Sydney Trains v Batshon

1. [1]

   LEEMING JA: Sydney Trains seeks leave to appeal to this Court from orders of the Supreme Court made on 17 September 2020 quashing a decision of the Medical Appeal Panel of the Workers Compensation Commission which had confirmed a medical assessment of Mr Samir Batshon, an injured worker, by an Approved Medical Specialist. Leave is required because it has not been shown that the appeal satisfies the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW). Nonetheless there was a concurrent hearing.

2. [2]

   On 1 March 2021, the Workers Compensation Commission was replaced by the Personal Injury Commission. The submitting appearances of the second and third respondents to this appeal have been altered accordingly. However, in what follows, it will be convenient to continue to employ the name the Commission took at the time.

Background

1. [3]

   Prior to 17 December 2015, Mr Batshon was employed by Sydney Trains as a construction manager. It appears that from around late 2013, Mr Batshon raised safety concerns at his workplace, leading to negative reactions from other workers and a belief on the part of Mr Batshon that his managers “wanted to get rid of him”. The Appeal Panel stated that it was uncontroversial that as a result of his employment, Mr Batshon suffered a primary psychiatric injury.

2. [4]

   Mr Batshon consulted his treating psychiatrist, Dr Selwyn Smith, who initially diagnosed him as suffering an adjustment disorder. Dr Smith expressed the opinion that the condition was resistant to treatment, and by 17 May 2018 he diagnosed Mr Batshon as suffering a major depressive disorder. On that date, he assessed Mr Batshon as suffering from 24% whole person impairment.

3. [5]

   Dr Smith’s assessment of Mr Batshon differed significantly from assessments made by two other psychiatrists, Dr Stephen Allnutt and Dr Doron Samuell. Dr Allnutt’s assessment was made on 10 November 2015 at the request of Mr Batshon’s former solicitor, and Dr Samuell’s assessment was provided in a report to Sydney Trains. Dr Allnutt assessed Mr Batshon as suffering 4% whole person impairment; Dr Samuell expressed the opinion that Mr Batshon was not suffering from a psychiatric condition caused by his employment.

4. [6]

   An application to resolve a dispute in the Workers Compensation Commission was registered on 12 February 2019. Mr Batshon stated in his application that he was seeking weekly benefits in the amount of $2,375.50, medical expenses, and compensation for permanent impairment including pain and suffering in the amount of $41,260.00. The latter claim was based on Dr Smith’s assessment of 24% whole person impairment.

5. [7]

   As requested by the parties, the Registrar referred the dispute for assessment to Dr Michael Hong, a psychiatrist, pursuant to s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”).

6. [8]

   Dr Hong issued a Medical Assessment Certificate dated 12 June 2019, which set out details concerning Mr Batshon, the history relating to his injury, findings on physical examination and a summary of his injuries and diagnoses, and concluded with an evaluation of permanent impairment. Dr Hong assessed Mr Batshon as suffering from 8% whole person impairment and stated his psychiatric diagnosis to be “Adjustment disorder with anxiety and depressive symptoms”.

7. [9]

   The consequence is that Mr Batshon cannot obtain compensation for permanent impairment that results from a primary psychological injury, nor can he be awarded “modified common law damages”: Workers Compensation Act 1987 (NSW), ss 65A(3), 151H. It also has other consequences for his entitlement to workers compensation.

8. [10]

   On or around 2 July 2019, Mr Batshon applied to appeal against the decision of Dr Hong pursuant to s 327 of the WIM Act. His grounds of appeal were stated to be that Dr Hong’s assessment was made on the basis of incorrect criteria, and that the Medical Assessment Certificate contained a demonstrable error. Attached to the application form were submissions detailing the grounds of appeal, which contended that the Approved Medical Specialist had fallen into demonstrable error by (a) failing to provide any reasons for preferring a diagnosis of adjustment disorder over major depressive disorder, and (b) failing to specify the diagnostic criteria upon which the diagnosis was based. The complaint fixed upon that part of Dr Hong’s reasoning which stated:

9. [11]

   It was submitted that “as there are consequences which flow from which diagnosis is preferred it is incumbent on the AMS to provide an explanation for preferring the diagnosis of adjustment disorder”.

