.   When he saw the Appellant, Dr Rastogi recorded that the Appellant does not get too involved in social activities and will only attend events with family.

11.   In her statement, the Appellant describes how she attempted to go on a holiday and ended up in hospital. She went to Perisher with a few friends and that night she could not cope. She had a massive panic attack and was taken to Cooma. She described how she lost a close friend due to what was happening because she couldn’t go out with her. She cannot function like a friend should be functioning.

12.   When Dr Kaplin saw the Appellant in January 2018, she said that she had some contact with her siblings at Christmas but gave no other history of social contact, other than attending at the RSL club to gamble.

13.   The descriptor for Class 3 is ‘moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friends. Will not go out without a support person. Not actively involved, remains quiet or withdrawn.’

14.   The evidence discloses that the only social and recreational events to which the Appellant attends are family events at Christmas. She attends those with her family. There is no evidence of her attending any social and recreational event without a support person. There is no evidence that she ever becomes actively involved. Her only activity which takes her outside the house is the solitary activity of attending at the RSL club once a month to play the poker machine. When the relevant evidence is properly considered, the Appellant should have assessed as Class 3 for social and recreational activities.

15.   The result of properly assessing social and recreational activities is that the median Class becomes 3 and the aggregate score 16, resulting in a 17% whole person impairment.

16.   The medical assessment certificate dated 14 May 2018 should be revoked and a new certificate issued which certifies 17% WPI.”

36. Brief submissions were also filed by the Department in opposition to the application to appeal. It is not necessary to reproduce them for present purposes.

The decision of the Delegate of the Registrar

37. The decision of the Delegate of the Registrar was made on 17 July 2018. As has been noted at [7] above, she refused the application. It is necessary to reproduce the entirety of the Delegate’s decision, as follows:

“1.    The Medical Assessment Certificate (MAC) of Dr Michael Hong, an Approved Medical Specialist (AMS), was issued on 14 May 2018.

2.    On 9 June 2018, the appellant, Fiona Ballas, lodged an Application to Appeal the Decision of the AMS on the following grounds: the assessment was made on the basis of incorrect criteria (section 327(3)(c)); the MAC contains a demonstrable error (section 327(3)(d)).

3.    On 29 June 2018, the respondent, NSW Department of Education, lodged a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist.

4. Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and the submissions made to the Registrar, at least one of the grounds of appeal as specified in subsection 327(3) of the 1998 Act has been made out.

5. On the face of the application and submissions made, I am not satisfied that a ground of appeal as specified in section 327(3) is made out.

Submissions

6.    The appellant alleges that the AMS has made a demonstrable error and applied incorrect criteria when assessing the appellant worker as Class 2 in the Psychiatric Impairment Rating Scale (PIRS) category of social and recreational activities.

7.    The respondent opposes the appeal. I will refer to their submissions where necessary.

Background and Powers

8.    The role and powers in making this decision are that of a ‘gatekeeper’: Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88. In Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 (Kolundzic), Campbell J at [51] provided the following summary of the role of the Registrar:

‘As has been said, the Registrar performs a gatekeeper function: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8] and [82]. His or her power is to determine whether on the face of the application and any submissions made 'at least one of the grounds of appeal specified in subsection (3) has been made out'. This is a precondition to an appeal involving an evaluative decision that at least one ground, on its face, is ‘valid and apparently credible’: Vegan at [8].’

9. The appellant relies on grounds of appeal provided in sections 327(3)(c) and (d) of the 1998 Act, that is, ‘incorrect criteria’ and ‘demonstrable error’.

10. An AMS is to apply various criteria as part of the medical assessment process. The criteria to which section 327(3)(c) refers are found in the workers compensation legislation and in the Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition (the Guidelines). The Guidelines adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5) in most cases ([1.1] of the Guidelines).

11.    In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 (Merza) at [39], Hoeben J made the following observations about the appeal ground of demonstrable error:

‘I do not propose to, nor is it necessary, that I define what is ‘demonstrable error’ for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that ‘demonstrable error’ is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.’

12.    The appellant alleges that the MAC contains a demonstrable error and application of incorrect criteria in the PIRS category of social and recreational activities.

Social and Recreational Activities

13.    The psychiatric impairment rating scale (PIRS) provides that behavioural consequences of psychiatric disorders are assessed on six scales, each of which evaluates an area of functional impairment (the Guidelines at [11.11]). One of the scales is ‘social and recreational activities.’

14.    The AMS assessed class 2 impairment in this category. The appellant submits that the AMS erred and should have assessed Class 3.

15.    Table 11.12 of the PIRS provides that impairment on each of the six scales is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. Relevantly Class 2 and 3 of the category of social and recreational functioning provide:

‘Class 2- Mild Impairment: occasionally goes out to such events eg without the needing a support person but does not become actively involved (eg dancing, cheering favourite team.

Class 3- Moderate Impairment: rarely goes out to such events and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.’

16.    In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J observed that the classes in the PIRS were examples of activities which would indicate an assessable level of disability, and further, that the boundaries between the classes are were not ‘bright line boundaries’ (at [62] - [[65]).

17.    In Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (Ferguson), Campbell J referred to a decision of a Medical Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, stating (at [33]):

‘By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

“... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”

18.    In this matter the AMS made the following clinical observations relevant to the category of social and recreation:

‘Ms Ballas reads her social media posts. She does not read books. Around once a month she would go to the RSL Club by herself. Ms Ballas said she gambles on the poker machine and at times feels like she is out of control with her gambling - she can gamble $500 in one setting.’

19.    At Table 11.8 of the MAC the AMS has summarised his findings:

‘Class 2- Frequency of social recreation reported to have reduced Sees one friend regularly. Goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.’

20.    The AMS found class 2 for social and recreational activities, noting that she regularly saw one friend. The ability to maintain friendships is also factor common to the PIRS category of social functioning. Similarly, that the appellant travels to the RSL club unaccompanied is relevant to the category of travel.

