Sleiman v Gadalla Pty Ltd

1. [1]

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

2. [2]

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

3. [3]

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

Factual background

1. [4]

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

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

6. [9]

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

7. [10]

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

8. [11]

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

9. [12]

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

10. [13]

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

11. [14]

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

Statutory framework

1. [15]

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

2. [16]

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

3. [17]

   Finally, s 151H of the 1987 Act reads:

4. [18]

   The 1998 Act concerns the resolution of workplace injury disputes.

5. [19]

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

6. [20]

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

7. [21]

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

8. [22]

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

9. [23]

   Section 288 of the 1998 Act reads:

10. [24]

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

11. [25]

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

12. [26]

    Section 294 of the 1998 Act reads:

13. [27]

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

14. [28]

    Sections 313 and 314 of the 1998 Act state:

15. [29]

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

16. [30]

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

17. [31]

    Section 350 concerns decisions of the Commission. It reads:

18. [32]

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

19. [33]

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

The Delegate’s decision

1. [34]

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

2. [35]

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

Grounds of judicial review

1. [36]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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

2. [37]

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

3. [38]

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

4. [39]

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

5. [40]

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

6. [41]

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

7. [42]

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

8. [43]

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

9. [44]

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

10. [45]

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

11. [46]

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

12. [47]

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

13. [48]

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

14. [49]

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

15. [50]

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

16. [51]

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

17. [52]

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

18. [53]

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

19. [54]

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

20. [55]

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

21. [56]

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

22. [57]

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

23. [58]

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

24. [59]

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

25. [60]

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

26. [61]

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

27. [62]

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

28. [63]

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

29. [64]

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

30. [65]

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

31. [66]

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

32. [67]

    The plaintiff submitted that the denial of procedural fairness, going as it did to a matter that was outside his jurisdiction, was a matter of jurisdictional error. A denial of procedural fairness is jurisdictional error in any event because it deprived the plaintiff of a determination of his application to appeal in accordance with the rules of procedural fairness, according to law, and within jurisdiction, which was at least an error of law on the face of the record: see Jones v National Coal Board [1957] 2 QB 55 at 67; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. Either way, the Delegate’s decision should be set aside.

33. [68]

    The defendant submitted that there is no principle requiring the Delegate to draw to the plaintiff’s attention, or afford him an opportunity to answer, a legal point that was obvious.

34. [69]

    The requirements of procedural fairness only require identification of “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”, or of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”: see, respectively, Alphaone Pty Ltd at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”); see also Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 (“Martinovic”) at [86]-[93] and [100]-[101].

35. [70]

    The defendant submitted that none of the authorities cited in the plaintiff’s submissions support the proposition he advances. The passage from Kioa concerned the ability to respond to information. Five members of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”); [2005] HCA 72 subsequently described Brennan J’s judgment in that same case at [15] as a:

36. [71]

    The defendant further submitted that the paragraph from Aala at [17] on which the plaintiff relies is general in nature and provides no directed support for the proposition advanced. The comments in Alphaone at 590 were made in the context of considering a failure to disclose evidence. Similarly, the paragraph in SZSSJ at [83] on which the plaintiff relies concerns an inquiry underway:

37. [72]

    The defendant submitted that it does not alter the clear principle that there is no requirement to put parties on notice of an issue which is apparent from the statutory power itself. As such, the defendant submitted that there was no failure to afford procedural fairness.

38. [73]

    There are two issues raised by this ground. The first is whether in fact there were submissions made to the Delegate which raised the issue of jurisdiction. At the hearing of these proceedings, counsel for the defendant noted that the plaintiff made the following submissions as part of its application to the Delegate (CB 530):

39. [74]

    Although these submissions do not address every aspect of the Delegate’s reasoning in relation to jurisdiction, they advance the argument on which the plaintiff claimed to have a basis for his appeal, which the Delegate considered to be “misguided”. This was that the Appeal Panel’s certificate was the only certificate for the purpose of s 327 of the 1998 Act, such that an appeal lies from it even though it was from the Appeal Panel and not an AMS. It is therefore not, in my view, fair to say that the Delegate decided the plaintiff’s application on a basis not raised by the parties, as his decision arose in part from the plaintiff’s submissions on this point.

