Supreme Court New South Wales Medium Neutral Citation: Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology v Aisha Naqi [2020] NSWSC 1791 Hearing dates: 2 December 2020 Date of orders: 11 December 2020 Decision date: 11 December 2020 Jurisdiction: Common Law Before: Schmidt AJ Decision: For the reasons given I order: 1. The summons is dismissed. 2. Unless the parties approach within 7 days Specialist Diagnostic Services is to bear Ms Naqi's costs as agreed or assessed. 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal or until any appeal has been determined. 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 – Whether the delegate's decision revealed jurisdictional error- Whether delegate failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – No obligation for Registrar to provide reasons - Review of decision of Appeal Panel – Whether Appeal Panel failed to determine whether approved medical specialist had erred before determining to assess the appellant – Whether Appeal Panel failed to give reasons – Whether Appeal Panel fell into jurisdictional error – Whether Appeal Panel failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – Application dismissed Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 324(3), 327, 328 Supreme Court Act 1970 (NSW) Cases Cited: Ballas v Department of Education (State of NSW) [2020] NSWCA 86 Bojko v Icm Property Service Pty Ltd & Ors [2009] NSWCA 175 Bunnings Group Ltd v Hicks [2008] NSWSC 874 Campbelltown City Council v Vegan [2006] NSWCA 284 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) Inghams Enterprises v Iogha [2006] NSWSC 456 Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598; 187 ALR 117 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Riverina Wines Pty Ltd v Registrar Of The Workers Compensation Commission Of NSW & Ors [2007] NSWCA 149 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Category: Principal judgment Parties: Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology (Plaintiff) Aisha Naqi (1st Defendant) Medical Appeal Panel of the Workers Compensation Commission of NSW (Jane Peacock, Prof Nicholas Glozier and Dr Michael Hong) (3rd Defendant) Registrar of the Workers Compensation Commission of NSW (4th Defendant) Representation: Counsel: Dr S Blount (Plaintiff) R de Meyrick (1st Defendant) Solicitors: Astridge and Murray Solicitors (Plaintiff) Grieve Watson Kelly Lawyers (1st Defendant) The Crown Solicitors (3rd and 4th Defendants) File Number(s): 2020/201450 Judgment 1. In November 2019, Ms Naqi, a sonographer, made an application to the Workers Compensation Commission under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to resolve a dispute about her claim for permanent impairment arising from a psychological injury which she had suffered in February 2018. Her claim related to bullying and harassment, understaffing, excessive workload and the nature and conditions of her employment at Specialist Diagnostic Services Pty Ltd, by whom she had been employed since about 1998. 2. In February 2020, an approved medical specialist, Dr Parmegiani, assessed Ms Naqi as having suffered 13% whole person impairment. She appealed the certificate issued on a number of grounds, with supporting submissions which the Registrar of the Commission had to consider under s 327 of the Act, together with Specialist Diagnostic Services' notice of objection and submissions. 3. In April 2020, a delegate of the Registrar allowed Ms Naqi's appeal to proceed, being satisfied that she had made out a ground of appeal. Another delegate later advised that the Appeal Panel had decided that Ms Naqi should be assessed again by Professor Glozier, one of its members. In June, the Appeal Panel revoked the medical assessment certificate, having concluded for reasons then published that Ms Naqi suffered 17% whole person impairment. 4. On this application, orders quashing both the delegate's decision and those of the Appeal Panel are sought, together with an order remitting the matter to the Commission to be determined in accordance with law. 5. Those orders are opposed by Ms Naqi. The members of the Appeal Panel and Registrar have filed submitting appearances. Issues 1. The grounds advanced were all in issue. They were: The second respondent's decision of 9 April 2020 1. The second respondent's decision of 9 April 2020 was made in excess of jurisdiction. Particulars The second respondent's role as gatekeeper did not extend to having jurisdiction to finally determine the first respondent's appeal by finding the Approved Medical Specialist had made a demonstrable error. 2. The second respondent's decision of 9 April 2020 contained a jurisdictional error. Particulars The second respondent's finding that the Approved Medical Specialist had made a demonstrable error was contrary to the authority of Jenkins v Ambulance Service of New South Wales [2015) NSWSC 633. 3. The second respondent's decision of 9 April 2020 was made in constructive failure to exercise jurisdiction. Particulars The second respondent failed to respond to a substantial, clearly articulated argument relying on established facts and the authority of Jenkins v Ambulance Service of New South Wales [2015) NSWSC 633 raised by the applicant in its written submissions on appeal. The third respondent's decision of 21 April 2020 4. The third respondent's decision of 21 April 2020 determining to medically examine the first respondent was made without jurisdiction. Particulars The third respondent failed to determine whether the Approved Medical Specialist had made an error before determining to medically examine the first respondent. 5. In the alternative, the third respondent's decision of 21 April 2020 failed to give reasons for the determination to medically examine the first respondent. Particulars The third respondent failed to give any reasons on the face of the Appeal Panel Preliminary View of 21 April 2020 for its decision to medically examine the first respondent. 6. The third respondent's decision of 22 June 2020 The third respondent's decision of 22 June 2020 contained a jurisdictional error. Particulars The third respondent's finding that the Approved Medical Specialist had made an error was contrary to the authority of Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. 7. The third respondent's decision of 22 June 2020 was made in constructive failure to exercise jurisdiction. Particulars The third respondent failed to respond to substantial, clearly articulated arguments relying on established facts and law, including but not limited to the authority of Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, raised by the applicant in its written submissions on appeal. 8. By reason of the jurisdictional errors contained in the second respondent's decision of 9 April 2020 and the third respondent's decision of 21 April 2020, the third respondent's decision of 22 June 2020 is liable to be quashed. Particulars The Applicant refers to and repeats the particulars to grounds 1, 2, 3, 4 and 5 above 9. Further and in the alternative, the applicant pleads the jurisdictional errors above as errors on the face of the record for the purposes of s 69 of the Supreme Court Act 1970. The delegate's decision Ground 1 – the gatekeeper role under s 327 and excess of jurisdiction 1. Grounds of appeal against a medical certificate are limited to those specified in s 327(3): "(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." 1. Section 327 gives the Registrar a "gatekeeper" role: Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [58]. On such an appeal, the Registrar's role is that specified in s 327(4): "(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." 1. In this case, both parties provided written submissions to support the cases which they advanced about Ms Naqi's appeal and the notice of opposition to that appeal. 2. In her decision, having referred to the grounds of appeal Ms Naqi advanced, which included that the assessment was made on the basis of incorrect criteria and that the certificate contained identified demonstrable error, the delegate noted: "4. Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and the submissions made to the Registrar, at least one of the grounds of appeal as specified in subsection 327(3) of the 1998 Act has been made out". 5. Upon examination of the MAC and on the fact of the application and submissions made, I am satisfied that a ground of appeal as specified in subsection 327(3) of the 1998 Act has been made out. The AMS has made a demonstrable error when assessing the PIRS category of employability." 