Sleiman v Gadalla Pty Ltd

[2021] NSWSC 86

Supreme Court

New South Wales

Medium Neutral Citation:

Sleiman v Gadalla Pty Ltd [2021] NSWSC 86

Hearing dates:

28 August 2020

Date of orders:

15 February 2021

Decision date:

15 February 2021

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff’s application for judicial review fails.

(2) The summons filed 27 August 2020 is dismissed.

(3) The plaintiff is to pay the first defendant’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of decision of Delegate of the Registrar – Whether Delegate exceeded “gatekeeper” role under s 327 by dismissing the appeal on the basis of jurisdiction – Whether an appeal lies from the medical assessment certificate of an Appeal Panel to another appeal panel under s 327 – Whether an appeal lies under s 327(3)(a) after the issue of a certificate of determination – Whether the appeal was a “threshold dispute” – Application dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 69

Workers Compensation Act 1987 (NSW), ss 2A, 65, 66, 66(1A), 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 287, 288, 293, 294, 313, 314, 321, 322, 322A, 323, 324, 325, 326, 327, 329, 350, 368, 369, 371, 378

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; (2014) 308 ALR 213

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

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

Ballina Shire Council v Knapp [2019] NSWCA 146

Bunnings Group Ltd v Hicks [2008] NSWSC 874

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] 49 FCR 576

Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250

Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389

Hochbaum v RSM Building Services Pty Ltd [2010] NSWCA 113

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Inghams Enterprises v Iogha [2006] NSWSC 456

Insurance Australia Ltd v Bassel Wannous [2020] NSWSC 694

Jones v National Coal Board [1957] 2 QB 55

Kioa v West (1985) 159 CLR 550

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Lizdenis v Central Pty Ltd [2016] NSWWCC 21

Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Momcilovic v The Queen (2011) 245 CLR 1; (2011) 280 ALR 221

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Riverina Wines Pty Ltd v Registrar Of The Workers Compensation Commission Of NSW & Ors [2007] NSWCA 149

Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology v Aisha Naqi [2020] NSWSC 1791

Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Vitaz v Westform(NSW) Pty Ltd [2011] NSWCA 254

Category:

Principal judgment

Parties:

Ali Sleiman (Plaintiff)
Gadalla Pty Ltd (First Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
Workers Compensation Commission of New South Wales (Third Defendant)

Representation:

Counsel:
D Hooke SC with B McManamey (Plaintiff)
B Tronson with C Roberts (First Defendant)

Solicitors:
Submitting Appearance Crown Solicitors (Second and Third Defendants)

File Number(s):

2019/396891

Publication restriction:

Nil

Judgment

1. HER HONOUR: These proceedings concern a judicial review of the decision of a delegate of the Registrar of the Workers Compensation Commission of New South Wales (“the Commission”) dated 18 September 2019.

2. By third amended summons filed 27 August 2020, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision of the second defendant on 18 September 2019 (“the Delegate’s decision”) is void and of no effect; secondly, an order setting aside the Delegate’s decision; and thirdly, an order setting aside the certificate and determination of the Commission dated 21 July 2017.

3. The plaintiff is Ali Sleiman. The first defendant is Gadalla Pty Ltd. The second defendant is the Registrar of the Commission. The third defendant is the Commission. The second and third defendants filed submitting appearances. The plaintiff relied upon the affidavit of his solicitor, Luke Power, dated 1 April 2020. The parties relied upon a joint court book. For convenience, I will refer to the first defendant as the defendant throughout this judgment.

Factual background

4. On 14 May 2014, the plaintiff suffered a workplace injury. On 19 January 2017, approved medical specialist Dr Phil Truskett, general surgeon (“the AMS”), issued a medical assessment certificate (“MAC”) concluding that the plaintiff’s degree of permanent impairment was 2%.

5. As the plaintiff’s level of permanent impairment fell below the 10% statutory threshold for damages under s 66 of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”), he was not entitled to compensation.

6. On 15 February 2017, the plaintiff lodged an application to appeal the MAC.

7. On 22 March 2017, a delegate of the Registrar concluded that the plaintiff had made out a ground under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”), and referred the plaintiff’s appeal to a medical appeal panel comprising of Arbitrator Grahame Edwards and approved medical specialists Dr Drew Dixon, orthopaedic surgeon, and Dr John Garvey, general surgeon (“the Appeal Panel”).

8. On 6 April 2017, following a preliminary review, the Appeal Panel determined that the plaintiff should undergo a further medical assessment.

9. On 16 June 2017, the Appeal Panel re-determined the plaintiff’s case and issued a replacement certificate assessing his degree of permanent impairment at 14%.

10. On 21 July 2017, the plaintiff was issued a certificate of determination. The defendant, through its insurer, paid the plaintiff the sum of $20,350 as compensation for permanent impairment pursuant to s 66 of the 1998 Act.

11. The plaintiff now claims that he has suffered a deterioration in his condition and has sought to appeal from the replacement certificate issued by the Appeal Panel.