40. [75]

    The second issue is whether a failure to give the plaintiff notice or afford him an opportunity to respond to these issues constituted a denial of procedural fairness. As set out in the defendant’s submissions, a decision maker is required to identify to the parties critical issues which are not apparent from the nature of the decision or the terms of the statute, or which those which are not “obviously…open on the known material”: Alphaone at 591-592; SZBEL; Martinovic at [86]-[93] and [100]-[101]. A decision maker does not fail to afford procedural fairness by refusing to consider an application from a party who has no entitlement to make it, when the question of that entitlement arose obviously from the terms of the statute under which the application was made. As such, the Delegate did not fail to afford procedural fairness by failing to raise the issue of jurisdiction with the parties. Ground 2 fails.

41. [76]

    The plaintiff submitted that the Delegate further erred in his construction of the relevant statutory provisions.

42. [77]

    Section 327 of the 1998 Act confers the right to appeal “against a medical assessment”. Under s 4 of the 1998 Act, a medical assessment is defined as an assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7. The Delegate approached the question of construing s 327 on the footing that an appeal only lies from a medical assessment of a single approved medical specialist, and not where a medical assessment exists following the determination of an appeal by an appeal panel under s 328 on one or both of the grounds in s 327(3)(a) or (b).

43. [78]

    The plaintiff submitted that the Delegate’s construction is wrong for two reasons. Firstly, there is only ever one “medical assessment” in existence, and it is the subject of the MAC which prevails at the time pursuant to s 326(1), informed by s 328(5) of the 1998 Act. As it is a “medical assessment” that is the subject of an appeal under s 327(1), the plaintiff submitted that it does not matter who issued the medical assessment certificate, or whether it was issued pursuant to s 325(1) or s 328(5).

44. [79]

    On this point, the plaintiff argued that it is significant that neither s 328 nor any other provision of the 1998 Act describes a MAC issued pursuant to s 328(5) as being the MAC of an appeal panel. Rather, s 328 distinguishes between a decision of an appeal panel and any action that an appeal panel may take in relation to the MAC. It could hardly be the case that a MAC “confirm[ed]” by an appeal panel would thereby become a MAC of the medical appeal panel. The plaintiff submitted that any “medical assessment” is amenable to appeal pursuant to s 327(1) of the 1998 Act. There is nothing in s 327 that limits the number of appeals that may be brought against a medical assessment. The Delegate accepted this contention at [11] of his reasons, subject to abuse of process, although the plaintiff submitted that that would be a matter for an appeal panel to consider, rather than the Delegate exercising the limited power under s 327(4). The plaintiff says there is nothing in ss 325 or 326 that gives any different quality, character or status to a MAC based on whether it was issued by an AMS or an appeal panel.

45. [80]

    Secondly, the plaintiff submitted that once it is accepted, as it must be, that a MAC issued pursuant to s 328(5) is subject to the application of s 326, it has the same status as a MAC issued by an AMS. The term “medical assessment certificate” is defined in s 325(1) by reference to it being issued under the hand of an AMS. It follows logically that whether a medical assessment is certified in a MAC issued pursuant to s 325(1) or s 328(5), it is by definition taken to be issued under the hand of the AMS who originally conducted the medical assessment. That path of reasoning is consistent with the definition of “medical assessment certificate” and s 325(1), and with the terms of s 328(5), which empowers an appeal panel to take steps in relation to “the certificate of assessment given in connection with the medical assessment appealed against”, again distinguishing between the medical assessment and the MAC. The plaintiff submitted that the MAC brought into existence by the exercise of power under s 328(5) might be said to become the MAC of the AMS within the meaning of s 325(1). On any view, the MAC is merely the instrument by which the appealable medical assessment is recorded.

46. [81]

    The plaintiff submitted that properly understood, the statutory scheme provides that any medical assessment of a matter that is certified in a MAC under Part 7 of Chapter 7, in respect of which the MAC is conclusively presumed to be correct, is appealable under s 327(1).

