McKee v Allianz Australia Insurance Limited

[2007] NSWSC 1067

CITATION:	McKee v Allianz Australia Insurance Limited [2007] NSWSC 1067
HEARING DATE(S):	06/09/07
JUDGMENT DATE :	4 October 2007
JUDGMENT OF:	James J
DECISION:	Summons dismissed
CATCHWORDS:	Motor Accidents Compensation Act - Pt 3.4 - Review Panel
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workplace Injury Management and Workers Compensation Act
CASES CITED:	Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090 Campbelltown City Council v Vegan and Ors [2006] NSWCA 284 Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839 Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 Smith v Liquip Services Pty Ltd [2007] NSWSC 687 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
PARTIES:	John Charles McKee v Allianz Australia Insurance Limited
FILE NUMBER(S):	SC 30038/07
COUNSEL:	C Jackson - Plaintiff E Romaniuk - First Defendant Submitting appearance - Second Defendant MA Robinson - Third Defendant
SOLICITORS:	Rishworth Dodd & Co - Plaintiff TL Lawyers - First Defendant Submitting appearance - Second Defendant IV Knight Crown Solicitor - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

THURSDAY, 4 OCTOBER 2007

30038/07 JOHN CHARLES McKEE v ALLIANZ AUSTRALIA INSURANCE LIMITED

JUDGMENT

1 HIS HONOUR: These proceedings were brought by the plaintiff John Charles McKee against the three defendants, Allianz Australia Insurance Limited (the first defendant), an Appeal Panel constituted under s 63 of the Motor Accidents Compensation Act 1999 (“the MAC Act” or “the Act”) (the second defendant) and the Motor Accidents Authority of New South Wales (the third defendant). At the hearing the name of the second defendant was changed to a medical assessor’s review panel convened under Pt 3.4 of the Motor Accidents Compensation Act 1999.

2 At the hearing the principal contest was between the plaintiff and the first defendant, which is a licensed insurer under the Act. The second defendant filed a submitting appearance and did not take any active part in the proceedings. The third defendant, which is constituted by the Act, also filed a submitting appearance. However, after having been served with the affidavit evidence and written submissions of the plaintiff and the first defendant, the third defendant, at the commencement of the hearing before me, sought leave to participate in the proceedings. I granted the leave sought. The proceedings clearly relate to the powers and procedures of the third defendant and, in any event, the position of the third defendant is distinguishable from the position of the Australian Broadcasting Tribunal in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 esp at 35-36. At the hearing counsel for the third defendant made oral submissions to the Court.

3 At the hearing there was no dispute about the facts of the case. The evidence was largely comprised in three documents:-

1. A certificate by a medical assessor Dr Long pursuant to s 61 of the Act which incorporates a statement by Dr Long of his reasons for making the certificate (“the assessment”).

2. An application pursuant to s 63 of the Act for a review of the assessment by a review panel of medical assessors (“the application for review”).

3. A certificate of determination by the review panel pursuant to s 63(4) of the Act, which incorporates a statement of the reasons of the review panel (“the review panel certificate”).

4 Before summarising some of the facts stated in these documents, it is convenient to set out some of the provisions of the Act.

The Act

5 Part 3.4 of the Act is headed “Medical Assessment”.

6 Section 57 contains certain definitions as follows:-

“medical assessor” means a person appointed under this Part to make an assessment under this Part.

“medical assessors review panel” means a panel of medical assessors convened under this Part to review an assessment under this Part.

“medical dispute” means a disagreement or issue to which this Part applies.

7 Section 58(1) of the Act provides:-

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters:


(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances;

(b) whether any such treatment relates to the injury caused by the motor accident;

(c) whether an injury has stabilised;

(d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident;

(e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident.

8 Section 59 provides for the appointment of medical practitioners or other suitably qualified persons to be medical assessors for the purposes of Pt 3.4 of the Act.

9 Section 60 of the Act provides:-

(1) A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor.

