Supreme Court New South Wales Medium Neutral Citation: Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 Hearing dates: 31 October 2022; further submissions filed on 4 and 9 November 2022 and 30 January 2023 Date of orders: 3 February 2023 Decision date: 03 February 2023 Jurisdiction: Common Law Before: Chen J Decision: (1) Order that the Amended Summons filed 19 April 2022 be dismissed. (2) Order that the plaintiff pay the first defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – Judicial review – Determination of Appeal Panel of Workers Compensation Commission – Powers of Appeal Panel – Whether Appeal Panel has the power to re-examine applicant prior to finding error – Where plaintiff suffered psychological injury Legislation Cited: Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: AAI Limited v Chan [2021] NSWCA 19 AAI Limited v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515; [1990] FCA 689 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 Batshon v Sydney Trains [2020] NSWSC 831 Batshon v Sydney Trains [2020] NSWSC 1266 Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 Coenradi v The GEO Group Australia Pty Ltd [2022] NSWSC 864 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 Day v SAS Trustee Corporation [2021] NSWCA 71 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Ferguson v State of NSW [2017] NSWSC 887 Folbigg v Attorney General of New South Wales [2021] NSWCA 44 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Haris v AAI Limited [2015] NSWSC 270 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047 Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 Lancaster v Foxtel Management Pty Limited [2021] NSWSC 745 Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929 Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Mustac v Medical Board of Western Australia [2007] WASCA 128 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR 366; [2008] NSWCA 88 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Specialist Diagnostic Pty Ltd v Nashi [2020] NSWSC 1791 Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235 Sydney Trains v Batshon [2021] NSWCA 143 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158 Category: Principal judgment Parties: Mr John Frederick Finnegan (Plaintiff) Komatsu Forklift Australia Pty Ltd (First Defendant) Representation: Counsel: J Catsanos SC and Ms L Goodman (Plaintiff) Ms C Roberts (First Defendant) Solicitors: Ian Roche Lawyers (Plaintiff) Hall and Wilcox (First Defendant) File Number(s): 2022/00097182 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission of NSW Jurisdiction: Common Law Citation: [2022] NSWPICMP 8 Date of Decision: 14 January 2022 Before: Richard Perrignon, Dr Douglas Andrews & Professor Nicholas Glozier File Number(s): M1-W433/21 JUDGMENT Introduction 1. This is an application, by Amended Summons filed on 19 April 2022, by John Finnegan ('the plaintiff') for judicial review of the decision of the Personal Injury Commission ('the Commission'), Medical Appeal Panel ('the Appeal Panel') dated 14 January 2022. 2. By that decision, the Appeal Panel "confirmed" the assessment of the plaintiff's whole person impairment ('WPI') by Dr Patrick Morris, an Approved Medical Specialist, because "neither error nor the application of incorrect criteria" had been demonstrated. What the Appeal Panel confirmed was that the plaintiff had suffered a "chronic adjustment disorder with anxiety" attributable to "work related stressors", resulting in an 8% whole person impairment ('WPI'). 3. The consequence of the Appeal Panel's decision was that the plaintiff was not entitled to compensation for this impairment "resulting from a primary psychological injury" because the impairment was less than 15%: s 65A(3) of the Workers Compensation Act 1987 (NSW) ('the WC Act'). An assessment of less than 15% WPI also precludes the plaintiff from commencing proceedings for work injury damages arising out of the injury suffered: s 151H(1) of the WC Act; Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [3]. 4. The plaintiff argues that the conclusion of the Appeal Panel was the product of error and procedural unfairness, and he seeks an order in the nature of certiorari quashing it, and remitting the matter to a differently constituted appeal panel. 5. The first defendant is the plaintiff's former employer, Komatsu Forklift Australia Pty Ltd ('Komatsu', or 'the first defendant'), and the only active defendant. It resists the relief sought by the plaintiff. The second defendants – Member R J Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier (as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('the WIM Act')) – and the third defendant – the President of the Personal Injury Commission of NSW – have filed submitting appearances. 6. In what follows, I will outline the background facts, the relevant statutory provisions (relating to medical assessments and appeals to appeal panels), the decision of the Appeal Panel and, thereafter, deal with the plaintiff's grounds of review. Background 1. The plaintiff commenced employment with Komatsu in 2008. Initially he was employed as a Field Service Technician – Forklift, but in 2014 he was appointed as a Customer Service Supervisor. In the course of that work, and by around mid-2015, the plaintiff started to develop psychological symptoms including anxiety and stress, which progressed and worsened in 2016. On 11 March 2016, the plaintiff was stood down by Komatsu on extended leave because of concerns held about the plaintiff's behaviour and work performance. The plaintiff returned to work on 11 April 2016, but ceased on 26 April 2016 – which was the plaintiff's final day of work for Komatsu. (The plaintiff's employment with Komatsu was terminated on 22 November 2016). 2. On 26 May 2016 the plaintiff made a workers compensation claim. In the claim form submitted, the plaintiff described his condition as: "anxiety & depression" which he attributed to a Manager "being aggressive, demeaning taking control over work excessive reports required". Liability to pay compensation for that claim was denied in letters from the insurer for Komatsu dated 16 June and 8 July 2016. The plaintiff sought a review of these decisions, but the insurer confirmed them in a letter dated 8 December 2017. 3. By letter dated 29 March 2018, the insurer denied the plaintiff's claim for permanent impairment compensation. 4. On 22 February 2021 the plaintiff filed an Application to Resolve a Dispute with the Commission. In that application the plaintiff claimed compensation for weekly benefits, as well as lump sum compensation for permanent impairment. In relation to the claim for permanent impairment compensation, the plaintiff alleged to have suffered "chronic major depression and anxiety (a disease injury) arising from his employment", and he alleged that he had a 17% WPI resulting from these conditions. This was the assessed impairment made by Dr Jeff Bertucen, the plaintiff's qualified psychiatrist, in a report dated 13 June 2019. 5. The first defendant disputed the plaintiff's claim, including the claim for permanent impairment. The plaintiff was examined by a consultant psychiatrist retained by them, Dr Graham George. Dr George prepared reports dated 23 June 2016 and 16 January 2018. In the first report, Dr George diagnosed the plaintiff as suffering from "major depression with anxiety" and, when read with his second report, appeared to express doubts about whether the plaintiff's condition "has been contributed to by employment factors". 6. On 19 May 2021, the Commission made consent orders. Relevantly, by those orders, the plaintiff's date of injury was deemed to be 12 March 2016 (the day after the plaintiff was first stood down by Komatsu: see [7], above) – order 1; the plaintiff was paid an agreed amount for weekly payments from 12 March 2016 to 10 July 2018 – order 2; the plaintiff was paid for medical expenses up to an agreed amount – order 3; and the matter was remitted "to the President for referral to a medical assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment…". 7. The plaintiff was referred to a medical assessor, Dr Patrick Morris, who assessed the plaintiff on 23 August 2021 via audio-visual link. Dr Morris diagnosed the plaintiff with a "chronic Adjustment Disorder with anxiety", a condition which Dr Morris considered "emerged after he experienced work related stressors in his work as a customer service supervisor at Komatsu from 2015 until he was put off work in March 2016 … his condition remains clinically significant". Dr Morris assessed the plaintiff's WPI as 8%. In reaching this assessment, Dr Morris assessed a class 2 impairment in respect of the psychiatric impairment rating scales 'Self-care and personal hygiene' (cl 11.1) and 'Concentration, persistence and Pace' (cl 11.5). The Commission issued a Medical Assessment Certificate, pursuant to s 325 of the WIM Act, recording the 8% WPI assessment of Dr Morris. 8. On 9 September 2021, the plaintiff filed an Appeal Against a Decision of the Medical Assessor form in the Commission ('the Appeal form'). The plaintiff relied upon four grounds, which reflected the permissible grounds of review prescribed by ss 327(3)(a)-(d) of the WIM Act, although in the written submissions the appeal grounds were confined to two: first, "the assessment was made on the basis of incorrect criteria" (s 327(3)(c) of the WIM Act); and, secondly, the "medical assessment certificate contains a demonstrable error" (s 327(3)(d) of the WIM Act). 