47. [82]

    The plaintiff further submitted that the construction favoured by the Delegate is unjust and leads to arbitrary and capricious results that are inconsistent with the legislative intention of s 327. This is because an appeal relying on the ground in s 327(3)(a) will necessarily not arise until some substantial time after the medical assessment appealed from. Even in this case, where the period between the decision of the Appeal Panel in June 2017 and the application to appeal filed in August 2019 was a relevantly short two years, it was substantially greater than the timelines imposed in relation to appeals involving error and the giving of effect to medical assessments by the issuing of a certificate of determination.

48. [83]

    Similarly, an appeal relying on the ground provided by s 327(3)(b) would also ordinarily arise some substantial period after the medical assessment appealed from. If the receipt of additional relevant information were contemplated while a medical assessment was pending, the party expecting to receive the information would seek to have the assessment deferred until the information was available.

49. [84]

    However, an altogether different situation applies in relation to an appeal involving error on the grounds provided for in s 327(3)(c) and (d). Such a ground would be expected to be apparent from a consideration of the MAC, informed by the conduct of the medical dispute to which the putative appellant and putative respondent were party. For that reason, s 327(5) requires that an appeal on either of those grounds must be made within 28 days after the medical assessment appealed against, subject to the Delegate being satisfied that special circumstances justify an extension of time. Unsurprisingly, there is no such time limit for an appeal relying on the grounds in s 327(a) and (b).

50. [85]

    The plaintiff also noted that if the Delegate’s construction of s 327 were correct, any worker whose degree of permanent impairment had been the subject of a medical assessment that was made on the basis of incorrect criteria, or that contained a demonstrable error, would be deprived of any capacity to exercise the right of appeal conferred in the case of later deterioration of his or her condition, or to have brought to account additional relevant information. In other words, an erroneous medical assessment by an AMS would have the effect of depriving the worker of the beneficial right of appeal conferred by s 327(3)(a), and would deprive either party of the benefit of the remedial appeal conferred by s 327(3)(b). On the other hand, a worker whose initial medical assessment was not conducted erroneously would retain the benefit of those provisions. Such a result would be arbitrary, capricious, inconsistent with the rights conferred by s 327(3)(a) and (b) and the legislative intention behind them, and plainly unjust.

51. [86]

    The defendant submitted that in circumstances where, as here, the Appeal Panel revokes one certificate and issues a second pursuant to s 328(5) of the 1998 Act, the new certificate stands as the authoritative statement of a worker’s degree of permanent impairment. As Brereton JA recently noted in Hochbaum v RSM Building Services Pty Ltd [2010] NSWCA 113 at [57], this is typical of appeals:

52. [87]

    The defendant submitted that the new certificate is not, however, in all respects the same as the first certificate, because it is the product of an appeal. The difference is reflected in the legislation. For example, s 328(5) of the 1998 Act provides:

53. [88]

    The defendant submitted that it is necessary for s 328(5) of the 1998 Act to provide for the application of s 326, concerning the status of “medical assessments”, to a new certificate issued by an appeal panel, because the new certificate is not a “medical assessment” within the meaning of that term. Section 4 of the 1998 Act defines a “medical assessment” as an “assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7”.

54. [89]

    In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (“Vitaz”), the Court of Appeal (Basten JA, with whom McColl JA and Handley AJA agreed) concluded at [20] that: “…a challenge by way of judicial review to the decision of a specialist is incompetent where there has been an appeal to an Appeal Panel.” The defendant submitted that this was immaterial in Ballas, in which the Court of Appeal recently considered the status of certificates issued after consideration by an appeal panel. This is because the worker in Ballas had not received an appeal from her initial AMS assessment due to what was later found to have been jurisdictional error on the part of the Delegate ([113]).

55. [90]

    The defendant submitted that the plaintiff’s submission that the Delegate determined that no appeal lay against the medical assessment contained in the MAC issued by the Appeal Panel because it was not issued by an approved medical specialist is mistaken. This is because the defendant says that the MAC issued by the Appeal Panel was not a “medical assessment”.