10. [12]

    The application form also included a request that Mr Batshon be re-examined by an Approved Medical Specialist who was a member of the Medical Appeal Panel. The application form required Mr Batshon to “attach submissions addressing why the Worker should be re-examined by an AMS who is a member of the Appeal Panel” and stated that “[f]ailure to attach submissions may result in the application being rejected”.

11. [13]

    Two pages of submissions were attached, signed by Mr Batshon’s solicitor. The entirety of the submissions in support of the request that Mr Batshon be re-examined were:

12. [14]

    The application form stated that Mr Batshon did not request the opportunity to present oral submissions to the Medical Appeal Panel.

13. [15]

    On 23 July 2019, Sydney Trains served a notice of opposition to Mr Batshon’s appeal, attaching submissions in support.

14. [16]

    By decision dated 8 August 2019 issued pursuant to s 327(4) of the WIM Act, the Delegate of the Registrar of the Workers Compensation Commission referred Mr Batshon’s appeal to a Medical Appeal Panel. The Registrar’s Delegate stated that she was “satisfied that a ground of appeal as specified in section 327(3)(d) is made out on the basis of the AMS’s assessment of permanent impairment”. The decision also noted that the Medical Appeal Panel “may also require the worker to be re-examined by the Appeal Panel”.

15. [17]

    The Medical Appeal Panel was constituted by an arbitrator, Mr Paul Sweeney, and two approved medical specialists, Dr Julian Parmegiani and Dr Douglas Andrews. By decision dated 30 August 2019, the Panel confirmed the certificate issued by Dr Hong. The appeal was heard and determined on the papers.

16. [18]

    In the section of the decision titled “Findings and Reasons”, the Panel stated at [28] that it had “conducted a review of the material before it and reached its own conclusions as to whether there is error in the [Medical Assessment Certificate]”, and went on to deal with the grounds of appeal advanced by Mr Batshon. The dispositive part of the reasoning was as follows:

17. [19]

    The reference to Kocak was to the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55], on the obligation of a Medical Panel under the Victorian statutory regime to give reasons:

18. [20]

    At [18], in the course of summarising the parties’ submissions, the Panel recorded:

19. [21]

    Central to the litigation which has ensued are the two paragraphs of reasoning which appear under the heading “Preliminary Review”, which appear to address Mr Batshon’s request for a re-examination by a member of the Medical Appeal Panel:

20. [22]

    By summons filed on 28 November 2019, Mr Batshon sought orders quashing the decision of the Medical Appeal Panel and remitting the matter for redetermination by a differently constituted Panel. The summons stated 13 grounds of review, several of which the primary judge characterised as appearing to take issue not with the decision of the Panel but rather with the decision of Dr Hong. The matter was heard on 12 June 2020, and on 30 June 2020 the primary judge ordered that the matter be listed for further directions: Batshon v Sydney Trains [2020] NSWSC 831. At [10] of his reasons, his Honour characterised Mr Batshon’s principal concerns as being “[i]n essence” twofold:

21. [23]

    As to the first complaint, his Honour reasoned as follows (at [18]-[19]):

22. [24]

    It is apparent that his Honour’s decision to list the matter for further directions was to ensure procedural fairness would be afforded to Sydney Trains, by enabling them to respond to Mr Batshon’s contention on this point, which had not been included in his summons seeking judicial review.

23. [25]

    A second hearing took place on 29 July 2020, and by orders made on 17 September 2020 (Batshon v Sydney Trains [2020] NSWSC 1266), his Honour granted leave to Mr Batshon to amend his summons by adding an additional ground of appeal as follows:

24. [26]

    His Honour accepted that this ground of review warranted the grant of relief that Mr Batshon sought. His Honour’s dispositive reasoning was as follows:

25. [27]

    His Honour set aside the decision of the Panel and remitted the matter to the Registrar for referral to a new Panel for redetermination according to law.

26. [28]

    The point fastened upon by the primary judge is a simple one, and his Honour’s reasons in his second judgment were a mere eight paragraphs. There is nothing in either judgment to suggest that his Honour was conscious of [9] and [10] of the Panel’s decision explaining the rejection of the application for a further examination.

27. [29]

    The reasons’ concision did not prevent Sydney Trains from articulating nine proposed grounds of appeal. However, those grounds were addressed collectively in Sydney Trains’ written and oral submissions. I shall follow the same course.

