Cigobia v Greyhound Australia Pty Ltd - [2024] NTSC 70

CITATION:Cigobia v Greyhound Australia Pty Ltd & Anor [2024] NTSC 70
PARTIES:CIGOBIA, Andre Matthew

v
GREYHOUND AUSTRALIA PTY LTD
and
NT WORKSAFE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-02148-SC
DELIVERED:  27 August 2024
HEARING DATE:  5 July 2024
JUDGMENT OF:  Kelly J

CATCHWORDS:
JUDICIAL REVIEW – Workers compensation – Reassessment of worker’s level of permanent impairment by a medical panel under s 72 of the Return to Work Act 1986 (NT) – Who is the statutory decision maker under s 72 – whether the panel report is in fact a report of the panel of three medical practitioners – failure to comply with statutory requirement – jurisdictional error – Whether the error was material – Whether the effect on the decision was inherent in the nature of the error – ipso facto a realistic possibility of a different assessment if the error had not occurred – Order in the nature of certiorari quashing panel report
Accident Compensation Act 1985 (Vic)
Industrial Peace Act 1920
Local Government Act 1962
Return to Work Act 1986 (NT), s 70, s 71, s 71(4)(b), s 72, 72(2), 72(3), 72(3A), 72(3B), s 72(3C), s 72(4), s 72(5)
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Jerak v Lazarus [2020] VSC 729;Kaefer Integrated Services Pty Ltd v Spohn [2022] NTSC 45, applied
Brain v Minister of Pensions [1947] KB 625; GJ Coles & Co Ltd & Ors v Retail Trade Industrial Tribunal & Ors (1986) 7 NSWLR 503; Green v The Queen (1891) 17 VLR 329; Grindley v Barker (1798) 126 ER 875; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; The King v Hibble & Ors; ex parte the Broken Hill Proprietary Company Limited [1920] 23 CLR 456; St Leonards Municipality v Williams [1966] Tas SR 166; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, referred to
REPRESENTATION:
Counsel:
Plaintiff:T Moses
First Defendant:  No appearance
Second Defendant:  A Lindsay SC with J Ingrames
Solicitors:
Plaintiff:Shine Lawyers
First Defendant:  No appearance
Second Defendant:  NT Worksafe
Judgment category classification:    B
Judgment ID Number:  Kel2408
Number of pages:  33

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Cigobia v Greyhound Australia Pty Ltd & Anor [2024] NTSC 70

No. 2023-02148-SC

BETWEEN:

ANDRE MATTHEW CIGOBIA

Plaintiff

AND:

GREYHOUND AUSTRALIA PTY LTD

First Defendant

AND:

NT WORKSAFE
Second Defendant

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 August 2024)