21.    The appellant submits that the AMS erred by ‘placing great significance on the fact that the appellant would attend the RSL club once a month to gamble on poker machines’. According to the appellant this activity is a ‘solitary activity that does not involve interactions with other people. It does not require any type of participation which is contemplated by social and recreational activity’; and the fact that appellant can travel to the RSL club is not relevant to the assessment of social and recreational activities.

22.    Similarly, the appellant submits that the AMS has fallen into error when referring to her seeing ‘one friend regularly because the ‘issue of ability to maintain friendships is relevant to the class of social functioning and not social and recreational activities.’

23.    PIRS categories are examples of activities only ([11.12] of the Guidelines) and are ‘generic and general in their description’: Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [62].

24.    In my view, the appellant's submission attempts to unreasonably place limitations on the manner in which the PIRS categorises are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS's discretion based on his or her clinical assessment.

25.    I do not accept that the activity of attending the an [sic] RSL club once a month to play poker machines is necessarily an activity that ought to fall within Class 3 (Moderate Impairment) of social or recreational functioning, and not class 2 (Mild Impairment) as the AMS found. Whilst the activity may be undertaken individually, it seems to me it is undertaken regularly (not rarely) and requires active involvement (playing machines). The activity does not appear to require prompting by family or friends or the attendance of a support person. In any event, the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.

26.    The AMS's overall findings are consistent with the description of mild impairment for social and recreational activities. The AMS was not provided with a history that indicated the appellant did not go out without a support person. The appellant statement records ‘I find it very hard to go to the shops. Sometimes I have to go back to the car and leave because I get severe anxiety and panic attacks when there is a lot of people’. On the face of the MAC, the history taken by the AMS as to the appellant's activities are is [sic] consistent with a Class 2 mild impairment.

27.    The appellant also refers to the report of Dr Rastogi who assessed Class 3 for social and recreational activities. Having considered the report of Dr Rastogi, the AMS commented at page 7 of the MAC:

‘Dr Rastogi had performed a Whole Person Impairment Assessment with a final rating of 15%. Dr Rastogi's ratings are largely comparable to mine except in social and recreational activities. Dr Rastogi noted that Ms Ballas was moderately impaired as she does not get too involved in social activity and will only attend events with family. In my assessment I noted that Ms Ballas confirmed she would attend to family activities particularly Christmas and birthdays. She also attends the RSL Club by herself typically once a month and would spend around an hour there - overall I consider this to be more consistent with a Class 2 impairment. I have rated her social function as 4, as her second marriage has ended, she has been physically aggressive, and is no longer able to care.’

28.    To the extent that the appellant relies on the report of Dr Rastogi, I note a mere difference of opinion is not a ground of appeal (Merza at [51]). The Guidelines are clear that the task of assessing permanent impairment involves clinical assessment of the worker as they present on the day of the assessment. The fact that Dr Rastogi came to a different conclusion as to the class of social and recreational functioning is therefore immaterial.

29.    I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC. The AMS has provided reasons in relation to his assessment for social functioning and he appropriately considered the material before him, including the report of Dr Rastogi, and the history provided by the worker in reaching his conclusion. The appeal is not to proceed.

Decision

30. As I am not satisfied that at least one of the grounds of appeal as specified in section 327(3) has been made out, the appeal is not to proceed.”

Proceedings before Wright J

38. On 14 September 2018, Ms Ballas commenced proceedings in this Court for judicial review, pursuant to the Supreme Court Act 1970 (NSW) s 69. The Department was named as first defendant. The other defendants were the Registrar of the WCC, the Delegate of the Registrar of the WCC and the Arbitrator of the WCC respectively.

39. The application for judicial review sought the following relief:

“(1) A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and Decision of the Third Defendant dated 17 July 2018 is void and of no effect.

(2)   An order setting aside the Decision issued by the Second Defendant, constituted by the Third Defendant on 17 July 2018.

(3)   An order remitting the matter back to the Second [D]efendant for referral to a different delegate to determine the dispute according to law.

(4)   An order setting aside the Certificate of Determination issued by the Fourth Defendant on 22 August 2018.

(5)   Such further order[s] as this Honourable Court deems necessary to give effect to the plaintiff’s claims in the nature of judicial review.

(6)   Costs”.

40. No argument was advanced in the judicial review proceedings at first instance on behalf of any of the defendants that the Court did not have the power to grant any of the relief sought as set out above, including the power to set aside the Certificate of Determination issued by the Fourth Defendant on 22 August 2018. Notwithstanding this, Senior Counsel for the Department sought to raise this question by a Notice of Contention filed in this appeal. This Notice of Contention is addressed at [102] – [132] below.

41. The Summons for judicial review also set out what it was contended were the jurisdictional errors and errors on the face of the record which Ms Ballas relied upon. These were as follows:

“(a) The Third Defendant erred in failing to determine that at least one of the grounds of appeal in section 327(3) of the 1998 Act had been made out, in particular, a demonstrable error by the AMS.

(b)   The Third Defendant erred in point of law when it failed to consider whether the Approved Medical Specialist had considered the correct criteria when assessing Social and Recreational Activities.

(c)   The Third Defendant erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the guides.

(d)   The Third Defendant erred in point of law when it failed to consider whether the activity of attending at the club by herself to play poker machines was a matter that could properly be taken into account when assessing Social and Recreational Activities.

(e)   The Third Defendant erred in point of law when she failed to properly consider the argument made in support of the appeal.

(f)   The Third Defendant erred in failing to determine that a Medical Appeal Panel should be constituted to provide an assessment of WPI in accordance with the Guidelines as read with AMA5.

(g)   The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it is open to a Medical Appeal Panel to find that the Medical Assessment Certificate should be revoked and replaced with a certificate recording that, in accordance with the Guidelines as read with AMA5.”

42. His Honour grouped grounds (a), (b), (d) and (e) and treated them together under the heading “Failure to Consider the Submission Ground”. He styled ground (c) as the “Discretion as to Category Ground”, and treated grounds (f) and (g) as consequential and dependent on the other grounds being established.

