Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Hearing dates: 9 September 2021; written submissions 13 and 16 September 2021 Decision date: 30 September 2021 Before: Gleeson JA at [1]; Leeming JA at [2]; Payne JA at [99]. Decision: 1. To the extent necessary, grant leave to appeal in accordance with grounds 2 and 4 of the draft amended Notice of Appeal served on 13 September 2021. 2. Dispense with the need to file and serve the notice of appeal. 3. Appeal allowed. 4. Set aside the orders made on 15 February 2021, and in lieu thereof, set aside the decision of the Registrar's Delegate on 18 September 2019 and remit Mr Sleiman's application to the Commission for determination in accordance with law. Catchwords: WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court of Appeal Legislation Cited: Evidence Act 1995 (NSW), s 56 Personal Injury Commission Act 2020 (NSW), Sch 1 cl 14B Supreme Court Act 1970 (NSW), ss 48, 69, 101, 104, 118 Supreme Court Rules 1970 (NSW), Pt 60 rr 1A, 17, Sch D Pt 3 cl 4 Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.15, 36.16, 49.4 Workers Compensation Act 1987 (NSW), ss 39, 66, 66A, 151H Workers Compensation Commission Rules 2011, r 4.1 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 313, 319, 321, 322, 322A, 323, 324, 325, 326, 327, 328, 329, 330, 331, 350, 354, 378 Cases Cited: AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 AFD21 v Minister for Home Affairs [2021] FCAFC 167 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 CBX2 Pty Ltd v National Australia Bank Ltd [2016] NSWCA 79 Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80 Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW (2020) 102 NSWLR 941; [2020] NSWCA 113 Institute of Patent Agents v Lockwood [1894] AC 347 Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Kriticos v State of New South Wales (1996) 40 NSWLR 297 Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101; 6 DDCR 61 Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 Michelle Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21 Perara-Cathcart v The Queen (2017) 260 CLR 595; [2017] HCA 9 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Hull University Visitor; Ex parte Page [1993] AC 682 Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54 Sleiman v Gadalla Pty Ltd [2021] NSWSC 86 Tagget v Sexton [2009] NSWCA 91 Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 Texts Cited: W Holdsworth, A History of English Law (7th ed, 1956) Category: Principal judgment Parties: Ali Sleiman (Appellant) Gadalla Pty Ltd (First Respondent) President of the Personal Injury Commission of New South Wales (Second Respondent) The Personal Injury Commission of New South Wales (Third Respondent) Representation: Counsel: D Hooke SC, B McManamey (Appellant) B Tronson, C Roberts (First Respondent) Solicitors: Turner Freeman (Appellant) Turks Legal (First Respondent) New South Wales Crown Solicitor (Second and Third Respondents, submitting) File Number(s): 2021/00053334 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 86 Date of Decision: 15 February 2021 Before: Harrison AsJ File Number(s): 2019/396891 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. GLEESON JA: I agree with Leeming JA. 2. LEEMING JA: This appeal concerns the position under workers compensation legislation when a worker who has already exercised a right of appeal to an Appeal Panel against a medical assessment claims that there has been deterioration in the worker's condition. The grounds of appeal provided by statute are strictly limited, but one of them is deterioration. The principal point argued was whether on the basis of deterioration the worker could lodge a further appeal to the Appeal Panel. If, as the respondent insurer contended, no such further appeal lay, then there arises a question whether the worker's application should have been treated as an application for reconsideration of the Appeal Panel's earlier decision, which the respondent acknowledges was available. 3. For the reasons which follow, I have concluded that no further appeal was available, but that the application should not have been dismissed without considering whether it should be treated as an application for reconsideration. This was not addressed by the Associate Judge who heard the application for judicial review at first instance, for the good reason that the submission was made for the first time in this Court. However, this Court can in an appropriate case allow an appeal on a basis not advanced below (a course which may have consequences for the ordering of costs; cf Tagget v Sexton [2009] NSWCA 91 at [89]). Because the Registrar's Delegate never regarded it as an application for reconsideration, dismissing it without hearing further from Mr Sleiman, there has been a constructive failure to exercise jurisdiction. The result is that the substance of the application remains undetermined, and this Court may in allowing the appeal grant the relief which should have issued had the point been raised at first instance. At the conclusion of these reasons, I address the complexities introduced by the way this point arose and the consequences of the legislative amendments made earlier this year. Background 1. The issue being one of statutory construction, a substantially abbreviated summary of the factual background will suffice. 2. Mr Ali Sleiman was employed by the first respondent, which seems to have traded under the name AGR Tyres (the documents suggest there may have been some confusion as to its identity; nothing turns on this). On 14 May 2014, he notified his employer of a workplace injury. His employer's workers compensation insurer accepted liability, and as a matter of substance, the insurer has been the active party in what has occurred over the following seven years. Weekly compensation payments and medical expenses were paid to Mr Sleiman. 3. In 2016, Mr Sleiman made a claim in respect of a whole person impairment of 46%. That claim was rejected by the insurer's letter of 5 October 2016, on bases the details of which are immaterial, save that they indicate the breadth of the dispute (the insurer contended that the conditions were not work related, the neck condition arose from a pre-existing condition, the gastrointestinal claim was not made as soon as possible and the lump sum compensation claim was excessive). 4. Mr Sleiman lodged an application in the Commission to resolve a dispute on 13 October 2016, and on 21 December 2016, following a conciliation/arbitration hearing, the parties reached agreement on a number of issues. The result of the agreement was that Mr Sleiman's application for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) was referred to an approved medical specialist for assessment of Mr Sleiman's whole person impairment. 5. On 19 January 2017, an approved medical specialist (Dr Phil Truskett) certified that Mr Sleiman suffered injuries resulting in a total of 2% whole person impairment. Mr Sleiman appealed from that decision and the matter was referred to a medical Appeal Panel comprising arbitrator Mr Graham Edwards, Dr Drew Dixon (an orthopaedic surgeon) and Dr John Garvey (a general surgeon). The grounds of his appeal were those in s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"), namely, that the assessment had been made on the basis of incorrect criteria or contained demonstrable error. Mr Sleiman was examined by Dr Dixon on 24 May 2017, and on 16 June 2017 the Appeal Panel determined that the earlier medical assessment certificate should be revoked and a new medical assessment certificate certifying a whole person impairment of 14% should be issued. Consequently, on 21 July 2017, the Commission issued a certificate of determination in the amount of $20,350 pursuant to s 66 of the Workers Compensation Act in respect of 14% permanent impairment resulting from the injury. 6. The details of the legislation are reproduced later in this judgment. However, it may be helpful to note that the foregoing steps taken in 2017 reflected the working out of the statutory regime as follows: 1. the referral of a "medical dispute" (in this case, the dispute as to the degree of Mr Sleiman's permanent impairment) for medical assessment under s 321; 2. the assessment of permanent impairment by an approved medical specialist under ss 322 and 324 resulting in the production of a medical assessment certificate under s 325; 3. the exercise by Mr Sleiman of his right of appeal to an Appeal Panel. The right was available because the certificate issued by Dr Truskett was by reason of s 326(1) conclusively presumed to be correct as to the degree of Mr Sleiman's permanent impairment in proceedings before a court or the Commission, thereby satisfying s 327(2), and it was propounded on the grounds specified in s 327(3)(c) and (d); 4. the Appeal Panel's exercise of the power in s 328(5) to revoke the earlier certificate and issue a new one, with the result that s 326(1) applied to render the new certificate conclusively presumed correct as to Mr Sleiman's permanent impairment, and 5. the Commission's issuing of a certificate, based on the 14% permanent impairment determined by the Appeal Panel, determining the dispute as to Mr Sleiman's entitlement to compensation under s 66 for permanent impairment. 