12. Section 327(4) of the 1998 Act provides that an appeal against a medical assessment is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions, at least one of the grounds for appeal specified in subsection (3) has been made out.

13. On 18 September 2019, a delegate to the Registrar (“the Delegate”) declined to substantively consider the plaintiff’s application on the basis that he had no entitlement to appeal. In short, the Delegate concluded that there was no statutory basis for engaging in the enquiry set out in s 327(4) of the 1998 Act, because the Appeal Panel’s determination was not a “medical assessment”, as it was not made by an AMS and the Appeal Panel had already issued a decision in relation to it.

14. Before I set out the decision of the Delegate in more detail, it is convenient that I set out the relevant statutory framework.

Statutory framework

The 1987 Act

15. Section 2A of the 1987 Act sets out the relationship between the Act and the 1998 Act. It reads:

“2A Relationship to Workplace Injury Management and Workers Compensation Act 1998

(1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as

‘the 1998 Act’.

(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.”

16. Sections 65 and 66 of the 1987 Act are also relevant to these proceedings. They relevantly read:

“65 Determination of degree of permanent impairment

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

(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

…

66 Entitlement to compensation for permanent impairment

(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

…

(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

…

(3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”

17. Finally, s 151H of the 1987 Act reads:

“151H No damages unless permanent impairment of at least 15%

(1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note : Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%)--

(a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note : This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

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

The 1998 Act

18. The 1998 Act concerns the resolution of workplace injury disputes.

19. Section 4 of the 1998 Act sets out the following relevant definitions:

“‘claim’ means a claim for compensation or work injury damages that a person has made or is entitled to make.

…

‘medical assessment’ means assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7.”

20. Under s 4, the terms “approved medical specialist” and “medical dispute” are defined in s 319 as follows:

“‘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) the nature and extent of loss of hearing suffered by a worker,

(f) whether impairment is permanent,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.

21. Part 4 of Chapter 7 of the 1998 Act applies to the determination of compensation disputes. Section 287 reads:

“287 Disputes to which Part applies

(1) This Part applies to a dispute in connection with a claim for compensation between--

(a) the person who makes the claim and a person on whom the claim is made, or

(b) the employer on whom the claim is made and the insurer on whom the claim is made.

(2) This Part extends to a dispute that concerns failure to commence provisional weekly payments of compensation as required by Division 1 of Part 3 (even though no claim has been made for that compensation) and so extends as if--

(a) a reference in this Part to weekly payments included a reference to provisional weekly payments, and

(b) initial notification of injury (as defined in Part 3) constituted a claim for the compensation.”

22. Part 4 concerns only “a dispute in connection with a claim for compensation”, not any form of dispute that may arise. It does not, for example, have the breadth to include a “threshold dispute” as defined in Part 6 of Chapter 7, or some matters that may constitute a “medical dispute” as defined for the purposes of Part 7 of Chapter 7.

23. Section 288 of the 1998 Act reads:

“288 Referral of disputes to Commission

(1) Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.

Note: A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment).

(2) The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.”

24. Section 293 of the 1998 Act, as it applied to the plaintiff’s claim for permanent impairment compensation in 2017, read:

“293 Medical Assessment

(1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment.

(3) The Registrar may not refer for assessment:

(a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

25. With effect from 1 January 2019, s 293(2) and (3)(a) of the 1998 Act were repealed.

26. Section 294 of the 1998 Act reads:

“294 Certificate of Commission’s determination

(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.

(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.

(3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”

27. Part 6 is titled “Court Proceedings for Work Injury Damages”, which refers to damages for injuries caused by the fault of the worker’s employer.

28. Sections 313 and 314 of the 1998 Act state:

“313    Threshold dispute prevents service of pre-filing statement and commencement of court proceedings

If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7.

314   What constitutes threshold dispute

(1)    For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if—

(a)   the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or

(b)   there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable.

Note—

Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable.

(2)   There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if—

(a)   the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or

(b)   an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.

(3)   For the purposes of this Part, acceptance by the person on whom a claim for work injury damages is made of the degree of permanent impairment of the injured worker for the purposes of a claim against the person by the injured worker for permanent impairment compensation also constitutes acceptance of the degree of permanent impairment for the purposes of the claim for work injury damages.”

29. Part 7 of Chapter 7 of the 1998 Act comprises ss 319 to 331. Section 319 relevantly defines an “approved medical specialist” as a medical practitioner appointed under Part 7 as an approved medical specialist.

30. Sections 321 to 329 of the 1998 Act concern medical assessments and appeals against them. They read:

“321 Referral of medical dispute for assessment

(1)   A medical dispute (other than a dispute concerning permanent impairment of an injured worker) 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.

…

321A Referral of medical dispute concerning permanent impairment

(1)   The regulations may make provision for or with respect to—

(a)    the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and

(b)    the giving of notice of a referral to the parties to the dispute.

(2)   Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.