9. In the Appeal form, and in the written submissions attached to it (pars 3.2 and 4.3), the plaintiff requested that he be re-examined by a Medical Assessor on the Appeal Panel. Pausing here: as it happens, no re-examination took place, and the Appeal Panel did not 'deal' with the request for one to occur. (The failure of the plaintiff to be re-examined is the subject of the fourth ground of review advanced by the plaintiff). 10. To return to the narrative, a delegate of the President was, on "examination of the [Medical Assessment Certificate of Dr Morris] and on the face of the application and submissions made…satisfied that a ground of appeal is capable of being made out. There is an arguable case of error under s 327(3)(d) of the 1998 Act in relation to the medical assessor's assessment of the [plaintiff's] permanent impairment due to psychological disorder". (The need for this state of satisfaction arises by virtue of s 327(4) of the WIM Act – a provision that requires the appeal "not to proceed unless the president is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out". The statutory provisions are dealt with later: see [19]ff, below). 11. On appeal, the Appeal Panel – constituted by Member Richard Perrignon, Dr Douglas Andrews and Professor Nicholas Glozier (the second defendants) – "conducted a preliminary review of Dr Morris' medical assessment in the absence of the parties and in accordance with" the Guidelines. This "preliminary review" was one envisaged by the Workers Compensation Medical Dispute Assessment Guidelines: cl 5.17.1. The plaintiff, as was noted above, was not re-examined by a member of the Appeal Panel, nor did the Appeal Panel deal with the request. The detail of the decision of the Panel is set out later, when addressing the specific grounds of review advanced by the plaintiff. It is sufficient to presently note that the Appeal Panel, by its decision dated 14 January 2022, ultimately concluded that they could "identify neither error nor the application of incorrect criteria. The Medical Assessment Certificate of Dr Morris is confirmed". 12. Having sketched that background, I will set out the relevant statutory provisions that concern medical disputes relating to the degree of permanent impairment, and how they are resolved. Medical assessment: the (relevant) statutory provisions Medical assessment and medical disputes 1. A medical dispute "has the meaning given by section 319": s 4(1) of the WIM Act. 2. Where the degree of permanent impairment resulting from an injury is disputed between the parties to a claim, it constitutes a "medical dispute": s 319(c) of the WIM Act. The medical dispute arising may be referred for assessment: s 321 of the WIM Act. (The present case does not require a consideration of the extent to which the regulations have made provision for or with respect to the referral of a medical dispute concerning permanent impairment: s 321A of the WIM Act). The referral of the medical dispute is to a medical assessor: ss 321(1) and (2) of the WIM Act. A medical assessor "means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act": s 4(1) of the WIM Act. 3. As I have earlier noted, by consent orders made on 19 May 2021, the matter was remitted to the President of the Commission for referral to a medical assessor: see [12], above. The assessment of the degree of permanent impairment of an injured worker is to be assessed in accordance with the Workers Compensation Guidelines ('the WC Guidelines'): s 322(1) of the WIM Act. Those guidelines are issued under s 376: s 4(1) of the WIM Act. There are also specific Guidelines issued that "relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury": s 377(1) of the WIM Act. They are described as: 'NSW workers compensation guidelines for the evaluation of permanent impairment', Fourth edition ('the PI Guidelines'). Having regard to the grounds of review raised by the plaintiff, it is necessary to refer to a number of the clauses within the PI Guidelines: see [24]ff, below. 4. By s 324(1) of the WIM Act, powers are conferred on a "medical assessor assessing a medical dispute" that relate to: (i) consulting with the injured worker's treating medical practitioner "or other health care professional" (s 324(1)(a)); (ii) requiring the production of "medical records or other information as the medical assessor considers necessary or desirable" (s 324(1)(b)); and (iii) requiring "the worker to submit" to examination by the medical assessor (s 324(1)(c)). Other powers conferred by s 324 deal with when the "worker refuses to submit" to examination by the medical assessor, or "in any way obstructs the examination": s 324(2) of the WIM Act. 5. Section 324(3) extends these powers, relevantly, when the dispute is the subject of an appeal: "This section extends to the assessment of a medical dispute in the course of an appeal or further assessment under this Part". The PI Guidelines 1. The PI Guidelines are expressed to "apply to assessments of permanent impairment conducted on or after 1 March 2021" (see cl 1.2), and were accepted by the parties to be applicable to the assessment undertaken by the medical assessor and the Appeal Panel. 2. The PI Guidelines adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5) "in most cases": cl 1.1. An exception is in relation to psychiatric and psychological disorders: cl 1.10. In relation to disorders of those kind, the PI Guidelines "contain a substitute chapter on the assessment of psychiatric and psychological disorders (Chapter 11) which was written by a group of Australian psychiatrists": cl 1.11. 3. The determination of permanent impairment in connection with psychiatric/psychological injury is determined in accordance with the Psychiatric Impairment Rating Scale (PIRS). The PIRS assesses the behavioural consequences of psychiatric disorders on 6 scales which evaluate functional impairment, by using class descriptors ranging from 1 to 5 in accordance with severity: cll. 11.11 and 11.12. The areas include activities of daily living (tables 11.1-11.4), as well as "concentration, persistence and pace" (table 11.5) and "employability" (table 11.6). 4. One scale used to evaluate functional impairment is: self-care and personal hygiene (cl 11.1). The two class descriptors relevant to assessing functional impairment (as raised in the grounds of review) are classes 2 and 3 – which provide: Class 2: Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food. Class 3: Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition. 1. In relation to the activities referred to, they are not exhaustive descriptors, but "examples only": cl. 11.12; Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [57]-[65]; Ferguson v State of NSW [2017] NSWSC 887 at [25]. 2. The rating impairment using the PIRS is a two-step procedure, involving the determination of the median class score, and then calculation of the aggregate score: cl 11.13. Once the aggregate score is reached, it is converted to a percentage score using the conversion table – table 11.7: cl 11.18. The conversion table "was developed to calculate the percentage impairment based on the aggregate and median scores": cl 11.19. Resolution of the medical dispute 1. A medical assessor to whom a medical dispute has been referred is to give a medical assessment certificate as to the matters referred for assessment: s 325(1) of the WIM Act. The certificate is to certify the assessment, the reasons for assessment and the facts on which the assessment is based: s 325(2). 2. The status of medical assessments is dealt with by s 326. It provides: (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned-- (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. Medical disputes: appeals The statutory provisions 1. Section 327 of the WIM Act deals with appeals against medical assessments. 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": s 327(1). 2. Section 327(2) makes provision for what is "appealable" under s 327(1): A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. 1. Section 327(3) of the WIM Act identifies the four permitted grounds of appeal: 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. 1. The first two grounds (ss 327(3)(a) and (b)) have been described as "remedial grounds", whereas the second two have been described as "error-based grounds": Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61] (Leeming JA, Gleeson JA and Payne JA agreeing). 2. Pausing momentarily to recap: the grounds of appeal, as ultimately advanced by the plaintiff before the Appeal Panel, were confined to ss 327(3)(c) and (d) of the WIM Act, and the Appeal Panel's conclusion reflected this (see [17], above and [45]ff, below). 3. An appeal is made by application to the President of the Commission and is not to proceed unless the President is satisfied that, on the face of the application and any submissions, at least one of the specified grounds of appeal in s 327(3) is "made out": s 327(4). This imposes a requirement on the President not to assess "the correctness of the argument but simply [an assessment] that what has been put forward is arguable", in order for the appeal "to proceed": Ballas at [72]. That state of satisfaction was reached, as I have earlier noted: see [16], above. 4. An appeal against a medical assessment is to be heard by an Appeal Panel constituted by two medical practitioners and one arbitrator: s 328(1) of the WIM Act. 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": s 328(2) of the WIM Act. 5. In light of the arguments raised by the plaintiff, two other aspects of the procedure on appeal should be noted. The first is that s 328(2A) of the WIM Act deals with medical re-assessment. It provides: To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members. 