1. Thus, following his successful appeal to the Appeal Panel in 2017, Mr Sleiman and his employer and its insurer and the Commission and any court became bound by (a) a medical assessment certificate dated 16 June 2017 assessing his whole person impairment at 14% and (b) a certificate of determination from the Commission requiring his employer to pay him a lump sum under s 66 of the Workers Compensation Act. The Commission's certificate determined as between the parties Mr Sleiman's entitlement to compensation pursuant to s 66. The new medical assessment certificate issued by the Appeal Panel determined, conclusively, Mr Sleiman's degree of permanent impairment of 14% in any proceedings before a court or the Commission. The purported appeal in 2019 1. Two years later, Mr Sleiman claimed that his condition had deteriorated, and obtained medical reports to that effect. By application made on a "Form 10" dated 14 August 2019, he sought to bring another "appeal". Rule 4.1 of the Workers Compensation Commission Rules 2011, which was then in force, authorised the President to approve forms and provided that "(3) Every document lodged at or served on the registry must ... (b) be in the approved form". The Form 10 was drafted to accommodate an appeal from a medical assessment by an approved medical specialist to an Appeal Panel, and was titled: "Application Application to Appeal Against Decision of Approved Medical Specialist" 1. Mr Sleiman's solicitor identified, under the heading "Details of the Medical Assessment Appealed Against", the date of the medical assessment decision appealed against as 21 July 2017 and gave the name of the approved medical specialist appealed against as Dr Drew Dixon, the member of the Appeal Panel who had examined him two years earlier. The application annexed submissions written by counsel, which commenced "The Appellant appeals against the Medical Assessment Certificate issued by a medical Appeal Panel on 21 July 2017." The submissions stated that "The appeal is brought for the purposes of a work injury damages threshold dispute". Section 313 of the WIM Act prevented Mr Sleiman from commencing proceedings for "modified common law damages" while there was a dispute concerning whether his whole person impairment equalled or exceeded the 15% threshold in s 151H of the Workers Compensation Act. Mr Sleiman contended as a result of deterioration that his whole person impairment should be greater than 14%. The details of this do not presently matter (their flavour may be sufficiently gathered by noting the claim that his lumbar spine had degenerated such that it should be assessed as DRE Category II, rather than DRE Category I, and that would add "at least 5%" to the whole person impairment). Mr Sleiman said he did not seek to undermine the payment of s 66 compensation which had been based on an assessment of permanent impairment of 14%. He merely sought to be permitted to commence proceedings for modified common law damages. 2. Significantly for the purposes of the present appeal, the submissions referred to Michelle Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21, of which it was said that "Arbitrator Harris was considering an application to reconsider a certificate of determination in order to allow an appeal of a medical assessment certificate". The submission sought to explain the arbitrator's reasoning (which need not be summarised here) and concluded: "Arbitrator Harris concluded that there was no need to reconsider the commission's orders. In respect of the threshold dispute, a worker can at any time bring an appeal against the medical assessment certificate on the basis of a deterioration and/or additional relevant information." 1. Thus the application unequivocally identified itself as seeking to bring an "appeal", and referred in terms to it being unnecessary to bring an application for reconsideration. 2. A notice of opposition was lodged. A short submission summarised the history, disputed one aspect of it, and concluded thus: "The Appellant has commenced the current appeal process without affording the Respondent the opportunity of commissioning its own updated medical evidence. That omission by the Appellant seems highly prejudicial to the Respondent's position. ... Further to the above, the Respondent submits that principles of natural justice dictate that the Respondent should be afforded the opportunity to have the Appellant examined by a medico-legal expert. The Respondent submits that the current appeal should be placed on hold while this is done." The opposition was confined to a request for delay. It did not address the question of the Appeal Panel's jurisdiction. The decision of the Registrar's Delegate 1. On 18 September 2019, the Registrar's Delegate determined that the "somewhat unusual appeal" was incompetent. The Delegate was exercising the function conferred by s 327(4). 2. The Registrar's Delegate stated that the appeal under s 327 was against a "medical assessment", which was "specifically defined" to be an "assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7" (original emphasis), and noted that an assessment was appealable under s 327(2) if an approved medical specialist provided the certificate. The Delegate said that a matter was not appealable under s 327(2) where an Appeal Panel had issued a decision determining an appeal, whether or not that appeal included a further examination. The Delegate repeated that a "matter is appealable if it relates to 'the assessment of an approved medical specialist'". The Delegate rejected a submission that because the certificate issued by the Appeal Panel is the certificate for the purposes of s 322A, an appeal lay from that certificate. The Delegate said that if an appeal were available, this "would be an affront to the finality of litigation and would open a never-ending right of appeal". The Delegate also said that "[t]he construction proposed by the appellant would also lead to an appeal being determined at the same level of authority, constituted in the same manner, as the decision maker". The proceedings for judicial review at first instance 1. No appeal lay from the Delegate's decision dismissing as incompetent Mr Sleiman's application. However, the Supreme Court's supervisory jurisdiction is available, and was invoked by Mr Sleiman, who commenced proceedings in the Common Law Division pursuant to s 69 of the Supreme Court Act 1970 (NSW). He claimed that the Delegate's decision disclosed a range of jurisdictional errors and errors of law on the face of the record. Both grounds of review were available. This Court's jurisdiction to review for jurisdictional error cannot be removed: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], and while the same is not true for non-jurisdictional error of law on the face of the record, there is no privative clause which does so (contrast s 176 of the District Court Act 1973 (NSW) and see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]). 2. However, the formulation of those grounds fell short of disclosing a firm grasp of the distinction between jurisdictional error and error of law on the face of the record. By way of example, it was said that the Registrar's Delegate "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". Further, a vast swathe of material was tendered with neither objection nor articulation of how it could constitute the record or be relevant to any claim for jurisdictional error. All that was necessary was the evidence of the steps mentioned above. So far as I can see, at no stage in this litigation has reference been made to the first 370 pages of the documents in the appeal books. 3. It may assist other litigants invoking this Court's supervisory jurisdiction to observe the following. 1. The principal bases of review of administrative decision-making in this Court's supervisory jurisdiction are jurisdictional error and error of law on the face of the record. 2. Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]: "Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case." 1. Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because "no satisfactory test of universal application has yet been formulated": Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]. The absence of novelty in that statement may be seen from a passage in Holdsworth's History of English Law, first published precisely one century ago, to "the debatable boundary line between law and fact" (see now W Holdsworth, A History of English Law (7th ed, 1956) Vol 1, p 298). Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law. 2. Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the "record". The term "record" is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299-301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62]-[78]. 3. Considerable care should be taken if reliance is to be placed on United Kingdom authorities. In that country, the distinction between jurisdictional error and non-jurisdictional error of law on the face of the record which is fundamental to the supervisory jurisdiction of Australian superior courts is not observed: R v Hull University Visitor; Ex parte Page [1993] AC 682 at 701-702 (Lord Browne-Wilkinson), 705-706 (Lord Slynn). 1. The gravamen of the grounds of review was that (a) there had been a denial of procedural fairness when the application was dismissed on a basis which had not been advanced by the insurer and without notice to Mr Sleiman, (b) there had been a failure to consider s 327(4), (c) the Delegate was wrong as to the construction of s 327 and that a further appeal did lie, and (d) Mr Sleiman was entitled to appeal for the purposes of the determination of a threshold dispute within the meaning of s 314. The first was a complaint that there was jurisdictional error and the third was one of error of law on the face of the record. The second and fourth may be passed over since they formed no part of the appeal to this Court. It should be added that it was not put on behalf of Mr Sleiman that his application should have been treated as an application to the Appeal Panel to reconsider its 2017 decision. 2. Mr Sleiman's summons was heard by an Associate Judge sitting in the Common Law Division in August 2020. Her Honour's powers were constrained by Supreme Court Act s 118(2), which provided that "[a] divisional associate Judge may exercise such powers of the Court in the Division (and only such powers) as are, by or under this or any other Act, conferred upon an associate Judge assigned to the Division". No statute or regulation expressed in general terms confers power to hear and determine a summons such as that filed by Mr Sleiman. However, cl 4 of Part 3 of Schedule D of the Supreme Court Rules when read with Part 60 r 1A(1)(c) empowers a referral to be made of a particular matter to as Associate Judge, and on 20 August 2020, the Chief Judge at Common Law referred Mr Sleiman's summons for hearing by the Associate Judge, thereby enabling her Honour to hear and determine the matter. (I note that the order made on 20 August 2020 should have been entered on JusticeLink, in accordance with UCPR r 36.11. The failure to do so does not alter the validity of the jurisdiction exercised by her Honour, but it would have enhanced the transparency of the process, as well as obviated the need to recall the file from archives to confirm that the order had been made.) 3. Her Honour produced a substantial judgment in February 2021: Sleiman v Gadalla Pty Ltd [2021] NSWSC 86, dismissing the summons with costs. The submissions at first instance were less elaborate than they were on appeal, and need not be summarised for present purposes. Nor need the entirety of her Honour's reasons, and doing so would substantially overlap with the summary of the submissions and their resolution in this Court. It will be sufficient to note, in relation to the grounds which were pressed on further appeal to this Court, her Honour held at [97] that: "In my view, this construction of the statute is unworkable. The operation of ss 4 and 326 to 328 of the 1998 Act does not permit the certificate of an appeal panel to be considered a 'medical assessment' as defined under the Act. As the defendant has submitted, s 328(5) provides that an appeal panel may revoke the certificate appealed against and issue a new certificate. The provision in s 328(5) for the application of s 326, which concerns the status of 'medical assessments', to such a certificate indicates the difference between the appeal panel's certificate and the medical assessment of an AMS under Part 7 of Chapter 7." 1. It may be noted that her Honour's reference in the passage reproduced above to s 4 is to be understood as a reference to the definition of "medical assessment" which picks up the language of appeal created by s 327, and her reference to s 328(5) reflects a rejection of the broader role of that provision on which Mr Sleiman relied. As will be explained below, I have relied on both of those considerations in reaching the same conclusion as did her Honour. The appeal to this Court 1. Mr Sleiman purported to appeal as of right from the dismissal of his application for judicial review. The judgment and order of the Associate Judge have effect as a judgment and order of the Court: Supreme Court Act, s 118(4). However, the appeal created by s 101 from judgments or orders of the Court in a Division is not necessarily available. That comes about by reason of s 104, which provides: "104 Exclusion of appeal from associate Judges and others Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge, registrar or other officer." 1. Thus, if no other provision in the rules confers a right of appeal, then the appeal does not lie to the Court of Appeal: see Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80 at [9]. Instead, it lies to a single Judge of the Court sitting in a Division pursuant to UCPR r 49.4, which confers a right of appeal from any decision of an Associate Judge "except in any case where an appeal lies to the Court of Appeal". But the prohibition on appeals in s 104 is "[s]ubject to the rules". The hearing before the Associate Judge being within Pt 60 r 17(a) of the Supreme Court Rules, the prohibition in s 104 of the Supreme Court Act does not apply: see CBX2 Pty Ltd v National Australia Bank Ltd [2016] NSWCA 79 at [6]; a fuller analysis may be found in El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 at [45]-[59]. 2. It is possible that neither side had regard to the foregoing when the proceeding was commenced in this Court. If so, it would be a little ironic, in litigation where the only point was the nature of an appeal, although such errors are not without precedent: cf Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 at [1] and [58]. The short point is that a litigant who is disappointed with a decision of an Associate Judge should consult Pt 60 r 17 in order to determine whether any further right of appeal is to the Court of Appeal pursuant to that rule or else to a single Judge pursuant to UCPR r 49.4. (To the extent that there may be tension between the foregoing provisions and s 48 of the Supreme Court Act assigning classes of proceedings to the Court of Appeal, the former prevails.) 3. Until the point was raised in this Court, limited attention was given to the requirement for leave. The right of appeal which falls within the exception to s 104 created by Pt 60 r 17 is an appeal which is "in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply". Relevant for present purposes is the $100,000 threshold in s 101(2)(r). It seems probable that an appeal lies only by leave, notwithstanding the assertion on the notice that it "involves (directly or indirectly) a claim, demand or question to or respecting property or civil rights amounting to or of the value of $100,000 or more". Even if Mr Sleiman's application should have been determined on its merits and even if as a result of that determination Mr Sleiman obtained a whole person impairment of greater than 15%, it is far from certain that he will sue for modified common law damages and obtain a judgment against his insurer in an amount which will satisfy the $100,000 threshold in s 101(2)(r) of the Supreme Court Act. Substantially the same point was made in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [59]-[61]. However, in circumstances where the active respondent appears to have raised no question as to leave, and where Mr Sleiman's proceeding raises a question of principle, a grant of leave is appropriate to the extent necessary. 