(3)   A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the Registrar, either of their own motion or at the request of a party to 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 Workers Compensation Guidelines (as in force at the time the assessment is made) 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)    An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.

322A One assessment only of degree of permanent impairment

(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.

(1A)    A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

(2)    The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).

(3)    Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—

(a)    assessment and a medical assessment certificate under this Part, or

(b)    a determination by the Commission under Part 4.

(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator).

…

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)    If a worker refuses to submit himself or herself for examination by the approved medical specialist if required to do so, or in any way obstructs the examination—

(a)    the worker’s right to recover compensation with respect to the injury, or

(b)    the worker’s right to weekly payments,

is suspended until the examination has taken place.

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

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

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

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

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

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

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

Note—

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

(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 but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can 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 by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

(4)    When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.

(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)    The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.

329    Referral of matter for further medical assessment or reconsideration

(1)    A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—

(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or

(b)    a court or the Commission.

(1A)    A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.

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

31. Section 350 concerns decisions of the Commission. It reads:

“350 Decisions of Commission

(1)    Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

(2)    A decision of or proceeding before the Commission is not—

(a)    to be vitiated because of any informality or want of form, or

(b)    liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3)    The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

32. Sections 368, 369 and 371 of the 1998 Act concern the Commission. They relevantly read:

“368 Members of Commission

(1)    The Commission consists of the following members—

…

(c)    a Registrar,

…

(2)    The members of the Commission are to be appointed by the Minister.

(3)    The instrument of appointment of a member is to specify whether a member has been appointed as—

…

(c)    the Registrar, or

…

(4)    One or more of the Arbitrators may be appointed as a Senior Arbitrator, either by the instrument of appointment of the Arbitrator or by a later instrument executed by the Minister.

369 Qualifications for appointment

(1)    A person is eligible to be appointed as President only if the person is a Judge of a court of record.

(2)    A person is eligible to be appointed as Deputy President only if the person—

(a) is or has been a judicial officer (within the meaning of the Judicial Officers Act 1986), or

(b)    is an Australian lawyer of at least 5 years’ standing.

(3)    A person is eligible to be appointed as the Registrar or as an Arbitrator only if the person—

(a)    is an Australian lawyer, or

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

(4)    The appointment of a person who is not an Australian lawyer as an Arbitrator may be made on terms that limit the person to dealing with matters of a particular type or types.

371 Functions of Registrar

(1)    The Registrar has and may exercise all the functions of an Arbitrator.

(2)    The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.

(3)    The Registrar may exercise any of the functions of the Commission constituted by an Arbitrator to dismiss proceedings before the Commission.”

33. Finally, s 378 of the 1998 Act concerns the reconsideration of decisions. It reads:

“378 Reconsideration of decisions of Registrar or Appeal Panel

(1)    The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.

(2)    Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.

(3)    Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).

(4)    The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.

(5)    This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”

The Delegate’s decision

34. On 18 September 2019, the Delegate issued his decision and reasons (CB 79-82) in relation to what he described as “this somewhat unusual appeal” ([1]).

35. Having set out the decisions of the AMS and the Appeal Panel at [2] to [3], the Delegate considered the matter at [4] to [27] as follows:

“[4] On 16 August 2019 [the plaintiff] lodged this Application to Appeal on the basis of deterioration of the worker’s condition that results in an increase in the degree of permanent impairment (section 327(3)(a)). I note that attached to the application are documents which clearly fall under the category of ‘additional relevant information’ in section 327(3)(b). [The plaintiff] has not ticked the box indicating that he relies on this ground of appeal, but it is clear from the substance of the submissions that he does.

[5] In the form used to lodge the appeal, [the plaintiff] provides:

‘Date of medical assessment decision appealed against: 21/7/2017

Name of Approved Medical Specialist appealed against:

(If you are appealing against more than one AMS, please use a separate Form for each appeal)

Dr Drew Dixon’

[6] The naming of ‘Dr Drew Dixon’ as the AMS appealed against underpins the misconceived basis on which this appeal has been lodged. Dr Drew Dixon was a member of the Medical Appeal Panel.

[7] On 5 September 2019 the respondent lodged a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist. The respondent’s main complaint was that they should be afforded the opportunity to have [the plaintiff] examined in response to the application. Given the appeal cannot proceed, it is unnecessary to afford the respondent that opportunity.

[8] The first line of [the plaintiff’s] submissions provides: ‘[The plaintiff] appeals against the Medical Assessment Certificate issued by a Medical Appeal Panel on 21 July 2017’ (sic, the decision of the Appeal Panel was dated 16 July 2017). [The plaintiff’s] submissions go on to provide a background chronology to the claim for deterioration, including various assessments undertaken since the Medical Appeal Panel’s decision.

[9] [The plaintiff] goes on to indicate that ‘The appeal is brought for the purposes of a work injury damages threshold dispute’. The reason for this distinction is with reference to the decision of Arbitrator Harris in Lizdenis v Central Pty Limited [2016] NSWWCC 21 (Lizdenis). [The plaintiff] goes on to outline why, relying on Lizdenis, it is unnecessary to reconsider the Certificate of Determination issued by the Commission on 21 July 2017.