(2) If the insurer disputes all liability under a claim the dispute cannot be referred for assessment under this Part by the claimant alone.

(3) The request for a referral is to be made to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as “the proper officer of the Authority”).

(4) The proper officer of the Authority is to arrange for any such request that is duly made to be referred to one or more medical assessors.

10 Section 61 provides in part as follows:-

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to:

(a) whether the degree of permanent impairment of the injured person is greater than 10%; or
(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances; or
(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances; or
(c) whether an injury has stabilised,


is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

11 Section 62 of the Act provides:-

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury; or
(b) by a court or claims assessor.

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

12 Section 63 of the Act provides:-

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) Section 61 applies to any such new certificate.

The Facts

13 The assessment, the application for review and the review panel certificate establish inter alia the following facts.

14 On 9 June 2002 the plaintiff was injured in a motor vehicle accident. In the accident he received injuries to both knees, his left shoulder and his spleen. The plaintiff underwent surgery and his spleen was removed (a splenectomy).

15 The plaintiff made a claim for damages for the injuries suffered by him in the accident. Medical disputes between the plaintiff and the first defendant, including a dispute about the degree of permanent impairment the plaintiff had suffered as a result of the injuries caused by the motor accident, were referred to a medical assessor Dr Long.

16 Dr Long conducted an assessment and certified that the degrees of impairment as a result of the injury caused by the motor accident were, as to the plaintiff’s left shoulder 1%, as to “abdomen-splenectomy” 0%, as to “left lower extremity” 8% and as to “right lower extremity” 0%, so that the total whole person permanent impairment for the assessed injury caused by the motor accident was 9%. As the degree of permanent impairment as a result of the injury caused by the motor accident was found by the medical assessor not to be greater than 10%, no damages could be awarded for non-economic loss (the Act s 131).

17 The plaintiff by his solicitors applied for the assessment by the medical assessor to be referred to a review panel.

18 The respect in which it was alleged in the application for review that the assessment was incorrect was that “the assessor should have allowed 3% whole person impairment assessment for post-traumatic splenectomy in accordance with para 8.13 of the Motor Accidents Act Impairment Assessment Guidelines issued 1 September 2005”. These guidelines had been made by the Authority pursuant to s 44(1)(c) of the Act. Paragraph 8.13 of the guidelines provides that “a claimant with post-traumatic splenectomy should be assessed as having 3% whole person impairment”.

19 The proper officer of the Authority arranged for the application for review to be referred to a review panel of medical assessors and a review was conducted by the panel.

20 In the review panel certificate the review panel said in para 3:-

“The panel noted that all aspects of the assessment under review are to be considered afresh by the review panel”.

21 This was clearly a reference by the review panel to clause 10.17.1 of the Motor Accidents Authority Medical Assessment Guidelines, which provides that a review panel is to “consider afresh all aspects of the assessment under review”.

22 In the review panel certificate the review panel said that it had assessed the degree of permanent impairment as a result of the injury to the plaintiff’s spleen at 3%, thereby correcting the error made by the medical assessor. However, the review panel, in accordance with its view that all aspects of the assessment by the medical assessor were under review, proceeded to consider other aspects of the assessment and in its certificate said that it differed from the medical assessor on the degree of permanent impairment as a result of the injury to the plaintiff’s left knee, finding that the degree of permanent impairment was only 6%. The review panel reached the same conclusion as the medical assessor with respect to the degree of permanent impairment to the plaintiff’s left shoulder and the plaintiff’s right knee.

23 Accordingly, the decision made by the review panel was that the degrees of permanent impairment the plaintiff had suffered as a result of the motor accident were, as to his left shoulder 1%, as to his left knee 6% and as to his spleen 3%, making a total whole person degree of permanent impairment of 10%. As the degree of permanent impairment found by the review panel was not greater than 10%, it remained the position that the plaintiff would not be entitled to damages for non-economic loss.