43. The application for judicial review was dismissed on 8 March 2019: [2019] NSWSC 234.

44. In relation to what the primary judge styled the “Failure to Consider the Submission Ground”, his Honour summarised his conclusions at [61], stating that the Delegate:

“(1)   at [21] and [22] adequately summarised Ms Ballas’s relevant submissions, thereby indicating that the Delegate understood what she was required to address;

(2)    at [23], [24] and [25], considered and rejected the submissions that:

(a)   the PIRS categories of ‘social and recreational activities’, ‘travel’ and ‘social functioning’ are distinct and do not overlap so that matters that are relevant to one category are irrelevant to others;

(b)   the fact that Ms Ballas is able to travel to the RSL club is not relevant to ‘social and recreational activities’ and the fact that Ms Ballas sees one friend regularly is relevant only to ‘social functioning’ and not to ‘social and recreational activities’;

(c)   ‘social and recreational activities’ are directed to the kind of activities that involve interactions with other people not solitary activities, such as gambling on poker machines at an RSL club;

(3)   at [23], [24] and [25] said, in effect, that these submissions should be rejected because the PIRS categories are generic and general in description and, to some extent, overlapping. They are not rigidly exclusive and which category applies is a matter within the AMS’s discretion based upon his or her clinical assessment and the history.”

45. His Honour said that “[f]or these reasons, I conclude that the Delegate has not misunderstood Ms Ballas’s submission or failed to address it. The Failure to Consider the Submission Ground is not made out”: at [62].

46. Wright J’s reasoning in relation to what his Honour described as the “Discretion as to Category Ground” was as follows (at [65]-[69]):

“This ground was formulated as the Delegate ‘erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the [Guidelines]’.

The problem with this ground is that it poses a false dichotomy and does not accurately reflect what the Delegate said. Her point was put in two ways in her reasons:

(1)   at [24], ‘[t]he PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS’s discretion based on his or her clinical assessment’;

(2)   at [25], ‘the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.’

The Delegate did not say that the question of what activities are relevant to each PIRS category is entirely a matter of discretion for the AMS and does not involve the application of the Guidelines. There was no such dichotomy in her comments.

Moreover, there is no doubt that the PIRS categories are generic and general in description. They are only identified at a very high level of generality: ‘Self care and personal hygiene’; ‘Social and recreational activities’; ‘Travel’; ‘Social functioning (relationships)’; ‘Concentration, persistence and pace’; and ‘Employability’. The wording used to describe the categories suggests that some may overlap. For example, impairment in the ability to relate socially may well be reflected in both ‘social and recreational activities’ as well as ‘social functioning (relationships)’. Similarly, impairment of ‘employability’ may well involve, or result from, impairment in some or all of the other categories. The description of each scale, and the examples given in relation to each class from 1 to 5 within each scale in Tables 11.1 to 11.6, also suggests that overlap is quite possible between different PIRS categories. The PIRS categories, as specified in ch 11, do not appear to be rigidly separate and exclusive.

Fairly understood, what the Delegate was saying was that the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history. There is nothing erroneous in such an observation.”

47. It should also be noted that the primary judge accepted that the Draft Appellant’s Submissions relied upon by Ms Ballas before the Delegate expressly raised the argument that, when assessing “social and recreational activities”, the AMS took into account irrelevant considerations and failed to take into account relevant considerations: at [41]. It had evidently been argued that this ground was not clear on the face of Ms Ballas’s submissions, such that the Delegate could not be criticised in the way sought to be agitated in the application for judicial review. No challenge was made by way of cross-appeal to this aspect of the judgment below.

Grounds of appeal in this Court

48. In her Notice of Appeal in this Court, two grounds were raised by the appellant as follows:

“1.   The primary Judged [sic] erred in misconstruing the Workplace Injury Management and Workers Compensation Act 1998 (NSW), section 327(4)

2.   The primary Judge erred in holding that the registrar’s delegate did not err in her application of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), section 327(3), to the grounds of appeal sought to be raised by the appellant in respect of the assessment of whole person impairment by the application of the PIRS categories as mandated by the WorkCover Guides.”

49. The first of these grounds goes to the role of the Registrar (in the present case, performed by a Delegate), under s 327(4) of the 1998 Act.

50. The second ground is essentially a challenge to Wright J’s conclusions reproduced at [45] above.

51. Before turning to a consideration of each of these grounds, it is necessary to make a number of observations about the expression “demonstrable error” as used in s 327(3)(d) of the 1998 Act.

Demonstrable error

52. In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 (Merza), Hoeben J (as his Honour then was) said that it was sufficient for the purposes of determining that case to conclude that a “demonstrable error” is an error that is “readily apparent” from an examination of the MAC and the document referring the matter to the AMS for assessment: at [39]. He had earlier observed that “error alone [was] not sufficient”: at [35].

53. The Second Reading speech to the Workers Compensation Legislation Amendment Bill 2001 (NSW) (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14775) contains the following statement in relation to a “demonstrable error”, noting that the meaning of the expression, left undefined in the 1998 Act, is for the Court to determine:

“A demonstrable error would essentially be an error for which there is no information or material to support the finding made — rather than a difference of opinion”.

54. In Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101, Basten JA referred to the observations of Hoeben J in Merza before going on to say (at [59]-[60]) that:

“The concept of ‘demonstrable error’ is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error ‘on the face of the record’ for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word ‘demonstrable’ does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error. In Plaintiff S 157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [13], Gleeson CJ made comments relevant to such a concept, stating:

‘The concept of “manifest” defect in jurisdiction, or “manifest” fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review. For example, the principles according to which a court of appeal may interfere with a primary judge’s finding of fact, or exercise of discretion, are expressed in terms such as “palpably misused [an] advantage”, “glaringly improbable”, “inconsistent with facts incontrovertibly established”, and “plainly unjust”. Unless adjectives such as “palpable”, “incontrovertible”, “plain”, or “manifest” are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected’.