[10] [The plaintiff] goes on to submit that the ‘new certificate’ (being the certificate issued by the Medical Appeal Panel) would be the one certificate for the purposes of section 322A of the 1998 Act, and:

‘It is the only certificate for the purposes of section 327 so that an appeal lies from that certificate even though it is from an appeal panel. There is nothing in section 327 that limits the number of times an appeal can be brought.’

[11] Whilst I accept, in principal, the second of those submissions (an apparent exception may be where repeated appeal lodgment constitutes an abuse of process), I do not accept the former.

[12] The assessment of a medical dispute is performed by an AMS at first instance. Part 7 of Ch 7 of the 1998 Act provides the statutory basis for the determination of medical disputes, including the nature of the referral, the powers of an AMS on assessment, what is required in a MAC, and the status of the MAC as binding or persuasive evidence. Part 7 also provides an internal appeals process, whereby matters that proceed through the gatekeeper are determined by a Medical Appeal Panel, constituted by two AMS’s and one Arbitrator.

[13] Subsection 327(1) provides the statutory basis for an appeal:

‘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.’

[14] The terms ‘medical dispute’ and ‘medical assessment’ are specifically defined within the legislation. ‘Medical assessment’, as defined in section 4 of the 1998 Act, means ‘assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7’ (emphasis added).

[15] Subsection 327(2) provides the matters that are appealable:

‘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.’

[16] A matter is appealable if ‘an approved medical specialist’ certified in a ‘medical assessment certificate’ a matter that is ‘conclusively presumed to be correct’. Although not relevant for present purposes, the matters in a MAC that are conclusively presumed to be correct are listed in section 326 of the 1998 Act.

[17] Section 328(5) of the 1998 Act provides for the powers of an Appeal Panel when reviewing a MAC:

‘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.’

[18] In this matter, the Appeal Panel revoked and replaced the certificate of Dr Truskett. Whilst section 326 applies to the certificate of the Appeal Panel, by operation of section 328(5), that does not mean the certificate of an Appeal Panel is appealable under section 327.

[19] A party may appeal against a ‘medical assessment’ (specifically defined to be an assessment of a medical dispute by an AMS under Pt 7 of Ch 7 of the 1998 Act), and an assessment is appealable under section 327(2) if an approved medical specialist provided the certificate.

[20] There are two reasons why this is relevant. Firstly, a medical assessment is not conducted by an Appeal Panel, but by an AMS. The appeal power outlined in section 327(1) only grants a party the opportunity to appeal against a ‘medical assessment’.

[21] Secondly, a matter is not appealable under section 327(2) where an Appeal Panel has issued a decision determining the appeal, whether or not that appeal includes a further examination. A matter is appealable if it relates to ‘the assessment of an approved medical specialist’.

[22] In this matter, as part of determining the appeal previously lodged, Dr Drew Dixon conducted a re-examination of [the plaintiff]. He was entitled to do so by virtue of section 324(3), which grants all the powers of an AMS at first instance to an AMS who is a member of an appeal power. The power to compel examination contained in section 324(1)(c), granted on a member of an Appeal Panel by virtue of section 324(3), does not grant a right of appeal against that examination. It forms part of the decision of the Appeal Panel.

[23] There is no statutory basis to appeal against the decision of an Appeal Panel within the 1998 Act. The appellant’s bald assertion that because the certificate issued by the Appeal Panel is the certificate for the purposes of section 322A, an appeal lies from that certificate, is unsupported by any analysis of the context and powers of the appeal provisions contained in Part 7 of Ch 7 of the 1998 Act.

[24] To accept the construction of [the plaintiff] (a construction lacking supporting submissions or explanation) would lead to perverse results. If accepted, a party dissatisfied with the outcome of an appeal could then appeal against the decision of the Medical Appeal Panel, seeking a fresh assessment of the dispute. This would be an affront to the finality of litigation and would open a never-ending right of appeal.

[25] The construction proposed by [the plaintiff] would also lead to an appeal being determined at the same level of authority, constituted in the same manner, as the decision maker. This would be akin to an Arbitrator hearing and determining an appeal against another Arbitrator, or a Presidential Member hearing an appeal against another Presidential member.

[26] In this matter, the original medical dispute was determined by Dr Truskett. [The plaintiff] successfully appealed against that assessment in July 2017. In exercising their powers, the Appeal Panel revoked and replaced the certificate of Dr Truskett. Accordingly, [the plaintiff] cannot appeal against his assessment (whether on the basis of deterioration or any other ground) as it no longer exists. [The plaintiff] now seeks to appeal against the decision of the Medical Appeal Panel, although naming Dr Drew Dixon as the AMS appealed against.

[27] There is no statutory basis for the appeal, which has been made without basis or merit. The Commission has no jurisdiction to hear an appeal against the certificate of a Medical Appeal Panel. The appeal cannot proceed.”