56. [91]

    The defendant further submitted that the plaintiff’s submission that the Delegate’s interpretation of the statute is arbitrary or capricious does not assist the plaintiff’s case. Where the language of a statute is clear and unambiguous, as in this instance, it is not the role of the Court to disturb it. It is the clear objective intention of the statute to limit the number of times a person may appeal a decision. On the plaintiff’s interpretation, any revised certificate would become a “medical assessment” subsequent to appeal. There would be nothing to limit numerous subsequent appeals. Further, the Commission maintains a discretion in s 350(3) of the 1998 Act to reconsider a matter that has been dealt with. To the extent that the injustice of which the plaintiff complains is relevant to the exercise of statutory interpretation, the defendant submitted that s 350(3) of the 1998 Act provides a safeguard.

57. [92]

    It is the plaintiff’s case that the statutory scheme provides that any medical assessment of a matter certified in a MAC under Part 7 of Chapter 7 of the 1998 Act, in respect of which the MAC is conclusively presumed to be correct, is appealable under s 327(1). The plaintiff says that this includes the decision of the Appeal Panel.

58. [93]

    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 153 ALR 490, the plurality described the process of statutory construction as follows:

59. [94]

    As such, in interpreting the operation of s 327 of the 1998 Act and the apparent conflict that appears to arise from those provisions, I am to give them the meaning which best achieves the result which will give effect to their purpose and language, while maintaining the unity of all provisions.

60. [95]

    I have set out the relevant statutory provisions earlier in this judgment. Section 327(1) relevantly permits a party to a medical dispute to appeal against a medical assessment under Part 7, but only in respect of a matter that is appealable under that section. Section 327(2) states that a matter is appealable under that section “if it is a matter to which the assessment of an approved medical specialist certified in a medical assessment certificate under Part 7 is conclusively presumed to be correct”. Those matters are set out in s 326(1). Section 328(5) of the 1998 Act states that s 326 applies to the certificate of an appeal panel.

61. [96]

    As to what constitutes a “medical assessment”, s 4 of the 1998 Act defines a medical assessment as an “assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7.” On the plaintiff’s application before the Registrar, he named a member of the Appeal Panel as the AMS whose assessment he sought to appeal. However, in submissions to this Court, it is the plaintiff’s case that it does not matter which AMS issued the medical assessment certificate appealed from, as there is only ever one medical assessment in existence.

62. [97]

    In my view, this construction of the statute is unworkable. The operation of ss 4 and 326 to 328 of the 1998 Act does not permit the certificate of an appeal panel to be considered a “medical assessment” as defined under the Act. As the defendant has submitted, s 328(5) provides that an appeal panel may revoke the certificate appealed against and issue a new certificate. The provision in s 328(5) for the application of s 326, which concerns the status of “medical assessments”, to such a certificate indicates the difference between the appeal panel’s certificate and the medical assessment of an AMS under Part 7 of Chapter 7.

63. [98]

    This reading is consistent with Part 7 of Chapter 7 more broadly. In s 324(3), and “approved medical specialist who is a member of the Appeal Panel” is differentiated from “an approved medical specialist under this section on an assessment of a medical dispute”.

64. [99]

    Section 328(1) also states that an appeal against a medical assessment is to be heard by an appeal panel constituted by two approved medical specialists and one Arbitrator. As the Delegate noted in his decision, a person seeking to appeal from the decision of an appeal panel as a “medical assessment”, which is defined as “the assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7”, would need to select an AMS from the appeal panel’s members from which to appeal. This interpretation is incongruent with s 328(6), under which the decision of the majority of the members of an appeal panel constitutes its singular decision.

65. [100]

    I acknowledge that the effect of the operation of Part 7 of Chapter 7 of the 1998 Act in this case is that an initial error on the part of the AMS has prevented the plaintiff from availing himself of the statutory appeals process he would not otherwise have exhausted. However, the legislation provides avenues for the reconsideration of the decisions of the Registrar and appeal panels outside of an appeal under s 327. Section 378(1) of the 1998 Act states that the Registrar or an appeal panel may reconsider any matter that has been dealt with by the Registrar or an appeal panel, respectively, and rescind, alter or amend the previous decision. The section does not provide a time limit on an application for reconsideration. If, as in this case, a certificate of determination has already been issued, then the plaintiff has statutory recourse under s 350 of the 1998 Act, which provides that the Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision it has previously made or given: see Martinovic at [18], [91].