24 In the summons commencing these proceedings the plaintiff claimed inter alia orders that the decision of the review panel be quashed on the grounds of jurisdictional error and/or error of law and that the matter be remitted to a differently constituted review panel and a declaration that para 10.17.1 of the Medical Assessment Guidelines is invalid. The key submission made by counsel for the plaintiff was that a review panel conducting a review under s 63 of the Act is limited to reviewing the respect in which it is alleged in the application for referral for review that the assessment made by the medical assessor was incorrect and does not have jurisdiction to conduct a review of any other aspects of the assessment. A further submission was made that, even as to any matter which the review panel has jurisdiction to review, the review panel is limited to conducting an administrative review and cannot conduct a fresh inquiry on the merits. It was submitted that para 10.17.1 of the Medical Assessment Guidelines is inconsistent with the Act and not authorised by the Act and is therefore invalid.

25 A separate submission made in the plaintiff’s written submissions that the plaintiff had been denied procedural fairness, in that he had not been given notice that the review panel would review aspects of the assessment, other than the respect in which it was alleged in the application for review that the assessment of the medical assessor was incorrect, was not pressed at the hearing, in the light of letters from the Authority to the plaintiff’s solicitors clearly putting the plaintiff on notice that the review panel would conduct a fresh assessment of the medical disputes between the parties and that it would be open to the review panel to consider all aspects of the assessment under review.

26 Counsel for the plaintiff contended that the key submission he made on behalf of the plaintiff derived some support from the terms of s 63 of the Act. Under s 63(2) an application for the referral of a medical assessment to a review panel may only be made if a respect in which it is contended that the assessment was incorrect is identified, and under s 63(3) the application is to be referred to a review panel, only if the proper officer is satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect “having regard to the particulars set out in the application”, that is to say in the respect contended for in the application for referral. Under s 63(4) the review panel may confirm the certificate of assessment of the medical assessor or revoke that certificate and issue a new certificate “as to the matters concerned”. The expression “as to the matters concerned” could be a reference back to sub-ss (2) and (3) of s 63, that is a reference back to the respect or respects of the assessment by the medical assessor which the applicant for referral has identified.

27 Counsel for the plaintiff particularly relied on remarks made by Basten JA in Campbelltown City Council v Vegan and Ors [2006] NSWCA 284 at [131]-[137] and esp at [137]. It was accepted by counsel that Vegan was a decision on the Workplace Injury ManagementandWorkers Compensation Act (“the WIM Act”), and not the MAC Act but it was submitted that there was no relevant distinction between the two Acts.

28 Counsel for the first defendant and counsel for the third defendant submitted that on the true interpretation of s 63 of the Act a review under that section is not limited to a review of the respect or respects in which it is alleged in the application for referral for review that the assessment by the medical assessor was incorrect and extends to a review on the merits of all aspects of the assessment by the medical assessor. It was further submitted that the remarks by Basten JA in Vegan on which counsel for the plaintiff sought to rely were only tentative dicta and were, in any event, not applicable to the Motor Accidents Compensation Act.

29 I have already referred to para 10.17.1 of the Medical Assessment Guidelines, which were made under s 44(1)(d) of the Act, providing that a review panel is to consider afresh all aspects of the assessment under review. It was common ground at the hearing that the Guidelines as delegated legislation made under the Act could not be taken into account for the purpose of interpreting the Act itself. Pearce and Geddes Statutory Interpretation in Australia 6th ed 2006 at (3.41). See also Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090 (Johnson J) at [17].

30 As already stated, Vegan was a decision, not on the Motor Accidents Compensation Act but on the WIMAct and it is necessary to set out a number of the provisions of the WIM Act.

“ 319 Definitions
In this Act:
approved medical specialist means a medical practitioner appointed under this Part as an approved medical specialist.
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) …
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
…

321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.

322 Assessment of impairment
(1) 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 WorkCover Guidelines issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
(4) …
…
324 Powers of approved medical specialist on assessment
(1) The approved medical specialist assessing a medical dispute may:
(a) consult with any medical practitioner or other health care professional who is treating or has treated the worker, and
(b) call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, and
(c) require the worker to submit himself or herself for examination by the approved medical specialist.