1. Specialist Diagnostic Services argued that it was the last sentence in [5] which established that the delegate did not understand her statutory function and had fallen into the same jurisdictional error as that identified in Ballas. 2. In Ballas it was found that the delegate had failed "to pose the correct questions and embark on the correct process, namely to achieve satisfaction that an 'arguable case of error' had been established" and that "she fundamentally misconstrued the nature of the error that Ms Ballas had identified as a 'demonstrable error' within the meaning of s 327(3)(d) in the submissions accompanying the application": at [73]. 3. What the delegate had done was to conflate the concepts of "scales" and "classes" in the Guidelines, as well as misunderstand the required process in making the assessment of whole person impairment: at [76]. The result was jurisdictional error. 4. But it was not a complaint that the delegate had failed to pose or answer the correct questions, or that she had fundamentally misconstrued the nature of the errors which Ms Naqi had advanced on her appeal, which arises for consideration in this case. 5. In Ballas, the conclusion reached by the delegate was that "As I am not satisfied that at least one of the grounds of appeal as specified in section 327(3) has been made out, the appeal is not to proceed": at [37]. It was the reasons given for that conclusion which revealed the jurisdictional error into which the delegate fell. 6. In his reasons, the delegate had explained the applicable case law, the medical specialists' clinical observations and findings and the cases which the parties had advanced. He then said that: "24. In my view, the appellant's submission attempts to unreasonably place limitations on the manner in which the PIRS categorises are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS's discretion based on his or her clinical assessment. 25. I do not accept that the activity of attending the an [sic] RSL club once a month to play poker machines is necessarily an activity that ought to fall within Class 3 (Moderate Impairment) of social or recreational functioning, and not class 2 (Mild Impairment) as the AMS found. Whilst the activity may be undertaken individually, it seems to me it is undertaken regularly (not rarely) and requires active involvement (playing machines). The activity does not appear to require prompting by family or friends or the attendance of a support person. In any event, the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination. 26. The AMS's overall findings are consistent with the description of mild impairment for social and recreational activities. The AMS was not provided with a history that indicated the appellant did not go out without a support person. The appellant statement records 'I find it very hard to go to the shops. Sometimes I have to go back to the car and leave because I get severe anxiety and panic attacks when there is a lot of people'. On the face of the MAC, the history taken by the AMS as to the appellant's activities are is [sic] consistent with a Class 2 mild impairment. 27. The appellant also refers to the report of Dr Rastogi who assessed Class 3 for social and recreational activities. Having considered the report of Dr Rastogi, the AMS commented at page 7 of the MAC: 'Dr Rastogi had performed a Whole Person Impairment Assessment with a final rating of 15%. Dr Rastogi's ratings are largely comparable to mine except in social and recreational activities. Dr Rastogi noted that Ms Ballas was moderately impaired as she does not get too involved in social activity and will only attend events with family. In my assessment I noted that Ms Ballas confirmed she would attend to family activities particularly Christmas and birthdays. She also attends the RSL Club by herself typically once a month and would spend around an hour there - overall I consider this to be more consistent with a Class 2 impairment. I have rated her social function as 4, as her second marriage has ended, she has been physically aggressive, and is no longer able to care.' 28. To the extent that the appellant relies on the report of Dr Rastogi, I note a mere difference of opinion is not a ground of appeal (Merza at [51]). The Guidelines are clear that the task of assessing permanent impairment involves clinical assessment of the worker as they present on the day of the assessment. The fact that Dr Rastogi came to a different conclusion as to the class of social and recreational functioning is therefore immaterial. 29. I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC. The AMS has provided reasons in relation to his assessment for social functioning and he appropriately considered the material before him, including the report of Dr Rastogi, and the history provided by the worker in reaching his conclusion. The appeal is not to proceed." (at [37]) 1. In Ballas, it was concluded that these reasons revealed that the delegate had gone beyond the task given by s 327. That task involves "an assessment and satisfaction" that an argument to support the nominated grounds is manifest on the documents the delegate must assess, namely the face of the application and any submissions made to the Registrar. "If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable": at [72]. 2. Unlike the situation which arose for consideration in Ballas, in this case the delegate did not give such an explanation of her reasons for the conclusion which she had reached. 3. To make good the submission that the delegate did fall into jurisdictional error, Specialist Diagnostic Services thus relied on the delegate's single sentence: "The AMS has made a demonstrable error when assessing the PIRS category of employability". That, it was argued, established that the delegate had similarly misunderstood and gone beyond her statutory task. 4. It must be accepted that what the delegate said in the disputed sentence was unnecessary, because the Registrar is not by s 327 required to identify which ground of appeal it is concluded has been made out. But that is a slim basis for the serious conclusion that the delegate went beyond her jurisdiction. After all, "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. 5. That there was jurisdictional error is a view which I consider the Court would thus be slow to reach on the basis of the single sentence relied on. That conclusion would also require the result of the delegate's examination of the challenged certificate, the face of Ms Naqi's application and the submissions, namely, the referral of Ms Naqi's appeal to the Appeal Panel for determination, not to be given the weight that I consider it requires. 6. I am satisfied that the better view is that fairly read in context, the delegate's addition of the disputed sentence merely identified the ground of appeal which she concluded Ms Naqi had made out. Had the delegate not identified this ground, the appeal would still have had to be referred as it was under s 327(4), given the conclusion which the delegate had already said she had reached. 7. Contrary to the case advanced for Specialist Diagnostic Services, unlike the situation which arose in Ballas, the inclusion of the disputed sentence in the delegate's decision can have had no impact on the referral of the application as s 327 required, or its determination. That is because s 328(2) obliged the Appeal Panel to conduct its review of Ms Naqi's appeal "limited to the grounds of appeal on which the appeal is made". Indeed, that is what the Appeal Panel said it had done in its statement of reasons: at [3]. 8. Also contrary to the case advanced for Specialist Diagnostic Services, there is no reason to doubt that this is what the Panel actually did. 9. In Ballas, the argument that a conclusion that something is not made out must carry with it an implicit conclusion that it is not capable of being made out, was rejected: at [71]. That was because such an approach was said to reason backwards from the non-expert conclusion which the delegate was not authorised or qualified to reach, about the grounds of appeal which had been advanced. In that case, had the delegate confined himself to considering whether the grounds advanced were arguable, rather than embarking on the exercise which went beyond jurisdiction revealed by the reasons he gave, the result may have been different, with that appeal also having then been referred to an appeal panel for determination. 