This case concerns a claim for workers compensation under the Return to Work Act1986 (NT) (“RWA”) and reassessment of the worker’s level of permanent impairment by a medical panel under s 72 of that Act. The plaintiff applies for judicial review of a purported decision under RWA s 72(3A) re-assessing the plaintiff’s level of permanent impairment at 0%.
Background
The facts and procedural background are not in dispute. The following summary has been taken from the Agreed Facts filed by the parties.
The plaintiff made a claim for compensation under the RWA which was accepted by the first defendant.
On 12 August 2022 Dr Ugwa provided an assessment of the plaintiff’s level of permanent impairment under s 72(2) of the RWA at 6% whole person impairment (“WPI”).
The plaintiff applied to the second defendant for re-assessment in accordance with s 72(3) of the RWA. The second defendant referred the application to a panel comprising Drs Allen, Jeremijenko and Ghan.
Each panel member examined the plaintiff, Drs Allen and Jeremijenko in person, and Dr Ghan remotely by NEXUS telehealth.
On 9 March 2023 Dr Ghan provided a written record of his assessment of the plaintiff assessing the plaintiff as having:
a.lumbar spine impairment in DRE Category I with 0% WPI,
b.activities of daily living impaired under home care which equates to 2% WPI.
On 22 March 2023 Dr Allen examined the plaintiff in person in Darwin and assessed the level of the plaintiff’s impairment as DRE Category I, with 0% WPI.
On 30 March 2023 Dr Jeremijenko provided a written record of his assessment of the plaintiff assessing the plaintiff as having:
a.chronic back pain in DRE Category II with WPI of 6%, and
b.impotence and lack of sexual function with WPI of 9%,
for a combined 14% WPI.[1]
On 30 March 2023 the written records of assessment by Dr Ghan and Dr Jeremijenko were made available to Dr Allen and on or about 8 April 2023, Dr Allen produced a document titled “Consolidated Panel Assessment Whole Person Impairment Report” (“the Panel Report”). This was provided to the second defendant. The whole person impairment reassessment in the Panel Report was DRE Lumbosacral Category I, resulting in a whole person impairment of 0%.
The plaintiff claims that the Panel Report is not a report of the panel of three medical practitioners comprising Drs Allen, Jeremijenko and Ghan to whom the reassessment was referred by the second defendant as required by RWA s 72(3A), but a report of Dr Allen alone. The plaintiff seeks:
a.an order in the nature of certiorari quashing the Panel Report; and
b.a declaration that the Panel Report does not comply with s 72 of the RWA and is invalid.
It is agreed between the parties that, apart from providing a written record of their assessment of the plaintiff’s WPI referred to in [8] and [9] above, Drs Jeremijenko and Ghan had no input into the preparation of the Panel Report, and Dr Allen had no communication with either Dr Jeremijenko or Dr Ghan other than the receipt of those written records of their assessments.
Legislative scheme
Section 72 of the RWA provides for the assessment of the level of impairment for the purposes of s 71, which provides for compensation for permanent impairment and sets out the method of calculating the amount payable.
In the first instance, the level of impairment is assessed by a single medical practitioner: s 72(2).
An aggrieved person may then apply to the second defendant for a reassessment: s 72(3).
If satisfied that the assessment by the single medical practitioner was properly conducted, the second defendant must then refer an application for reassessment to a panel of three medical practitioners to reassess the level of permanent impairment: s 72(3A)-(3B).
An assessment by a panel under s 72(3A) is taken to be the level of impairment suffered by the worker for the purposes of s 71, and is not subject to review: s 72(4). (This does not preclude judicial review.)[2]
The costs of an assessment and reassessment are paid by the employer: s 72(5). Compensation is payable under s 71 no later than 28 days after notification of the reassessment: s 71(4)(b).
The composition of the panel is prescribed: s 72(3A) and (3C). Each of the panel members must be a medical practitioner.
The panel must not include the medical practitioner who made the initial assessment for s 72(2). The panel must include at least one practitioner with specialist knowledge of the type of impairment in question.
The plaintiff’s contentions
The plaintiff contends that the second defendant was required by RWA s 72(3A) to refer the plaintiff’s application to a panel of three medical practitioners to reassess the level of the plaintiff’s permanent impairment, but in this case, instead of a panel decision, the second defendant arranged for the three medical practitioners to separately examine the plaintiff and then permitted the chair of the panel, Dr Allen, to author a report setting out the results of his own examination of the plaintiff and his own assessment of the plaintiff’s permanent impairment. The result was not a report of the panel, but only of its chair, and must be set aside for failing to meet the statutory requirement.
The plaintiff submits that 72(3A) and (4) require the reassessment to be by a panel. It is the collective entity of the panel which is the decision maker. The plaintiff contends that this follows from the function of the reassessment to resolve a dispute arising from the prior assessment by a single expert. Each panel member must be an expert, and Parliament has determined that any disagreement by an aggrieved person with the assessment of a single expert should be resolved by referral to “a collective of experts”.
Both parties are agreed that it was open to the panel to reach a decision by majority.[3] In its written submissions, the second defendant characterises the contention by the plaintiff that “it is the collective entity of the panel which is the decision-maker” as a contention by the plaintiff that there is an implied requirement that “unanimity should be sought before proceeding to majority”.
The plaintiff has repudiated any such submission. Although the plaintiff complains that “no real attempt to reach unanimity was undertaken” the plaintiff does not contend that there is an implied requirement in the legislation for such an attempt to be made. The absence of any such attempt to reach unanimity is cited by the plaintiff as one factor that contributes to a conclusion that the Panel Report is not, in fact, a report of the panel.
The plaintiff’s actual contention is that “a majority decision requires that all members must participate” in it even if they do not all agree.[4] This is because “the act, in order to be valid, must be done by all the members of the body”.[5] The plaintiff relies on a line of authorities which, the plaintiff contends, establish that where the decision maker entrusted with a statutory function is a panel or tribunal, the decision must in fact be a decision of the panel or tribunal; and that involves participation by each of the panel members in the decision making process. That line of authorities includes The King v Hibble & Ors; ex parte the Broken Hill Proprietary Company Limited,[6] GJ Coles & Co Ltd & Ors v Retail Trade Industrial Tribunal & Ors,[7] Green v The Queen[8] and St Leonards Municipality v Williams.[9]
In Hibble the High Court considered the validity of an award purporting to be an award of a Special Tribunal constituted under the Industrial Peace Act 1920. The award was issued and signed as “Chairman, Coke Industry Special Tribunal”. The words used were, “I award …”. Before the Tribunal was formally constituted, a meeting was held at which all those subsequently appointed as Tribunal members were present. The chairman, Mr Hibble, announced his intention of making an award as soon as the Tribunal was constituted and announced the terms of the proposed award, which had not been shown to any of those present beforehand. The High Court observed:
Of course the Tribunal which was constituted subsequently, could not be bound by any arrangement arrived at this meeting, but it is clear that if anything was assented to at that meeting it was that Mr Hibble should make an award in the terms then indicated. He neither asked for nor received the concurrence of the other persons present in the making of the award as their award.
After the Special Tribunal was constituted, another meeting was held, at which five of the eight members were present. At the meeting, Mr Hibble announced the purpose of the meeting to be “promulgating this award [ie the one authored by Mr Hibble and presented at the earlier meeting], so that it should have full force and authority”. One of the members present objected to the jurisdiction of the Tribunal and his objection was overruled by Mr Hibble. The High Court held that the award was invalid, not being an award made by the Tribunal.