Grounds of judicial review

36. The plaintiff seeks a judicial review on the grounds that the Delegate:

1. exceeded the jurisdiction conferred by s 327(4) of the 1998 Act by not confining his consideration of the plaintiff’s appeal to the face of the application and any submissions made to the Registrar;

2. erred in point of law when he decided the application to appeal on a basis that had not been raised by the parties and in respect of which he did not invite submissions, thereby denying the plaintiff procedural fairness;

3. failed to exercise the jurisdiction conferred by s 327(4) of the 1998 Act by failing to consider the question it posed;

4. erred in law in misconstruing s 66(1A) of the 1987 Act and Chapter 7 Part 7 of the 1998 Act as precluding:

1. an appeal pursuant to s 327(3)(a) or (b) the 1998 Act from a medical certificate issued by a medical appeal panel following an appeal pursuant to s 327(3)(c) or (d) of the Act;

2. an appeal pursuant to s 327(3)(a) or (b) following a determination of the Commission or a complying agreement pursuant s 66A of the 1987 Act; and

3. a claim for compensation payable pursuant to a medical assessment certificate issued by a medical appeal panel following an appeal pursuant to s 327(3)(a) or (b) of the 1998 Act; and, in the alternative,

5. erred in law in determining that the plaintiff was not entitled to appeal the existing medical assessment certificate pursuant to s 327(3)(a) or (b) of the 1998 Act for the purposes of the determination of a “threshold dispute”.

37. I will consider first grounds 1 and 3 together, followed by grounds 2, 4 and 5.

Grounds 1and 3 – excess of statutory jurisdiction and failure to exercise jurisdiction conferred by s 327(4)

The plaintiff’s submissions

38. The plaintiff submitted that the jurisdiction committed to the Registrar, and as such to the Delegate, was found in s 327(4) of the 1998 Act. The sole question to be determined by the Delegate was whether “on the face of the application and any submissions made to the Registrar” he was satisfied that at least one of the grounds for appeal specified in s 327(3) was made out. On this point, the plaintiff referred to Ballina Shire Council v Knapp [2019] NSWCA 146 (“Ballina”) at [2] per Basten JA and [34] per Payne JA, Macfarlan JA agreeing, where their Honours discussed the limitations on an appeal from an arbitrator to a presidential member of the Commission under s 352 of the 1998 Act.

39. The plaintiff submitted that the scope of the enquiry committed to the Delegate, and the limit of what he was permitted to consider, was that specified in the statute: namely, the face of the application and the submissions of each party upon the application and their relation to the grounds provided for by s 327(3)(a) and (b). It was not an enquiry at large, and nor was it for the Delegate to determine the appeal on the merits, or on the basis of jurisdiction, or any other basis. Given that the appeal was one pursuant to s 327(3)(a) and (b) of the 1998 Act, the only question was whether, to the requisite standard, the Delegate was satisfied that there had been a deterioration of the plaintiff's condition that resulted in an increase in the degree of permanent impairment, or that there was additional relevant information. No question of jurisdiction formed any part of the enquiry committed to the Delegate.

40. Furthermore, the plaintiff argued that first defendant did not raise the issue of jurisdiction in its submissions, which only sought time to obtain up to date medical evidence to be submitted in respect of the appeal. The plaintiff submitted that even if the statutory task committed to the Delegate extended beyond a bare consideration of the content of the grounds in s 327(3)(a) and (b), the basis of the Delegate’s decision did not appear “on the face of the application and any submissions” that were made. The Delegate did not consider the statutory grounds of appeal at any stage of his decision, beyond recording at [4] that he was satisfied that the second was made out. Instead, he grounded his decision on his interpretation of s 327(1) and (2).

41. It is the plaintiff’s case that the role of the Delegate was that of a “gatekeeper”, and required only that he be satisfied that the plaintiff had made out a case that at least one ground was capable of being demonstrated to the MAP: see Bunnings Group Ltd v Hicks [2008] NSWSC 874 (“Bunnings”) at [68]-[76] per Simpson J. It was no part of the Delegate’s role to decide the appeal, or, indeed, any matter outside the scope of enquiry identified. In this case, the Delegate not only failed to engage with the question committed to him by s 327(4), but instead frolicked outside his statutory jurisdiction and determined the application on a basis that was not open to him because the Commission had no jurisdiction. The plaintiff submitted that the approach taken by the Delegate was to determine the appeal itself, rather than to address the “gatekeeper” question that the statute posed for him.

42. The plaintiff submitted that the only attention that the Delegate gave to the question posed for his determination by sub-s 327(4) appears in his reasons at [4]. As far as it goes, the plaintiff submitted that the Delegate's determination of the matters committed for his consideration were determined in the plaintiff’s favour. Despite this finding, the Delegate failed to consider the balance of the plaintiff’s “substantial, clearly articulated argument”, which amounted to a constructive failure to exercise jurisdiction and a denial of procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] and [32] per Gummow and Callinan JJ, [88]-[89] per Kirby J, [95] per Hayne J.