Sydney Trains’ appeal: evidence and procedural fairness

1. [30]

   Sydney Trains’ first three proposed grounds complained of the admission of evidence which was irrelevant and otherwise admissible, the treatment of the evidence and a failure to accord Sydney Trains procedural fairness. These grounds were misconceived.

2. [31]

   The question for the primary judge was whether the Panel’s decision disclosed judicially reviewable error. It is possible in such cases for such a proposition to turn on questions of evidence; it is also possible for there to be a live question as to what order should follow the determination. But that was not the present case. At no stage did the primary judge refer to, nor was this Court taken to, the voluminous evidence admitted by his Honour over Sydney Trains’ objection and subject to relevance, which was reproduced in the application books, occupying more than 700 pages. Sydney Trains made no submission that it would have tendered any evidence that it had failed to tender by reason of the alleged breach of procedural fairness. In short, the question that arose before the primary judge, and arises again on this appeal by way of rehearing, is a pure question of law, namely, whether the Panel’s determination disclosed judicially reviewable error.

3. [32]

   Sydney Trains appeared by counsel at two oral hearings before the primary judge, at which Mr Batshon was unrepresented. It complains that at a directions hearing between the first and second judgment, it wanted the matter to be listed for further argument on whether Mr Batshon should be granted leave to amend his summons. It says that had that occurred, it would “at the very least” have drawn his Honour’s attention to Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175. There is no evidence of what would have occurred, and Sydney Trains makes no other submission as to what it would have done had there not been, so it was said, a denial of procedural fairness.

4. [33]

   It is regrettable that Sydney Trains, responding to a claim by an unrepresented litigant, did not refer his Honour to [9] and [10] of the Panel’s reasons, or to Bojko. The course adopted by the primary judge was transparent. His Honour flagged the point in his first judgment, and arranged for a directions hearing a month later at which it could be heard. It is difficult to see how his Honour’s intention could have been misunderstood; he wrote at [19]-[20] of his first judgment:

5. [34]

   There is no explanation for why Sydney Trains failed to make the submissions it says it was denied the opportunity of making at that directions hearing. This is an unpropitious basis for a claim that his Honour’s second judgment should be set aside for want of procedural fairness.

6. [35]

   But even if there were a denial of procedural fairness, Sydney Trains’ appeal to this Court is by way of rehearing, and it can make and has made the same submissions here. As has repeatedly been said in this Court, attention needs to be given, when a complaint is advanced that there has been a denial of procedural fairness, to whether any such denial is material, given the parties’ rights of appeal. If the complaint concerning an absence of procedural fairness can be rectified on an appeal which is by way of rehearing, then it is unlikely to be material. See for recent examples Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 at [55] and Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248 at [139] and [176].

7. [36]

   Another way of putting this is that if this Court accepted there had been a denial of procedural fairness, it would only set aside the judgment and remit the proceeding to the Common Law Division if this Court were unable to resolve the substance of the complaint.

8. [37]

   For those reasons, these proposed grounds are entirely arid. Either the Panel’s determination is attended by reviewable error or it is not. If it was, and the primary judge reached the correct conclusion although in a manner which was procedurally unfair, then there would be no occasion for the grant of leave. Alternatively, if the Panel’s determination did not disclose reviewable error, then this Court would intervene irrespective of whether that result had been reached in a way which was procedurally unfair. There is no substance in the grounds concerning the admission and treatment of evidence. I would not grant leave to appeal on proposed grounds 1-3.

The substantive point of Sydney Trains’ appeal

1. [38]

   Central to proposed grounds 4-8 was Sydney Trains’ contention that the primary judge was simply incorrect to state that the Panel did not consider Mr Batshon’s request for re-examination. Proposed ground 9 was conclusionary.

2. [39]

   The primary judge was wrong to conclude that no attention whatsoever had been given by the Panel to Mr Batshon’s request for re-examination. His request was noted by the Panel in terms at [18], and was the subject of the determination as part of the Panel’s preliminary review at [9]-[10]. It follows that material error is disclosed in the reasons of the primary judge. There is not a “total absence of any reference to Mr Batshon’s request”, and there is no basis for the inference that the Panel did not consider his request.

3. [40]

   In this Court, argument proceeded as to whether the Panel’s reasons for rejecting Mr Batshon’s request were adequate. The authorities in this area must be treated with care, because there is a significant difference between medical assessment pursuant to the motor accidents legislation and medical assessment pursuant to the workers compensation legislation.