Under these circumstances it is, in our opinion, impossible to hold that the award in question was the award of the Tribunal or of anyone except Mr Hibble. There were only five members present at the meeting, and, even assuming that this was not merely an award of Mr Hibble personally and that an award made by a majority of a Special Tribunal is an award of that Tribunal, it appears clearly that this award had not the assent of more than four out of nine members.
Their Honours went on to state that no one except Mr Hibble “took any part in framing or promulgating the award”, and that Mr Hibble referred to it as “the award which I have made”, and concluded:
We are therefore of the opinion that the award was neither in form nor in fact an award of the Special Tribunal.
In GJ Coles the New South Wales Court of Appeal considered the validity of an award purportedly made by a three member Retail Trade Industrial Tribunal consisting of a judge of the Industrial Court and two assessors. Under the relevant legislation, the role of the two assessors was limited to advising the chairman; they had no adjudicative function. Further, the legislation provided that if the assessors were absent from a meeting of the Tribunal, the chairman was to hear and adjudicate on matters before the Tribunal and the decision of the chairman would be deemed to be the decision of the Tribunal.
By agreement among the assessors, a very informal procedure was adopted for calling meetings which resulted, in the case before the Court, in the assessors not receiving valid notice of the meeting at which the impugned award was made by the chairman sitting alone. The plurality, holding the award to be invalid said:
… the participation of the assessors is not merely a right personal to them. It is an entitlement which affects the constitution of a tripartite body established by Parliament. Their obligation to “assist and advise” the chairman cannot be fulfilled unless they are notified in such a way as to ensure that they can participate. Assistance and advice will only be effective where the assessors have participated in the Tribunal and heard all – or all relevant – evidence placed before it. The beneficiaries of the participation are not the assessors themselves. For them this duty is doubtless often inconvenient and even uncongenial. Those who receive the benefit of their participation are the Tribunal itself, those the subject of the Tribunal’s awards and the public which relies on the Tribunal to secure industrial equity and peace in the retail industry. There is an assumption behind the legislation that the Tribunal’s awards will be better informed because the Tribunal has taken advantage of the assessors’ assistance and advice. This is the fundamental reason why, in the legislative scheme for a tripartite body, it was not for the chairman and the assessors to reach an agreement which effectively excluded them from giving the advice and assistance which the legislature by s 38R(4) imposed on them as a duty.
Analysing the effect of the non-participation by the assessors, the Court said:
Where Parliament has created a body constituted in a particular way, that body can only function in that way.
…
It was argued that the arrangements made between the chairman and the assessors had waived compliance with the regulation which required notice of Tribunal meetings to be given to the assessors. The court held:
… it was not for the parties to waive or ignore the statute. To the extent that any regulation or agreement departed from the statutory requirement, it would have no effect. … It could not overrule the obligation to have a duly convened meeting of the Tribunal. … Here the obligation is imposed by the statute. And what is involved is not a matter of procedure but one relating fundamentally to the constitution of the decision-making body itself.
The result of this analysis is that the Tribunal in making the award was not properly constituted. The award it purportedly made is thereby invalidated.
In Green v The Queen, the Full Court of the Supreme Court of Victoria considered the validity of a purported decision of the Police Medical Board certifying that the petitioner was incapable of performing his duties as a member of the police force by reason of infirmity, and a decision of the Police Superannuation Board certifying that, if superannuated, the petitioner was entitled to a particular pension or gratuity. The petitioner was examined by two of the three members who constituted the Police Medical Board; and the certificate was signed by those two members. The statute provided that the Police Superannuation Board was to consist of three members. Only two members signed the report of the Police Superannuation Board and in fact only two members of the Board were present at the meeting at which the findings in the report were arrived at. The Court held that the provision of the Act requiring the Police Superannuation Board “to consider and report on all applications for gratuities and pensions” had not been complied with, and neither had the provisions of the Act relating to the Medical Board:
The provisions of these sections were not complied with in the present case by either of these Boards. The certificate is a condition of the power of the Governor in Council to superannuate a member of the force, and it ought to have been signed by the members, that is to say, all the members of the Medical Board. For a similar reason, the decision of the Superannuation Board should have been given, and the report made, by all the three persons who constituted that body. As a general rule, power entrusted to a given number of individuals cannot be exercised by a lesser number. When an Act of Parliament creates a body with certain powers, and requires that an act of that body, in the exercise of its powers, shall be done by the members, and no provision is made for a quorum, or by part only of the whole number of the members, the act, in order to be valid, must be done by all the members of the body: Foran v The Queen 16 V.L.R. 510.
In St Leonards Municipality, the Tasmanian Supreme Court considered the validity of a purported decision of a Municipal Commission established under the Local Government Act 1962. The Act provided for a Municipal Commission of six members to investigate and report on municipal boundaries and to hear appeals against its reports. One member of the Commission was ill and the other five sat without him to hear an appeal, relying on a resolution the Commission had made providing for a quorum. The appellant applied for declarations that the five sitting were not the Commission and could not sit as the Commission. The Court held that as the Act made no provision for less than the full number to exercise the powers of the Commission, all members must be present for the Commission to act but that its decisions did not have to be unanimous and in the case of divided opinions, the decision of the majority became the decision of the Commission. In so deciding, Burbury CJ pointed to the fact that the statute provided for three members of the Commission to have specific qualifications and said:[10]
The legislature has therefore given careful attention to setting up a Commission composed of persons having appropriate professional qualifications and practical experience to carry out the important functions entrusted to the Commission under the Act. I should have thought it was the plain purpose of Parliament in setting up a commission in which professional qualifications and practical experience are so nicely balanced that any decision of the Commission should only be reached at a sitting at which all those nominated by Parliament for their particular qualifications or experience were present and able to make their own contribution. Otherwise the purpose of the legislature in endeavouring to ensure an informed decision might well be frustrated.
The plaintiff contends that similar considerations apply to a medical panel to which a reassessment is referred pursuant to RWA s 72(3A) given the specific requirement in s 72(3C) for the panel to whom an application is referred to include at least one medical practitioner appearing to the Authority to have specialist knowledge of the type of impairment in question.
In St Leonards Municipality, Burbury CJ later stated:[11]
I do not wish to be understood as saying that a decision of the Commission must be a unanimous decision of all its members. On the contrary, it is clear law that in the case of a commission of this kind discharging public functions (as distinct from co-agents appointed by a principal for private purposes), the decision of the majority becomes the decision of the commission. All members must be present at a meeting to give the benefit of their particular qualifications and experience, and in that sense all members must participate in a decision or report. But it is not necessary that after their deliberations all members of the commission should be unanimous; it may well be in some cases that they would not be unanimous, and clearly the majority can bind the minority.