10. The same difficulty does not arise in this case. 11. The delegate's conclusion was that a "demonstrable error" raised by Ms Naqi's application had been "made out". That is the statutory test specified by s 327(4) and a conclusion which did not purport to finally determine the appeal. That accords with Simpson J's approach in Bunnings Group Ltd v Hicks [2008] NSWSC 874, to which reference was made in Ballas. There, her Honour had discussed the Registrar's current task under s 327, observing that: "[67] No longer is the Registrar or her delegate required only to 'form an opinion' (see Riverina Wines) about the existence of a ground for appeal; he/she is to 'be satisfied' (in my opinion, a more stringent test); no longer is he/she to address the question whether the ground of appeal 'exists'; the question to be addressed is whether the ground of appeal 'has been made out' (also, on the express authority of SRA, a more stringent test)… [68] The question remains as to the extent to which it is necessary for a would-be appellant to satisfy the Registrar if an appeal is to be permitted to proceed. It may be that the key to this is to be found, not in the use of the words 'exists' and 'made out', but in the use of the word 'demonstrable' as distinct from 'demonstrated'. [69] As Mason P pointed out in Pitsonis, in a related but slightly different context, 'demonstrable' means 'capable of being demonstrated' – that is, capable of being demonstrated to the tribunal charged with the determination of the appeal. That tribunal is the Appeal Panel. It is not the Registrar or her delegate. 'Demonstrable' does not mean 'has been demonstrated'. It is true that 'demonstrable' is, in common parlance, frequently used to mean, or as interchangeable with, 'demonstrated'. But an Act of Parliament is not common parlance, and the legislature (and its parliamentary drafting teams) are taken to be familiar with the niceties and nuances of language. Recognition of the proper meaning of 'demonstrable' would yield an interpretation of subs (4) that would retain the role of the Registrar as 'gatekeeper', and preserve the role of the Appeal Panel as the tribunal to which determination of the appeal is, by that section, committed. [70] S 327(4) cannot be construed in isolation from the other provisions which make up Part 7 of the WIM Act. Important, for present purposes, are the terms of s 328: by that section an appeal against a medical assessment is to be heard, not by the Registrar, but by an Appeal Panel constituted in accordance with subs (1). [71] It is not, even in the post-amendment regime, the role of the Registrar (or her delegate) to decide an appeal. That task remains firmly in the hands of the Appeal Panel. I recognise that some uncertainty or ambiguity exists, particularly in the light of the remarks of Giles JA in SRA, concerning the meaning of the words 'made out' – I must accept that they demand more than the mere existence of an arguable ground of appeal. But, giving full weight to the opening sentence of s 328(1), and to s 328(2), they cannot be taken to require final determination of the ground of the appeal by the Registrar or her delegate. [72] It may seem attractive, from a superficial reading of the plain words of the amended subs (4), to conclude that the Parliament did indeed intend the Registrar to have the power finally to determine, and the role of finally determining, the fate of a ground of appeal. But there are other circumstances pointing to the contrary of that proposition. The appeal is from an expert tribunal – the AMS – that is, a person with specialised medical training and expertise. The Registrar is not required to, and ordinarily would have, no such expertise. While a Registrar is required to have legal training, his/her delegates are not." 1. In this case, in the exercise of the gatekeeper role, the delegate having concluded on the materials which had to be considered that a demonstrable error in the certificate had been made out, referred the matter to the Appeal Panel for determination under s 328. That reflected that she had in fact reached a conclusion about an "arguable case of error" of the kind discussed in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [83]. 2. In oral submissions it was also argued for Specialist Diagnostic Services that the result of the addition of the disputed sentence was that thereby the delegate may have confined the jurisdiction of the Appeal Panel. That cannot be accepted, given that s 328(2) required the Appeal Panel to conduct the appeal by way of review of the original medical assessment "limited to the grounds of appeal on which the appeal is made" and that is what it said it did. 3. No view expressed by the delegate exercising the s 327 gatekeeper function about any ground of appeal Ms Naqi advanced could have precluded her from relying on any other ground of appeal she advanced in her notice of appeal and supporting submissions, or required the Appeal Panel to refrain from considering any such ground. 4. The Appeal Panel's statement of reasons also confirms that it did not understand that it was confined by what the delegate had concluded, but undertook the task which s 328 required, considering the grounds Ms Naqi had advanced, giving reasons for the conclusions which it reached about the ways in which Dr Parmegiani had erred and explaining why it ultimately reached a different conclusion about the level of her impairment, on the materials it had to consider. 5. In oral submissions it was also argued for Specialist Diagnostic Services that there were two practical consequences from the addition of the disputed sentence which had to be considered. The first, to which I will return, was that the Appeal Panel considered it open to re-examine Ms Naqi, without first finding that Dr Parmegiani had fallen into error. 6. The second that the delegate, as part of the Executive, did not comply with the law, as the plain words which she had used in the disputed sentence established. That, it was argued, made it irrelevant that her "decision can still be made meaningful. It doesn't matter whether it's meaningful, all that matters is whether it's lawful". The result of the words used by the delegate, which were clearly not lawful, being that it would be inferred that the delegate had misunderstood her jurisdiction, the entire decision was unlawful. 7. I am unable to accept this submission, satisfied as I am that the delegate did perform the function which s 327(4) required, by determining whether one of the grounds of appeal Ms Naqi advanced had been made out, and on being so satisfied, referring her appeal to the Appeal Panel for determination, as it had to be. 8. In the result, this challenge to the delegate's decision must fail. 9. Even if I could accept that the disputed sentence did establish that the delegate went beyond the s 327 function, her error having had no practical unlawful consequence in this case, in my view the orders sought could not be justly made. In the result I would, if necessary, exercise the Court's residual discretion under s 69 of the Supreme Court Act 1970 (NSW) to refuse the relief sought in relation to the delegate's decision. Ground 2 – no Jenkins jurisdictional error 1. Specialist Diagnostic Services also contended that Dr Parmegiani's findings about Ms Naqi's employability were open and not in error. It relied on Jenkins to submit that the delegate's decision that a demonstrable error had been established involved an error of law, the conclusion reached being contrary to what was there decided. 2. I am also satisfied that this submission may not be accepted. 3. In issue in Jenkins was not a conclusion reached by a delegate about a claimed demonstrable error under s 327(3)(d), but a challenge to views which an appeal panel had reached under s 328. The challenge concerned what evidence relating to Ms Jenkins' capacity for gainful employment had established, given her ability to undertake gardening, a few household activities, care for her pets and domestic animals, and what the medical specialist had concluded as to her level of impairment: at [68]. 4. As was accepted for Specialist Diagnostic Services, that is a relevant difference to what here arises in relation to the delegate's decision, which needs to be borne in mind when this ground of appeal is considered. 5. The conclusions Garling J arrived at in Jenkins turned on the requirements of the applicable WorkCover Guides and whether the medical specialist and appeal panel's conclusion that Ms Jenkins had a moderate impairment to her employment was open on the materials which had to be considered: at [72]. The result was that the challenge to the appeal panel's decision in Jenkins was dismissed. His Honour also observing that "in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review" at [73]. 