(2) …
(3) This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part. An approved medical specialist who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under this section on an assessment of a medical dispute.

325 Medical assessment certificate

(1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate ) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist’s assessment with respect to those matters, and
(c) set out the approved medical specialist’s reasons for that assessment, and
(d) set out the facts on which that assessment is based.

(3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.
(4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence.

326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(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) …

327 Appeal against medical assessment
(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 (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment),
(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 it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists.
(5) …
(6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment.
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

328 Procedure on appeal
(1) An 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.
(2) The appeal is to be by way of review of the original medical assessment. The WorkCover Guidelines may provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment.
(4) …
(5) 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. Section 326 applies to any such new certificate.
(6) …
…”

31 In Vegan Ms Vegan claimed workers compensation for an injury suffered by her in the course of her employment by the Council. An approved medical specialist to whom a medical dispute between Ms Vegan and the Council had been referred for assessment gave a certificate pursuant to s 325 of the WIM Act. Ms Vegan appealed pursuant to s 327 of the WIM Act against the medical assessment by the approved medical specialist. The Appeal Panel revoked the certificate of the approved medical specialist and issued a new certificate under s 328 of the WIM Act.

32 The Council was dissatisfied with the decision of the Appeal Panel and brought court proceedings claiming that the Appeal Panel had erred in law. The Council relied on a number of grounds including that the Appeal Panel had failed to sufficiently state its reasons in its certificate and that “it had acted on the incorrect assumption that the WIM Act permitted it to re-assess the impairment of the worker without being confined to addressing the impact of the established grounds of appeal upon the (approved medical specialist’s) assessment”.

33 The proceedings were heard at first instance by Wood CJ at CL, who rejected all the Council’s submissions and dismissed the proceedings.

34 At para 74 to 84 of his judgment Wood CJ at CL considered a submission made by the WorkCover Authority, which was a party to the proceedings, that an Appeal Panel under the WIM Act “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”. At para 81 of his judgment Wood CJ at CL concluded that “it (the Appeal Panel) was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error”.

35 The Council appealed to the Court of Appeal from Wood CJ at CL’s decision in Vegan. On the hearing of the appeal the Court of Appeal was constituted by Handley JA, McColl JA and Basten JA.

36 The principal judgment in the Court of Appeal was given by Basten JA. In his judgment his Honour referred to a number of matters but determined the appeal by holding, contrary to Wood CJ at CL, that the Appeal Panel had been under a duty to give reasons for its decision (paras 98-120 of Basten JA’s judgment), that such reasons as the Appeal Panel had given were inadequate (paras 121-129 of the judgment) and that the consequence of the failure to give adequate reasons was that the decision of the Appeal Panel should be set aside.

37 At paras 76 to 87 of his judgment Basten JA discussed, inconclusively, the nature of an appeal to an Appeal Panel under s 327 of the WIM Act. Later in his judgment his Honour returned to this subject. Because of the importance for the present proceedings of these later remarks, I will quote in full what his Honour said in paras 131 to 137 of his judgment.

“131 The other challenges to the decision of the Appeal Panel give rise to matters of some difficulty which do not require resolution. For example, a question was raised as to the power of the Appeal Panel to review the whole of the matter on the merits, once invested with jurisdiction. In other words, assuming that jurisdiction was attracted by a “demonstrable error” in one aspect of the decision of the medical specialist, which did not itself infect other parts of the certificate given by him, was the Appeal Panel limited to correcting the aspect of the certificate the subject of the error, or was it entitled (and required) to reconsider all aspects of the certificate? A related question was whether it was necessary for the Appeal Panel itself to identify relevant error, or whether it was sufficient that the Registrar had, pursuant to an unchallenged decision, found that it appeared to her that “at least one of the grounds for appeal specified in subsection (3) exists”: s 327(4).