4. [41]

   Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect”, but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).

5. [42]

   Under the WIM Act, the grounds for appeal are confined to those stated in s 327(3), including relevantly for present purposes “(c) the assessment was made on the basis of incorrect criteria” and “(d) the medical assessment certificate contains a demonstrable error”.

6. [43]

   There is discussion of “demonstrable error” in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]-[87]. The term has given rise to a deal of authority, much of which is summarised in that passage. The error must be “contained” in the certificate, which is to say “the error must be apparent in the certificate of the approved medical specialist”: Vannini at [78]. While it is sufficient that the error be “readily apparent from an examination of the medical assessment certificate” (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39]), that is not a necessary condition. While it is not defined, the error “must 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].

7. [44]

   For present purposes, it is not necessary to express a definitive view as to the metes and bounds of “demonstrable error”. Enough has been said, however, to make it plain why the submissions provided by Mr Batshon’s solicitor took the form that they did.

8. [45]

   Mr Batshon’s submissions to the Panel identified two grounds, one based on “demonstrable error”, the other based on the assessment being made on the basis of incorrect criteria. The second ground may be put to one side; no party sought to rely upon that ground as a basis for the request for re-examination.

9. [46]

   As noted above, in paragraph 1.4, it was submitted that

10. [47]

    Those submissions reflected the need to identify demonstrable error, namely, something capable of demonstration flowing at least in part from the face of the certificate. It is clear that a request for re-examination merely on the basis that the AMS reached the wrong diagnosis would fall short of establishing “demonstrable error”. Conversely, whether there had been failure as alleged to provide any reasons for preferring adjustment disorder over major depressive disorder, and whether the AMS had failed to specify the diagnostic criteria on which the diagnosis was based, were matters which would not require the re-examination of Mr Batshon.

11. [48]

    The significance of the foregoing is that in order to assess the adequacy of the Panel’s reasons, it is necessary to understand what the Panel had been asked to determine. 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, as was confirmed in Re Knezevic; Ex parte Carter [2005] WASCA 139 at [32]. The application before the Panel was circumscribed by the limitations in s 327(3), and the review was governed by s 328(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.”

12. [49]

    Thus, in contrast with a review under the motor accidents compensation regimes, the present review was limited to the grounds of appeal on which the appeal had been made.

13. [50]

    This explains what might, at first blush, seem to be an apparent paradox in the approach taken by the Panel: how could it conclude that there had been no error in the assessment of Mr Batshon’s claimed psychiatric injury without a re-examination of him? The answer is that the appeal was confined (relevantly) to a case of demonstrable error, the demonstrable errors alleged could be resolved on the face of the reasons of the AMS, and the appellant only requested that he be re-examined in the event that the Panel concluded that his impairment had been assessed on the basis of an incorrect diagnosis.

14. [51]

    The Panel gave full reasons for concluding that none of the grounds had been made out. Although in a sense it may seem artificial for the “preliminary” review as to whether there should be a re-examination to be affected by the outcome of the assessment of those grounds, in truth it resembles the ordinary approach of courts, including this Court in this very case – for the conclusion that there should be a grant of leave to Sydney Trains is one that is very materially informed by my ultimate conclusion that this ground is made out, there being no point of principle or general importance in the case.

15. [52]

    In Bojko v ICM Property Service Pty Ltd, there was as there is here an appeal based on a complaint that there had been error in declining to conduct a further medical examination by a Panel constituted under the WIM Act. The entirety of the reasons of the Appeal Panel are reproduced at [7]. They were as follows:

16. [53]

    This Court noted that it would be helpful if in the future Panels would make it clearer that they had considered and dealt with the whole case before them. It was observed at [37] that this would “reduce the challenges on judicial review and remove any perception by the unsuccessful party that the case has not been properly considered”. Nonetheless, no error was made out in that case. The reasons given by the Appeal Panel for refusing Mr Batshon’s application for re-examination likewise sufficiently explain why, given the nature of his appeal, it was unnecessary to do so.

17. [54]

    Contrary to the reasons of the primary judge, Mr Batshon’s application for re-examination was mentioned and was attended to by the Panel. Contrary to the submissions made on Mr Batshon’s behalf in this Court, the reasons were adequate.