6. The grounds which Ms Naqi pursued on her appeal which the delegate had to consider did not concern "a mere disagreement" about the level of her impairment, or even whether the conclusions which Dr Parmegiani had reached were open on the material he had to consider. 7. The s 327(3)(d) grounds which Ms Naqi advanced were that Dr Parmegiani had made demonstrable errors in assessing her level of impairment as moderate, failing to consider all relevant material, making his assessment on the basis of incorrect criteria under the "PIRS" (Psychiatric Impairment Rating Scale), taking into account irrelevant considerations and denying her procedural fairness. 8. The pro forma medical certificate identified 6 PIRS categories in respect of each of which Dr Parmegiani reached a conclusion about the applicable class and gave reasons for his conclusions. Dr Parmegiani then used those conclusions to arrive at an aggregate impairment score of 14, which resulted in the final conclusion that Ms Naqi had suffered 13% whole person impairment. By her appeal, Ms Naqi challenged the conclusions Dr Parmegiani had reached in relation to the Travel, Social Functioning and Employment categories and the resulting level of her whole person impairment. 9. It follows that what was decided in Jenkins cannot establish error on the part of the delegate in concluding that a ground of appeal Ms Naqi advanced under s327(3) had been made out. The exercise of that function simply did not arise for consideration in Jenkins. Ground 3 – failure to respond to the argument advanced in relation to Jenkins did not involve a constructive failure to exercise jurisdiction 1. Specialist Diagnostic Services also contended that there had been a constructive failure to exercise the jurisdiction under s 327(4), established by the decision which the delegate gave. 2. That was argued to follow from the delegate's failure to refer to the argument it had advanced in relation to what had been decided in Jenkins. The test was said to be whether there had been a failure "to respond to a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) at [23]-[25]. 3. This submission was persisted with, even though in oral submissions it was also argued that the delegate had no obligation to give reasons. 4. I cannot accept that Dranichnikov stands for what Specialist Diagnostic Services contended. It was not concerned with the consequences of failing to refer in written reasons to an argument advanced about a particular authority which a party had relied on. 5. Dranichnikov concerned a claim for refugee status on the basis of fear of persecution in Russia as the result of membership of a particular group. In issue was whether the claimed failure "to respond to a substantial, clearly articulated argument relying upon established facts" had amounted either to a failure to accord natural justice or a constructive failure to exercise jurisdiction. 6. That turned on what the argument there in question concerned. 7. It was concluded that there had been a constructive failure to exercise jurisdiction, in breach of the rules of natural justice, "in respect of a live application validly made to it", as had been the case in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598; 187 ALR 117. In that case the Minister's application had been determined without hearing Ms Bhardwaj's application for an adjournment: at [32]. 8. The conclusion that there had been a constructive failure to exercise jurisdiction was reached in Dranichnikov because the Tribunal had failed to resolve a question of law about whether the group or class to which Mr Dranichnikov claimed to belong was capable of constituting a social group for the purposes of the Convention in question. That was a required step in the statutory task it had to undertake in arriving at its decision: at [26]. Instead, the Tribunal decided another question: at [27]. 9. It was also concluded that had the question the Tribunal had to resolve been addressed, "it would in all likelihood have permitted of one only answer, an affirmative one" for the case Mr Dranichnikov advanced, it having accepted him "as a witness of credit, and therefore the correctness of his account of his activities, and their climax, the violent assault which he suffered": at [28]. 10. Neither the delegate's gateway function under s 327(4), nor the failure to refer to the argument advanced in relation to Jenkins in her decision, are analogous to what arose for consideration in Dranichnikov or the cases discussed there. Further, had the Jenkins argument been referred to by the delegate, that any different conclusion could have resulted is not apparent. 11. The exercise of the s 327 function required the Registrar only to determine whether, on the cases advanced, at least one of Ms Naqi's grounds of appeal had been made out, that is, was found to be arguable. If a ground was so made out, her appeal had to be referred for determination by an appeal panel, as it was. Section 327 did not permit any final determination to be made in relation to the appeal. 12. Neither the Act nor the Workers Compensation Medical Dispute Assessment Guidelines issued under s 376 imposed on the Registrar any obligation to give reasons for the decision reached in exercise of the s327 gatekeeper function, as s 325(2) required in the case of the medical certificate. But the delegate did give a short decision explaining the outcome of her exercise of the s327 function. 13. In Campbelltown City Council v Vegan [2006] NSWCA 284 it was concluded that appeal panels have an implied statutory obligation to give reasons for their decisions under s 328, given the statutory context and the nature of their functions, which might not constitute an exercise of judicial power for the purposes of the federal Constitution, but are properly characterised as judicial in nature for the purpose of determining their incidents: at [117]. 14. But the same conclusion is not apparent in the case of the gatekeeper function given the Registrar by s 327. To the contrary, in Inghams Enterprises v Iogha [2006] NSWSC 456 it was concluded that there was no obligation to give reasons when that function is exercised. What Latham J there found to be persuasive included that: * the Registrar is not engaged in an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined: at [20]; * the Registrar plays no role in determining the legal rights and duties of parties: at [21]; and * there is no appeal from the Registrar's decision and the right to a re-hearing de novo before the Appeal Panel renders the reasons for the Registrar's decision immaterial to the appeal: at [22]. 1. In Riverina Wines Pty Ltd v Registrar Of The Workers Compensation Commission Of NSW & Ors [2007] NSWCA 149 it was concluded that when a Registrar or delegate exercising the s327(4) function decides that an appeal can proceed, he or she is not under any duty to provide reasons for that decision: at [114]. Hodgson JA also observed that "It may be different where the Registrar's decision prevents the matter going forward, and this has the potential to finally determine rights": at [5]. 2. At that time s 327(4) required that it appear to the Registrar that a ground for appeal exists, while now what is requires is satisfaction that a ground has been made out. But that change can have had no impact on the obligation to give reasons, when an appeal is referred to an appeal panel. 3. In the result, there can have been no constructive failure to exercise the s 327 jurisdiction established by the delegate's failure to refer to Jenkins in the decision which she gave, there being no obligation to give reasons for the decision to refer Ms Naqi's appeal to the Appeal Panel. 4. What arose for the delegate to consider in determining whether at least one of the s 327(3) grounds advanced had been made out were the grounds of appeal and the submissions advanced. 5. Ms Naqi claimed that Dr Parmegiani had failed to consider all the relevant material, applied the incorrect criteria in relation to her employability, taken into account an irrelevant consideration, denied her procedural fairness and made vague comments in the reasons given. Complaints about incorrect criteria were also advanced in relation the two other of the PIRS criteria: Travel and Social Function. 