66. [101]

    For these reasons, it is my view that the natural meaning of Part 7 of Chapter 7 of the 1998 Act, understood as a whole and in context, indicates that no appeal lies under s 327 from the certificate of the Appeal Panel to another appeal panel. Ground 4(b) fails.

67. [102]

    The plaintiff further submitted that a worker’s entry into a complying agreement under s 66A of the 1987 Act, or the Commission issuing a certificate of determination under s 294 of the 1998 Act (as occurred in this case), provide no barrier to an appeal on either of the grounds found in s 327(3)(a) or (b) for the following reasons.

68. [103]

    To begin with, once a medical assessment has been certified and any appeal on a ground referred to in s 327(3)(c) or (d) has been decided, or the time for such an appeal has expired, it is the duty of the Commission to issue a certificate of determination as soon as practicable under s 294(1), which, in practice, is generally after 28 days, as per the Commission’s Practice Direction number 11 for permanent impairment disputes. The plaintiff submitted that although s 350(1) of the 1998 Act provides that a decision of the Commission is final and binding, and is not subject to appeal or review, that is not entirely the case. First, the decision reflected by the certificate of determination is subject to appeal pursuant to ss 352 and 353 of the 1998 Act. Secondly, s 350(3) permits the Commission to reconsider any matter with which it has dealt, and rescind, alter or amend any decision previously made or given. Thirdly, decisions of the Commission are ultimately subject to judicial review by this Court for jurisdictional error pursuant to s 69 of the Supreme Court Act.

69. [104]

    Furthermore, the plaintiff again submitted that the grounds of appeal under s 327(3)(a) and (b) must be understood differently to the grounds of appeal under s 327(3)(c) and (d). Inevitably, a ground of appeal under para (a) or (b) would only arise after the Commission had issued a certificate of determination pursuant to s 294(1). The plaintiff submitted that the Delegate’s construction of the provisions would have the result that no person could ever exercise the right of appeal on the grounds under para (a) or (b).

70. [105]

    As such, the defendant submitted that s 327(7) should be read down so as to apply only to appeals on the grounds in s 327(3)(c) and (d). This construction is consistent with legislative intention reflected in s 327(5), and with the beneficial and remedial objectives inherent in s 327(3) (a) and (b).

71. [106]

    The defendant submitted that the plaintiff’s submissions on this ground of review to not alter the position set out in s 327(7) of the 1998 Act. Section 352 of the 1998 Act provides for an appeal about a figure of compensation from a presidential member to an arbitrator; s 353 provides for an appeal from a decision of a presidential member to the Court of Appeal; and s 350(3) simply affords the Commission a discretion. None of these sections disturbs the operation of s 327(7). As argued in relation to ground 4(a), the defendant submitted that the plaintiff’s interpretation of s 327(3)(a) and (b) is not a proper reading of the wording of those sections, and there is no basis for reading down s 327(7) of the 1998 Act.

72. [107]

    Section 294 of the 1998 Act states that as soon as practicable after the Commission determines a dispute, it must issue the parties with a certificate as to its determination.

73. [108]

    Section 327(7) of the 1998 Act provides:

74. [109]

    Section 350 further states that “[e]xcept as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.”

75. [110]

    The plaintiff contends that the fact that the Commission has issued a certificate of determination in relation to a medical dispute should not shut out the possibility of an appeal brought on the bases in s 327(3)(a) or (b) of the 1998 Act. This is because, as in relation to ground 4(a), such a construction of the legislation would functionally bar a person from bringing an appeal under s 327(3)(a) or (b), as the deterioration of a worker’s condition, or the availability of additional relevant information, do not generally arise within 28 days of a determination. This is reflected in s 327(5) in the differentiation of these grounds from those in s 327(3)(c) and (d), in respect of which an appeal must be made within 28 days after the medical assessment appealed against, as the basis upon which an appeal is brought on those grounds is apparent on the face of the decision.

76. [111]

    In construing the provisions under the 1987 and 1998 Acts, both parties referred to ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; (2014) 308 ALR 213 (“Goudappel”), where the High Court (per French CJ, Crennan , Kiefel , and Keane JJ) considered the “remedial character” of the 1987 Act at [29] as follows:

77. [112]

    In considering s 66 of the 1987 Act, the High Court in Goudappel held that the purpose of the provision “was patently not beneficial”.