I do not understand the plaintiff to be contending that the members of the panel of three medical practitioners to whom the application to reassess the level of permanent impairment has been referred must physically meet or adopt any particular procedure. Rather, all members of the panel must participate in the reassessment bringing to the exercise the benefit of their particular specialist knowledge and expertise.
The plaintiff submits that the relevant “act”, the validity of which is in question, is not the examination of the plaintiff (which the plaintiff agrees may be validly performed by each medical practitioner individually) but rather “the provision of an opinion” assessing the level of permanent impairment of the plaintiff. Accordingly, the plaintiff submits that the relevant question for the court to determine in this proceeding is whether the Panel Report is in fact a report of the panel of three medical practitioners to whom the reassessment was referred under s 72(3A). The plaintiff contends that “it is participation in the process of decision-making, including the decision to proceed by majority”, which is necessary for the decision expressed in the Panel Report to be a valid act of the panel and submits:[12]
In this case, Dr Allen’s process of reasoning to a decision by accepting or rejecting parts of Dr Ghan’s and Dr Jeremijenko’s expressed opinions was engaged in independently of the other panel members and no attempt was made to secure their concurrence or facilitate their participation in that process.
The Panel Report, addressed to NT Worksafe, Darwin, is annexed to the Agreed Facts. It begins:
Further to your letter dated 11 January 2023, I saw Mr Andre Cigobia on 22 March 2023 at Charles Darwin Centre, Regus – Darwin, Level 16, 19 Smith Street, Darwin City NT 0800, for a whole person impairment assessment and report.
The Panel Report also contains a number of matters which the plaintiff contends indicate that the Report is the report of Dr Allen and not an act of the panel. They include the following.
SERVICE STANDARDS
I explained my role as an accredited assessor of whole person impairment, and also, that my report from this assessment would be sent to NT WorkSafe.
SUMMARY OF REASON FOR REFERRAL
You have requested that I chair the Panel and write a consolidated report with respect to the examinations by myself (Orthopaedic Surgeon) on 22 March 2023, Dr Andrew Jeremijenko (Consultant Occupational Physician) on 23 January 2023, and Dr Francis Ghan (Orthopaedic Surgeon) on 20 February 2023.
The section of the Panel Report setting out the history taken from the plaintiff, in fact sets out the history taken by Dr Allen alone. This is clear from the wording, “He told me …”. Also, an examination of the assessments carried out by the other two medical practitioners shows that the histories taken by them, particularly the history taken by Dr Jeremijenko, are different in important respects. For example, Dr Allen recorded under the history, “Mr Cigobia has a longstanding history of lower back pain.” The history taken by Dr Jeremijenko, was of the sudden onset of severe pain while lifting some heavy and awkward packages at Halls Creek, and that before that, “in his view things were OK and there were no major issues”.
Further, the report of the clinical examination in the Panel Report, reports the examination carried out by Dr Allen alone. The other assessments contained different ranges of observed movement and Dr Allen is the only one who reports a voluntary restriction in movement. The Panel Report then changes from the singular to the plural and provides what purports to be an assessment by the panel.
The plaintiff submits that where the decision-maker is a tribunal or collective, the whole of the collective (or, but only if expressly provided for, a quorum) must make the decision. The decision of the chair of a tribunal or panel without the “concurrence” or “assent” of the rest of the tribunal is not a decision of the tribunal or panel.[13] It follows that a panel reassessment drafted by the chair must be “endorsed by the other two members of the panel, who would not have fulfilled their duties as panel members if they did not do so”.[14]
In this case, the agreed evidence shows that Drs Jeremijenko and Ghan did not endorse, assent or concur in the Panel Report authored by Dr Allen, and the plaintiff submits that there was, accordingly, no assessment made by a properly constituted panel.
The plaintiff also points to the fact that the RWA does not refer to a chair or chairperson of the panel. Hence, the designation of a panel member as the chair of the panel conveys no statutory consequence. If a chair is appointed, the chair does not enjoy any decision-making authority greater than the other two members of the panel.[15] The chair is not authorised to speak for, or on behalf of, the panel by virtue of that designation alone. If a panel reassessment is to be conveyed by any single member of the panel, whether or not the chair, the member must be authorised by the panel to do so, that is to say, must be authorised by the panel to produce a report in their name, having participated in the reassessment the subject of the report.
The plaintiff also relies on Kaefer in which Brownhill J considered the validity of a reassessment of WPI by a panel appointed under s 72 of the RWA. The “consolidated report” was on the letterhead of the chair of the panel, referred to the chair’s examination of the respondent and his records, referred to the chair’s medical expertise, and was often expressed in the first person singular, “I”.[16] However, the report stated that the chair had been asked to prepare a consolidated report with respect to examinations by himself and two orthopaedic surgeons who made up the panel and was expressed in some parts, especially the last two pages using “we”, “us”, “our” and “the panel”.[17] In rejecting a submission that it was unclear on the face of it whether the report was a report of the panel or of the chair alone, Brownhill J said:[18]
Reading the Further Reassessment as a whole, it purports on its face to be a reassessment by the panel, the reasons for which have been written by the chair. That authorship explains the form of the document, the focus on the chair’s examination and expertise and the expression in the writing. The panel is referred to, the document is described as a ‘consolidated report’, it is written by reference to the notes of the panel members’ examinations and there is no basis otherwise to conclude that it was not endorsed by the other two members of the panel, who would not have fulfilled their duties as panel members if they did not do so. [emphasis added]