132 These questions are clearly not unrelated. Thus, if several grounds are identified in a notice of appeal, is it only those of which the Registrar is satisfied that the ground “exists” that can be dealt with by the Panel? Or if one is found to exist by the Registrar, can the Appeal Panel deal with all grounds which are in their view sustainable? If the Appeal Panel is limited to the ground or grounds found by the Registrar, must she specify the ground and can she specify more than one ground?

133 On first impression, it would seem that the Registrar is not required to determine the scope of the appeal because her role is merely to determine whether the appeal is to “proceed”, the appeal itself being by way of review by the Appeal Panel. If only one ground for appeal exists, in the opinion of the Registrar, it would appear that the whole of the appeal may proceed and that, being satisfied as to one ground, the Registrar is not required to address other grounds. Similarly, to say that a ground of appeal “exists”, as it “appears” to the Registrar, is to say no more than that the application before the Registrar satisfies the minimum requirements of s 327(3). There is no suggestion that the Registrar is required to consider whether the ground should succeed or to do more than satisfy herself that a ground, in conformity with s 327(3), is alleged and (perhaps) cannot be dismissed as patently untenable or colourable.
134 Whether this is entirely consistent with the approach accepted by the primary judge at [74]-[75] and apparently applied by Hislop J in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260 at [24] is not entirely clear. In the present case, Wood CJ at CL adopted a particular view of the role of the Registrar not because (as in Riverina Wines ) there had been a challenge to the decision of the Registrar, but because his Honour needed to determine whether the review undertaken by the Appeal Panel was “other than a review de novo”: see at [77]. By that his Honour meant, adopting the categorisation in Allesch v Maunz (2000) 203 CLR 172 at [23], a completely fresh rehearing “in which the power of the appellate body to re-exercise the power must be exercised ‘regardless of error’.” His Honour concluded at [81]:
“It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error.”
135 The tendency of the legislature to identify the available grounds for an appeal, without separately determining the scope of the appellate tribunal, has given rise to difficulties in other situations. That is particularly so where the appellate tribunal has broad powers and many sources of jurisdiction. For example, in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [38] the joint judgment of Gleeson CJ, Gummow and Callinan JJ (in which Hayne J relevantly agreed) noted that where an appeal to this Court was available where a party was aggrieved “in point of law or on a question as to the admission or rejection of evidence”, this Court’s powers might be limited to correction of the error, or might encompass the powers exercisable by the Compensation Court, as on a rehearing. The majority did not express an opinion on this question (at [38]) but Kirby J, who found it necessary to do so, concluded that the powers of this Court were limited to correcting errors of law. Thus his Honour stated [69]:
“In the context of this legislative history, and despite the ungainly language, there can be little doubt that the purpose of Parliament was to limit both the jurisdiction and powers of the Court of Appeal to the determination of appeals on a point of law (or in relation to the admission or rejection of evidence). The alternative construction would be capricious, involving the need for jurisdiction to establish, relevantly, an error in point of law but thereafter allowing, and probably requiring, the Court of Appeal to exercise its powers to decide purely factual disputes.”
136 A similar conclusion had been reached by this Court in North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412 at [22]-[24] (Beazley JA, Giles JA and Davies AJA agreeing), because the legislature had conferred exclusive jurisdiction on the Compensation Court to determine such matters.
137 Two factors suggest that such an approach would also be appropriate in relation to the powers of the Appeal Panel. 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. Secondly, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question. Thus, unlike this Court, it is not necessary to consider whether broad existing powers are exercisable in a particular case or not. On a tentative view, the approach adopted by the primary judge in the present case may have been in error and the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant. However, it is not necessary to reach a final conclusion in relation to this aspect of the matter because the certificate must be set aside on other grounds and the matter remitted to the Appeal Panel for it to exercise its powers according to law.”