4. The notice of appeal originally contained 3 grounds. One had been abandoned by the time written submissions were formulated. Another was abandoned shortly before the appeal was heard. One of the abandoned grounds prompted a notice of contention, which likewise fell away. Ground 2, which was the sole ground pressed when the appeal was heard, picked up the two bases which on their face prevented Mr Sleiman's further appeal. It contended that an appeal under s 327(3)(a) or (b) was not precluded: 1. where the appeal was from a medical assessment contained in a medical assessment certificate issued following an appeal pursuant to s 327(3)(c) or (d), and 2. where the appeal followed a determination by the Commission or a complying agreement pursuant to s 66A. 1. Thus the first limb of this ground challenged the restriction imposed by s 327(2), and the second challenged that imposed by s 327(7). As will be seen below, on the face of the section, both prohibitions applied: the first by reason of the appeal being from the decision of the Appeal Panel, and the second by reason of the fact that the Commission had issued a certificate awarding compensation under s 66 to Mr Sleiman in respect of a permanent impairment of 14%. Applicable statutory regime 1. The question is one of construction. Although the critical provisions are ss 327 and 328 of the WIM Act, those sections presuppose that there has been an assessment from which an appeal is sought to be brought. It is best to deal with Part 7 of Chapter 7 as a whole. 2. Part 7 of Chapter 7 of the WIM Act is headed "Medical assessment". Section 319 defines "medical dispute" to mean a range of disputes between a claimant and the person on whom a claim is made, including a dispute about the degree of permanent impairment as a result of an injury. Section 321 authorises the referral of disputes other than disputes concerning permanent impairment to a court, the Commission or the Registrar, a provision which was considered by this Court in Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88. 3. Section 322 requires the assessment of the degree of permanent impairment to be made in accordance with the Workers Compensation Guidelines. Some significance was attributed by both sides to s 322A: "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)." 1. It may be noted that the inclusion of s 322A is a material difference between workers compensation legislation and assessment under the legislation applicable to motor accidents which occurred prior to 1 December 2017. Section 62 of the Motor Accidents Compensation Act 1999 (NSW) explicitly permits referrals "on one or more further occasions" if there is deterioration or additional relevant information which is capable of having a material effect on the outcome of the previous assessment. On the other hand, s 7.24(3) of the Motor Accidents Injuries Act 2017 (NSW) (which applies to motor accident claims occurring on or after 1 December 2017), resembles s 322A insofar as it provides that "[a] medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion". 2. Section 323 requires a deduction for any proportion of impairment attributable to previous injuries. Section 324 confers various powers upon the approved medical specialist, including requiring a physical examination. Section 325 requires the approved medical specialist to give a certificate (described unimaginatively as a "medical assessment certificate") as to the matters referred for assessment, and s 326 provides that a certificate is conclusively presumed to be correct in any proceedings before a court or the Commission including as to the degree of permanent impairment of the worker as a result of an injury. 3. Section 327 relevantly provided: "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." 1. Section 328 gives further content to the right of appeal: "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. Section 327 refers to the power to refer for further medical assessment or reconsideration under s 329. That section provides for a number of avenues following an assessment: "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." 1. Section 330 deals with costs and s 331 with guidelines (none of which were said to be relevant). 2. Sections 350 and 378 expressly authorised the Commission and the Appeal Panel to reconsider matters. In August 2019, they provided: "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. 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 parties' submissions on whether a further appeal was available 1. Mr Sleiman's submissions on the principal point noted a distinction in s 327(3) between grounds (a) and (b) on the one hand, and (c) and (d) on the other hand. The latter were limited in time by s 327(5), and turned on matters which might be expected to be known at the time an approved medical specialist conducted a medical assessment and produced a certificate. The former looked into the future, and turned on matters not known at the time. There was no time limit for appeals based on those grounds. 2. Mr Sleiman maintained that it would be extremely harsh and unfair if the exercise of a ground of appeal under s 327(3)(c) or (d) had the effect of precluding a further appeal based on information not presently known. The point was encapsulated in argument thus. Suppose an approved medical specialist made an egregious error, through no fault of the worker, on the certificate, requiring a s 327(3)(c) or (d) appeal. Suppose the worker's condition then deteriorated. Mr Sleiman submitted that the legislation should be construed so as to avoid the result that the worker was disentitled to bring an appeal based on deterioration, in circumstances where deterioration after assessment had been explicitly contemplated by the Legislature. Why should the availability of an appeal on the ground stated in s 327(3)(a) depend on the happenstance that the worker had not been forced to use his or her right of appeal to correct an error not of his or her making? That is not far removed from the facts of the present case, where the initial determination of Mr Sleiman's permanent impairment was 2%, but was replaced on appeal by a determination of 14%. The force of Mr Sleiman's construction rests in the conclusion that if the Delegate's construction is right, the explicitly contemplated right of appeal in cases of deterioration is unavailable to Mr Sleiman, who in practice had no choice but to use his one and only right of appeal following the determination of 2%. 3. Submissions to much the same effect were directed to avoiding the literal operation of s 327(7). Why should the happenstance that s 327(7) applied (because, say, there had been a decision of the Commission) deny a right of appeal on the basis of grounds explicitly contemplated by the statute such as deterioration, in circumstances where the deterioration was unknown and perhaps unanticipated at the time of the decision which precluded the appeal? 4. (To this may be added a further possibility, not addressed in the parties' submissions, but equally capable of leading to harshness. The right of appeal is conferred upon all parties to the medical dispute. It is not difficult to envisage an appeal by an insurer who is dissatisfied with a medical assessment undertaken by an approved medical specialist, leading to the issue of a new certificate, and thereafter the worker's condition deteriorating. At least on one view, the exercise of the insurer's right of appeal would deny to the worker the right otherwise enjoyed to appeal on the ground in s 327(3)(a).) 5. Commendably, Mr Sleiman's submissions were not confined to emphasising the harshness and unfairness of the construction applied by the Registrar's Delegate and upheld by the Associate Judge. He advanced an alternative construction grounded in the text of the provision and conventional principles of statutory construction. Mr Sleiman's solution to the problems of harshness and unfairness was to regard s 327(3) as the "leading provision" for the purposes of the principles of construction identified by Lord Herschell LC in Institute of Patent Agents v Lockwood [1894] AC 347 at 360 and confirmed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." (footnotes omitted) 1. Mr Sleiman said that there was contrariety between the expressly conferred ground of appeal in cases of deterioration, not limited in time, in contrast to the grounds in s 327(3)(c) and (d). He said that the Legislature's acknowledgement of the ever-present possibility that a worker's condition might deteriorate in the future thereby warranting review by an Appeal Panel should be regarded as the highest in the hierarchy of provisions in s 327. The result was, according to Mr Sleiman, that the prohibitions on a further appeal should be read as applying only to a further appeal on the grounds in s 327(3)(c) or (d). 2. The respondent relied on the ordinary meaning of the statutory language, and made two further points in addition to Mr Sleiman's further appeal being precluded on the face of s 327(2) and s 327(7). 