As noted above, in Merza Hoeben J thought it was sufficient that an error is one ‘readily apparent from an examination of the medical assessment certificate’. That is also sufficient for the present case, although it may not constitute a necessary element of the statutory formulation.”

55. The meaning of “demonstrable error” was also considered by this Court in Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88 at [47]-[49] (Pitsonis), where 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 at 400[137] when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited:

‘First, if the Appeal Panel’s powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question’.

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 of the Workers Compensation Commission [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’.)”

56. In Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [87] (Vannini), Gleeson JA noted that it was not in dispute that an error is not demonstrable merely because the Panel disagrees with the opinion of the AMS. There is, however, a difference between mere disagreement and a conclusion that, even with regard to a decision of a kind that permits “some latitude of opinion such as to admit a range of legally permissible outcomes”, the decision was outside the range: Vannini at [92].

Ground 1 and the proper role of the Registrar under s 327(4) of the 1998 Act

57. Section 327(4) of the 1998 Act provides that:

“An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.”

58. Under s 327(4), the Registrar plays a “gatekeeper” role, in that before an appeal under s 327 can proceed, the Registrar must be “satisfied” that at least one of the grounds for appeal in ss 327(3)(a)-(d) has been “made out”.

59. Section 327 was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) Sch 1.1 cl 22. In Bunnings Group Limited v Hicks [2008] NSWSC 874 at [56] (Bunnings), Simpson J (as her Honour then was) noted that, prior to the amendments which took effect from 1 November 2006, s 327(4) took the following form:

“An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.” (emphasis added).

60. Her Honour noted that, in this form, the role of the Registrar was that of a “gatekeeper”, and had been so interpreted in the Supreme Court. Thus, in Campbelltown City Council v Vegan[2004] NSWSC 1129 at [74]-[75], Wood CJ at CL referred to an argument advanced by the WorkCover Authority to the effect that:

“…[section] 327 provides a gatekeeper role for the Registrar, whose task it is to consider, pursuant to s 327(4), whether ‘at least one of the grounds for appeal specified in sub-section (3) exists.’ If it appears to the Registrar that this is the case, then in accordance with s 327(4), the appeal can ‘proceed’ and be referred to an Appeal Panel. Thereafter, it was submitted, the Appeal Panel can conduct a review afresh, and is not itself required to determine whether any of the four grounds referred to in s 327(3) has been made good. Nor is it confined to correcting the assessment in relation to such ground or grounds as have been made good.

This was said to follow from:

(i) The fact that the grounds set out in paras (a) to (d) are described in s 327(3) as ‘grounds for appeal under this section’;

(ii) The absence of any reference, in s 328(5), to the Appeal Panel needing to find that an ‘appeal ground’ has been established, or to it ‘allowing an appeal’;

(iii) The fact that, pursuant to s 328(2) the appeal ‘is to be way of a review of the original medical assessment’; and from

(iv)   The circumstance that pursuant to s 327(6) and s 329(1)(a) the Registrar may refer the matter for a further assessment, as an alternative to an appeal (at least where the relevant ground falls within s 327(3)(a) or (b)).” (emphasis in original).

His Honour concluded at [76] that there was “force in this submission for the four reasons mentioned”, and observed that “[a]lthough the result is perhaps somewhat unusual it is consistent with the legislative policy of placing a tight control on appeals, and of confining the grounds for them.”

61. The decision went on appeal (Campbelltown City Council v Vegan(2006) 67 NSWLR 372; [2006] NSWCA 284), but the appeal focussed on the extent of any obligation on the part of the Appeal Panel to give reasons.

62. In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission(NSW) [2007] NSWCA 149; (2007) 4 DDCR 607, Campbell JA, with whose reasons in this respect Hodgson JA and Handley AJA agreed, said (at [74] and [76]):

“…It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-section (3) exists. While the ground must be alleged, I doubt that it could be said that it ‘appears to the Registrar’ that one of the grounds ‘exists’ unless the Registrar had actually formed an opinion that it existed.

...

To decide that a ground of appeal ‘exists’ is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can ‘exist’ if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is ‘sufficiently’ realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding.”

63. These paragraphs were quoted by Mason P (with whom McColl and Bell JJA agreed) in Pitsonis at [20].

64. Returning to Bunnings, Simpson J concluded that the change of terminology effected by the 2006 amendments to s 327(4) had not altered the role of the Registrar as a “gatekeeper”, but that it had “varied or altered the test that she must apply in determining whether the gates are to be opened, and the appeal permitted to proceed”: at [58]. Her Honour went on to consider the extent of that variation or alteration in an analysis which is of direct relevance to the present case. Thus, at [64]-[76], her Honour said:

“The principal issue that arises concerns the construction of the phrase ‘one of the grounds of appeal .. has been made out’ as distinct from ‘exists’.

I was provided with a copy of the Second Reading Speech introducing the amendment (NSW Legislative Assembly Hansard, 29 November 2005) but this casts no light upon the purpose of the alteration to the subsection. It contains not the slightest indication of the reasons or circumstances that led the Parliament to make the amendment, or the perceived mischief it was intended to cure.

Examination of the before and after versions of subs (4) suggest to me, fairly emphatically, that the intention of the legislature in enacting the amendment was to put in the way of a would-be appellant a hurdle higher than that which had previously existed – or, to adopt and continue the analogy constructed by Wood CJ at CL in Vegan, to make the gates to the Appeal Panel more difficult to open.

No longer is the Registrar or her delegate required only to ‘form an opinion’ (see Riverina Wines) about the existence of a ground for appeal; he/she is to ‘be satisfied’ (in my opinion, a more stringent test); no longer is he/she to address the question whether the ground of appeal ‘exists’; the question to be addressed is whether the ground of appeal ‘has been made out’ (also, on the express authority of SRA, a more stringent test). …

The question remains as to the extent to which it is necessary for a would-be appellant to satisfy the Registrar if an appeal is to be permitted to proceed. It may be that the key to this is to be found, not in the use of the words ‘exists’ and ‘made out’, but in the use of the word ‘demonstrable’ as distinct from ‘demonstrated’.