38 Handley JA delivered a separate judgment. In his judgment Handley JA said that he had read Basten JA’s judgment in draft. Handley JA said that he agreed with the orders proposed by Basten JA and with much of his reasoning but that he preferred to express brief reasons of his own. His Honour proceeded to hold that the Appeal Panel had been under an obligation to give reasons and had failed to do so. His Honour did not expressly refer to the nature of an appeal under s 327 of the WIM Act.

39 McColl JA in a brief judgment said that she agreed with the orders proposed by Basten JA and “generally” with his “reasons”. Basten JA’s “reasons” would not appear to me to include the remarks at paras 131-137 of his judgment. McColl JA said that she also agreed with the reasons of Handley JA.

40 It is clear that the remarks made by Basten JA in paras 131-137 of his judgment in Vegan are dicta and his view stated in para 137 is expressly described by his Honour as “tentative”. However, his Honour’s remarks indicate that his Honour, after considering the matter in some detail, was inclined to the view that the powers of an Appeal Panel under s 328 of the WIM Act are limited to considering the alleged errors in the certificate of the approved medical specialist which have been identified by the appellant.

41 Basten JA’s remarks in Vegan have been referred to subsequently in a number of decisions by single judges or Associate judges of this court in cases under the WIM Act.

42 In Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 (Malpass AsJ) an injured worker brought proceedings in this Court for the review of a decision of an Appeal Panel on grounds including that the Appeal Panel had exceeded its jurisdiction by conducting a fresh hearing de novo. In his judgment Malpass AsJ referred to the judgment of Wood CJ at CL in Vegan and to the dicta of Basten JA at para 137 on the appeal in Vegan. Malpass AsJ noted that McColl JA had agreed with Basten JA, although, as I have previously indicated, I myself doubt whether her Honour’s agreement with Basten JA’s “reasons” should be taken as extending to agreement with the dicta at paras 131-137.

43 In Skillen Malpass AsJ preceded to himself determine what was the proper function of an Appeal Panel under the WIM Act. His Honour referred to various aspects of ss 327 and 328 of the WIM Act and particularly to the statement in ss 327(3) of the grounds for an appeal under the section and the need under s 327(4) for the Registrar to be satisfied that at least one of the grounds of appeal specified in s 327(3) has been made out before an appeal can proceed. His Honour observed at para 21 of his judgment:-

“The statutory regime not only limits grounds of appeal to four categories but also requires an identification of those that are relied on”.

44 At para 24 of his judgment his Honour said “I prefer the view that the grounds for appeal impose a restraint on the scope of the review that is to be conducted by the Appeal Panel pursuant to s 328”. His Honour concluded that the Appeal Panel in Skillen had fallen into error in conducting a fresh de novo hearing.

45 In Smith v Liquip Services Pty Ltd [2007] NSWSC 687 (Hoeben J) an injured worker brought proceedings in this Court for the review of a decision of an Appeal Panel on grounds including that the Appeal Panel had exceeded its jurisdiction by conducting a fresh hearing de novo.

46 In his judgment in Smith v Liquip Services Hoeben J referred to the dicta of Basten JA in Vegan and to the decision of Malpass AsJ in Skillen. At para 52 of his judgment Hoeben J said:-

“It seems to me that it is a bold step for a first instance judge to entirely disregard obiter remarks by a Judge of Appeal, particularly where that judgment has been agreed to by another Judge of Appeal. This is the case even where those remarks are but “a tentative view”.”

47 At para 53 of his judgment Hoeben J said, with reference to Skillen:-

“It seems to me that the approach suggested by Malpass As J has considerable force. I agree that the grounds of appeal impose a restraint on the scope of the review to be conducted by the Appeal Panel”.

48 However, later in the same paragraph of his judgment Hoeben J said:-

“It seems to me that once error of the necessary kind has been identified that the Appeal Panel can exercise its particular expertise to correct that error which may involve fact finding depending on the nature of the error identified.”

49 In Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 839 (McClellan CJ at CL) the plaintiff in proceedings for the review of a decision of an Appeal Panel submitted that the Appeal Panel had erred in relying on the judgment of Wood CJ at CL in Vegan as to the scope of an appeal to an Appeal Panel, without considering the dicta of Basten JA.