78. [113]

    In Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (per Gleeson JA, Beazley ACJ and Emmett JA agreeing) at [120]-[121], the High Court considered Goudappel and confirmed that the scheme under the 1987 and 1998 Acts had been amended to disentitle workers from making more than one claim for compensation. At [121], Gleeson JA stated, “The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”

79. [114]

    With these principles in mind, for the reasons which follow it is my view that there is no basis on which to read down the operation of s 327(7) so as to exclude appeals brought under s 327(3)(a) and (b).

80. [115]

    Section 294 of the 1998 Act unequivocally requires the Commission to issue a certificate of determination as soon as practicable after the determination has been made. Although the provision made for an appeals process s 327 is generally remedial in character, s 327(7) clearly states that there is no appeal from a medical assessment after such a certificate has been issued. In my view, these provisions evince an intention to provide for finality in the resolution of medical disputes. This intention is reflected elsewhere in the legislation, such as in 322A of the 1998 Act, which limits an injured worker to one assessment of his or her degree of permanent impairment.

81. [116]

    In reaching this conclusion, I am conscious that the right to appeal a medical assessment under s 327(1) of the 1998 Act is a right created and dictated by statute. There is no fundamental right to such an appeal at common law which the Act may be seen to abridge, such that it must be read strictly: see Momcilovic v The Queen (2011) 245 CLR 1; (2011) 280 ALR 221 at [42]-[44].

82. [117]

    I am also not persuaded by the plaintiff’s submissions that unless s 327(7) is read down, claimants are functionally barred from seeking to appeal from a medical assessment on the basis of the circumstances set out in ss 327(3)(a) and (b).

83. [118]

    For one thing, s 327(5) clearly imposes a 28 day restriction on appeals brought on the grounds under ss 327(3)(c) and (d), not on appeals brought under subsection 3(a) and (b). The plaintiff submitted that this differentiation is functionally irrelevant by reference to the Commission’s Practice Direction number 11. However, it not legitimate to construe legislation by reference to practice directions: see Riverina Wines per Campbell JA at [91].

84. [119]

    Moreover, s 327(6) of the 1998 Act states that the Registrar “may refer a medical assessment for further assessment under s 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section)”. It also states that s 329 “allows the Registrar to refer a medical assessment for reconsideration (whether or not the medical assessment could be appealed under [s 327])”. In Riverina Wines, the plaintiff successfully made an application for her matter to be referred for further assessment by a medical assessor, rather than to an Appeal Panel, on the basis of a deterioration of her condition over a year after the certificate of determination had been issued in relation to her medical dispute (at [29]). In that case, the Registrar was empowered under s 329 to refer the plaintiff’s medical assessment for further assessment in circumstances where it appeared to him that at least one of the grounds specified in s 327(1)(a) or (b) existed (at [89]).

85. [120]

    For the reasons I have given in relation to the previous grounds of review, the plaintiff in these proceedings could not have availed himself of the application for further assessment process under s 329, because the decision of the Appeal Panel was not a “medical assessment”. However, this avenue provides a pathway by which an applicant may seek a reassessment of his or her medical assessment on the basis of a deterioration of his or her condition even after the certificate of determination has been issued.

86. [121]

    Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s 350(3) provides a “broad” discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic at [91].

87. [122]

    For these reasons, Ground 4(b) fails.

88. [123]

    The plaintiff submitted that the appeal which is the subject of the decision under review is merely another step in the proceedings commenced in 2016, in which a claim was made for permanent impairment compensation, which led to referral of the medical dispute for medical assessment. If the appeal proceeds and is successful on either of the grounds in s 327(3)(a) or (b), the MAC that will replace the one issued in June 2017 will certify the one medical assessment for the purposes of the claim. In other words, it will fix the degree of permanent impairment by reference to which the plaintiff's claim for compensation is to be determined.