As Mason P pointed out in Pitsonis, in a related but slightly different context, ‘demonstrable’ means ‘capable of being demonstrated’ – that is, capable of being demonstrated to the tribunal charged with the determination of the appeal. That tribunal is the Appeal Panel. It is not the Registrar or her delegate. ‘Demonstrable’ does not mean ‘has been demonstrated’. It is true that ‘demonstrable’ is, in common parlance, frequently used to mean, or as interchangeable with, ‘demonstrated’. But an Act of Parliament is not common parlance, and the legislature (and its parliamentary drafting teams) are taken to be familiar with the niceties and nuances of language. Recognition of the proper meaning of ‘demonstrable’ would yield an interpretation of subs (4) that would retain the role of the Registrar as ‘gatekeeper’, and preserve the role of the Appeal Panel as the tribunal to which determination of the appeal is, by that section, committed.

S 327(4) cannot be construed in isolation from the other provisions which make up Part 7 of the WIM Act. Important, for present purposes, are the terms of s 328: by that section an appeal against a medical assessment is to be heard, not by the Registrar, but by an Appeal Panel constituted in accordance with subs (1).

It is not, even in the post-amendment regime, the role of the Registrar (or her delegate) to decide an appeal. That task remains firmly in the hands of the Appeal Panel. I recognise that some uncertainty or ambiguity exists, particularly in the light of the remarks of Giles JA in SRA, concerning the meaning of the words ‘made out’ – I must accept that they demand more than the mere existence of an arguable ground of appeal. But, giving full weight to the opening sentence of s 328(1), and to s 328(2), they cannot be taken to require final determination of the ground of the appeal by the Registrar or her delegate.

It may seem attractive, from a superficial reading of the plain words of the amended subs (4), to conclude that the Parliament did indeed intend the Registrar to have the power finally to determine, and the role of finally determining, the fate of a ground of appeal. But there are other circumstances pointing to the contrary of that proposition. The appeal is from an expert tribunal – the AMS – that is, a person with specialised medical training and expertise. The Registrar is not required to, and ordinarily would have, no such expertise. While a Registrar is required to have legal training, his/her delegates are not.

This was considered worthy of comment in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [47] and [59]. It would be strange, although not impossible, if the determination of error by an AMS were left to a person without either legal or medical qualifications. And this was one circumstance that, in Riverina Wines, moved Campbell JA to take the view he did (set out above) about what was the role of the Registrar or her delegate ([80], [82]). And when Campbell JA made these observations, the legislation had already been amended, although not in such a way as to apply to the determination of that case. Campbell JA was well aware that what he there said could equally apply to the subsection as amended. And, because the amendment predated the judgment in Riverina Wines, it cannot be thought that the amendment was provoked or instigated by those observations – or, indeed, the circumstances that appertained in Riverina Wines.

In relation to the ground of appeal specified in s 327(3)(d), by reason of the use of the word ‘demonstrable’ as distinct from ‘demonstrated’, it is possible to conclude that what subs (4) requires is that the Registrar be satisfied that the would-be appellant has made out a case that error (the error identified) was capable of being demonstrated to the Appeal Panel.

But that construction will be effective only if it can apply equally to the other grounds specified in s 327(4). Can the same formulation work in relation to the other grounds? I think it can.

The Registrar may be satisfied that an applicant has made out a case (to be determined by the Appeal Panel) that the original assessment was made on the basis of incorrect criteria: and equally with respect to the other grounds for which the subsection provides.”

65. Simpson J’s focus in [72]-[73] on the contrast between the expertise of the AMS (which is required by s 121(1) of the 1998 Act) and the Registrar (see s 369(3)), and the implications of that contrast for the role of the Registrar under s 327(4) was, in our opinion, particularly apposite and, as her Honour observed, the contrast is even more acute when it is appreciated that the Registrar’s task under s 327(4) may be delegated to an officer of the Commission who is not even required to have the basic legal qualifications required of the Registrar.

66. The contrast to which her Honour drew attention may also be made between the lack of medical expertise required of a Registrar and any Delegate, and the qualification requirements for the Appeal Panel which, pursuant to s 328(1), requires two approved medical specialists and one arbitrator, as chosen by the Registrar. Section 121(1) of the 1998 Act defines an “approved medical specialist” as:

“…a medical practitioner who is on a list of medical practitioners approved from time to time by the Authority as approved medical specialists for the purposes of this section”.

67. These matters and considerations of context bear profoundly on the meaning to be attributed to the words “at least one of the grounds for appeal specified in subsection (3) has been made out” in s 327(4). It cannot have been the intention of the legislature that the Registrar, still less his or her Delegate, determine appeals, a conclusion that may otherwise be suggested by the words “made out”, especially when juxtaposed with the expression “is satisfied”. Such an interpretation would also be at odds with the very existence of, and role to be performed by, a Medical Appeal Panel for which the 1998 Act makes provision (and see, for example, in relation to the nature of an appeal to that body, Siddik v WorkCover Authority of NSW [2008] NSWCA 116).

(a)   the degree of permanent impairment of the worker as a result of an injury,

(b)   whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c)   the nature and extent of loss of hearing suffered by a worker,

(d)   whether impairment is permanent,

(e)   whether the degree of permanent impairment is fully ascertainable.

(2)   As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

117. The MAC issued by Dr Hong related to the “degree of permanent impairment of the worker as a result of an injury”. Section 326(1) of the 1998 Act provides that the MAC was “conclusively presumed to be correct”. It was by reason of the decision of the Delegate, affected by jurisdictional error, that Ms Ballas’s application to appeal the making of that MAC was not in truth considered.