1. First, the respondent placed reliance on the definition of "medical assessment" in s 4. That term was defined to mean "assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7". When the defined term in s 327 was read by reference to its exhaustive definition, it was clear that an appeal only lay from an assessment by an approved medical specialist, and not from a decision of an Appeal Panel. 2. Secondly, the respondent placed reliance on the use of the term "appeal". That denoted an application to a body higher in the appellate hierarchy, and was inconsistent with a further hearing before the same body. The fact that the statute separately envisaged applications to the Appeal Panel to "reconsider" its decision was further confirmation that an "appeal" did not lie. 1. The parties were at issue as to the significance of s 322A. The respondent submitted that s 322A confirmed that there was no second appeal. Mr Sleiman submitted that his construction did not contravene s 322A because s 322A was expressly subject to s 327. Each side made further submissions, not summarised above, which are addressed in the analysis below. Consideration 1. Like most appeals raising questions of statutory construction, the resolution of this appeal turns on a careful examination of the text. But before doing so, it is helpful to commence with the context of the right of appeal within the legislative regime. The same course was adopted in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [70]. Context and purpose 1. Statute has very substantially altered the position at common law concerning workers who sustain personal injury. No longer is it necessary to establish a breach of duty which caused the injury. The injured worker is entitled to the benefits specified under statute. That regime depends, in a variety of ways, upon the determination of a worker's degree of permanent impairment as a result of an injury. 1. One consequence of that determination, which was important to Mr Sleiman in 2017, was the computation of compensation pursuant to s 66 of the Workers Compensation Act. 2. Another aspect, which is of importance today, is that Mr Sleiman is prevented from commencing proceedings for modified common law damages against his employer unless his degree of permanent impairment is at least 15%. 3. There are other consequences of the determination of permanent impairment, such as the aspect of the regime considered in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW (2020) 102 NSWLR 941; [2020] NSWCA 113, namely, whether the 5 year limit on weekly payments in s 39 of the Workers Compensation Act applies. 1. The legislative regime by and large placed the assessment of permanent impairment in the hands of approved medical specialists and Appeal Panels. Both are required to incorporate the conclusions of their assessment in a certificate, and the certificate is given conclusively presumptive correctness both in the Commission and in a court (there are some relatively minor qualifications to that, but none is presently relevant). As was said by this Court in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 at [16]: "The scheme for the settlement of compensation disputes established by the 1998 Act read with ... [the 1987 Act] is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel." 1. Section 322A serves an important role in the administrative regime established for the determination of permanent impairment. A decision of a court after a final hearing will ordinarily determine that issue once and for all. A great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule. This is also subject to well-recognised exceptions, which are found at general law and also under statute (these include the slip rule, setting aside judgments for fraud, and the ability to reopen associated with Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 and under rules of court such as UCPR rr 36.15 and 36.16). Section 322A broadly speaking places the administrative determination of permanent impairment on the same footing as curial determination (as had occurred, by the Compensation Court, before the introduction of medical assessment). That said, s 322A is qualified by the exceptions in s 322A(4), one of which is an appeal under s 327. The parties correctly proceeded on the basis that s 322A accordingly did not speak directly to the resolution of the question of construction raised in the present appeal. 2. It is fundamental that appeals are creatures of statute. Appeals exist by dint of statute, and their nature and incidents turn on the statutes which create them. The joint judgment in Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 stated at [56] that "[a]n appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context". In Perara-Cathcart v The Queen (2017) 260 CLR 595; [2017] HCA 9 at [40], Kiefel, Bell and Keane JJ observed that: "It is important to bear in mind that appeals are creatures of statute. One must therefore look to the statute in order to determine what question or questions are required to be answered, rather than proceed on a priori assumptions." 1. It is not surprising that many of the decisions on the meaning of appeals are criminal; the large majority of appeals in this country are appeals from convictions or sentences imposed following conviction. But the same principles apply to appeals in civil matters. Criminal or civil, "it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature": Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 at [2]. The text and structure of ss 327 and 328 1. Qualifications and limitations upon an appeal turn on the terms of the statute. It is plain from the provisions of ss 327 and 328 that the right conferred is substantially qualified as to the nature of the decision from which the appeal is brought, the timing, the grounds and depending upon what other steps have been taken (for example, the registration of an agreement under s 66A). The following matters emerge from a consideration of the text and structure of that provision. 2. First, the right of appeal is qualified by the two clauses within s 327(1) commencing with the word "only". The first prerequisite is that the appeal be "in respect of a matter that is appealable under this section", and the second in that the appeal be "on the grounds for appeal under this section". Subsection (2) articulates the first precondition. Subsection (3) identifies the grounds which comprise the second precondition. 3. There was a tendency in oral and written submissions to refer to the right of appeal conferred by s 327(1) and (3), omitting the limb of subsection (1) which refers to s 327(2). By way of example, it was put on behalf of Mr Sleiman that: "We would submit that, in terms of the hierarchy in 327, subss (1) and (3), which confer the right of appeal on specified grounds, are the leading provisions and the procedural bar in 327(7) is the subordinate provision that is to be read down ...". 1. In many cases, it is natural to emphasise subsection (3) because the decisively limiting constraint is imposed by the limited grounds in that subsection. But that is not to deny that the basic structure of s 327(1) is to confine the nature of the appeal by reference to the preconditions in each of subsections (2) and (3). In the present appeal, s 327(2) looms large. 2. Secondly, the first precondition requires that an appeal be in respect of 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". The ordinary meaning of those words confines the statutory right of appeal to matters as to which there has been an assessment of an approved medical specialist. Mr Sleiman conceded, appropriately, that on his construction it was necessary for those words to extend to cases where there has been a further assessment by an Appeal Panel, to which s 326 applied by reason of s 328(5). 3. Thirdly, as the first respondent submitted, the text of s 327(1) and (2) was not confined to assessments by approved medical specialists merely by those provisions. "Medical assessment" is defined exhaustively in s 4 (by the word "means") and denoted the assessment of a medical dispute by an approved medical specialist. Thus the opening words of s 327(1) conferring a right of appeal "against a medical assessment" when read with the definition were in terms confined to appeals from a medical assessment by an approved medical specialist. 4. Fourthly, s 327(3) identifies four grounds on which an appeal may be brought. In accordance with Mr Sleiman's submissions, they may be conveniently divided into two categories. There are the "remedial" grounds in s 327(3)(a) and (b), which are not subject to the 28 day time limit in s 327(5) and which of their nature are not available at the time the medical assessment is made (that is either because there has been a deterioration in the future, or because additional relevant information not available at the time of the assessment has become available). There are also the "error-based" grounds in s 327(3)(c) and (d), which turn on what appears on the face of the certificate. 