6. These were all questions with which Jenkins was not in any event concerned, turning as it did on the judicial review there sought of an appeal panel's decision. That application raised the question of whether it was open to a medical specialist and appeal panel on the material they each had to consider to conclude that Ms Jenkins had a particular level of impairment. It was concluded that a disagreement about the correctness of conclusions about a level of impairment could not demonstrate error of a kind susceptible to judicial review: at [73]. 7. In its written submissions, Specialist Diagnostic Services had responded to those Ms Naqi advanced in relation to each ground. It was in relation her submission 2a, under the heading "Demonstrable Errors/Incorrect Criteria – Adaptability/employability", that it relied on Jenkins. The submission advanced for Ms Naqi was: "We submit that the AMS has taken into account an irrelevant consideration. The AMS has applied the Applicant's limited ability to care for her child and expanded that situation and applied it to the Applicant's theoretical capacity for work. The PIRS criterion doesn't draw an analogy between child raising and employability. Whilst the criteria is not exhaustive, the outcome when considering this link between having a child and employment, means that no parent could possibly be totally unfit for work." 1. What Specialist Diagnostic Services submitted in relation to Jenkins was shortly put: "12. Under 'submission 2a' the worker submits that the AMS took into account an irrelevant consideration by applying the worker's limited ability to care for her child and 'expanded that situation and applied it to the applicant's theoretical capacity for work.' It is submitted that the PIRS criteria does not draw an analogy between child raising and employability. 13. The respondent submits that the above submission is contrary to authority and should be rejected. Inn [sic] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J noted at [58] the importance of 'clinical assessment and judgment' in formulating an assessment in psychological injury cases. His Honour went on to note at [70]-[73]:- 70. It is clear that the AMS regarded the plaintiff's capacity to spend time gardening, as indicating that she had some capacity for remunerative work. It would be open to conclude that that physical capacity could be exercised in undertaking remunerated gardening, or garden maintenance or activities of a similar kind. The fact that the plaintiff could undertake housework, apparently satisfactorily, would indicate that it was open to the AMS to conclude that she could engage in some remunerative employment undertaking housework. 71. Caring for pets, which the plaintiff was able to do, would also indicate that she may be able to engage in some remunerative employment caring for pets owned by others. She could perhaps be paid to walk dogs in her own neighbourhood, if such employment was available. The AMS was not called upon to decide an impairment level having regard to whether employment was in fact available. He was determining only impairment of capacity for work. 72. In order to succeed on this ground of appeal, it is necessary to show that the Appeal Panel erred because they could not conclude that the rating imposed by the AMS was open to him. The examples which I have just given, derived directly from the comments of the AMS, indicate that it was open to him to come to the conclusion which he did, and that the Appeal Panel was not in error when it so concluded. 73. It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review The above authority makes clear that the AMS is not only entitled, but required, to draw analogy between certain daily activities undertaken by a worker, and an ability to work. The way in which the AMS approached that task in the current matter has been established as being a permissible method of undertaking that task (Jenkins)." 1. It follows that the delegate's failure, in the decision given, to refer to the reliance so placed by Specialist Diagnostic Services on Jenkins cannot establish what it claims to have resulted, namely, a constructive failure to exercise the s 327(4) jurisdiction in the way identified in Dranichnikov. 2. The delegate did undertake the function she had to exercise under s 327. There was no obligation to give any reasons for the conclusion which she reached, and her failure to refer to Jenkins in her decision did not establish any breach of the rules of natural justice, or failure to exercise that statutory function. 3. This ground must thus also fail. The Appeal Panel's decision 1. The parties consented to the review of the assessment on the basis of the papers provided to the Appeal Panel. On 21 April 2020 another delegate, Mr Shaw, advised that the Appeal Panel had determined that Professor Glozier should conduct a clinical examination of Ms Naqi by video conference and then provide a report of the examination to the Appeal Panel addressing: "• The worker's medical history, where it differs from previous records • Additional history since the original Medical Assessment Certificate was performed • Findings on clinical examination • Results of any additional investigations since the original Medical Assessment Certificate." 1. This notice did not refer to the Appeal Panel having concluded that Dr Parmegiani had made any error in the medical certificate, nor were reasons there revealed for that conclusion. They were later provided in its June 2020 statement of reasons. 2. The examination took place on 6 May 2020 and the Professor later provided his report, which the Appeal Panel adopted in its June reasons. 3. There, the Appeal Panel noted the grounds of appeal to be: "• 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; • the assessment was made on the basis of incorrect criteria, and • the MAC contains a demonstrable error." 1. The Appeal Panel then dealt with its preliminary review, to which it will be necessary to return. The Appeal Panel also explained why it refused to receive further evidence on the appeal from Dr Mayne going to Ms Naqi's employability, to which Specialist Diagnostic Services had objected. That was because it considered that she had not established, as s 328(3) required, that this evidence was not available to her and could not reasonably have been obtained before her medical assessment. 2. The Appeal Panel also noted that the appeal was to be by way of review of the original assessment, but that it was limited to the grounds of appeal: s 328. It also referred to its obligation to give reasons, citing Vegan. 3. The Appeal Panel noted what the Registrar had referred for assessment: "• The degree of permanent impairment of the worker as a result of an injury (s 319(c)) • Whether and proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s 319(d)) • Whether impairment is permanent (s 319(f)) • Whether the degree of permanent impairment of the injured workers is fully ascertainable (s 319(g))" 1. The Appeal Panel also noted that the challenged certificate assessed Ms Naqi's whole person impairment to be 13%, calculated under the permanent impairment scale, quoting the table of conclusions Dr Parmegiani had reached in the PIRS rating form in its entirety. 2. The Appeal Panel shortly noted the parties' cases to be: "23. In summary the appellant submitted that the AMS erred as follows: he made a demonstrable error by failing to consider all relevant material in the Further Amended Referral dated 23 January 2020; he made a demonstrable error and made an assessment on the basis of incorrect criteria in the Employability category under the PIRS by taking into account an irrelevant consideration, denying procedural fairness and the general "vagueness of comment"; he made an assessment on the basis of incorrect criteria in the Travel category of PIRS, and he made an assessment on the basis of incorrect criteria in the Social functioning category of PIRS. 24. In summary, the respondent employer submitted that the AMS did not apply incorrect criteria nor did he make a demonstrable error and that the MAC should be confirmed." 1. The Panel made no reference to the submissions which Specialist Diagnostic Services had advanced in relation to Jenkins, but it had earlier noted at [16] that both parties had made written submissions, which were not repeated but had been considered. 