43. According to the plaintiff, the Delegate’s failure to engage with the proposed appeal based on the deterioration of his condition resulting in an increase in the degree of permanent impairment was a failure to exercise jurisdiction and thus jurisdictional error. Further, the Delegate failed to consider whether the appeal should be allowed to proceed in light of his finding at [4], which was also a failure to exercise jurisdiction.

44. As such, the plaintiff submitted that the Delegate’s consideration of the matters upon which he purported to refuse to allow the appeal to proceed constituted jurisdictional error. He exceeded his jurisdiction in considering the matters he did, and failed to exercise the jurisdiction actually conferred. On the Delegate’s finding at [4], the only decision open to him in the exercise of the limited jurisdiction conferred upon him was to allow the appeal to proceed. The plaintiff submitted that the Delegate’s decision refusing to do so should be set aside.

The defendant’s submissions

45. The defendant identified two complaints raised by the plaintiff in relation to the Delegate’s decision in relation to this ground of judicial review. The first is that the Delegate exceeded his statutory jurisdiction. The second is that even if it had been open to the Delegate to consider the first issue, the Delegate should not have done so in circumstances where the defendant had not raised it.

46. The defendant submitted that the Delegate’s capacity, and obligation, to decide whether or not he had jurisdiction to make the decision sought by the plaintiff arose from the statutory function he was exercising. Both the capacity and the obligation existed whether or not the issue was brought to the Delegate’s attention by one of the parties: see, for example, Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45 at [95] per McColl JA. This follows from the proposition that, if a decision maker has no power or jurisdiction to exercise, any decision it might make would be beyond power: see Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 (“Kirk”) at [75] per French CJ, Gummow, Hayne, Cieiman, Kiefel and Bell JJ. Silence by the parties does not alter this fundamental proposition. As such, if there is a question of jurisdiction, the decision-maker must determine it before turning to any substantive questions.

47. The plaintiff relies on Bunnings at [65]-[76], which addresses the standard that the Delegate should bear in mind when considering whether a ground is “made out” pursuant to s 327(4) of the 1998 Act. In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (“Ballas”), the Court of Appeal considered Simpson J’s analysis in Bunnings, including in relation to the way in which a variation that amendments made in 2006 to the 1998 Act had varied or altered the test that the Registrar’s delegate must apply before “determining whether the gates are to be opened”. The Court of Appeal considered that the requirement that grounds of appeal be “made out” presents a higher hurdle for would-be appellants than the previous provision: see Ballas at [64], referring to Bunnings at [58], [69]-[76].

48. In Ballas, the Registrar’s delegate had expressed an opinion in relation to medical evidence (a social assessment relevant to psychiatric criteria), and also erred in conflating concepts from the Workers Compensation Guidelines. The Court of Appeal concluded that this had been an overstep: see Bell P and Payne JA at [70]-[73], [88], Emmett AJA at [151]. No overstep of that kind occurred in the present case.

49. In this case, the Delegate, appropriately, did not examine the medical evidence. Instead, the Delegate made a decision that there was no jurisdiction to entertain the plaintiff’s appeal and, appropriately, declined to consider whether to “open the gates” for someone who had no legal entitlement to approach them. The defendant submitted that as there was no error in this approach, ground 1 ought not be upheld.

50. As to ground 3, the defendant agreed that the Delegate did not conduct any substantive analysis of the criteria set out in s 327(3) of the 1998 Act. Rather, the Delegate concluded at [27] that the plaintiff’s appeal was made without “basis or merit”.

51. The defendant submitted that in light of the Delegate’s conclusion that there was no statutory basis for the appeal at all, it was not necessary for the Delegate to engage in a substantive analysis of the plaintiff’s application: see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Tatmar”) at 385E (Mahoney JA):

“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside, or... merely salute it in passing…”

52. Whether a duty to give reasons arises will depend on factors such as whether the task being performed is more in the nature of an administrative or judicial duty, the nature of the body or person who exercises that function, and the circumstances of the dispute: see Insurance Australia Ltd v Bassel Wannous [2020] NSWSC 694 at [19]-[30] per Beech-Jones J, with reference to Tatmar; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”). In Vegan at [115]-[117], Basten JA (with whom Handley and McColl JJA relevantly agreed) concluded that an Appeal Panel is subject to an implied statutory duty to give reasons when determining a medical dispute.

53. In the present case, the defendant submitted that there was a threshold administrative question, the legal basis for which was apparent. There was no requirement for the Delegate to determine the substantive question, or provide reasons for it.

Consideration

54. Under s 327(4) of the 1998 Act, an appeal is not to proceed unless the Registrar (or in this case, the Delegate) is satisfied that, on the face of the application and any submissions before him, at least one of the grounds for appeal specified in subsection (3) has been made out. The plaintiff submitted that this limited the Delegate to considering only those grounds for appeal, and that “no question of jurisdiction formed any part of the inquiry” committed to him.