5. Fifthly, s 327(4) confers what was described in oral address as a "gatekeeper" function on the Registrar, who must reach a state of satisfaction that on the face of the application and any submissions at least one of those four grounds has been "made out". This provision has led to a deal of litigation, for example Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101; 6 DDCR 61. For present purposes, it matters only that subsection (4) is a further qualification upon the right of appeal, and is confirmatory of the limited nature of the four grounds specified in s 327(3). 6. Sixthly, s 327(6) authorises, as an alternative to an appeal, further assessment under s 329. Its only relevance for present purposes is that the bracketed words "but only if the matter could otherwise have proceeded on appeal under this section" confirm that the elements of the appeal are not thereby expanded. 7. Subsection (7) is a blanket prohibition on a certain class of appeals, turning upon there having been a determination by a court or the Commission or an agreement registered under s 66A. That is a qualification upon the statutory right of appeal of an entirely different nature. It aligns the process of assessment with the other ways in which a dispute may be resolved (curial determination, determination by the Commission, or consensual agreement registered under s 66A). It holds that in all of those circumstances there may be no further appeal. 8. Once again, Mr Sleiman acknowledged that in order for his construction to be accepted, a narrower meaning must be given to s 327(7). Drawing upon the distinction in point of substance between the four grounds in s 327(3), made express by the different time periods identified in s 327(5), he submitted that the prohibition in s 327(7) only applied to appeals on grounds (c) and (d) of s 327(3). The submission was that since deterioration of a worker's condition was evidently within the contemplation of the statute, and indeed was express as a ground of appeal under s 327(3)(a), s 327(7) should not be read so as to deny appeals on that ground even if there had been determination by a court or the Commission or an agreement registered under s 66A. As noted above, he invited this Court to regard s 327(1) and (3) as the "leading provisions" to be reconciled with the prohibition in s 327(7). 9. But a textual difficulty with that submission is that s 66A of the Workers Compensation Act, with which the WIM Act is to be read, in terms contemplates a power to award additional compensation after an agreement registered pursuant to s 66A has been entered into, if "there has been an increase in the degree of permanent impairment beyond that so agreed". That is to say, if Mr Sleiman's construction is correct, not only is there a right of appeal where a deterioration occurs after an agreement has been registered, but there is also the right under s 66A(3)(c). (Indeed a question would arise, touched on in oral submissions, whether those rights were cumulative or in the alternative). The fact that express provision is made for circumstances where the literal meaning of s 327(7) would apply tends against Mr Sleiman's reading of that prohibition. 10. Seventhly, s 328 identifies how the appeal is to be conducted, and in particular s 328(2) states that it "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". From those words it may be seen that once again there is emphasis on the importance of the grounds in s 327(3). It may also be seen that the mandatory words "is to be by way of review" will invariably apply, and the review is to be of "the original medical assessment". The latter term on its face denotes a medical assessment undertaken by an approved medical specialist, in part from the word "original" and in part from the definition in s 4 of "medical assessment". 11. Finally, there is also the use of the term "appeal" itself. True it is that one must not proceed on a priori assumptions when identifying the character of an appeal and the duties or powers of the court or tribunal conducting it: Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 at [50]. It is possible for the term "appeal" to denote a "wholly novel procedure": Dwyer v Calco Timbers Pty Ltd at [2], although the notion of an "appeal by way of review" has a long history in the regime governing workers compensation: see the decisions considered in Sapina v Coles Myer Ltd [2009] NSWCA 71; 7 DDCR 54 at [18]-[57]. While it is not determinative, it is difficult to contemplate a statutory mechanism styled as an "appeal" permitting reconsideration, perhaps on the basis of further information or fresh evidence, by the body itself of its own decisions. And this statute contrasts the power to hear and determine an "appeal" from a medical assessment by an approved medical specialist from the separately conferred power to "reconsider" the Appeal Panel's own decision. 12. "Appeal" ordinarily connotes a hierarchy whereby a person dissatisfied with the decision of the lower body may "appeal" to a higher body within an appellate hierarchy. Indeed, the same distinction is found throughout the Act, which refers in terms to both the Commission under s 350(3) and an Appeal Panel or the Registrar under s 378(1) to "reconsider" a matter which has been dealt with. Inherent in the notion of "reconsidering" is that the same body is performing the function. Likewise, inherent in the notion of an "appeal" is the notion that a more senior body is considering the same matter. Evaluation of the competing constructions 1. The position then is as follows. Mr Sleiman points to circumstances when the regime could be seen to work harshly if given its literal meaning. But in order to obtain a construction which permits a further appeal, a strained meaning needs to be given to the following provisions. 1. First, to the opening words of s 327(1), so that the right of appeal is not confined to one which is against a "medical assessment" as that term is exhaustively defined. 2. Secondly, to s 327(2), the purpose of which is to delineate the words "a matter [that] is appealable under this section", and which words expressly limit such matters to ones in which "the assessment of an approved medical specialist" has been certified in a certificate. 3. Thirdly, to s 327(7), such that the words "There is to be no appeal against a medical assessment" are to be confined as if they read "There is to be no appeal on the grounds in s 327(3)(c) and (d) against a medical assessment". 4. Fourthly, to s 328(2), which states that the appeal "is to be by way of review of the original medical assessment"; if the appellant's construction is correct then "original medical assessment" needs to be understood as extending to the most recent determination of the Appeal Panel. 1. Further, Mr Sleiman's construction involves the potential for an endless number of appeals to the same body, which is contrary to the ordinary meaning of "appeal" in a statute which distinguishes between "appeal" and "reconsider", and which emphasises timeliness and the single determination of the degree of permanent impairment. 2. Ultimately, as Mr Sleiman himself contended, his construction involves regarding the right to appeal on the basis of deterioration or the availability of additional relevant information as controlling the meaning to be given to all of the provisions whose text points against a further appeal. 3. I do not accept Mr Sleiman's construction. I do accept that there is scope for a harsh or unjust operation in the classes of examples to which he refers, which are far from improbable. But the legislation must be construed in the first instance by reference to the text. Fundamentally I do not accept that s 327(3) is the leading provision, for the purposes of the harmonisation to be undertaken in accordance with Project Blue Sky, notwithstanding the capacity of the regime otherwise to operate harshly. There are four textual reasons for this. 1. First, the right of appeal is conferred by s 327(1), and the starting point is that it is an "appeal against a medical assessment under this Part". Mr Sleiman's submission accordingly needs to displace the exhaustive definition of "medical assessment". While it is true that a defined term may not, where the context otherwise demands, bear its defined meaning (even in a case such as the present where the statute is not expressed to apply subject to a contrary intention: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [40]), good cause needs to be shown to achieve that end. It is perhaps not so difficult to regard the decision of an Appeal Panel which supersedes that of an approved medical specialist as itself "a medical assessment under this Part". But the alterations to the ordinary meaning of ss 327(2) and 327(7) and s 328(2) which are also required by Mr Sleiman's construction are much more problematic. They do not turn on displacing the definition of a term defined 300 sections earlier to be used throughout the statute. They turn on giving a strained meaning to the very words which delineate the nature and character of the appeal. 