Mr Batshon’s notice of contention

1. [55]

   At the conclusion of the hearing in this Court, Mr Hooke responded to the steps which might follow in the event that the conclusions outlined above – which were clearly flagged during the hearing – were reached. The course taken by the primary judge did not resolve the other 13 grounds relied upon by Mr Batshon at first instance. While there was some overlap between those grounds and the submissions advanced on appeal, there was no proposed notice of contention. Mr Batshon’s preferred position was that, in that eventuality, the proceedings should be remitted to the Common Law Division for determination of the remaining points. But the issues are pure questions of law, and this Court is presently seized of the matter, and would only remit the proceedings to the Common Law Division if it were necessary to do so in order to prevent some substantial wrong or miscarriage: UCPR r 51.53. A preferable course, and one that accords with s 56 of the Civil Procedure Act 2005 (NSW), is for Mr Batshon to be given leave to rely upon a notice of contention and supporting submissions, even though the time to do so prescribed by the Rules has long since expired. Although that created the burden of written submissions after the appeal, it is a course which is apt to be faster, and cheaper, than remitter.

2. [56]

   Accordingly, a timetable was made at the conclusion of the hearing for the parties to exchange written submissions in relation to a notice of contention. The timetable was extended by consent due to the illness of counsel. Mr Batshon supplied a notice of contention and supporting submissions on 6 May 2021, to which Sydney Trains responded on 20 May 2021, and Mr Batshon replied on 3 June 2021. The Court subsequently received a further reference from Sydney Trains to Kitanoski v JB Metropolitan Distributors Pty Ltd [2019] NSWSC 1802 and a note from Mr Batshon in response, correctly submitting that it was irrelevant, and (on 1 July 2021) a reference to Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745, in which the employer conceded that the “reasons” given for refusing a request for re-examination were inadequate. There were in fact no reasons in that case, save for the conclusion that the request was refused; they lacked the admittedly brief explanation given in [10] of the Panel’s decision in this case.

3. [57]

   Mr Batshon’s notice of contention seeks to defend the orders made at first instance on four bases:

4. [58]

   The first two contentions were addressed collectively in paragraphs 2-12 of Mr Batshon’s further submissions. Those submissions emphasised the significance of a correct diagnosis, and the consequences for Mr Batshon’s entitlements, and in particular cll 11.3, 11.4 and 11.6 of the Permanent Injury Guidelines. Clause 11.4 provided:

5. [59]

   Mr Batshon contended that Dr Hong did not appear to reach a conclusion as to diagnosis, instead writing:

6. [60]

   The balance of Mr Batshon’s submissions on these grounds was:

7. [61]

   The question before the primary judge was not whether Dr Hong had erred in some way. It was whether there was judicially reviewable error by the Panel. The only submission made by Mr Batshon under these grounds of his notice of contention is paragraph 12 above.

8. [62]

   The Panel addressed the substance of this point at [34] of its reasons:

9. [63]

   Contrary to the first sentence in paragraph 12 of Mr Batshon’s submissions, that reasoning does not disclose jurisdictional error. The Panel attended to the submission and resolved it. Contrary to the second sentence in paragraph 12, which was supported by references to Rutland Allianz Australia Insurance [2014] NSWSC 1583 at [70] and Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 at [33], the Panel did not fail to consider Mr Batshon’s request to re-examine him, and it was able to determine the appeal which Mr Batshon had brought because that appeal was confined to demonstrable error. Unlike the Rutland litigation which concerned assessment under the motor accidents legislation, Mr Batshon’s rights of appeal were confined as has been summarised above.

10. [64]

    In his submissions in reply on the first contention, Mr Batshon maintained that “the adoption of one (less serious) diagnosis that is ‘equally valid’ with another (more serious) diagnosis, even if described as a differential diagnosis, fails to provide ‘a psychiatric diagnosis’ within the meaning of cl 11.4 of the PI Guidelines”. He said that it is no answer to say that diagnoses may not be capable of a rigid classification, that the legislation requires a diagnosis on the balance of probabilities, that Dr Hong failed to do this, and the Panel erred in the same way. He concluded that “[j]ust as courts must reduce uncertainties to certainties in determining [a] dispute, so must AMSs and MAPs in the discharge of their respective jurisdictions”.