1. The second is that s 328(4) of the WIM Act makes provision for the worker's "attendance" before an Appeal Panel. It provides: When attending an Appeal Panel for the purposes of an assessment, and injured worker is entitled to be accompanied by a person (whether or not a legal advisor or agent) to act as the injured worker's advocate and to assist him or her to present his or her case to the Appeal Panel. 1. 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": s 328(5) of the WIM Act. Some explanation of (relevant) principles relating to appeals 1. I turn now to consider the relevant grounds of review advanced by the plaintiff on appeal to the Appeal Panel. As noted earlier (see [14], above), the grounds were that the assessment by the medical assessor was made on the basis of "incorrect criteria" and that the certificate issued by the medical assessor contained "demonstrable error": ss 327(3)(c) and (d) of the WIM Act. Incorrect criteria 1. In relation to the ground of appeal that the assessment was made on the basis of incorrect criteria (s 327(2)(c)), it has been held that this ground "must refer to such matters as the tests set out in the Guidelines, where they are applicable": Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284 at [95]; Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR 366; [2008] NSWCA 88 at [41]-[42]. In short, in light of the fact that the assessment of impairment is required to be in accordance with the PI Guidelines (s 322(1) of the WIM Act), the ground refers to an incorrect application of the fourth edition of those guidelines or AMA 5 (where picked up by the PI Guidelines). Demonstrable error 1. In relation to the ground of appeal that the medical certificate contains a demonstrable error, the following principles have emerged. First, demonstrable error is not borne out merely because the Appeal Panel "disagrees with the opinion of the approved medical specialist": Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [87] ('Vannini'); Ballas at [56]. Secondly, demonstrable error can be "apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist": Vannini at [86]; Sydney Trains v Batshon [2021] NSWCA 143 at [43]. Thirdly, what constitutes demonstrable error was explained in Vannini at [77]-[78] thus: The effect of the statutory scheme outlined above is that the Panel had to determine the appeal brought from the medical specialist's assessment, in accordance with the limitations imposed upon it by that scheme. Commencing with the text, there are two significant limitations for present purposes. First, although the expression "demonstrable error" is not defined in the Management Act, the use of the qualifying word "demonstrable" in a gateway provision such as s 327 may be taken as intended to convey the degree of strictness of scrutiny to which the decision of the approved medical specialist may be subjected. In this regard it has been said that error alone is not sufficient and that such an error must be "material". Both of those statements accord with the context of the limited right of appeal under s 327. … Second, s 327(3)(d) requires that such an error be "contained" in the certificate; that is, the error must be apparent in the certificate of the approved medical specialist. Importantly however, there is no express limitation on the material to which the Panel may have regard when assessing whether the certificate "contains" a demonstrable error. The decision of the Appeal Panel 1. Given the way the matter was argued by the plaintiff, rather than set out (potentially at length) the reasons of the Appeal Panel, I will simply provide a broad overview – leaving the detail of the Appeal Panel's reasons to my analysis of the grounds of review. 2. The Appeal Panel noted that the plaintiff's submissions in support of the appeal were "not clearly divided into discrete grounds of appeal" and, as a consequence, endeavoured to summarise them. It identified – in broad terms – nine complaints. It recognised that the broad contention of the plaintiff alleged error in failing to conclude that he should have been assessed as a class 3 impairment under PIRS category 11.1, not a class 2 impairment. 3. Shortly stated, the Appeal Panel dealt with the complaints (relevant to what is in issue in the current proceedings) as follows: 1. In relation to lighting: the Appeal Panel held that there was "no evidentiary basis for a finding that the conduct of the assessment was compromised by the fact that the [plaintiff's] face was in shadow" and that the Appeal Panel identified "no error in respect of this ground": Appeal Panel reasons at [8]-[11]. 2. In relation to misconstruing the 2019 report from Dr Bertucen (the plaintiff's qualified psychiatrist): the Appeal Panel held that although the medical assessor "appears to have misconstrued" a passage in Dr Bertucen's report relating to diagnosis, the "misconstruction of this passage has had no practical effect on the assessment. It does not justify the setting aside the assessment": Appeal Panel reasons at [12]-[16]. 3. In relation to 'management of finances': the Appeal Panel understood this ground to involve a failure on the part of the medical assessor to take into account "reports" – "to the effect that [the plaintiff] could not manage his own finances and that he relied upon his spouse to pay bills and purchase clothes for him": Appeal Panel reasons at [6](d). In connection with this complaint, the appeal panel noted that there was "no evidence that the [plaintiff] described to the [medical] assessor any inability to manage his finances"; that the medical assessor was "not obliged to assume that any inability with respect to finances which was present in 2017 remained as at… 2021 in the absence of evidence to that effect"; that there was "no evidence as to what was said by [the plaintiff]" at the examination, other than "that which is contained in the Medical Assessment Certificate itself"; and that the Appeal Panel was not satisfied that the plaintiff had told the medical assessor "that he was unable to manage his finances…": Appeal Panel reasons at [23]-[27]. The Appeal Panel concluded that "no error" had been identified: Appeal Panel reasons at [28]. 4. As to the above, the Appeal Panel noted the plaintiff's submission "that the assessor failed to take into account his report that 'his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains'", but stated that the plaintiff did "not say where or when he reported those matters, or to whom" (Appeal Panel reasons at [44]). 5. In relation to the ground that the plaintiff was "unable to make significant repairs to motor vehicles", with the consequence that he should have been assessed as a class 3, and not class 2, impairment: the Appeal Panel held that, the fact that the plaintiff "was able only to work on his vehicles for an hour at a time", did not compel a finding that he was "unable to make significant repairs to a motor vehicle", so as to justify a different classification, and that the "assessment of a class 2 impairment was reasonably open in the circumstances": Appeal Panel reasons [58]-[59]. 1. Finally, it was accepted by the parties that the reasons of the Appeal Panel made no reference to, or otherwise deal with, the plaintiff's request that he be re-examined in connection with his appeal. The grounds of review: introduction 1. In the Amended Summons, the plaintiff relies on four 'errors' that are said to constitute "both jurisdictional error and error on the face of the record". Those errors, shortly stated (but addressed in more detail in what follows), are said to be: first, a failure "to consider correct criteria"; secondly, "failing to consider arguments made in support of [the] appeal"; thirdly, failure "to consider all relevant material"; and, fourthly, failure to re-examine the plaintiff. 2. Before dealing with the substance of the plaintiff's grounds of review, the following matters should be noted. First, the phrase "error on the face of the record" was employed by the plaintiff; but that phrase is "at best an elliptical formulation of the ground of judicial review" that is correctly expressed as error of law on the face of the record: AAI Limited v Chan [2021] NSWCA 19 at [47] ('Chan') (Leeming JA). The distinction is important because (at a minimum) "a mere error of fact which is patent on the face of the reasons for a decision does not render the decision liable to be set aside in proceedings by way of judicial review": Chan at [47]. Secondly, the supervisory jurisdiction of the Court, under s 69 of the Supreme Court Act, is available to correct jurisdictional error, or error of law on the face of the record, and only errors in fact-finding when the error is within one of these categories: Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [8]. Thirdly, the first three grounds of review advanced by the plaintiff allege "error in point of law" without clearly identifying the precise nature of the legal error; whether there is such an error will turn upon proper analysis: "no amount of formulary" will transform something into a legal error if it is not: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515, 527; [1990] FCA 689. Ground 1: failure to consider the correct criteria The parties' submissions 1. The Amended Summons alleges that the Appeal Panel committed error "in point of law" when it "failed to consider whether the Medical Assessor (Dr Patrick Morris) had considered the correct criteria when assessing the categories of 'self-care and personal hygiene', 'social functioning', and 'concentration, persistence and pace'". The criteria picked up by this ground is a reference to the scales within the PIRS: cl 11.11. 