2. Secondly, the structure of s 327(1) is that it has two limbs, both of which must be satisfied as elements of the new statutory entitlement. Both of those limbs commence with the word "only". That is the word ordinarily used in formal English, and in statutory English, to denote a necessary condition. I fail to see how s 327(3), which explicates the second limb of the right of appeal in s 327(1), outflanks the first limb of the right of appeal in s 327(1). That first limb, which requires that the appeal be "only in respect of a matter that is appealable under this section", is the raison d'etre of s 327(2). And s 327(2) is explicitly limited to assessments of an approved medical specialist. 3. Thirdly, s 327(3) limits the right of appeal by confining the grounds to those specified. Not lightly should a provision which limits the right created by s 327(1) be elevated to a leading provision which controls the balance of the section. 4. Fourthly, the mandatory words "is to be by way of review of the original medical assessment" in s 328(2) are clear and do not readily admit of a meaning consistent with Mr Sleiman's construction (which, in substance, invites "the original" to be read as "the most recent"). 1. These obstacles are not cured by the words in s 328(5) "Section 326 applies to any such new certificate". Those words naturally confer the same level of finality upon the certificate issuing from the Appeal Panel as that issued from the approved medical specialist. They fall short of authorising a second (and third, and fourth) appeal to the Appeal Panel if the worker's condition deteriorates. In short, s 328(5) is insufficient to cure the difficulties arising from the text of s 327(2) and (7) and s 328(2). 2. There is a further obstacle confronting Mr Sleiman's submission based on s 328(5). In the present case, Mr Sleiman enjoyed success in his 2017 appeal, and a new certificate issued. But in many cases an appeal may be dismissed, with the result that the Appeal Panel does not issue a new certificate and merely confirms the existing certificate. In such a case, the words in s 328(5) "Section 326 applies to any such new certificate" would not apply and accordingly would not support the construction for which Mr Sleiman contends. The result is that insofar as Mr Sleiman's construction supporting a second appeal is brought about by reason of the words in s 328(5) "Section 326 applies to any such new certificate", then that second appeal is available where the first appeal succeeds, and not where it fails. That is a decidedly unlikely result, and one which on conventional principles of statutory construction this Court should strain to avoid. Hence s 328(5) cannot be regarded as the solution to the difficulties confronting the construction for which Mr Sleiman contends. 3. Section 327(7) also tends against the appellant's construction. Section 327(7) introduces another dimension of qualification into the right of an appeal. Irrespective of whether a medical assessment by an approved medical specialist is right or wrong in accordance with any of the grounds in s 327(3), there cannot be an appeal once the underlying dispute has been determined by a court or the Commission or by an agreement registered under s 66A. It is no small thing to undercut the generality of that prohibition by construing it as only applying to appeals based on s 327(3)(c) or (d). Further, the presence in s 66A(3) of a separate power to reconsider a registered agreement and to award additional compensation if there has been an increase in the degree of permanent impairment tells against there being a further right of appeal in such circumstances. The power in s 66A(3) is very specific (deterioration after registration of an agreement) and would be otiose if the worker could as of right bring a further appeal on the same ground. 4. Finally, as the respondent submitted, there was a "safety valve" for the circumstance which drives Mr Sleiman's construction, namely, deterioration or other new information which only comes to light after the original appeal has been determined. In some cases that may be achieved by the rights under s 66A(3) mentioned above. But in all cases where the Appeal Panel had heard and determined an appeal, s 378 empowered the Appeal Panel to reconsider its decision. Decisions referring to the principles under which a reconsideration power is exercised are collected in Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 at [91]-[101]. 5. It is true that the right to apply for reconsideration is not available as of right but instead is discretionary, and that may be disadvantageous to the worker. However, there is a sound basis in the legal system generally for there to be a single appeal as of right, with any further appeal being discretionary. That is seen in a wide variety of situations, most obviously by the avenue of further appeals by way of special leave to the High Court from this Court. Double appeals have long been perceived to be an evil, as was noted in this Court in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [27]. 6. It is helpful to return to the following fundamental considerations. 1. Generally, it makes sense for medical assessments to occur at a time when the worker's condition is likely to have stabilised; how else, after all, is permanent impairment properly to be assessed? Section 322A discourages medical assessments being performed too early. 2. In cases where there is further deterioration, the earlier approved medical specialist or Appeal Panel will be shown to have been wrong to have concluded that the degree of permanent impairment suffered by the worker is as was assessed. It is open to the approved medical specialist to decline to make an assessment of permanent impairment "until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable": s 322(4). 1. Now of course there may be cases where the approved medical specialist wrongly reaches the view that the degree of permanent impairment is fully ascertainable, and thereafter the Appeal Panel likewise wrongly reaches the view that the degree of permanent impairment is ascertainable, only for the worker's condition to deteriorate. But it is to be hoped and expected that such cases are rare. 2. The foregoing tends to call into question the premise underlying Mr Sleiman's construction. If it be assumed that the original decision is wrong, and the appeal from that decision is wrong, then it may readily be contended that a limit of a single appeal can operate harshly. But in substance such an argument assumes its own result. 3. The answer to the submissions based on harshness is that there should only be an assessment of permanent impairment when the specialist bodies involved are satisfied that an assessment can appropriately be made, the right of appeal on the ground of deterioration addresses errors that have occurred, and if there is further deterioration after an assessment of permanent impairment by the Appeal Panel, then those cases would, at least under the regime which obtained in 2019, be cases where a relatively powerful case for reconsideration would be available. 4. Earlier this year (after the decisions of the Registrar's Delegate and the Associate Judge), ss 350 and 378 were repealed. As is also noted below, their repeal does not affect Mr Sleiman's rights. The analysis of the position in relation to applications filed after April 2021 will differ from that summarised above. It is unnecessary to express a view on what powers, if any, of reconsideration, are retained by an Appeal Panel, although it would be unexpected if the changes to the legislation somehow denied power to correct an obvious slip, notwithstanding such a power to have been expressly conferred by former s 378(2). But those issues were not argued in this Court (indeed the fact that the provisions had been repealed was only brought to the Court's attention when the appeal was heard) and they may be important in subsequent litigation. It is inappropriate to express a view on them in determining the present appeal. 