118. It is not the role of the WCC to determine “medical disputes” about the assessment of permanent impairment, that is reserved to an AMS, subject of course to an appeal to an Appeal Panel: Haroun v Rail Corporation of NSW [2008] NSWCA 192; 7 DDCR 139 at [16]-[20]. As Handley AJA there explained (at [17]-[20]) about sections that were materially the same:

“Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328.

Section 326(1) provides that a MAC ‘is conclusively presumed to be correct … in any proceedings before a Court or the Commission’ as to (a) ‘the degree of permanent impairment of the worker as a result of an injury’ and (b) ‘whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.’ This section also applies to a MAC issued by a Panel: s 328(5).

The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker’s total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise.

If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford [(1880) 5] App Cas 214, 235, 243, 244.”

119. In this case, there was jurisdictional error in the Delegate’s decision. This error was a critical causative step in the ultimate determination of the WCC leading to the issue of the Certificate of Determination. An alleged error in making the underlying MAC was identified by Ms Ballas. An appeal from the decision of the AMS was sought to be brought. By reason of the s 327(4) decision of the Delegate being affected by jurisdictional error Ms Ballas’s application to have her appeal heard by an Appeal Panel failed to be considered.

120. As a matter of construction of the 1998 Act, the Certificate of Determination issued here could not have been issued save for the erroneous decision of the Delegate. This is because, in the present circumstances and on the correct construction of the 1998 Act, the “determination of the dispute by the Commission” reflected in the Certificate of Determination miscarried. The WCC was obliged by the statute to “defer determination of the dispute by the Commission pending the outcome of that medical assessment”. Here there was no “outcome” of the medical assessment because a step mandated by the statute in the determination of the medical assessment was not taken by reason of the jurisdictional error of the Delegate. The same conclusion applies to the reconsideration determination. The Certificate of Determination and the reconsideration determination must be set aside as necessary consequential relief having regard to the jurisdictional error in the decision of the Delegate and as decisions themselves affected by jurisdictional error.

121. The cases referred to by the Department do not establish that the decision of the Delegate is here immune from this Court’s supervisory jurisdiction. The case of Ali Ali v Rockdale City Council [2015] NSWSC 1481 (Ali Ali) deals with a different point. Stevenson J, sitting in the administrative law list, explained that after the impugned decision of the AMS to issue a MAC an Appeal Panel of the Commission confirmed the certificate. Critically, the Certificate of Determination in that case was made by consent. As his Honour explained:

“[5] On 14 April 2014, the second defendant, the Appeal Panel of the Commission, made a decision in the Proceedings (‘the Decision’) pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘the Act’). The Appeal Panel purported to confirm a medical assessment certificate (‘the Certificate’) issued by the third defendant, Dr John Garvey, on 7 November 2013. …

[12]   The 24 June 2014 Orders were made following a teleconference (‘the Teleconference’) between Arbitrator Deborah Moore from the Commission, a solicitor appearing for Mr Ali Ali (Mr Andrew Silk), and a solicitor appearing for the Council (Mr Shane Koelmeyer). Mr Ali Ali and an interpreter were also present with Mr Silk. Mr Silk is an employee of Mr Martin Bell, the solicitor on the record in these proceedings for Mr Ali Ali.

[13]   The 24 June 2014 Orders are headed ‘Certificate of Determination – Consent Orders’ and in the following terms:

‘In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows:

1.   In accordance with the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 the applicant has no entitlement to lump sum compensation.

2.   In respect of the claim for section 60 expenses, the respondent agrees to pay reasonably incurred section 60 expenses up to 9 May 2012 on production of accounts, receipts or Medicare charge.

3.   The respondent agrees to pay the applicant’s costs in respect of a section 60 claim only.

Deborah Moore

Arbitrator’. …

[22]   It is common ground that the 24 June 2014 Orders (if they stand) are a complete answer to Mr Ali Ali’s claim for prerogative relief concerning the Certificate and the Decision. Ms Allars accepted that, if the challenge to the 24 June 2014 Orders failed, it would be futile for me to grant any relief in relation to the Decision or the Certificate, as the Decision would, in those circumstances, have been overtaken by the 24 June 2014 Orders.”

122. The Certificate of Determination in Ali Ali was not issued pursuant to s 294 of the 1998 Act following “a determination by the Commission”, but pursuant to r 15.9(1) of the Workers Compensation Commission Rules 2011 (NSW). At that time r 15.9(1) of the Rules was in the following terms:

“15.9   Determination by consent order

(1)   Where the parties … to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order.”

123. In order to engage r 15.9, the orders needed to be made by consent. The applicant’s consent was a jurisdictional fact found against Mr Ali Ali. Ali Ali is not authority supporting the Department’s jurisdictional argument.

124. Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136 at [35]-[36] per Murphy J also addresses a quite different issue. The case turned on the construction of a statutory review by the Australian Electoral Commission of a decision of its Delegate. The review which had taken place was unlimited in scope. The powers of the Electoral Commission on review extended to confirmation, variation, or setting aside of the decision, and included a power to substitute a different decision for that under review. As Murphy J explained at [35]:

“As a matter of first principles, the delegate’s decision of 8 January 2010 must have been superseded by the AEC decision. In an analogous circumstance in Wishart v Fraser (1941) 64 CLR 470 (Wishart) the High Court held that a magistrate’s decision could not be impugned once the Court of Quarter Sessions had affirmed it. Wishart was applied in R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 at 476 per Mason J, and at 489 and 493 Murphy and Aickin JJ agreed. The applicant was required to join the Full Bench of the Australian Conciliation and Arbitration Commission as a party to a proceeding which challenged a decision of a Deputy President of the Commission, where the Full Bench had affirmed that decision.”

125. His Honour went on at [36]-[37] to examine and apply the passages from the judgment of Basten JA in Vitaz that are set out above. For the reasons already given, the present case is very different to Vitaz.