The plaintiff relies on the underlined passage as tacit recognition of the need for all of the members of the panel to endorse a report (or otherwise participate in the making of the reassessment) for a report of a reassessment to be an act by the panel.
Second defendant’s contentions
The second defendant characterises the Panel Report as, in effect, a majority decision of Drs Allen and Ghan. The second defendant contends that each of the three panel members fulfilled their statutory functions by making individual assessments. There was in fact a majority assessment. As a matter of law, a majority assessment is valid,[19] and there is no procedural requirement for consultation, participation, discussion or attempt to reach unanimity before arriving at a majority decision.
In response, the plaintiff contends that the Panel Report cannot be characterised as a majority report because:
(a)Drs Ghan and Jeremijenko had no input into the formation of the opinion expressed.[20]
(b)The only person who assessed the plaintiff’s level of permanent impairment at 0% was Dr Allen. Dr Ghan assessed it at 2% and Dr Jeremijenko at 14%.
The second defendant relies on the definitions and procedures in the guidelines published pursuant to RWA s 70 which provides:
In this Subdivision permanent impairment means an impairment or impairments assessed, in accordance with the guides approved and published by the Authority, as being an impairment, or combination of impairments, of not less than 5% of the whole person.
The second defendant has approved and published guidelines for the purpose of RWA s 70, entitled NT WorkSafe Guidelines for the evaluation of permanent impairment (“the Guide”). The Guide incorporates the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition[21] (“AMA5”) which sets out criteria for making assessments of diagnosis-related estimates (“DRE”s) for the purpose of assessing WPI.
Table 15.3 of AMA5 sets out the criteria for rating impairment due to lumbar spine injury. If a person is assessed as DRE Category II by reference to those criteria, the table gives a range of 5% to 8% WPI within which the medical practitioner performing the assessment must make an assessment. If a person is assessed as DRE Category I by reference to the criteria in the table, the table provides that that equates to 0% impairment of the whole person.
The second defendant submits that the only question on the reassessment of the plaintiff’s WPI under RWA s 72 was whether the plaintiff fell into DRE Lumbar Category I or DRE Lumbar Category II.
The second defendant points to the fact that both Dr Allen and Dr Ghan assessed the plaintiff as falling into DRE Category I which equates to 0% WPI. The second defendant contends that, therefore, Dr Ghan’s assessment, “activities of daily living impaired under home care which equates to 2% WPI” is irrelevant since impairment in activities of daily living is not counted in an assessment of WPI. All that matters under AMA5 (and hence under the Guide) is whether the person being assessed falls into DRE Category II (5 to 8% impairment of the whole person) or DRE Category I (0% impairment of the whole person).[22] Dr Jeremijenko assessed the plaintiff as falling into DRE Category II; both Dr Allen and Dr Ghan assessed the plaintiff as falling into DRE Category I and that constituted a majority opinion.
The second defendant contends that the authorities relied upon by the plaintiff do not support the plaintiff’s submission that there was a need for some endorsement, assent or concurrence by all three panel members in the Panel Report. Those authorities are concerned with whether the statutory decision maker had been properly constituted and not with any procedural requirements imposed on a properly constituted panel.
(a)St Leonards Municipality concerned a purported decision by some of the group to create a quorum to accommodate a tribunal member absent for ill-health, inadvertently sabotaging the legislature’s intention to have specific expertise engage together on the questions before the tribunal.
(b)GJ Coles concerned the exclusion of some members from a hearing of the tribunal by agreement of the members, as did Green v The Queen.
(c)Hibble concerned the exclusion of members by unilateral decision of the chairperson.
Each of these cases, the second defendant contends, is an example of the application of a separate principle, that power must be exercised by the decision making body constituted the way Parliament decreed. They do not suggest any broader procedural requirement.
Here, the second defendant contends there was a properly constituted panel of three medical experts who each did their allotted task of examining the plaintiff and making an assessment, and a majority of two out of the three assessed him as DRE Category I which equates to 0% impairment of the whole person. Nothing more was required.
The second defendant submits that the passage in Kaefer at [64] relied upon by the plaintiff is obiter, being unnecessary for the finding that the report at issue in that case was in fact, on its face, a panel report, and argues that if it is read as more than expressing the duty of panel members to carry out and report their individual assessments, it is expressed too widely.
Discussion
It seems to me that the resolution of this case boils down to the simple question of ascertaining who is the statutory decision maker: is it three medical experts each of whom is to form his or her own individual assessment, as the second defendant contends, or is it a panel of three medical experts who are to make a decision as a panel?
On this question, the second defendant points to the Principles of Assessment set out in Part 2 of the Guide which generally refer to “the assessor” in the singular: Guide 1.6.3 – “In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/ condition”; Guide 1.40 – “An assessor will be a medical practitioner with qualifications relevant to the body system being assessed”; Guide 1.46 – “A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question/s being asked of the assessor”; Guide 1.47 – “The report should contain factual information based on all available medical information and results of investigations, the assessor’s[23] own history taking and clinical examination.”
Sometimes the plural form “assessors” is used. (Guide 1.6.2 - “Assessors are required to exercise their clinical judgment in determining a diagnosis when assessing permanent impairment and when making deductions for pre-existing injuries/ conditions.”) Occasionally the Guide is ambiguous as to singularity or plurality: Guide 1.41 – “Assessors may be one of the claimant’s treating practitioners or an assessor engaged to conduct an assessment for the purposes of determining the degree of permanent impairment.”