5. Accordingly, I conclude that the Registrar's Delegate and the Associate Judge correctly concluded that the further appeal from the Appeal Panel was not available to Mr Sleiman. Mr Sleiman's fallback submission and its resolution 1. The difficulties confronting Mr Sleiman's primary submission were raised during oral submissions. But so too was an alternative submission available to him. If, as the respondent maintained: 1. Mr Sleiman's "appeal" purported to invoke a process not known under the legislation, but 2. Mr Sleiman was able to apply to the Appeal Panel to reconsider its earlier decision, then why might not his application, although framed as one which was not available, properly be regarded as an application to reconsider the Appeal Panel's earlier decision? At the very least, should not Mr Sleiman have been given a chance to confirm whether, if the Registrar's Delegate were of the view that there was no jurisdiction for a further appeal, his application should be treated as an application to reconsider? The parties sought and obtained additional time to respond to this possibility. 1. In accordance with directions made at the conclusion of the hearing of the appeal, Mr Sleiman filed a proposed amended notice of appeal and amended summons in the Common Law Division, both of which maintained that the Registrar's Delegate fell into jurisdictional error by rejecting his application and failing to treat it as an application that the Appeal Panel reconsider its 16 June 2017 decision pursuant to s 378. 2. Mr Sleiman emphasised s 354(1) and (3) of the WIM Act, which provided that: "(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. ... (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 1. The first respondent maintained that leave was required to advance the additional ground, but acknowledged that if leave were granted there was no prejudice to which it pointed that could not be cured by costs. The first respondent accepted that the Commission had an obligation to deal with a claim or issue that was "squarely raised", but denied that Mr Sleiman's application did so. It submitted that the Commission and in particular the Registrar's Delegate was entitled to place some reliance on the manner in which the application was framed, and that more needed to have been done in the present case in order for the conclusion to be reached that the application should have been regarded as a reconsideration application. 2. The first respondent also noted that, when Mr Sleiman's application was lodged in 2019, the Commission had issued a Guideline entitled "Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998" applicable to applications which could be made under those provisions. The Guideline stated that there was no specific form but that an application should be made by way of letter identifying the matter, the basis upon which reconsideration was sought, any special circumstances justifying any delay, submissions addressing why the decision should be the subject of reconsideration rather than appeal if that were relevant, and when any other party had been served. That Guideline tended to confirm that Mr Sleiman's application did not squarely raise reconsideration, according to the first respondent. 3. It was common ground that the effect of the transitional provisions was that Mr Sleiman continued to be able to apply for reconsideration, notwithstanding the repeal of s 378. The parties disagreed as to precisely how this occurred. It is not necessary to resolve that point, which is not free from difficulty, although I favour Mr Sleiman's submissions, which turn on the 2019 application being a "pending non-court pre-establishment proceeding" within the meaning of cl 14B of Schedule 1 of the Personal Injury Commission Act 2020 (NSW). 4. I agree with the first respondent that Mr Sleiman's application did not squarely raise reconsideration of the Appeal Panel's decision. Indeed, the application was inconsistent with reconsideration, insofar as it explicitly distinguished reconsideration from what was sought, namely, a second appeal. 5. However, I do not agree that that is the end of the matter. The authorities to which the first respondent points do not deal with circumstances resembling the present case. The principle is closely associated with claims by applicants for protection visas who advance a claim of persecution but who have not articulated a particular claim addressed to a Convention reason: see AFD21 v Minister for Home Affairs [2021] FCAFC 167 at [53]-[57] and the decisions there considered. In the present case Mr Sleiman squarely raised a claim that in light of his deterioration, the assessment of his permanent impairment was greater than 14%, contrary to what the Appeal Panel had determined in 2017. There was no lack of clarity in the claim. As it happens, Mr Sleiman's legal advisers were incorrect to seek to invoke a second right of appeal, because no such right existed. But that does not mean that the appropriate course was to dismiss the application. 6. It was self-evident that Mr Sleiman sought to invoke the jurisdiction of the Appeal Panel. He mistook the appropriate avenue. The Delegate was faced with a threefold choice. Either the Delegate was to dismiss the application, or to accept it on the basis that it was an application for reconsideration, or else could raise those alternatives with Mr Sleiman's lawyers before dealing with it. 7. Mistakes as to the avenue of review or appeal are not uncommon. Indeed, it would be quite wrong for this Court to dismiss Mr Sleiman's appeal on the basis, as seems probable, that he should have filed a summons seeking leave to appeal. Rather, his purported appeal as of right has been treated as carrying with it an application for leave to appeal. The first respondent would have been wrong to contend that the notice of appeal should be dismissed because, wrongly, Mr Sleiman had not sought to obtain leave (to be clear, the first respondent made no such submission). 8. The position is a fortiori in the Commission, to which s 354(1) and (3) applied. Mr Sleiman's solicitor filed a document and attached submissions which sought to exercise a review of the 2017 decision of the Appeal Panel on the basis of deterioration. The invocation of a right of appeal was wrong, but it was plain that Mr Sleiman was applying for a different decision as to the degree of his permanent impairment based on his claimed deterioration between 2017 and 2019. There was an avenue available to Mr Sleiman for his application to be considered on the merits, and as it happens, it was the only avenue available. A body which is commanded to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms should have addressed the substance of the application. It is not necessary to determine whether (a) there was error in the nature of a breach of procedural fairness to dismiss the application without hearing whether Mr Sleiman wanted it to be treated as a reconsideration application, or (b) whether without more the application should have been so treated. Either way, it has failed to address the substance of the application. Conclusion and orders 1. For those reasons, Mr Sleiman's primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar's Delegate's decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by Mr Sleiman is unnecessary, but the Delegate's decision dismissing his application should be quashed and the application remitted for determination in accordance with law. 2. There should be no order as to the parties' costs in this Court. Both sides have enjoyed some success. I also favour the view that there should be no order as to the costs of the hearing before the Associate Judge. There, Mr Sleiman failed on the issues raised. However, the entirety of the litigation in this Court could have been avoided by an application for reconsideration of the Appeal Panel's decision, which is what in substance Mr Sleiman's 2019 application was. Had the point raised in the hearing of this appeal been raised before the Associate Judge, the same result should have obtained. On that basis, there should be no order as to the costs in the Common Law Division, with the intention that the parties' bear their own costs. If any party wishes to be heard further in relation to those costs, application may be made within the time provided in UCPR r 36.16. 3. I propose the following orders: 1. To the extent necessary, grant leave to appeal in accordance with grounds 2 and 4 of the draft amended Notice of Appeal served on 13 September 2021. 2. Dispense with the need to file and serve the notice of appeal. 3. Appeal allowed. 4. Set aside the orders made on 15 February 2021, and in lieu thereof, set aside the decision of the Registrar's Delegate on 18 September 2019 and remit Mr Sleiman's application to the Commission for determination in accordance with law. 1. PAYNE JA: I agree with Leeming JA. ********** 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: 30 September 2021