55. For the reasons which follow, I do not agree. Section 327(4) of the 1998 Act simply states that an appeal cannot proceed unless the Delegate is satisfied that one of the relevant grounds has been made out (my emphasis). In other words, it cannot proceed if none of those grounds has been established. It does not follow that the statute precluded the Delegate from considering whether the appeal could not proceed for another reason, such as that the Commission lacked jurisdiction.

56. The question of whether the Delegate had jurisdiction to hear the plaintiff’s application was a consideration inherent to the exercise of his statutory power. By considering the issue, the Delegate did not act in excess of the jurisdiction conferred by s 327(4) of the 1998 Act; on the contrary, had the Delegate considered the substance of an application in relation to which he lacked jurisdiction, it is that decision which would have been beyond power: see Kirk at [75].

57. The fact that the parties failed to make submissions on the issue did not have the effect of conferring jurisdiction on the Delegate where it did not exist. For these reasons, Ground 1 fails.

58. As to Ground 3, it is the plaintiff’s case that the Delegate was obliged to consider the substance of the plaintiff’s application—and that to the extent to which he did, the Delegate made “findings” in his favour. The latter of these submissions appears to be a reference to the Delegate’s comments at [4]:

“I note that attached to the application are documents which clearly fall under the category of ‘additional relevant information’ in section 327(3)(b). [The plaintiff] has not ticked the box indicating that he relies on this Ground of appeal, but it is clear from the substance of his submissions that he does.”

59. However, it is my view that in context, these comments merely acknowledge that despite the plaintiff’s failure to tick the appropriate box on the application form, the Delegate was able to infer the intended ground of appeal from the attached documents and submissions. I do not agree that by so doing, the Delegate has expressed any satisfaction that, pursuant to s 327(4) of the 1998 Act, the plaintiff “made out” a relevant ground of appeal specified in subsection (3). Whether a ground of appeal has been “made out” is a more stringent test than whether a ground “exists”: see Bunnings at [67] per Simpson J.

60. Regardless of the Delegate’s attitude towards the merits of the plaintiff’s application, the question remains whether the Delegate’s failure to consider its substance, after he had determined that the Commission had no jurisdiction to hear it, constituted a failure to exercise jurisdiction.

61. In relation to the Delegate’s obligation to provide reasons, the defendant referred to Vegan, where Basten JA concluded at [117] that appeal panels have an implied statutory obligation to give reasons for their decisions under s 328 of the 1998 Act.

62. However, the case is not the same in relation to the gatekeeper function given to the Registrar by s 327: see, for example, Inghams Enterprises v Iogha [2006] NSWSC 456 at [20]-[22] per Latham J; Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology v Aisha Naqi [2020] NSWSC 1791 at [57]-[60] per Schmidt AJ.

63. In Riverina Wines Pty Ltd v Registrar Of The Workers Compensation Commission Of NSW & Ors [2007] NSWCA 149 (“Riverina”), Campbell JA (Hodgson JA and Handley AJA agreeing) concluded at [114] that where the Registrar (or Delegate) exercising the gatekeeper function under s 327(4) decides that an appeal can proceed, he or she is under no duty to provide reasons for that decision. However, his Honour agreed with the observation of Hodgson JA at [5] that this obligation “may be different where the Registrar’s decision prevents the matter going forward, and this has the potential to finally determine rights”.

64. Although this is a case where the Delegate’s decision prevented the matter from moving forward, it was not because he was not satisfied that a ground of appeal had been made out. Rather, the Delegate made his decision on the basis of a threshold issue of jurisdiction, in relation to which he gave substantial reasons. In circumstances where the Delegate had already concluded that there was no statutory basis for the appeal, he was under no obligation to then consider the substance of that appeal. By failing to do so, he did not fail to exercise his statutory function. Ground 3 also fails.

Ground 2 – failure to afford procedural fairness

The plaintiff’s submissions

65. The plaintiff submitted that if it was possible for the matters considered by the Delegate to be brought within jurisdiction by being raised in the submissions of the parties to the appeal, that did not occur. The defendant did not raise any aspect of those matters in its submissions on the appeal.

66. If plaintiff argued that if the Delegate was entitled to embark about the breadth of enquiry that he did, he was obliged to observe the audi alteram partem rule of procedural fairness by giving the plaintiff notice that he intended to proceed in that way, and to afford the plaintiff the opportunity to be heard in relation to the matters he proposed to consider: see Kioa v West (1985) 159 CLR 550 (“Kioa”) at [40]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”) at [17]; Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] 49 FCR 576 (“Alphaone”) at [25] and [28]-[29]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (“SZSSJ”) at [83]. Contrary to the requirement to afford procedural fairness, the Delegate gave no indication that he proposed to consider matters other than whether he was satisfied but at least one of the grounds specified in s 327(3) of the 1998 Act was made out, and sought no submissions in relation to the matters that he ultimately considered and purported to determine.