The plaintiff contends that the second defendant’s case receives little or no support from the wording of these and similar provisions in the Guide. The process of assessing a claimant’s WPI always begins with an assessment by a single medical practitioner [RWA s 72(2)] and it is contemplated that it will often end there. Further, if a person is aggrieved by the initial assessment, the Authority refers the application “to a panel of three medical practitioners to reassess the level of permanent impairment” [RWA s 72(3A)], in which case “the assessor” is “the panel” (singular).
The plaintiff contends that the wording of s 72 makes it plain that the decision maker entrusted by the legislature with the task of reassessing a complainant’s WPI is “a panel of three medical practitioners” and not three medical practitioners acting independently.
· Section 72(3A) states:
Subject to subsection (3B), the Authority must, as soon as practicable after receiving an application, refer the application to a panel of 3 medical practitioners to reassess the level of permanent impairment.
· Sub-section (3B) provides that the Authority is not required to refer an application to a panel unless satisfied of the matters set out in that sub-section.
· Sub-section (3C) provides that “the panel to whom an application is referred” must be composed in the manner set out in that sub-section.
· Most relevantly, s 72(4) provides:
An assessment made by a panel under subsection (3A) as to the degree of permanent impairment of a worker:
(a)is taken to be the level of permanent impairment suffered by the worker for the purposes of section 71; and
(b)is not subject to review.
The plaintiff submits that because the legislature has provided in s 72(4) that “an assessment made by a panel” is final rather that providing a statutory right of appeal, that assessment affects the substantive rights of the parties, and this “reinforces the need for strict regulatory and procedural compliance”.[24] The plaintiff contends that the function of a panel in this statutory context is “to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”[25] This requires input from all members of the panel.
The plaintiff contends that, once it is accepted that the statutory decision maker is “the panel”, it is evident that the Panel Report does not comply with the Guide. For example, paragraph 1.47 of the Guide states:
The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.
Where a matter has been referred to a panel of three medical practitioners for re-assessment under s 72, “the assessor” is that three member panel and paragraph 1.47 would require the Panel Report to set out the results of investigations, history taking and clinical examination by each panel member. Paragraph 1.48 of the Guide provides that “the report of the evaluation should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the key findings of the evaluation with the impairment criteria in the Guidelines.” This requires findings to be made by the panel taking into account the matters set out in paragraph 1.47 made by each panel member. The Panel Report fails to do this; it refers only to investigations, history taking and clinical examination by Dr Allen.
Conclusion re error
I am of the view that the statutory context of s 72 and the wording of s 72(4) in particular, means that the plaintiff’s contention is correct: the decision maker entrusted by the legislature with the task of reassessing a complainant’s WPI is “a panel of three medical practitioners” and not three medical practitioners acting independently, as contended by the second defendant. It follows that the relevant question for this Court is the one posed by the plaintiff, “Is the Panel Report in fact a report of the panel of three medical practitioners to whom the reassessment was referred under s 72(3A)?”
In my view, that question must be answered in the negative.
(a)The Panel Report sets out the history taken by Dr Allen alone which is different in important respects to the histories taken by the other panel members, Dr Jeremijenko in particular.
(b)The Panel Report reports the examination carried out by Dr Allen alone which again differs from the examinations undertaken by the other panel members.
(c)The Panel Report then changes from the singular to the plural and provides what purports to be an assessment by the panel, but which is in fact the assessment arrived at by Dr Allen.
(d)The Panel Report does not make any reference to the history taken or examinations made by either Dr Ghan or Dr Jeremijenko, or to the assessments of WPI made by either of them. All three medical practitioners comprising the panel made different assessments of the plaintiff’s level of impairment. The fact that the practical consequences of the assessment by Dr Ghan and the assessment by Dr Allen are the same does not mean those assessments are the same. Dr Ghan gave an assessment that included 2% impairment in the activities of daily living; Dr Allen did not and the Panel Report gives Dr Allen’s assessment without reference to Dr Ghan’s 2%.
(e)It is an agreed fact that apart from providing a written record of their assessment of the plaintiff’s WPI referred to in [8] and [9] above, Drs Jeremijenko and Ghan had no input into the preparation of the Panel Report, and Dr Allen had no communication with either Dr Jeremijenko or Dr Ghan other than the receipt of those written records of their assessments which were not included or referred to in the Panel Report.
(f)This is different from the situation in Kaefer, where Brownhill J found that the report was in fact a report of the panel. There, on reading the reassessment as a whole, it purported on its face to be a reassessment by the panel. The panel was referred to; the document was described as a ‘consolidated report’; it was written by reference to the notes of the panel members’ examinations and there was no basis to conclude that it was not endorsed by the other two members of the panel.
(g)Here, although final, the Panel Report purports to be an assessment by the panel, and there is reference to a “consolidated report”, the Panel Report was not written by reference to the notes of the other panel members and there is every basis to conclude that it was not endorsed by the other two members of the panel, it being an admitted fact that they had no input into its preparation and that Dr Allen had no communication with them other than receipt of their reports which he did not incorporate or refer to.
Materiality