2. Despite alleging error in relation to three of those scales, the written submissions confined the complaint to one of those scales: 'self-care and personal hygiene' (plaintiff's submissions at [10]-[11]). The written argument which, respectfully, was not altogether easy to follow, appeared to involve the contention that, in relation to 'self-care and personal hygiene', the plaintiff should have been assessed as a class 3 impairment, and not a class 2 impairment. And, in particular, the argument appeared to be that that assessment ought to have been made because the plaintiff was "unable to properly manage his finances [which] would suggest that he could not live independently and without regular support" (plaintiff submissions at [18]). 3. In aid of this ground, the plaintiff made three related submissions. First, what was relevant to this assessment was the inability of the plaintiff to manage his finances – and there was evidence of such a disability as at 2021; secondly, the medical assessor "had an obligation to seek information from the plaintiff", and the medical assessor failed to do so; and, thirdly, the "fact" is that the plaintiff "is unable to properly manage his finances"– which was said to be suggestive that he could "not live independently and without regular support" (plaintiff's submissions at [16]-[18]). 4. As developed during oral submissions by Mr Catsanos SC, the argument was (substantially) refined, to the effect that: (a) the medical assessor was required to assess permanent impairment based upon the PI Guidelines; (b) in particular, by clause 1.6(a) of the PI Guidelines, the medical assessor was required to assess permanent impairment based upon "clinical assessment of the claimant as they present on the day of assessment taking into account the claimant's relevant medical history and all available medical information…": cl 1.6(a) of the PI Guidelines; (c) the Appeal Panel fell into error, and misdirected itself, when it held that the "assessment of the rating scales", was to be undertaken "on the basis of what the appellant told the assessor" (Appeal Panel reasons at [10]); and, (d) the Appeal Panel fell into error in finding there was no evidence of the plaintiff having an ongoing inability to manage his finances independently as at 2021. 5. The first defendant did not dispute that the medical assessor was required to assess permanent impairment based upon the PI Guidelines, and that those Guidelines required the medical assessor to assess permanent impairment, relevantly, in line with cl 1.6(a). The first defendant instead submitted that the Appeal Panel had not erred in law because "the Appeal Panel accepted that Dr Morris had considered the materials before him, including those from Dr Bertucen. The Appeal Panel specifically considered the Plaintiff's submissions about the absence of questioning about his finances … and identified no error". Further, the first defendant submitted that even where Dr Morris' assessment did not identify the plaintiff as possessing an inability to manage his finances, Dr Morris and Dr Bertucen arrived at the same PIRS class (being Class 2). Consideration 1. To recap: the argument of the plaintiff reduced to complaints about the way the Appeal Panel dealt with his inability to manage his financial affairs in two related respects: first, the plaintiff argued that the Appeal Panel misdirected itself by, in substance, requiring the plaintiff to identify to the medical assessor or expressly report matters, failing which it was permissible for the medical assessor to proceed on the basis that the failure to report a matter or symptom meant that there was no complaint about the matter or symptom; secondly, the plaintiff argued that the Appeal Panel made a fundamental error in finding that there was "no evidence" to support any ongoing inability of the plaintiff to manage his finances. This was argued to amount to an error of law – the plaintiff submitted that there was such evidence. The misdirection argument 1. As I have earlier noted, the first and second parts to this argument were accepted by the parties as the correct approach (see [55], above). They were at issue in connection with whether the third part – whether misdirection had occurred – was demonstrated. 2. The plaintiff argued that error is manifest in the reasons of the Appeal Panel in the way in which it considered this ground – as follows: first, it recorded that there was "no evidence that the [plaintiff] described to the assessor any inability to manage his finances" (Appeal Panel reasons at [23]); secondly, it recorded that the medical assessor "was not obliged to assume that any inability with respect to finances which was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]); and, thirdly, that they were "not satisfied that the [plaintiff] told the assessor that he was unable to manage his finances. To the extent that he told Dr Bertucen in 2017 that he was so unable, that was taken into account by the assessor" (Appeal Panel reasons at [27]). The argument presented to the Appeal Panel 1. In my view it is important to understand the way in which this ground was presented to the Appeal Panel – which, as the Appeal Panel itself noted, was less than clearly expressed (and sub-optimally organised). 2. The ground being considered by them was concerned with what was described as "management of finances" (Appeal Panel reasons at [22]-[28]). The argument put to the Appeal Panel – as understood by it – was reflected in their reasons at [6](g): There was no basis for the finding that the [plaintiff] can live independently. He reported that his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains. 1. That summation of the plaintiff's complaint is a reference to [3.13] of the written submissions in support of the appeal to the Appeal Panel. There the plaintiff argued that there was error in the finding of the medical assessor (essentially that the plaintiff was "able to live independently": [3.12]), followed by a submission that the plaintiff "reported that his wife manages his finances and pays the majority of the bills. The [plaintiff] stated that he only carries out 30% of the chores with the rest being done by his family". 2. The source of the 'report' was not stated in the submissions, nor is it otherwise obvious. This is plain from the reasons of the Appeal Panel: after noting the submission, the Appeal Panel said: "[The plaintiff] does not say where or when he reported those matters, or to whom": Appeal Panel reasons at [44]. The Appeal Panel noted that there was no record of the report to the medical Assessor, nor were they prepared to find that "it was communicated to the assessor": Appeal Panel reasons at [45]. 3. In relation to the absence of evidence about this "report", the following should be noted: (a) the plaintiff's submissions in this Court did not suggest that there was evidence of that "report"; and (b) the submission about the plaintiff's incapacity to manage his finances independently required reference to – and findings on – other material: see [72], below. The Appeal Panel did not misdirect itself 1. I am unpersuaded that the Appeal Panel misdirected itself. My reasons for that conclusion are as follows. 2. Whether misdirection has occurred, so as to deflect the Appeal Panel from its statutory task, is context dependent. That context includes, and is framed by, the statutory provisions governing the appeal to it, as well as the arguments of the parties. Furthermore, characterising whether error has occurred requires evaluation of the misdirection alleged against that context. In my respectful view, the plaintiff's argument in this Court tended to stray from these fundamentals. 3. Here, the focus is upon demonstrable error in the assessment performed by the medical assessor. At that point, the Appeal Panel are not themselves assessing impairment; they are charged with determining whether the error alleged has been committed by the medical assessor and is of the requisite character (demonstrable error). What, then, was the error alleged? 4. In my view, having regard to the way in which the plaintiff argued the matter before the Appeal Panel, it was that the medical assessor failed to have regard to the plaintiff's 'report' that his wife managed the finances etc. That is what was being advanced by the plaintiff, and that is what the Appeal Panel assessed in determining whether there was demonstrable error shown by the medical assessor. Put another way, what the Appeal Panel was deciding was whether there was such a 'report' and (if there was) thereafter whether the medical assessor – as the plaintiff argued – made an error in making the finding that he did. 5. Once the manner in which the ground was argued is understood, it is, in my view, clear that no misdirection error has occurred as the plaintiff alleges. Or, indeed, any error. The focus of the Appeal Panel on what the plaintiff told the medical assessor (viz., "reported") is explicable: rather than being the product of misdirection (or infelicitous expression), it is language employed to engage with the case that was made on appeal to it. 6. To return to the reasons of the Appeal Panel, and the way that the plaintiff argued this matter (see [58], above), the impugned paragraphs of the reasons must be understood in light of what I have set out. Thus: 1. In relation to Appeal Panel reasons at [23]: the reference to "no evidence that the [plaintiff] described to the assessor any inability to manage his finances", divorced from its context, might tend to suggest that the Appeal Panel may have been distracted from its task. But once placed in context the opposite is so: the statement must be understood in light of the argument that there had been a 'report' about the plaintiff's wife managing the finances etc. In that context, what is recorded is unexceptional and plainly correct: there was no evidence of the report – just the assertion in the submissions that I have noted (see [61]-[63], above). 