11. [65]

    Those submissions treat the proceedings before the primary judge as if they were an appeal by way of rehearing from the Panel (or indeed, from Dr Hong). But the only question was whether there was judicially reviewable error in the Panel’s determination. Mere error of fact is insufficient. Revealingly, the submissions are not couched in terms of jurisdictional error or error of law. I am unpersuaded that any such error has been made out.

12. [66]

    Mr Batshon’s submissions in reply on the second ground of contention invoked its terms for the first time. It was submitted that despite the differences between the two legislative schemes, the manner of assessment of whole person impairment for psychiatric injury under both schemes is the same, and that the characteristics of psychiatric injury, and the assessment of its consequences, are universal. It was submitted that the significance of a correct diagnosis was clear from Dr Smith’s report:

13. [67]

    It was submitted that it was difficult to see how the “inversion” of the matters that the Panel had to determine was not material, and that “to the extent that the MAP considered the application for the request [for] re-examination at all, it did so after determining the appeal”, which could not be correct. Finally, it pointed to the observation in Bojko at [37] that fuller reasons should be given.

14. [68]

    I do not accept these submissions. It is far from clear that an error in diagnosis in the present case influenced the assessment of whole person impairment, having regard to the approach to be followed (which is summarised in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [20]-[24]). More importantly, even if the Panel were wrong in determining that any error in diagnosis had not influenced the assessment of whole person impairment, that is not an error of law, still less jurisdictional error. It is at best an error of fact. The other matters of which Mr Batshon complains are the way in which his request for re-examination was addressed and the quality of the Panel’s reasons; these have already been addressed above in resolving the principal grounds of appeal.

15. [69]

    Sydney Trains contended that contentions 3 and 4 “were not raised in the Application to Appeal against decision of Approved Medical Specialist and therefore could not be dealt with by the MAP: section 328(2) of the WIM Act”, and “were also not pleaded in the Summons filed on 28 November 2019 and cannot now be the basis of a Notice of Contention before the Court of Appeal”. The second half of that submission is incorrect. This appeal is by way of rehearing and an appellant can succeed on a point not taken at first instance; the circumstances in which that can occur were described in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 as “well established”. However, the first half is correct. There is no judicially reviewable error by a Panel in not addressing a point not raised in an appeal to it, and s 328(2) provides that 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. Mr Batshon made no submission in response to Sydney Trains’ threshold answer to these grounds.

16. [70]

    Turning in any event to their substance, Mr Batshon’s submissions in chief and in reply dealt with both grounds together. Once again, those submissions were principally directed at Dr Hong’s certificate, rather than the Panel’s determination. In relation to the ground based on regard to an irrelevant consideration, none of Mr Batshon’s submissions attended to the requirement to identify some express or implied limitation on the considerations to which the decision-maker can have regard; cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40.

Orders

1. [71]

   For the reasons given above, the notice of contention cannot sustain the order made at first instance, and the appeal must be allowed and the orders made at first instance set aside, leaving in place the Panel’s decision.

2. [72]

   Sydney Trains has succeeded in its appeal. The starting point is for costs to follow that event. However, there is reason to depart from that starting point. Some of Sydney Trains’ proposed grounds were hopeless. Although he tendered them at first instance at a time when he was not represented, I do not see why Mr Batshon should have to bear any part of the costs of photocopying thousands of pages which had no bearing on any part of the appeal. The White Folder is only to contain documents necessary to dispose of the application: UCPR r 51.12(2)(e). Most fundamentally, the occasion for this appeal was that the primary judge was mistaken about the contents of the Panel’s determination, when he said in his first judgment “there is no indication in the Medical Appeal Panel’s 30 August 2019 Statement of Reasons for Decision either why it did not examine Mr Batshon despite his request or, perhaps more significantly, whether his request to be examined was even considered.” The primary judge gave an opportunity to Sydney Trains to be heard as to that, and had the error been pointed out on that occasion, the entire appeal may have been unnecessary. I am not unconscious of the unsuccessful attempts by counsel now appearing for Mr Batshon to defend the judgment, but even so my present view, which is necessarily a preliminary one, is that costs should not follow the event, but rather that there should be no order as to costs, with the intention that the parties bear their own costs. If either side wishes to be heard as to costs, application may be made within the time limited by UCPR r 36.16.

3. [73]

   I propose these orders:

4. [74]

   WHITE JA: I agree with Leeming JA.

5. [75]

   McCALLUM JA: I agree with Leeming JA.