2. The assessments of the PIRS about which Ms Naqi complained related to Travel, Social Functioning and Employability: at [25]. The Appeal Panel noted that the errors she advanced were that: "• he made a demonstrable error by failing to consider all relevant material in the Further Amended Referral dated 23 January 2020; • he made a demonstrable error and made an assessment on the basis of incorrect criteria in the Employability category under the PIRS by taking into account an irrelevant consideration, denying procedural fairness and the "general vagueness of comment"; • he made an assessment on the basis of incorrect criteria in the Travel category of PIRS; • he made an assessment on the basis of incorrect criteria in the Social functioning category of PIRS." 1. The Appeal Panel then dealt with the extensive history which Dr Parmegiani had taken from Ms Naqi and the results of her mental state examination. It noted that his summary of her injury and diagnosis was: "• Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. • consistency of presentation. Ms Naqi provided a generally consistent history." 1. The Appeal Panel then explained Dr Parmegiani's finding on the mental state examination: "Ms Naqi is a 48-year-old woman who experienced occupational problems between August 2017 and February 2018. These included an occupational overload, bullying, and ostracism. She feared losing her job, and her anxiety increased when she was asked to attend a meeting with her employer. She left work, but she continued to resent the events leading to the loss of her career. Ms Naqi lacked confidence and self-esteem. She slept poorly, and her energy was low. She remained withdrawn and unmotivated. Her symptoms are consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Reminders of her occupational problems precipitated panic attacks." 1. The Appeal Panel then explained Dr Parmegiani's error which had led to its earlier decision that Ms Naqi had to be assessed again: "31. The Panel was satisfied as to error because the Panel did not regard the AMS as having adequately explained, given the history taken by him, his findings on mental state examination and the other evidence that was before him, how he equated the appellant's ability to parent her child and the basic activities performed by her in conjunction with parenting (driving a child to school, 'occasionally' preparing meals, and buying groceries) on the days she has custody, to an ability to perform consistent paid work, at least part time, particularly given the chronic symptoms he identifies. Having been satisfied as to error, the Panel determined that a re-examination was necessary." 1. The Appeal Panel then turned to consider Professor Glazier's report, which it quoted in its entirety. 2. There Professor Glozier explained Ms Naqi's medical history "where it differs from previous records" by outlining what she had told him and how she had responded to matters he had raised with her. He also explained his findings on clinical examination and his conclusion that "the severity range and chronicity of her symptoms meet the criteria for a diagnosis of Generalised Anxiety Disorder with Panic and/or Agoraphobia with Panic" which he said "precludes the less severe diagnosis of an Adjustment Disorder". 3. Professor Glozier then referred to the appeal submissions, reaching conclusions in relation to Employability and Travel which disagreed with those of Dr Parmegiani. There, Professor Glozier said: "1 Employability – the AMS suggested she was moderately impaired because of her shared custody, ability to drive to school, prepare meals, purchase groceries, drive and undertake some domestic tasks which "under different circumstances…could be remunerated." Ms Naqi has employed a cleaner for 10 hours a week to help her with household chores. Additionally her eldest daughter helps her maintain the house, prepare meals and look after her youngest daughter. She has had to ask two of her other children to leave home because she was unable to look after them properly. As such, her functioning is limited at home and variable. She reports frequently retiring to bed for prolonged periods of time and being highly fatigued and demotivated. As such, although I am not convinced she is completed [sic[ incapable of tasks that may potentially be remunerated, it is apparent that she has been unable to do even volunteer work for more than a few hours a week, could not be relied on for regular attendance, and requires both paid and vicarious support at home. As such, there is little evidence that she can do even the limited tasks identified by the AMS consistently outside of the house, and I could not identify any other potentially remunerable functions that we know allow home based employment, She [sic] is at least severely impaired in the domain of employability. She noted that she can drive locally and to familiar areas if she feels safe, which at times have included a clinic in central Sydney. However she reported that she frequently needs accompanying by her daughter even to go shopping due to high levels of anxiety, and needed close friends and family to accompany her in all aspects of her more extensive journeys to Noosa and Singapore to ameliorate her anxiety. This is more than a minor deficit within the normal variation found in the population and indicative of a mild impairment." 1. The Appeal Panel then concluded: "33. The Panel adopts the report and findings of Professor Glozier. 34. On the basis of the findings of Professor Glozier, the assessment under PIRS becomes Class 2 for Travel, the assessment for Social Functioning remains at Class 3 and Employability becomes Class 4. 35 The classes in ascending order are 2,2,2,3,3,4 giving a total of 16 which equates to 17% WPI. 36. There was no deduction made under s 323 by the AMS and this aspect was not the subject of complain on appeal. 37. This means the assessment of WPI as a result of injury deemed to have occurred on 5 February 2018 is 17% WPI. Accordingly the Panel will revoke the MAC and issue a new MAC assessing 17% WPI as a result of injury deemed to have occurred on 5 February 2018. 38. For these reasons, the Appeal Panel has determined that the Medical Assessment Certificate issued on 3 February 2020 should be revoked and a new Medical Assessment issued. A new Medical Assessment Certificate is attached to this statement of reasons." Grounds 4 and 5 – the decision to further assess the appellant was not made without jurisdiction and reasons for that decision were given The Statutory Requirements 1. Section 322 required the assessment of Ms Naqi's impairment to be conducted in accordance with the Guidelines and s 324 regulated how the assessment of her medical dispute was to be undertaken. Section 328 dealt with the procedure to be followed on the appeal. 2. It was cl 5.16 of the Guidelines which required the Appeal Panel to undertake a preliminary review in order to decide which of the three specified procedures was to be followed on the appeal: review on the papers, further medical examination or hearing, according to its assessment of the needs of the particular case: see cls 5.17-5.18. 3. The Guidelines did not specify how the outcome of the review was to be communicated to the parties and neither they nor s 328 dealt with how a further medical assessment was to be conducted, during the course of an appeal. It was s 324(3) which required that it be dealt with by exercise of the same powers as those exercised by the approved medical specialist who had issued the disputed certificate. 4. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792, Davies J took the view that if such "an assessment can be carried out in the course of an appeal, that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment": at [33]. 5. His Honour did not refer to the statutory basis for that conclusion. At [32], Davies J observed: "The Appeal Panel's function was either to confirm the MAC or to revoke it and issue a new certificate - s 328(5). On one view, that subsection read together with s 329 might be thought to preclude the Panel making a referral at any stage for further assessment even from one of its own members. That would be an unfortunate result and would not sit easily with s 324(3) which appears to contemplate an assessment "in the course of an appeal". The Guidelines issued pursuant to s 376 of the 1998 Act would also appear to authorise such a further assessment (assuming paragraph 45 thereof is within power). 1. Section 329 provides for a matter being referred for assessment again on one or more further occasions by the Registrar, as an alternative to an appeal against the assessment as provided by s 327, or by a court or the Commission. Section 324 specifies the powers of an approved medical specialist assessing a medical dispute and provides in subs (3) as to an appeal: "(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." 