50 In his judgment in Crean McClellan CJ at CL referred to the judgments in Vegan, including the judgment of Handley JA, and to the decisions in Skillen and Smith v Liquip Services. At paras 30 and 31 of his judgment McClellan CJ at CL said:-

“30 … I do not understand Basten JA’s view to be that all forms of merit review were excluded by the Act. Such a view would not be consistent with s 328(2) which gives a power to “review”, s 328(3) which provides a power to admit fresh evidence and the power to issue a fresh certificate pursuant to s 328(5). By providing that the appeal Panel may conduct its own assessment and issue a new certificate the process contemplated by the section requires the Appeal Panel to arrive at the correct decision on the merits.

31 I accept that Basten JA’s “tentative view” may confine the Appeal Panel’s function to reviewing a medical assessment and correcting errors in relation to matters raised by the appellant. However, in so doing it may review the available evidence, including any fresh evidence provided to it in accordance with s 328(2). Understood in this manner Basten JA’s view would be consistent with that expressed by Handley JA. The Act provides for merits review, but, of the matters raised by the appellant. This is the approach taken by Malpass AssJ. If I have misunderstood Basten JA’s view it seems to me I should follow the approach favoured by Handley JA, and agreed in by McColl JA, rather than the tentative view of Basten JA.”

51 Having regard to the cases I have referred to, I consider that I should proceed on the basis that under the WIM Act the jurisdiction of an Appeal Panel on an appeal under ss 327 and 328 of the WIM Act is limited to considering the grounds of appeal which have been raised (being able to conduct a review on the merits of those grounds) but does not have jurisdiction to consider afresh all aspects of the assessment by the approved medical specialist.

52 However, the question remains whether the dicta of Basten JA in Vegan and the subsequent decisions on the WIM Act should be regarded as applying to a review panel under the MAC Act.

53 There is a general similarity between the structure of Pt 7 of Ch 7 of the WIM Act and Pt 3.4 of the MAC Act. Under each Act a medical dispute can be referred for assessment to a medical practitioner, the medical practitioner is to make an assessment and issue a certificate of assessment and there are procedures for an appeal or review of the certificate of assessment by an Appeal Panel or a review panel.

54 Notwithstanding this general similarity, there are a number of differences between the provisions of Pt 7 of Ch 7 of the WIM Act and Pt 3.4 of the MAC Act. These differences include:-

Under s 327(1) of the WIM Act a party may appeal against a medical assessment. Under s 63(1) of the MAC Act a party can apply for a “review” of a medical assessment. It is to be noted, however, that in s 328(2) of the WIM Act it is provided that an appeal is to be “by way of review” of the medical assessment. It would not appear that in either Act the legislature has used the word “appeal” or the word “review” in any strict legal sense.

Under s 327(1) of the WIM Act a party may appeal against an assessment but only in respect of a matter that is appealable under the section and only on the grounds for appeal under the section. Under sub-s (2) of s 327 a matter is appealable if it is a matter in respect of which the assessment of an approved medical specialist in a certificate is conclusively presumed to be correct. The matters in respect of which an assessment is conclusively presumed to be correct are stated in s 326(1). The grounds for an appeal under s 327 are listed in sub-s (3) of s 327. On the other hand, s 63 of the MAC Act simply provides that an application for referral for review can (only) be made on the grounds that the assessment was incorrect in a material respect. Under the MAC Act there is no limitation of grounds of appeal to listed grounds or to matters in respect of which the certificate of the assessor is conclusive evidence.

Under s 327(4) of the WIM Act an appeal is not to proceed unless the Registrar of the Workers Compensation Commission is satisfied that at least one of the grounds of appeal specified in s 327(3) has been made out. Section 327(4) formerly provided that an appeal was not to proceed “unless it appears to the Registrar that at least one of the grounds for appeal specified in sub-s (3) exists”. This was the form of the sub-section which was applied in Vegan . Section 63(3) of the MAC Act provides that the application for a review should be referred to a review panel only if the proper officer is satisfied that there is reasonable cause to suspect that the assessment was incorrect in a material respect.