89. [124]

    The plaintiff submitted that this outcome is not the result of more than one claim being made for permanent impairment compensation, or of there being more than one assessment made of the degree of permanent impairment of the plaintiff. Rather, it is the ordinary product of the plaintiff’s exercise of his statutory right to appeal. The fact that a different outcome follows from an appeal does not render it a further claim or a further assessment, but is rather the ordinary effect of a successful appeal.

90. [125]

    As such, the plaintiff submitted that his claim, and medical dispute, remains a singular claim and singular assessment, despite the exercise of rights of appeal. The same outcome is envisaged where there is similar deterioration following a settlement of a claim for permanent impairment compensation: see s 66A(3)(c) of the 1987 Act.

91. [126]

    The plaintiff therefore submitted that it is not appropriate for him to be confined in the use that he can make of a medical assessment following the exercise of a right of appeal, and that as such the Delegate’s decision should be set aside.

92. [127]

    It is the plaintiff’s case that because he says a new certificate would simply take the place of the existing one, a further claim for compensation would not run afoul of s 66(1A) of the 1987 Act.

93. [128]

    The defendant agreed that following the appellate procedure permitted by the legislation would not fall foul of s 66(1A) of the 1987 Act. However, it submitted that that proposition does not assist the plaintiff in circumstances where, on a clear reading of the relevant statutory provisions, the plaintiff has no statutory entitlement to appeal.

94. [129]

    Section 66(1A) of the 1987 Act provides that “Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from injury.”

95. [130]

    Section 322A(1) of the 1998 Act provides that only one assessment may be made of the degree of permanent impairment of a worker. Under s 322(2), the MAC given in connection with an assessment is the only MAC that can be used in connection with a subsequent medical dispute about the injury concerned. Section 322A does not affect the operation of the appeals procedure under s 327: s 322A(4).

96. [131]

    I agree with the plaintiff that when a party to a medical dispute such as the plaintiff appeals a medical assessment under s 327, an appeal panel may confirm the MAC or revoke it and issue a new MAC which reflects its determination. This does not constitute a new claim for the purposes of s 66(1A) of the 1987 Act. However, it is not the operation of s 66(1A) which “confined” the use the plaintiff could make of the medical assessment following his appeal. Rather, for the reasons given in relation to ground 4(a), the plaintiff was confined from appealing the decision of the Appeal Panel to another appeal panel because the Appeal Panel decision was not a “medical assessment” for the purposes of s 327(1). Ground 4(c) fails.

97. [132]

    In the alternative to the submissions made in support of ground 4(c), the plaintiff submitted that he was entitled to appeal the medical assessment certified in the MAC dated 16 June 2017 for the limited purpose of resolving a “threshold dispute” within the meaning s 314 of the 1998 Act, so as to permit him to undertake the prerequisite steps to recover work injury damages.

98. [133]

    In Lizdenis v Central Pty Ltd [2016] NSWWCC 21 (“Lizdenis”) at [118]-[124], the Arbitrator held that neither s 66(1A) of the 1997 Act nor s 322A(1) of the 1998 Act precluded an appeal on grounds in s 327(3)(a) and (b) for the purposes of overcoming a “threshold dispute”. The Arbitrator reached that conclusion on the basis that addressing a “threshold dispute” did not involve making a further claim for permanent impairment compensation contrary to s 66(1A) of the 1987 Act, and it did not involve an impermissible further assessment of the degree of permanent impairment, because s 322A(4) excluded an appeal under s 327 from the prohibition for more than one assessment being made that was otherwise imposed by the section.

99. [134]

    The plaintiff submitted that if the Court is against him in relation to his earlier grounds of review, it should apply the cited passage in Lizdenis, with the result that the certificate of determination remains no obstacle to his appeal.

100. [135]

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

101. [136]

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

102. [137]

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

103. [138]

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

104. [139]

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

105. [140]

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

     1. (1)

        an AMS might issue a MAC;

     2. (2)

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

     3. (3)

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

106. [141]

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

107. [142]

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

108. [143]

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

109. [144]

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

110. [145]

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

Result

1. [146]

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

Costs

1. [147]

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

   1. (1)

      The plaintiff’s application for judicial review fails.

   2. (2)

      The summons filed 27 August 2020 is dismissed.

   3. (3)

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