2. In relation to Appeal Panel reasons at [25]: the reference to the medical assessor not being "obliged to assume that any inability with respect to finances which was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect", is likewise in context unexceptional, for the reasons that I have just given in relation to Appeal Panel reasons at [23]. 3. In relation to Appeal Panel reasons at [27]: the reference to the Appeal Panel not being "satisfied that the [plaintiff] told the assessor that he was unable to manage his finances. To the extent that he told Dr Bertucen in 2017 that he was so unable, that was taken into account by the assessor" – is a specific and direct response to the suggestion that there was a 'report' about the plaintiff's wife managing the finances. That is its context. It does not betray any misdescription or misdirection. It is not correct to characterise it otherwise. It is certainly not open to contend that it amounts to the Appeal Panel (here or in relation to the other paragraphs that the plaintiff sought to challenge) placing any "onus" on the plaintiff to volunteer the information. The 'no evidence' argument 1. It is clear from the reasons of the Appeal Panel that they accepted there was evidence that established that the plaintiff had impaired ability to manage his financial affairs, at least until 2017. The Appeal Panel made a finding to that effect – viz., the medical assessor "was not obliged to assume that any inability with respect to finances which was present in 2017 remained as that examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]). Further, in the way in which the Appeal Panel dealt with this ground of appeal, it – at least implicitly – accepted that an impairment of this kind could support a finding that was relevant to the classification of the impairment under table 11.1 (self-care and personal hygiene). Undoubtedly that was because evidence of an individual's inability to manage their financial affairs could readily be seen to be an aspect of 'self-care'. The first defendant, it should be noted, did not argue to the contrary. 2. The plaintiff argued that the Appeal Panel then made a series of findings, each to the same effect – viz., that there was no evidence to support a finding that any inability of the plaintiff to manage his finances that "was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect" (Appeal Panel reasons at [25]). The other findings made by the Appeal Panel, argued by the plaintiff to be to the same effect, were: 1. The Appeal Panel was "not satisfied that the [plaintiff] told the assessor that he was unable to manage his finances…" (Appeal Panel reasons at [27]). 2. That although the plaintiff told Dr Bertucen, when examined on 14 November 2017, "that he leaves his finances in his wife's hands due to his inability to handle them adequately. However, that was not communicated to the assessor" (Appeal Panel reasons at [45]). 1. The plaintiff submitted that, contrary to what was found by the Appeal Panel, there was evidence that was capable of supporting a finding that he had an impaired ability to manage his finances – namely: (a) the history recorded in Dr Bertucen's 2017 report: "He is unable to handle his own finances adequately owing to confusion and disorganisation, and leaves this mostly to [his wife]"; (b) Dr Bertucen reporting, in 2019, that the plaintiff suffered moderate "impairment of attention, concentration and memory as evidenced by inability to recall written material, handle his own finances, domestic bills and budgets and personal effects"; and (c) as set out in his evidentiary statement dated 22 February 2021: "I do not believe that my condition has improved since I was terminated" (statement at [144]). The plaintiff argued that this evidence demonstrated that any impairment of his ability to manage his finances continued until 2021 and not, as the Appeal Panel concluded, 2017. 2. There is no doubt that it is an error of law to make a finding of fact for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91]; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 149 and 151. However, in substance, the complaint here was not that there was no evidence of the particular fact (viz., the inability of the plaintiff to manage his finances beyond 2017, and up to 2021), but that the Appeal Panel erred in determining there was no evidence of that fact when there was. 3. In any event, the precise characterisation does not ultimately matter, because I do not accept the plaintiff's arguments. That is for the following reasons. 4. First, I do not accept that the plaintiff's arguments correctly reflect the reasons (and findings) of the Appeal Panel. They did not make a "no evidence" finding, nor did they make a generalised finding that there was no evidence of a particular fact, when the evidence was to the opposite effect. As I explain in more detail in connection with the misdirection argument (see [56] ff, above), the findings made by the Appeal Panel were more precise: they were tethered to particular arguments that the plaintiff sought to raise – viz., whether the plaintiff had "reported" his wife managing the finances etc. Viewed in context, the findings reflect the arguments put by the plaintiff, and are otherwise unremarkable. 5. Secondly, once it is understood how the plaintiff put its case to the Appeal Panel, it is not now open to raise a different ground, essentially that there was other evidence (being the evidence referred to in [72], above) which, if accepted, would be sufficient to support a finding of fact that the plaintiff seeks. In effect, that the plaintiff's ability to live independently was impaired by reason of his inability to manage his finances. That was a case that had to be marshalled below. 6. Thirdly, even if, as the plaintiff argued, there was error, an error of this kind is not an error of law on the face of the record (Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [15]; AAI Limited v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at [45] and [69]; Chan at [45]-[46]): it is only evident when one has regard to other material, being the evidence that was before the Appeal Panel. However, a "no evidence" ground (or a ground analogous to it) can only be established by considering all the material that (relevantly here) was before the Appeal Panel – material that does not form part of the "record", even as extended by s 69(4) of the Supreme Court Act. I add, in this respect, this was illustrated by the fact that the argument advanced relied upon the plaintiff's statement to which reference has been made: see [72], above. For completeness two further matters should be noted. The first is that no submission was advanced by the plaintiff that there had been a form of 'incorporation' of the plaintiff's statement – thereby expanding the record from which legal error may be identified: as to which, see generally Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235. The second is that it was not argued that the fact was jurisdictional – thereby permitting a wider review in order to make good this ground: see generally Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047 at [63]-[68]; Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [58]. 7. It follows, therefore, that this strand of the plaintiff's argument fails. 8. The following should also be noted. The plaintiff's written submissions made reference to an issue about "lighting". In simple terms, so far as I understood it, it was said that because the plaintiff was assessed by the medical assessor by video link, and the lighting was imperfect, the assessment of the medical assessor was compromised as a result – amounting to demonstrable error. In this Court, when asked to clarify the plaintiff's complaint about "lighting", Mr Catsanos SC, ultimately put this matter on the basis that the imperfection in lighting – such as it was – was a fact which emphasised why it was important for the Appeal Panel to re-examine the plaintiff. Ground 2: failure to consider arguments in support of the appeal 1. The plaintiff's second ground of review was that the Appeal Panel "failed to consider the arguments made in support of the appeal". Notwithstanding the challenge, neither the Amended Summons, nor the plaintiff's written submissions filed in support of the summons, identified the arguments the plaintiff alleges that the Appeal Panel did not consider. 2. To the extent that this ground possibly overlaps with the other grounds, it is dealt with in my consideration of those grounds. To the extent that it concerns the argument that there was a failure to address the plaintiff's 'case' in connection with table 11.5 (concentration, persistence and pace) it is dealt with next. In all other respects, I do not accept the broad contention of the ground. 3. The plaintiff's argument, in connection with table 11.5, was contained in a supplementary written submission handed up at the commencement of the hearing. 4. As developed during oral submissions, it involved the following steps: (a) the medical assessor noted that the plaintiff reported "reduced concentration but is still able to work for an hour doing repairs on his cars or machinery on his property"; (b) the medical assessor made no enquiry into what that 'work' constituted; (c) the medical assessor found that the plaintiff's impairment was mild (class 2) rather than moderate (class 3) – implicitly finding (picking up the description in class 3) that the applicant did not find it difficult to "make significant repairs to motor vehicles"; (d) that the plaintiff was "only working on his car as a hobby", which could not constitute 'significant repairs to motor vehicle'; (e) a class 3 impairment was justified because the plaintiff was unable to make significant repairs to motor vehicles, and the Appeal Panel failed to "consider and address" this argument giving rise to jurisdictional error and error of law on the face of the record: it was argued that there was a constructive failure to exercise jurisdiction giving rise to invalidity. 