126. The Department’s jurisdictional argument is inconsistent with the entrenched jurisdiction of this Court under s 69 of the Supreme Court Act. In Kirk, the High Court quashed both the orders of Walton J at first instance and the orders of the Full Bench on appeal because the same jurisdictional errors infected both sets of orders. As the plurality explained at [108]:

“An order in the nature of certiorari could, and in this case should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error of the Industrial Court. Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed: [Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277; [1979] HCA 27; Ruddock v Taylor (2005) 222 CLR 612 at 656 [160]; [2005] HCA 48; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) at 801‑802 [12.25]; Grady and Scotland, The Law and Practice in Proceedings on the Crown Side of the Court of Queen's Bench, (1844) at 187‑188; Halsbury, The Laws of England, 1st ed (1909), vol 10 at 186‑187 [365]].”

127. The failure of the WCC to identify jurisdictional error in this case in issuing the Certificate of Determination and in making the reconsideration determination is itself jurisdictional error. So much was established by Kirk. The WCC was correct in making the reconsideration decision to observe at [55] that:

“In any event, there is an available remedy to the mischief of which the applicant now contends. The Commission’s usual practice, where a decision of a Registrar’s delegate (or, more commonly, a Medical Appeal Panel) had been set aside by an order of the Court, where a Certificate of Determination had issued (which is in nearly all matters), is to rescind the Certificate in order to comply with the orders of the Court. Should the applicant succeed in the appeal, the Commission will take that action. If the applicant is unsuccessful, the Certificate does not need to be set aside.”

128. Despite this evidence of practice the Certificate of Determination and the redetermination decision should be set aside.

129. Acceptance of the Department’s submission would allow the WCC to define its own jurisdiction and insulate the correct determination of a medical dispute from review. A Certificate of Determination issued under s 294 immediately after a decision by a Delegate under s 327(4) would, on the Department’s case, immunise a s 327(4) decision affected by jurisdictional error from review by this Court. That is precisely the vice against which the entrenched supervisory jurisdiction described in Kirk protects. The Department’s submission that “any invalidity of an exercise of power under s 327(4) does not infect an exercise of power under s 294” is not correct. The exercise of power under s 294 followed inexorably and automatically in this case from the making of a decision under s 327(4) which was affected by jurisdictional error. The failure of the WCC to identify the jurisdictional error made in the s 327(4) decision was itself jurisdictional error. The same conclusion applies to the reconsideration decision. The exercise of power in making that decision was affected by jurisdictional error made in making the s 327(4) decision.

130. Ms Ballas’s rights to an appeal to an Appeal Panel only came to an end by reason of a decision made by the Delegate which was affected by jurisdictional error. The steps which followed as a direct consequence of this erroneous decision under s 327(4) should be set aside and the matter remitted to the WCC to permit a proper consideration of the s 327(4) question.

131. Grounds 1 and 3 of the Notice of Contention should be dismissed. Orders should be made setting aside the Certificate of Determination and the reconsideration determination.

132. Ground 4 of the Notice of Contention was limited to discretion. The point was not taken before the primary judge. The hearing of this appeal is not the occasion to permit the Department to completely reformulate its case and raise matters which might have led to a different approach being taken by Ms Ballas before the primary judge. Leave to rely on ground 4 of the Notice of Contention should be refused.

Orders

133. The orders of the Court are:

1. Appeal allowed with costs.

2. Leave to rely on ground 4 of the Notice of Contention refused.

3. Set aside the decision of the primary judge and, in lieu thereof:

(i) declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and decision of the Third Defendant dated 17 July 2018 is void and of no effect;

(ii)   order the decision issued by the Second Defendant, constituted by the Third Defendant on 17 July 2018 be set aside;

(iii)   remit the matter back to the Second Defendant for referral to a different Delegate to determine the dispute according to law;

(iv)   order the Certificate of Determination issued by the Fourth Defendant on 22 August 2018 be set aside;

(v)   order the reconsideration determination made by the Fourth Defendant on 8 April 2020 be set aside; and

(vi)   order that the First Respondent to pay the Appellant’s costs of the proceedings before the primary judge.

134. EMMETT AJA: The question in this application concerns the operation of the appeal process under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Management Act). The question arises in the context of a dispute between the appellant, Ms Fiona Ballas, and the first respondent, the New South Wales Department of Education (the Department), in relation to the degree of impairment incurred by Ms Ballas as a result of psychological injury suffered in the course of her employment by the Department.

135. Ms Ballas lodged an application to resolve the dispute with the Workers Compensation Commission of New South Wales (the Commission). Following that application, the dispute was referred to an approved medical specialist (the AMS) who issued an assessment certificate that the whole person impairment suffered by Ms Ballas as a result of psychological and psychiatric injury was 8%. The consequence was that Ms Ballas was not entitled to the compensation that she claimed.

136. Ms Ballas applied to the Registrar of the Commission, to appeal against the decision of the AMS. The Delegate of the Registrar (the Delegate) decided that none of the grounds of appeal on which Ms Ballas wished to rely was made out and that the appeal was not to proceed. By summons filed on 14 September 2018, Ms Ballas sought judicial review of the Delegate’s decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 8 March 2019, a judge of the Common Law Division dismissed the summons. On 5 April 2019, Ms Ballas gave notice of intention to appeal and filed a notice of appeal on 7 June 2019. She then filed a summons seeking leave to appeal on 7 August 2019. On 29 October 2019, leave to appeal was granted.

Statutory Framework

137. Ms Ballas was employed by the Department as a primary school teacher at Yagoona Public School. In the course of that employment, she was exposed to events that resulted in psychiatric injury. On 24 October 2016, she brought a claim against the Department for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the Compensation Act). Liability was not disputed.

138. Section 65 of the Compensation Act relevantly provides that the degree of permanent impairment that results from an injury is to be assessed as provided for by Pt 7 of Ch 7 of the Management Act. Section 66 of the Compensation Act relevantly provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive compensation for that permanent impairment. However, under s 65A(3) of the Compensation Act, no compensation is payable in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%. A primary psychological injury is one that does not arise as a consequence of, or secondary to, a physical injury. Psychological injury includes psychiatric injury.