It being established that the Panel Report is not a report of the panel, but of Dr Allen, the question arises whether that error is material. The second defendant contends that it is not sufficient for the plaintiff to show jurisdictional error. He must also establish that the error was material – ie that there was a possibility that, if the error had not been made the outcome may have been different.
The second defendant contends that if error has been established, it is not material. Both Dr Allen and Dr Ghan assessed the plaintiff as being in DRE Category I which equates to a 0% WPI; there was therefore no possibility that, had the Panel Report made reference to the assessments of the other two panel members, the outcome might have been different.
In response, the plaintiff relies on the decision of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[26] in which the High Court analysed jurisdictional error and the requirement of materiality saying:
A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355 at 388-389 [91]) Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force). (Hossain [2018] HCA 34; (2018) 264 CLR 123 at 133 [24], 133‑134 [27], 147 [72]; SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 456 [83]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; (2023) 276 CLR 136 at 154-155 [53])
Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. (See Kirk (2010) 239 CLR 531 at 574 [73]; Hossain [2018] HCA 34; (2018) 264 CLR 123 at 137 [42].) There are no bright lines to be drawn – “[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute”. (MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 543 [101]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at 117-118 [78]; Thornton [2023] HCA 17; (2023) 276 CLR 136 at 162 [77].)
In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. (MZAPC (2021) 273 CLR 506 at 522 [33], 572-573 [182]; Nathanson [2022] HCA 26; (2022) 276 CLR 80 at 125-126 [98]-[102].) An example of the latter is unreasonableness in the final result. (MZAPC (2021) 273 CLR 506 at 522 [33]) In such cases, the error necessarily satisfies the requirement of materiality.
In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, (MZAPC (2021) 273 CLR 506 at 543-544 [101]) in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. (SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 445 [45]; MZAPC (2021) 273 CLR 506 at 524 [39]; Nathanson [2022] HCA 26; (2022) 276 CLR 80 at 103 [32], 107-108 [46], 113 [63]; Thornton [2023] HCA 17; (2023) 276 CLR 136 at 161 [75]) That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non‑compliance. (See Hossain [2018] HCA 34; (2018) 264 CLR 123 at 134 [29]; SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 444 [44]; MZAPC (2021) 273 CLR 506 at 522 [33]; Nathanson [2022] HCA 26; (2022) 276 CLR 80 at 102 [30], 132 [121].)
The plaintiff contends that the nature of the error in this case is such that the potential for an effect on the decision is inherent in the nature of the error. In other words, it is a case of what the plaintiff refers to as “built in materiality”. In this case, the decision maker entrusted by the statute with making the assessment (ie the panel) did not make the decision: it was made by Dr Allen. The plaintiff contends that if the correct decision maker has not made the decision, there is ipso facto at least a possibility that a different decision would have been made if the proper decision maker had made the decision.
The plaintiff garners support for this contention from the case of Jerak v Lazarus.[27] The plaintiff in that case sought orders quashing the decision of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). A first panel was convened which arrived at whole person impairment assessment at 55%. That was set aside and it was remitted back to a second panel. The second panel included Dr Lazarus, and the second panel arrived at a whole person impairment assessment of 0%. The plaintiff sought judicial review of that decision. One of the grounds was a complaint that Dr Lazarus, one of the panel members, should not have been on the panel. Dr Lazarus was a doctor who had originally been engaged by the insurer to assess the plaintiff. The plaintiff had not attended that appointment, so Dr Lazarus hadn’t actually examined him. The question was whether Dr Lazarus was precluded from being on the panel by s 537(8) which provided that a medical practitioner who “has treated or examined or has been engaged to treat or examine a worker (otherwise that in his or her role as a member of the Medical Panel) he or she must not be a member of a Medical Panel examining the worker.”
The question was whether or not that provision was enlivened. The court found that it was. Dr Lazarus “had been engaged by the insurer to …” even though he had not in fact done so. That meant there had been a contravention of the Act and what the court was concerned with in Jerak v Lazarus was, effectively, the question of materiality.
The court held that because the error concerned the identity of the decision maker, the potential for an effect on the decision was inherent in the nature of that error. It was acknowledged that Dr Lazarus had no special information and was not biased. There was simply an almost technical breach but the court held that that was sufficient and that the decision should be overturned because if there had been a differently constituted panel, there would have been a different decision maker and ipso facto, the possibility of a different decision.
The plaintiff contends, in the alternative, that if he is required to meet the test of materiality, then that test has been met in the present case. The test is not an onerous one. All that is required for the error to be material to the decision (ie the assessment in the Panel Report) is for the plaintiff to show that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[28] The plaintiff contends that it is inherent in the nature of an assessment by a panel of three experts who all bring their own knowledge, skills, expertise and experience to the assessment, that there will be some form of consultation and participation. It follows that if there is consultation among a panel of experts who are keeping an open mind, there must be the possibility of persuasion, and hence the realistic, and not fanciful possibility of a different result.
Even if three people make an independent assessment and two of the assessments are the same (which in this case they were not, though in practical terms they were) if there is a process of consultation, it must be accepted that one or more of the medical experts might be induced to change their mind about the assessment. The plaintiff points to the fact that the Court has evidence, currently, of four different whole person impairment assessments; an assessment of 6% by the first doctor, 2% by Dr Ghan (albeit that still put the plaintiff into DRE Category I), 14% by Dr Jeremijenko, 0% by Dr Allen, and contends that, statistically, that gives rise to a not fanciful prospect of a different result – ie an assessment of greater than 5% whole person impairment. Even focusing on the question of which DRE category the plaintiff falls into (DRE Category I or II), the evidence is that there was a 50/50 split among the four medical practitioners who have assessed the plaintiff and looked at that question.
Conclusion on materiality
The plaintiff’s contention must be accepted. I am inclined to the view that where, as here, the reassessment has not been made by the panel of three medical experts entrusted by the statute with making the reassessment, then, ipso facto there must be a possibility that a different assessment could have resulted had the reassessment been made by the panel. If I am wrong about that, I agree with the plaintiff that, in this case, the test of materiality has been satisfied. There is a realistic possibility that a different assessment could have been made if the error had not occurred. Had there been an assessment by the panel it is not fanciful to suppose that there could have been an assessment of 5% WPI or more which would have entitled the plaintiff to compensation for permanent impairment under RWA s 71.
ORDERS:
(a)there will be an order in the nature of certiorari quashing the Panel Report; and
(b)a declaration that the Panel Report does not comply with RWA s 72 and is invalid.
----------