The defendant’s submissions

135. The defendant submitted that the plaintiff’s case in relation to this alternative ground would provide him with no avenue to seek further compensation for permanent impairment (because of the operation of s 66(1A) of the 1987 Act) but would leave him able to agitate a claim about the degree of permanent impairment for the purposes of damages.

136. It is the defendant’s case that this analysis does not circumvent the clear meaning of the statutory language, and therefore cannot lead to an interpretation which would entitle the plaintiff to appeal from the MAC issued by the Appeal Panel. For this reason alone, there is no error of the kind suggested by the plaintiff, and this ground of judicial review should not be upheld.

137. The defendant further submitted that the Court is not bound by the Arbitrator’s decision in Lizdenis. In any event, the Arbitrator’s conclusion at [123] that “an appeal based on deterioration…is expressly preserved by reason of the operation of s 322A(4) of the 1998 Act” does not support the argument that a worker is entitled to appeal to an appeal panel from a MAC issued by the Appeal Panel.

138. In any event, the defendant submitted that the Court would not find the Arbitrator’s reasoning persuasive to the extent that it would permit any appeal following the issue of a certificate of determination, contrary to s 327(7).

139. Section 322A(4) of the 1998 Act relevantly provides that s 322A “does not affect the operation of section 327”. The defendant submitted that in that context, s 327 must be taken as a whole and includes s 327(7). As such, s 322A(4) cannot be used to support an argument contrary to s 327(7) which would permit an appeal “once the dispute concerned has been the subject of determination by…the Commission”. The plaintiff’s suggestion that s 327(7) gives s 327(3)(a) and (b) no work to do (thus permitting an appeal pursuant to s 327(3)(a) or (b) even after the issue of a certificate of determination) cannot be correct.

140. The defendant submitted that there is no requirement in the legislation that there be a determination by a court or the Commission (or, for that matter, entry into a complying agreement) within any specific timeframe. It is well within what is contemplated by the legislation itself that such a determination might be made many months after any medical assessment. It is conceivable, on the basis of the legislation, that:

1. an AMS might issue a MAC;

2. more than 28 days might pass from the date of the MAC; or

3. at some point after the 28^th day, but before there is any determination, a party might appeal on any of the grounds set out in s 327(3); and in that event, to the extent the appeal was based on s 327(3)(a) or (b), that appeal would be as of right, and to the extent that the appeal was based on s 327(3)(c) or (d), the appellant would need to show special circumstances justified in the late lodgement of the appeal pursuant to s 327(5).

141. The defendant submitted that when the legislation is understood in this way, all parts of s 327 have work to do. There is no need to read down s 327 to give s 327(3)(a) or (b) work to do, as was the effect of the Arbitrator’s decision in Lizdenis. Such an interpretation ought not be adopted. For this reason as well, the defendant submitted that there is no error of the kind suggested by the plaintiff in Ground 5.

Consideration

142. The plaintiff finally submitted, as an alternative to Ground 4(c), that this Court should adopt the Arbitrator’s approach in Lizdenis and on that basis regard his claim as a “threshold dispute” on which he is entitled to appeal.

143. Section 314 of the 1998 Act is set out earlier in this judgment, and defines a “threshold dispute” as one in relation to the degree of permanent impairment. Section 322A(1) of the 1998 Act states that only one assessment may be made of the degree of permanent impairment of an injured worker. Section 322A(4) relevantly states that s 322A does not affect the operation of s 327.

144. In Lizdenis, the Arbitrator concluded that an application to resolve a “threshold dispute” was not a further claim for permanent impairment compensation, and as such was not restricted by s 66(1A) of the 1987 Act. The Arbitrator also found that an application to resolve a “threshold dispute” did not involve further assessment of the degree of permanent impairment, because s 322A(4) of the 1998 Act excluded an appeal under s 327 from the prohibition for more than one assessment being made.

145. In my view, even if I were to adopt the Arbitrator’s construction of ss 314, 322A and 327 of the 1998 Act, their operation would not assist the plaintiff’s case. As in relation to s 66(1A) of the 1998 Act under Ground 4(c), it was not s 322A which restricted the use the plaintiff could make of the medical assessment following his initial appeal. The plaintiff was confined from appealing the decision of the Appeal Panel to another appeal panel because the Appeal Panel decision was not a “medical assessment” for the purposes of s 327(1). Under Ground 4(b), I also set out my reasons for determining that there is no basis on which to read down s 327(7) so as to exclude s 327(3)(a) and (b), as the Arbitrator in Lizdenis determined. For these reasons, Ground 5 fails.

Result

146. The result is that the plaintiff’s application for judicial review fails. The summons filed 27 August 2020 is dismissed.

Costs

147. Costs are discretionary. Costs follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

The Court orders that:

1. The plaintiff’s application for judicial review fails.

2. The summons filed 27 August 2020 is dismissed.

3. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

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Decision last updated: 15 February 2021