5. In my view there is no substance to this ground. 6. I will start with what is uncontroversial. A constructive failure to exercise jurisdiction arises "where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of a failure to address some essential matter": Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [12] (Kirk JA). An 'essential matter' can be a critical argument raised, as was explained in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 ('Dranichnikov'): "To fail to respond to a substantial, clearly articulated argument relying upon established facts" was not only a denial of procedural fairness, but a construction failure to exercise jurisdiction: at [24]. 7. The essential structure of the Appeal Panel's analysis of this ground of appeal was: 1. the Appeal Panel clearly identified the contention raised by the plaintiff, which it described as: "A class 2 impairment was not open on the evidence. A class 3 impairment was justified because the [plaintiff] is unable to make significant repairs to motor vehicles…" (Appeal Panel reasons at [6](i)). 2. the Appeal Panel identified the medical assessor's reasons for assessing a class 2 impairments in respect of table 11.5 (Appeal Panel reasons at [55]): [The plaintiff] reports reduced concentration but is still able to work for an hour doing repairs on his cars or machinery on his property. He is also able to use an excavator to work on the property for the same period of time. He was able to focus in the interview which was about 55 minutes in duration. 1. the Appeal Panel then specifically addressed the plaintiff's arguments in connection with table 11.5: Appeal Panel reasons at [54]-[59]. The key paragraph of the Appeal Panel's reasons, said to reveal the failure of the Appeal Panel to deal with the 'critical argument', was [58]: In our view, neither the work capacity of the [plaintiff], nor the fact that he was able only to work on his vehicles for an hour at a time, compelled a finding that the [plaintiff] was unable to make significant repairs to a motor vehicle. The assessor neither made nor implied any such finding. He was not obliged to do so. 1. Turning to the substance of the plaintiff's argument, it was said that although the Appeal Panel, in their reasons at [58], referred to the plaintiff's submission, it nevertheless failed to address it. I do not accept that this has occurred, for the following reasons. 2. First, the essential contention of the plaintiff was that he should have been assessed as a class 3 impairment, and not a class 2 impairment – with the consequence that his overall impairment rating would have been greater than that reached by the medical assessor. There was no misunderstanding of that case, as made. It was simply not accepted. In my respectful view that is apparent from the Appeal Panel reasons at [58], referred to above. 3. Secondly, the issue raised by the plaintiff was one of evidence – that the work the plaintiff was doing on the motor vehicles was merely a "hobby". Even if it be assumed that undertaking that work was a "hobby" (I add: quite why that makes a difference is not immediately obvious, and was not developed during submissions), a constructive failure to exercise jurisdiction is not, relevantly here, "a mere failure to consider evidence", but "a failure to understand or determine a case or claim": Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]; Dranichnikov at [24]. As I have said, I consider that the case was understood and determined. 4. Thirdly, the argument, in my view, is built upon an assumed error (of fact) – viz., that the finding made by the medical assessor should have been qualified by a further finding that the work was undertaken for a "hobby". I consider, respectfully, an assumption of that kind to be misplaced and not to give rise to any basis for review of the kind relied upon by the plaintiff. That is because to simply assert (in submissions made to the Appeal Panel) that the activity mentioned was a hobby does not mean that the medical assessor made a demonstrable error mandating intervention by the Appeal Panel. The assumption is also misplaced because the finding of facts is quintessentially a matter for the medical assessor and, when the subject of an appeal, required the plaintiff to establish demonstrable error to the Appeal Panel. Thus, in my view, the finding made by the medical assessor was unexceptional (based, as it was, upon what was reported by the plaintiff), and a complaint of that kind to the Appeal Panel does not constitute demonstrable error. It follows, therefore, in my view, that the Appeal Panel correctly found no error justifying intervention. 5. Fourthly, a 'critical element' of the ground of review is the need to have 'established facts' – that is, "facts which are either conceded or which have been found by the tribunal. If that element is omitted, the expression is apt to encroach upon the exclusive jurisdiction of the administrative decision-maker to assess and make findings of fact": Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 at [17] ('Rahman'). Here there were no such facts bearing this character; indeed the plaintiff's submission involved a contention that (at least) a further factual finding was needed. 6. Fifthly, even if it be assumed that there was a 'subtlety' in the plaintiff's case that was put on appeal – perhaps – that was not readily or fully understood by the Appeal Panel, then in my respectful view, the remarks of Basten AJ in Rahman at [18] are apposite: Finally, the succinct statement in Dranichnikov, referring to a clearly articulated and substantial matter, concedes to the decision-maker the function of assessing and making sense of verbose, confused or complex matters. 1. I do not accept that any reviewable error has been demonstrated. Ground 3: failure to consider all relevant material 1. The plaintiff's third ground of review was that the Appeal Panel "erred in point of law by failing to give effect to Dr Morris' misinterpretation of Dr Bertucen's report". The plaintiff's written argument, in support of this ground, was that the medical assessor "misinterpreted the report of Dr Bertucen by stating that he could not locate a diagnosis in it, when clearly there was a diagnosis…[leading] to the conclusion that [the medical assessor] fell into demonstrable error by failing to properly consider and take into account Dr Bertucen's report" (written submissions at [21]) and furthermore, the "appeal panel fell into error" by failing to give the evidence "appropriate weight" (written submissions at [23]). 2. In my view there is no substance to this ground of review. 3. It is true that the medical assessor failed to appreciate that Dr Bertucen, in his 2019 report, provided an "updated expression of diagnosis" (at that time he diagnosed the plaintiff as suffering from "chronic adjustment disorder with (current) severe social phobic anxiety"), and that the medical assessor "missed" this, and misconstrued the passage of Dr Bertucen's report where this diagnosis appeared – as the Appeal Panel held (Appeal Panel reasons at [12]-[13]). 4. Nevertheless, the Appeal Panel concluded that "the misconstruction of this passage has had no practical effect on the assessment. It does not justify the setting aside the assessment" (Appeal Panel reasons at [16]). 5. The plaintiff submitted that, in reaching this conclusion, the Appeal Panel failed to explain why it reached this conclusion and "disregards that error without foundation". I do not accept the plaintiff's submission. 6. The Appeal Panel's reasons for the conclusion were explained. That is apparent from the following (Appeal Panel reasons at [15]): The [plaintiff] does not articulate how a misconstruction of this passage (by overlooking what appears to be updated diagnosis) led to error. He does not criticise Dr Morris' diagnosis, presumably because he and Dr Bertucen both diagnosed an adjustment disorder, albeit with different descriptors. It is not suggested that any difference in diagnosis decreased the assessment of impairment, and we are not persuaded that it has. 1. In my view, as the first defendant submitted, the plaintiff has failed to identify and demonstrate error of any kind in the approach taken by the Appeal Panel. 2. My reasons for that conclusion are as follows. 3. First, the submission that the Appeal Panel provided no reasons cannot be accepted: it plainly did, as I have set out. 4. Secondly, these reasons were plainly sufficient: the Appeal Panel (unremarkably) held that even if Dr Morris overlooked the current diagnosis, the diagnosis did not – and was not argued by the plaintiff to – bear upon impairment. That reasoning is both apparent, and unexceptional. In view of the failure of the plaintiff to argue that something of substance resulted from this 'omission' by Dr Morris, nothing more was required by way of reasons. The adequacy of reasons must be evaluated in the context of what the Appeal Panel was asked to decide: "No mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important that a complaint that they are inadequate be assessed against the circumstances of the particular case": Sydney Trains v Batshon [2021] NSWCA 143 at [48]. (I note, in any event, despite the way the matter was argued, that there was no ground of review seeking to assail this part of the decision on the basis of insufficient reasons). 