[1] This is not simply the sum of the two percentages. The Guidelines contain a formula for calculating the WPI.

[2] Kaefer Integrated Services Pty Ltd v Spohn [2022] NTSC 45 (“Kaefer”) at [39]

[3] Plaintiff’s submissions [25]; Brain v Minister of Pensions [1947] KB 625; St Leonards Municipality v Williams (1966) 15 LGRA 62 (“St Leonards Municipality”); Grindley v Barker (1798) 126 ER 875.

[4] The plaintiff cites St Leonards Municipality at 68 for this proposition.

[5] The plaintiff cites Green v The Queen (1891) 17 VLR 329 (“Green v The Queen”) at 333 for this proposition.

[6] [1920] 23 CLR 456 (“Hibble”)

[7] (1986) 7 NSWLR 503 (“GJ Coles”)

[8] Green v The Queen

[9] St Leonards Municipality

[10] at p168

[11] at p173

[12] Plaintiff’s submissions at [26](c)

[13] Hibble at 460, 462 (Knox CJ, Gavan Duffy J with whom Starke J agreed), 477 (Isaacs & Rich JJ)

[14] Kaefer at [39]

[15] Cf Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457

[16] Kaefer at [62]

[17] Kaefer at [63]

[18] Kaefer at [64]

[19] Grindley v Baker (1798) 126 ER 875 at 897 per Eyre CJ; See also St Leonards Municipality at p173

[20]The second defendant contends they did because Dr Allen drew on their individual assessments in writing the report. However, as the plaintiff submits, he did so in order to disagree with those assessments without referring back to Drs Ghan and Jeremijenko.

[21]The Guide 1.1

[22] There are higher Categories, III, IV and V equating to higher degrees of impairment but these are not relevant as none of the medical experts forming the panel were of the opinion that the plaintiff fell into those categories.

[23]The second defendant points to the use of the singular possessive form.

[24] Plaintiff’s written submissions [19]

[25] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [47] (“Wingfoot”); In Wingfoot, the High Court considered s 68 of the Accident Compensation Act 1985 (Vic) under which a Medical Panel must give its opinion on a medical question referred to it and a written statement of its reasons for that opinion; and the remark cited by the plaintiff occurs in a discussion by the Court of the standard required of a written statement of reasons by a Medical Panel under that section. It has limited application, if any, to the question of what is required for a valid panel assessment under RWA s 72, given that RWA s 70 refers to and prescribes guidelines for assessing WPI for the purposes of the NT Act. (See also the remarks of Brownhill J in Kaefer at [59] and [60].)

[26] [2024] HCA 12 (10 April 2024) per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ at [4] to [7] (“LPDT”)

[27] Plaintiff Submissions [20]; Jerak v Dr Lazarus & Ors [2020] VSC 729

[28] LPDT at [14] – [15]