1. The power to require a further assessment "in the course of an appeal" by a member of an appeal panel is not there confined to a point in time after an appeal panel has found error in the challenged certificate. Nor is that requirement to be found in s 328. It provides: "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." 1. Davies J's approach was followed in Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 at [35]-[39] and Midson v Workers Compensation Commission [2016] NSWSC 1352 at [50]-[63]. The parties' cases 1. In the result, Specialist Diagnostic Services contended that the reasons given by the Appeal Panel did not establish that it had found the necessary error before making its decision to re-assess Ms Naqi, with the result that jurisdictional error was established, as it had been in Midson. 2. Specialist Diagnostic Services accepted that the Appeal Panel could have explained its reasons for finding error in its June statement of reasons. Its case was that it had not done so, however, having been led into error by the disputed sentence in the delegate's decision. 3. It also contended that it should be inferred that the advice given by the delegate, Mr Shaw, on 21 April 2020 in relation to the Appeal Panel's preliminary review was that this advice was its "decision", he having signed that advice, as he later signed the Appeal Panel's June statement of reasons. 4. Further, that it should not only be inferred that the Appeal Panel had not concluded that Dr Parmegiani had made any error before it determined that Professor Glozier should undertake another assessment, but also that despite what the Appeal Panel said in its June statement of reasons about why it had decided on another assessment during its preliminary review, it had considered that it was unnecessary for it to first find error, given the delegate's conclusion that Dr Parmegiani had made the error she identified in the disputed sentence. 5. In oral submissions, it was finally submitted that it was the disputed sentence in the delegate's decision on which the Appeal Panel had relied to require the further clinical assessment, that being the practical result of its erroneous inclusion in her decision. It was thus material to the process which the Appeal Panel had pursued, not having considered error by Dr Parmegiani before requiring the further assessment. Furthermore, that was established by the absence of any evidence that the finding of error had been made before the examination. 6. Ms Naqi's case was that the 21 April document was not a "decision" issued by the Appeal Panel, but rather advice of the outcome of the preliminary review conducted that day, that Professor Glozier was to conduct another assessment of Ms Naqi. This document had to be read together with the statement of reasons given in June, where the error found on the review and the reasons for that conclusion were explained at [31], establishing that the Appeal Panel had not fallen into error. The decision to assess Ms Naqi was within jurisdiction and reasons for the decision were given 1. I am satisfied that none of contentions advanced for Specialist Diagnostic Services can sensibly be accepted. 2. Contrary to the case it advanced, there is compelling evidence that the Appeal Panel found error in Dr Parmegiani's certificate at the time of its preliminary review, before the further assessment was directed by the 21 April notice. Namely, the reasons given at [31] of the Panel's June statement of reasons. 3. The April advice was not the Panel's decision, but rather advice of the result of its preliminary review, namely a decision that Ms Naqi needed to be assessed again by Professor Glozier. There was no obligation in that notice to give reasons for the view formed at the preliminary review. 4. True it is that this notice was also signed by Mr Shaw, but it did not have upon it the certification which he provided in relation to the June statement of reasons, which provided: "I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE APPEAL PANEL CONSTITUTED PURSUANT TO SECTION 328 OF THE WORKPLACE INJURY MANAGEMENT ACT 1998" 1. There is nothing in the statutory scheme or Guidelines which precluded the Appeal Panel adopting the course it pursued of providing the reasons for the error it found in the certificate at its preliminary review, which resulted in the decision to have Professor Glozier assess Ms Naqi again, in its June statement of reasons. As well as the reasons appearing at [31], there the Panel also said about its preliminary review that: "6. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Workers compensation medical dispute assessment guidelines. 7. As a result of the Appeal Panel's preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination for the reasons explained below." 1. There is simply no reason why the Appeal Panel would falsely say that errors it had been satisfied about had been identified before it required Ms Naqi to be assessed again. There needs to be a proper foundation for such a serious conclusion. The disputed sentence in the delegate's decision, to which the Appeal Panel did not refer in its reasons, cannot sensibly provide such a foundation. 2. It must be accepted from the Appeal Panel having earlier in its reasons referred to the background to Ms Naqi's application; its preliminary review of the original assessment in the absence of the parties; its rejection of the application to lead fresh evidence; the materials to which it referred; the parties' submissions; the terms of the Registrar's referral; the conclusions reached on the disputed certificate; the parties' cases; the role of the medical specialist; the history taken; the results of the mental state examination; and the specialist's diagnosis and explanation of his conclusions, that what the Appeal Panel then said at [31] reflected that it had decided that there had been error before determining that a further assessment was necessary. The Appeal Panel only then turned to Professor Glozier's report and its explanation about the conclusion it reached about the level of Ms Naqi's impairment. 3. In the result, it cannot be accepted that the assessment took place before the Appeal Panel had determined that there was an error in the certificate, which necessitated the further assessment, or that it failed to give reasons for this conclusion. 4. These grounds must thus also fail. Ground 6 – failure to refer to Jenkins did not establish jurisdictional error 1. Specialist Diagnostic Services contended that there was an error of law on the face of the record or jurisdictional error, because the Appeal Panel's findings were not open, given that what Dr Parmegiani had concluded about Ms Naqi's employability was very similar to the findings of the medical specialist in Jenkins, to which the Appeal Panel had no regard. 2. I am also satisfied that this cannot be accepted. 3. Dr Parmegiani's reasons for the conclusions he reached about Ms Naqi's employability were: "Ms Naqi shared custody of her 12-year old daughter. She drove her to school and prepared meals for her. Ms Naqi was able to purchase groceries and drive a motor vehicle. She performed some domestic tasks. Under different circumstances she could be remunerated for these activities. She would however struggle to work more than 20 Hours per week due to her poor concentration, reduced energy and low motivation." 1. In Jenkins, the medical specialist's reasons about employability were quoted at [79]: "Ms Jenkins conducted some activities which could attract remuneration under different circumstances. She spent time gardening, doing housework, making small purchases and looking after her two dogs and her chickens. She would however find it difficult to work fulltime, due to reduced energy and depressed mood." 1. Specialist Diagnostics contended that given the similarity in these reasons, the Appeal Panel should have arrived at the same conclusion as was reached in Jenkins, namely, that Dr Parmegiani's conclusions were open. 2. But what this argument overlooks is that what was in issue in Jenkins in relation to the conclusion reached about Ms Jenkins' employability was different to what was in issue on the grounds of appeal which Ms Naqi advanced. She did not complain that it was not open to Dr Parmegiani to have come to the conclusion which he reached about her impairment on the materials he had to consider in relation to her employability, which was what arose for determination in Jenkins. There, the medical specialist had concluded that she had the capacity for gainful employment, and the Appeal Panel agreed: at [27] and [72]. 