5. Thirdly, to the extent that the plaintiff argued that "appropriate weight" was required to be given to the report, and the updated diagnosis, the Appeal Panel did so and noted that the medical assessor had also done so – albeit that he had overlooked the "updated expression of diagnosis". In any event, and contrary to what the plaintiff's submission assumed, the question of the "weight" to be given to evidence is a matter (in this instance) for the Appeal Panel and not this Court. In my view the conclusion reached by the Appeal Panel was sound. So too was its conclusion that the "misconstruction" had "no practical effect on the assessment". 6. The first defendant further submitted, relying upon Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17, that any error committed by the Appeal Panel in connection with this ground was immaterial, and that the plaintiff has failed to demonstrate in line with these authorities how "compliance could have realistically resulted in a different outcome": SZMTA at [45]. I agree. 7. The Appeal Panel was obliged to dismiss the ground of appeal "unless it is satisfied that there was an error and that the error is material": Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [25]; Vannini at [77]. Before the Appeal Panel, no attempt was made by the plaintiff to demonstrate materiality. In those circumstances, the conclusion of the Appeal Panel is unsurprising, and not shown to be in error in any way. Ground 4: failure to re-examine the plaintiff The failure of the Appeal Panel to deal with the request that the plaintiff be re-examined 1. The plaintiff's fourth ground of review was that the Appeal Panel "failed to consider the plaintiff's request [to be 're-examined'] and that the failure to provide its reasons for not doing so" denied the plaintiff procedural fairness and resulted in jurisdictional error (Amended Summons, ground 10(d)). The first defendant, as noted further below, accepted that the reasons of the Appeal Panel made no reference to plaintiff's request to be re-examined. 2. The plaintiff's argument was, in essence, that although the Appeal Panel was not obliged to accede to the request for re-examination, it was obliged (if it did not do so) to state as much, and to provide reasons – which need not be elaborate – to explain why it reached the conclusion that it did. The failure to deal with the plaintiff's request for re-examination – at all – amounted to a denial of procedural fairness, and jurisdictional error. 3. In this last respect, the plaintiff relied upon the analysis of Adamson J in Lancaster v Foxtel Management Pty Limited [2021] NSWSC 745 ('Lancaster') to support the relief sought. In that decision, Adamson J characterised the error to be a deficiency in reasons and procedural unfairness (at [21]). That conclusion was reached because although the Appeal Panel addressed the request for a re-examination, it gave insufficient reasons for the conclusion reached. That is not quite the situation here. (I note that in Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929, Basten AJ observed that a failure "to consider an integral part of the plaintiff's application may well have constituted procedural unfairness": at [7]). 4. The plaintiff also relied upon the decision in Batshon v Sydney Trains [2020] NSWSC 1266. In that case Harrison J considered an error of the kind relied upon in this case – essentially a failure to deal with the request for re-examination of an injured worker – to be a failure of the Appeal Panel to have regard to a mandatory consideration (being the request to be re-examined), and jurisdictional error – "being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred": at [7]. The decisions in Lancaster and Batshon: discussion 1. In light of the plaintiff's reliance upon the decisions in Lancaster and Batshon it is appropriate to refer to those in some more detail. 2. In Lancaster, the injured worker requested "that an AMS on the Appeal Panel ought re-examine [the injured worker] for the purposes of the appeal": at [14]. The Appeal Panel, constituted under s 328 of the WIM Act, conducted a preliminary review and "determined that it was not necessary for the worker to undergo a further medical examination": at [17]. The injured worker challenged this refusal, arguing that legally inadequate reasons had been given by the Appeal Panel for this refusal. The employer conceded that the Appeal Panel had failed to consider the injured worker's request and provide reasons for its refusal. However, given that proceedings involving the exercise of the supervisory jurisdiction of the Court cannot be resolved by consent (Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [7]-[18]; Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44]), Adamson J considered whether the concession was appropriate, and in the course of that analysis – and in concluding the concession was appropriate – said (relevantly) the following (at [20]-[21]): …The Appeal Panel had the power to re-examine the claimant by reason of s 324(1)(c) and s 324(3). The claimant was entitled to request the Appeal Panel to exercise the power and, if he did so, to have the Appeal Panel consider his request and decide whether to grant it. … The reasons need not be detailed… …all that the Appeal Panel did in the present case was to set out its conclusion that no re-examination was warranted. This is not enough to indicate to the claimant either that his application had received due consideration or why the Appeal Panel considered that no examination was warranted. In the circumstances, the cursory fashion with which the Appeal Panel dealt with the claimant's application that he be re-examined amounted to a denial of procedural fairness. This constitutes a jurisdictional error which has the effect that, as the parties agreed, the decision of the Appeal Panel ought be set aside. 1. In subsequent proceedings for judicial review, the injured worker (amongst other grounds) challenged the refusal of a further appeal panel to conduct a re-examination of him, arguing that it "gave inadequate reasons for not re-examining" him: Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929 at [10]. In the course of rejecting that ground of review, Basten AJ made the following observations about medical examinations (at [46]): There is no doubt that the Appeal Panel had the power to invite the plaintiff to attend for a further clinical examination. However, for the reasons already discussed, there was no obligation to do so. Whether or not the power should be exercised turned on a matter of professional judgment. That judgment was properly to be exercised by reference to the materials available to the Appeal Panel in written form, and assessed by them, relying on their professional expertise and experience. 1. His Honour considered that the Appeal Panel's statement and the reasons – in effect that there was "sufficient evidence on which to make a determination" – were sufficient to indicate that the Appeal Panel "addressed the question of whether to re-examine the plaintiff, determined that it did not need to do so, and gave a reason, namely that there was sufficient expert material, together with the plaintiff's own statements, to allow it to determine the appeal": at [49]. 2. The plaintiff also relied upon the decisions in Batshon v Sydney Trains [2020] NSWSC 831 and [2020] NSWSC 1266 and Sydney Trains v Batshon [2021] NSWCA 143 in aid of this ground of review, and it is also useful to make reference to those decisions. In short, the plaintiff submitted that these decisions confirmed that whilst there was no obligation for the Appeal Panel to agree to the plaintiff's request that he be re-examined, there was an obligation to not only consider the request, but to determine it with reasons that are sufficient in the circumstances. 3. In Batshon v Sydney Trains [2020] NSWSC 1266, Harrison J put the matter in the following way (at [5]): In my opinion, the Medical Appeal Panel was obliged to consider Mr Batshon's request. It amounted in the circumstances to a relevant mandatory consideration that the Medical Appeal Panel failed to take into account. The conclusion that it was mandatory follows from the fact that the opportunity to be re-examined by an Approved Medical Specialist who is a member of the Medical Appeal Panel is specifically contemplated by the form that Mr Batshon was required to complete when seeking to appeal from the original decision of the Approved Medical Specialist. That form reflects the procedure for an appeal prescribed by the Work Injury Management and Workers Compensation Act 1998 and the Workers Compensation Guidelines. The inference that Mr Batshon's request was not considered or taken into account arises clearly from the fact that there is no reference to it at all in the Medical Appeal Panel's reasons. It cannot be inferred that consideration was given to the request but that it was refused. Consideration 1. The first defendant submitted that – implicitly – the Appeal Panel had addressed the plaintiff's request for re-examination in substance because it rejected the appeal when it "confirmed" the Medical Assessment Certificate of the medical assessor (Appeal Panel reasons at [60]). In my view, the decisions in Lancaster and Batshon stand against acceptance of this submission. 2. The first defendant next submitted that the position here was analogous to Sydney Trains v Batshon [2021] NSWCA 143 in that sufficient, albeit brief, reasons were given. I do not accept that submission either – particularly where, as here, the first defendant accepted that the reasons of the Appeal Panel make no reference at all to the plaintiff's request to be re-examined. 