Under s 327(6) of the WIM Act the Registrar may refer a medical assessment for further assessment as an alternative to an appeal against the assessment. There is no corresponding provision in the MAC Act .

Under s 328(1) of the WIM Act an Appeal Panel is to consist of two approved medical specialists and an arbitrator. Under s 63 of the MAC Act a review panel is to consist solely of medical assessors.

Under s 328(3) of the WIM Act there is a prohibition on receiving fresh evidence or new evidence on an appeal, unless the evidence was not available to the appellant before the medical assessment or could not reasonably have been obtained before the medical assessment. There is no corresponding provision in the MAC Act .

Under s 328(4) of the WIM Act an injured person is entitled to be accompanied by a person to act as his advocate before the Appeal Panel. There is no corresponding provision in the MAC Act .

55 For present purposes, some of these differences between the two Acts are more significant than others. However, in my opinion, the differences between the two Acts are in combination sufficient to distinguish the two Acts and render inapplicable to the MAC Act, the dicta of Basten JA in Vegan and the subsequent decisions on the WIM Act.

56 Of particular importance is the absence from the MAC Act of any list of grounds of appeal and any limitation of an appeal to a ground in such a list or to a matter in respect of which the certificate of the assessor is conclusive evidence. The absence from the MAC Act of any such provisions renders inapplicable, to a review by a review panel under the MAC Act, the first factor referred to by Basten JA in para 137 of his judgment in Vegan, which appears to me to have been the more important factor, namely:

“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”.

57 The provisions of the WIM Act limiting the grounds of appeal to four categories and requiring an identification of those relied on were heavily relied on by Malpass AsJ in reaching his decision in Skillen.

58 The only limitation on the grounds on which an application for a review may be made under s 63 of the MAC Act is that the assessment by the medical assessor should have been incorrect in a material respect. Moreover, this ground is wider than the grounds in sub-s (3) of s 327 of the WIM Act, including ground (c), that the assessment was made on the basis of incorrect criteria, and ground (d) that the medical assessment certificate contains a demonstrable error.

59 Another important difference between the two Acts is that the Appeal Panel under the WIM Act is to include an arbitrator, whereas the review panel under the MAC Act is to consist solely of medical practitioners. An arbitrator would be more likely than are medical practitioners to be familiar with distinctions drawn by lawyers between different types of appeals and reviews.

60 It is significant that under the MAC Act there is no power to refer an assessment for further assessment as an alternative to a review of the assessment and that there is no prohibition on the reception of fresh or new evidence by the review panel.

61 The provisions of the MAC Act to which I have referred, not only render inapplicable to the MAC Act the dicta of Basten JA in Vegan and the subsequent decisions on the WIM Act, they also show, in my opinion, that a review panel conducting a review under s 63 of the MAC Act is to consider afresh all aspects of the assessment under review and conduct a merits review.

62 Under sub-s (3) and sub-s (4) of s 63 the proper officer is required to be satisfied that there is reasonable cause to suspect that the assessment by the medical assessor was incorrect in a material respect but the section does not provide that the function of the review panel is to determine whether the assessment was incorrect in that respect. What sub-s (4) of s 63 provides is that the review panel may confirm the certificate of assessment of the assessor or revoke that certificate and itself issue a new certificate.

63 I do not consider that the expression “as to the matters concerned” in s 63(4) should be interpreted as being limited to the respects in which the applicant for review alleges that the assessment by the medical assessor was incorrect. The expression refers back to s 58 of the Act in which the “matters” to which Pt 3.4 of the Act applies are listed.

Conclusion

64 In my opinion, the decision of the review panel was not affected by jurisdictional error or error of law and the plaintiff’s summons should be dismissed.

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