139. Section 293 of the Management Act relevantly provides that when a dispute referred for determination by the Commission concerns a medical dispute, the Registrar may refer the medical dispute for medical assessment and defer determination of the dispute by the Commission pending the outcome of that medical assessment. Under s 322, the assessment of the degree of permanent impairment of an injured worker for the purposes of the Compensation Act is to be made in accordance with workers’ compensation guidelines issued for that purpose. Section 326 relevantly provides that an assessment certified in a medical assessment certificate pursuant to a medical assessment under Pt 7 of Ch 7 of the Management Act is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury in any proceedings before a Court or the Commission.

140. Section 327 of the Management Act provides that a party to a medical dispute may appeal against medical assessment under Pt 7, but only in respect of a matter that is appealable under s 327 and only on the grounds for appeal under s 327. The matter is appealable under s 327 if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate is conclusively presumed to be correct in proceedings before a Court or the Commission. The grounds for appeal under s 327 include the following:

• the assessment was made on the basis of incorrect criteria; and

• the medical assessment certificate contains a demonstrable error.

141. Under s 327(4), an appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in s 327 has been made out.

142. Under s 328, an appeal against a medical assessment is to be heard by an appeal panel constituted by two approved medical specialists and one arbitrator, chosen by the Registrar. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

The Dispute

143. The application to resolve a dispute lodged with the Commission by Ms Ballas stated that the dispute related to a claim for lump sum compensation where liability was in dispute. The date of injury was stated to be 24 October 2016 or by reason of the nature and conditions of employment from 1999 to that date. The claim for compensation was made on 18 December 2017. The application claimed $34,240 in respect of 15% whole of person impairment in respect of psychological injury. The Department lodged a reply to the application dated 18 April 2018. The reply was supported by medical reports by Associate Professor Robert Kaplan. A delegate of the Registrar referred the dispute to the AMS. The dispute was stated to be as follows:

• the degree of permanent impairment of Ms Ballas as a result of her injury;

• whether any proportion of permanent impairment was due to any previous injury or pre-existing condition;

• whether impairment was permanent; and

• whether the degree of permanent impairment was fully ascertainable.

144. On 14 May 2018, following an examination of Ms Ballas on 8 May 2018, during which the AMS took detailed history from Ms Ballas relating to the injury, the AMS issued a medical assessment certificate. The certificate stated that the opinion of assessment of whole person impairment by the AMS was as set out in a table in the form provided for in the guidelines. Chapter 11 of the guidelines deals with psychiatric and psychological disorders and lays out the method of assessing psychiatric impairment, the valuation of which is said to require a medical examination. The impairment rating must be based on a psychiatric diagnosis and the psychiatrist is expected to provide a rationale for the rating based on the injured worker’s psychiatric symptoms.

145. Paragraph 11.11 of Ch 11 provides that behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment as follows:

1. self-care and personal hygiene;

2. social and recreational activities;

3. travel;

4. social functioning (relationships);

5. concentration, persistence and pace; and

6. employability.

Impairment in each area is rated using class descriptors ranging from 1 to 5 in accordance with severity. A standard form must be used when scoring the psychiatric impairment rating scale that is set out in the guidelines. Rating the psychiatric impairment using that scale is a two-step procedure. First, it is necessary to determine the median class score. The aggregate score is then calculated. A conversion table is then used to arrive at percentage impairment.

146. On 8 June 2018, Ms Ballas lodged with the Registrar an application to appeal against the decision of the AMS in his certificate of 14 May 2018. The application stated that the grounds relied on for the appeal were:

• the assessment was made on the basis of incorrect criteria; and

• the medical assessment certificate contains a demonstrable error.

Draft submissions detailing the grounds of the appeal were attached to the application.

147. On 29 June 2018, the Department lodged a notice of opposition to the appeal against the decision of the AMS. Submissions on behalf of the Department were attached to the opposition. The Department said that the appeal could be decided by the appeal panel solely on the basis of the written application and any written notice of opposition lodged.

148. On 17 July 2018, the Delegate made a decision that the appeal was not to proceed. The decision of the Delegate runs to some 30 paragraphs. Ultimately, the Delegate concluded that on the face of the application and the submissions made, she was not satisfied that a ground of appeal as specified in s 327 was made out.

149. By her notice of appeal, Ms Ballas complains that the primary judge, in his reasons of 8 March 2019, erred in misconstruing s 327 of the Management Act and erred in holding that the Delegate did not err her in her application of the Management Act to the grounds of appeal sought to be raised. By notice of contention, the Department asserts that the decision of the primary judge should be affirmed on the basis that the decision of the Delegate was not an operative decision that was justiciable under s 69, having been overtaken by the decision made on 22 August 2018 by the Commission. On 22 August 2018, an arbitrator appointed by the Commission, certified that Ms Ballas suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 24 October 2016. The certificate was said to be issued in accordance with the medical assessment certificate issued under Pt 7 of Ch 7 of the Management Act by the AMS and, accordingly, Ms Ballas did not reach the threshold for lump sum compensation as required by s 65A of the Compensation Act.

150. The approach of the Registrar in effect pre-empted the right of appeal. The function of the Registrar is not to assess the merits of the proposed appeal but simply to determine whether on the face of the documents in question the grounds were within the provisions of s 327. In the present case, they clearly were. It was not for the Registrar to form a view as to the possible merits of the grounds of appeal. The Registrar exceeded the jurisdiction conferred by s 327.

151. I have had the advantage of reading in draft form the proposed joint reasons of the President and Payne JA. I agree, for the reasons proposed by their Honours, that the appeal should be allowed with costs and that leave to rely on ground 4 of the notice of contention should be refused. I agree with the orders proposed concerning the decision of the primary judge.

**********

Endnotes

Decision last updated: 06 May 2020