3. The first defendant also argued that, in substance, the plaintiff did not seek a general 're-examination', but rather a more confined request for a re-examination linked to particular errors identified in the plaintiff's appeal to the Appeal Panel. Accordingly, so the first defendant argued, there was no failure to deal with the plaintiff's request. 4. I do not accept this submission. In my view it is clear that the plaintiff made a general request to be re-examined – that is, a request that was not linked to any particular ground of appeal. This is apparent, in my view, from the Appeal form, page 2, which noted the plaintiff's request that he "be re-examined by a [medical assessor) who is a member of the appeal panel", as well as in the plaintiff's submissions to the Appeal Panel: at [3.2] and [4.3]. 5. Subject to what follows in the next section of these reasons, I would have held that the failure to deal with the plaintiff's request that he be re-examined by the Appeal Panel constituted jurisdictional error – "being a failure to exercise its decision-making power in accordance with the terms on which jurisdiction was conferred" (Batshon v Sydney Trains [2020] NSWSC 1266 at [7]) or a denial of procedural fairness by the Appeal Panel's failure "to consider integral part of the plaintiff's application" (Lancaster v Foxtel Management Pty Limited [2022] NSWSC 929 at [7]). Nevertheless, as I next explain, I consider that I am constrained from reaching that conclusion. The further submissions: no right to re-examination absent error 1. Following the hearing of the matter, each side filed further submissions. 2. The first defendant, in those submissions, drew attention to (and relied upon) a line of authority which established that a further medical assessment cannot occur until the Appeal Panel has determined that there has been an error leading to the need for a further assessment. That line of authority commenced with the decision in NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC 1792 ('NSW Police Force'). In that case, Davies J expressed the limitation in these terms (at [33]): However, if 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. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment. 1. The plaintiff, in further submissions filed on 30 January 2023, argued that, first, the first defendant did not, in the original submissions filed (or at the hearing), raise this issue (but, I add, did not go on to suggest that this Court could not, or should not, consider the submission and the authorities); and, secondly, that there were other decisions that, at least, suggested that there was "some judicial hesitancy" in accepting the correctness of the issue decided by NSW Police Force and that some decisions are "not consistent with the requirement of preliminary error before there can be a further examination". 2. The decision in NSW Police Force, on this issue, has been followed in a number of cases, including: Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 at [52] (Adams J); Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 at [34] (Fagan J); Ziraki v The Australian Islamic House Liverpool Area [2019] NSWSC 1158 at [74] (Harrison AsJ); Coenradi v The GEO Group Australia Pty Ltd [2022] NSWSC 864 at [134] (Rothman J). The correctness of that holding was not questioned in any of them, nor was any "judicial hesitancy" expressed. 3. The only decision where the holding in NSW Police Force was doubted was in Specialist Diagnostic Pty Ltd v Nashi [2020] NSWSC 1791. In that case Schmidt AJ noted, at [93], that the statutory basis for the conclusion reached by Davies J (which differs, I add, to the current form of the WIM Act) was not referred to. Schmidt AJ noted that the decision in NSW Police Force had been followed by other decisions: at [96]. Ultimately, however, Schmidt AJ concluded that the Appeal Panel had found error on the part of the medical assessor; hence the issue did not arise for ultimate determination: at [104] and [110]. 4. The plaintiff also drew attention to the decision in Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802. Although, in that case, Adamson J noted the effect of the decision in NSW Police Force, her Honour was not required to consider the correctness of it: at [55]; see also Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745 at [22]. 5. The plaintiff also pointed out that a number of decisions – both at first instance and on appeal – have not suggested that a re-examination of an injured worker can only take place (when an error-based ground is raised) once an appeal panel has found error. They include the decisions in Lancaster and Batshon. That appears to me to be so. That said, the point in issue does not appear to have been raised in those proceedings for consideration by those Courts, nor determined (or referred to). 6. It is well-established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong: Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52]; Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]. 7. In my view, having regard to the decisions referred to at [125], above and in particular to the fact that they span around 10 years without any doubt expressed about the correctness of the decision in NSW Police Force (and presumably followed during that time in the Commission), I consider that, as a matter of judicial comity, I should follow them. That is particularly because the submissions, although respectfully questioning that decision, did not extend to why the decision was clearly wrong – and the quality of the error or the level of conviction of error that must be perceived before declining to follow an earlier decision: Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 at [283]-[294]. 8. In the circumstances, this holding has the consequence that, no error being demonstrated by the plaintiff in connection with the decision of the Appeal Panel, the occasion for the plaintiff to be re-examined – and the requirement of the Appeal Panel to consider the request made by the plaintiff – had not arisen. Discretion to refuse relief 1. Notwithstanding the conclusions that I have reached, I will, albeit briefly, address whether, as a matter of discretion, it was a case to decline relief: the first defendant submitted that even if error were made out, there "is no clear basis for expecting that any further examination would result in a better outcome" thereby weighing against the granting of relief. As confirmed during submissions, the first defendant submitted that the Court should, as a matter of discretion, decline relief on this ground. 2. The first defendant argued that if the failure to deal with the plaintiff's request to be re-examined gave rise to reviewable error – whether error of law on the face of the record or jurisdictional error – the Court should, exercising its discretion, decline relief because it would be "futile": in effect, the Appeal Panel had comprehensively dealt with the grounds of appeal raised by the plaintiff, and no practical unfairness resulted in the failure to deal with the plaintiff's request to be re-examined. 3. If it were open for me to conclude that error had been demonstrated based on the failure of the Appeal Panel to deal with the plaintiff's request to be re-examined (ground 4), I would not, as a matter of discretion, withhold relief. That is for the following reasons. 4. First, the circumstances where, upon demonstration of jurisdictional error or error of law on the face of the record, relief has been refused are "rare": NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 at [98]-[99] and [103] (Rothman J) ('Ainsworth'). That this is so, reflects a fundamental principle: parties affected by the exercise of administrative power are entitled to have their rights determined in accordance with law: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [56] (Gaudron J); Ainsworth at [99]. The plaintiff, in my view, is entitled to have his claim fully and properly assessed in accordance with law. In Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, it was said that the discretion to refuse relief "is to be exercised against the background of the animating principle" so identified: at [55] (Gaudron and Gummow JJ). 5. Secondly, the critical question is whether "no useful result could ensue" – it thus directs attention to the utility of another hearing and the request to be re-examined as part of it: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; [1949] HCA 33 ('Ozone Theatres'); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [74]. 6. The first defendant's submission might be of some moment if, say, the matter was to be remitted to the same Appeal Panel. However, if relief were otherwise available to the plaintiff, I would not adopt that course: the first defendant did not suggest I should and, further, the plaintiff opposed it (submitting that it was inappropriate to remit it to the same Appeal Panel because there would be a question of pre-judgment). In those circumstances, in my view, it could not be said that the making of an order quashing the decision of the Appeal Panel would be futile. An Appeal Panel (or, indeed, even the same one) would need to undertake a further assessment as to whether it should accede to the plaintiff's request that he be re-examined. Whether it would do so would be a matter for its determination. Orders 1. For the above reasons, I make the following orders: 1. Order that the Amended Summons filed 19 April 2022 be dismissed. 2. Order that the plaintiff pay the first defendant's costs of the proceedings. ********** 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: 03 February 2023