3. It was in that context that the Garling J's observations at [73], about the case there advanced in this Court, have to be understood. His Honour said: "73. It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review." 1. In the result, the claimed errors in the appeal panel's decision were not made out and judicial review was refused: at [74]. 2. In this case, by way of contrast, the Appeal Panel concluded that Dr Parmegiani had erred in concluding that Ms Naqi was only moderately impaired. It considered that he had not adequately explained his findings on her mental state examination, given the history he had taken and the other materials he had to consider. He had also failed to explain how he had equated her ability to parent her child and perform basic activities on the day she had custody with an ability to perform consistent paid work part time, given the chronic symptoms he had identified. This led to the decision that Ms Naqi needed to be further assessed and Professor Glozier's resulting conclusion, which the Panel adopted, that: "…there is little evidence that that she can do even the limited tasks identified by the AMS consistently outside of the house, and I could not identify any other potentially remunerable functions that we know allow home based employment. She is at least severely impaired in the domain of employability." 1. This reflects that the Appeal Panel accepted Ms Naqi's case that Dr Parmegiani's conclusions about her employability were incongruous, given his own findings as to her limited functioning, as well as inconsistent with materials to which he had referred in his certificate. He had also failed to identify what type of work he considered that she could do, flowing from the vague analogy he drew between part-time custody of a 12 year old and her employability. 2. It follows, as Garling J considered in Jenkins at [73], that the disagreement between Dr Parmegiani and the Appeal Panel about the level of Ms Naqi's impairment is not susceptible to the judicial review which Specialist Diagnostic Services now seeks. 3. Any complaint that the grounds of appeal Ms Naqi advanced in relation to Dr Parmegiani's certificate were not made out, trespasses on matters which were for the Appeal Panel to determine on the materials which had to be considered, the cases which the parties advanced in relation to the grounds of appeal, the errors which the Appeal Panel identified and what Ms Naqi's further assessment established, not this Court. It may not substitute its decision about such matters for that of the administrator in whom the discretion is vested: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-41. 4. This ground must thus also fail. Ground 7 – the failure to refer to Jenkins did not establish constructive failure to exercise jurisdiction 1. Specialist Diagnostic Services, having relied on Jenkins as it did in its submissions, also argued that the Appeal Panel had to consider what it there advanced in coming to its conclusion, but it made no reference to that case in the reasons it gave for its decision. 2. Again, it was submitted, the result was another Dranichnikov error, constructive failure to exercise the Appeal Panel's jurisdiction. 3. I am also not satisfied that the Appeal Panel's failure to refer to Jenkins in its reasons establishes that it denied Specialist Diagnostic Services natural justice or constructively failed to exercise its s 328 jurisdiction. That is because that omission does not establish any failure to resolve a necessary question of law or to take any necessary step which the Panel had to take in arriving at its decision, as was the case in Dranichnikov. 4. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 the practical restraints on judicial review were discussed, referring to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280. There it was observed that administrative decisions "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": at [30]. Further, that the Court "must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision": at [31]. 5. A hyper-critical approach to the reasons which the Appeal Panel gave may thus not be adopted, that also ignoring as it would the presumption of regularity which attends such administrative action: Bojko v Icm Property Service Pty Ltd [2009] NSWCA 175 at [36]. 6. While the Appeal Panel was obliged to give reasons for its decisions of the kind explained in Vegan, it was not required to refer to all the authorities which the parties relied on, or to all the submissions made. As explained in Vegan, what was required was: "121. Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. 122. On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required." 1. In the result, I am satisfied that the failure to refer to the submissions advanced in relation to Jenkins does not establish that for which Specialist Diagnostic Services contended. 2. While the Appeal Panel did not outline all of the submissions which the parties had each advanced, it did not have to do so. It said in its reasons that it had taken them into account and explained why it had come to the conclusion that Dr Parmegiani had erred, as Vegan required. It did not have to consider whether his conclusions were open in the way which arose in Jenkins, as Specialist Diagnostic Services contended, but rather whether he had made any of the errors about which Ms Naqi complained in her grounds of appeal, and if he had, to come to its own conclusions on the materials it had to consider about those matters. 3. The reasons given establish that the Appeal Panel undertook the statutory task required of it by s 328, explaining why it finally concluded that Dr Parmegiani's certificate had to be revoked and issuing Ms Naqi a new one, that reflecting the conclusions it had arrived at in relation to the grounds of appeal advanced on the material it had to consider. On the explanation there given there is simply no reason to doubt that the Appeal Panel considered the case Specialist Diagnostic Services advanced, despite the failure to refer to Jenkins. 4. In any case, Jenkins could not have resulted in the Appeal Panel reaching the conclusion which Specialist Diagnostic Services urged, given the errors which the Appeal Panel identified Dr Parmegiani had made. 5. It was finally submitted for Specialist Diagnostic Services that if it was concluded that the case advanced in relation to Jenkins was arguable, whether it was right or wrong it was relevant to the Appeal Panel's decision and jurisdictional error would be established by its failure to refer to the decision, with the result that the discretion under s 69 of the Supreme Court Act would not be exercised. 6. As I have explained, I do not accept that Jenkins stands for what Specialist Diagnostic Services contended. There can thus have been no jurisdictional error in the Appeal Panel's failure to refer to it in the reasons which it gave. 7. Even if that conclusion were not available, the question of materiality would arise. In this case, the question would be whether there is a realistic possibility that the Appeal Panel's decision could have been different if it had taken Jenkins into account, assuming that it did not do so, despite what it said in its reasons about having taken the parties' submissions into account: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [48]. 8. I do not accept that what the Appeal Panel said leaves open the inference that it did not take into account what was submitted in relation to Jenkins. But even if I am wrong in that conclusion, such a consideration could not have led to the result for which Specialist Diagnostic Services contends, as I have explained, given what was there decided. 9. In the result this ground can also not succeed, and so the orders sought must be refused. Costs 1. The usual order as to costs under the Rules is that they follow the event. That would in this case be an order that Specialist Diagnostic Services bear Ms Naqi's costs, as agreed or assessed. Unless the parties approach within 7 days that will be the Court's order. Orders 1. For the reasons given I order: 1. The summons is dismissed. 2. Unless the parties approach to be heard within 7 days Specialist Diagnostic Services is to bear Ms Naqi's costs as agreed or assessed. 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2020