Lovelee v Sydney International Container Terminals Pty Ltd

1. [1]

   PAYNE JA: This is a judicial review of a decision of an Appeal Panel appointed by the Personal Injury Commission (“PIC”) delivered on 30 July 2024. The plaintiff, Mr Lovelee, seeks that the decision be quashed and the matter remitted to the PIC. The second defendant is the President of the PIC and the third defendant is an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). Both the second and third defendants filed submitting appearances.

2. [2]

   On 1 October 2016, Mr Lovelee sustained injuries whilst working as a stevedore for the first defendant, the Sydney International Container Terminal.

3. [3]

   On 5 July 2021, a Medical Assessment Certificate (“MAC”) was issued by Dr Kumar, the medical assessor to whom the dispute had been referred under the WIM Act. The MAC assessed Mr Lovelee as having a whole person impairment (“WPI”) of 14%, comprising 8% left lower extremity, 4% lumber spine and 2% scarring.

4. [4]

   On 30 July 2021, Mr Lovelee lodged a notice of appeal pursuant to s 327 of the WIM Act. On 8 September 2021, the delegate of the President of the PIC referred the matter to an Appeal Panel for determination, having reached the state of satisfaction required by s 327(4) of the WIM Act. On 24 September 2021, the Appeal Panel decision found no error in the MAC and “confirmed” the MAC.

5. [5]

   Mr Lovelee then elected to discontinue the appeal proceedings on 27 September 2021, as he was permitted to do, without leave, by r 76 of the Personal Injury Commission Rules 2021. The PIC then closed its file. As a result of Mr Lovelee’s successful discontinuance, a Certificate of Determination under s 294 of the WIM Act was never issued by the PIC. The consequences of Mr Lovelee’s successful discontinuance lie at the heart of the present case.

6. [6]

   On 13 June 2023, Mr Lovelee had another operation in his lumbar spine. On 7 February 2024, Mr Lovelee recommenced his appeal against the MAC pursuant to s 327 of the WIM Act. Mr Lovelee relied on both the deterioration of his condition (s 327(3)(a) of the WIM Act) and the availability of additional relevant information (s 327(3)(b) of the WIM Act).

7. [7]

   The first defendant submitted to the President that the matter should be referred back to the maker of the MAC, Dr Kumar, for “reconsideration” limited to the lumbar spine pursuant to s 329 of the WIM Act. Mr Lovelee objected to Dr Kumar conducting a reconsideration and requested a re-examination by a Medical Assessor who was a member of the Appeal Panel.

8. [8]

   On 20 March 2024, the President of the PIC’s delegate, having reached the state of satisfaction required by s 327(4) of the WIM Act, referred Mr Lovelee’s appeal to another Appeal Panel.

9. [9]

   On 30 July 2024, for reasons that I will explain, the second Appeal Panel determined that it did not have jurisdiction to consider Mr Lovelee’s appeal and confirmed the MAC.

10. [10]

    On 30 September 2024, Mr Lovelee filed a summons in this Court seeking judicial review of that decision.

The 2024 Appeal Panel Decision

1. [11]

   After reciting the relevant history, the Appeal Panel said:

2. [12]

   Quite why the Appeal Panel determined that “no further Medical Appeal Panel determination is possible” is not explicitly stated. I have concluded that the Appeal Panel regarded the matter as decided by the Court of Appeal decision in Sleiman v Gadalla Ply Ltd [2021] NSWCA 236.

3. [13]

   The Appeal Panel first recited the evidence of the lumbar spine deterioration. The Appeal Panel decision records, correctly that:

4. [14]

   Prima facie, the evidence Mr Lovelee sought to lead here was evidence not available to him before the MAC and could not reasonably have been obtained by the party before the medical assessment leading to the making of the MAC. The Appeal Panel did not conclude that the evidence Mr Lovelee sought to lead here was evidence not available to him before the MAC and could not reasonably have been obtained by the party before the medical assessment leading to the making of the MAC. Rather, the Appeal Panel stated about that evidence:

5. [15]

   The Appeal Panel then described its task on appeal by reference to s 328 of the WIM Act and Campbelltown City Council v Vegan [2006] NSWCA 284. The MAC and the decision of the Appeal Panel delivered on 24 September 2021 were described.

6. [16]

   The respondent’s submissions to the 2024 Appeal Panel were cited in the Appeal Panel decision as being:

7. [17]

   The Appeal Panel commenced its explanation of why no further Appeal Panel determination was possible by stating:

8. [18]

   The Appeal Panel then stated that:

9. [19]

   The Appeal Panel noted, correctly, that it was a fundamental rule that parties cannot bestow jurisdiction on themselves where none exists: at [31].

10. [20]

    The Appeal Panel found (at [33]) that “the present facts are similar” to those in Sleiman. After reciting the facts and some of the conclusions in Sleiman, the Appeal Panel (at [33]-[39]) recorded that the Court of Appeal rejected Mr Sleiman’s construction of the WIM Act, without, however, identifying what that construction was.

11. [21]

    In Sleiman, a Certificate of Determination was issued following the Appeal Panel decision in that case, which increased the percentage of WPI. What was decided in Sleiman was that Mr Sleiman’s further appeal was precluded on clear words of s 327(2) and s 327(7) of the WIM Act, as Leeming JA explained at [41]-[48].

12. [22]

    The Appeal Panel in the present case apparently overlooked the critical importance in Sleiman of the clear words of s 327(2) and s 327(7), as neither sub-section was reproduced when quoting s 327. I note that those provisions have since been amended, although the effect of s 327(2) and s 327(7) remains relevantly the same.

13. [23]

    Section 327 now provides:

14. [24]

    In Sleiman, the Court of Appeal rejected a submission that s 327(3) of the WIM Act was the leading provision, for the purposes of harmonisation undertaken in accordance with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, such that s 327(2) and s 327(7) should be read as permitting successive appeals.

15. [25]

    In the present case, unlike in Sleiman, it will be recalled that no Certificate of Determination had been issued, because proceedings in 2021 were discontinued by Mr Lovelee before a Certificate was issued.

16. [26]

    Although the Appeal Panel noted the “distinction that Mr Lovelee did not obtain a Certificate of Determination” (at [33]), the Appeal Panel did not address the impact of the discontinuance and absence of a Certificate of Determination on the analysis contained in Sleiman. The Appeal Panel merely concluded that by reason of Sleiman, Mr Lovelee was precluded from bringing his appeal against the decision of a Medial Assessor:

17. [27]

    The Appeal Panel went on to suggest that Mr Lovelee’s conduct in discontinuing his appeal prior to a Certificate of Determination being issued and subsequently recommencing that appeal may have engaged in conduct amounting to, in effect, an abuse of process:

18. [28]

    Finally, the Appeal Panel referred to s 322A of the WIM Act, which provides:

19. [29]

    The Appeal Panel referred to the passage in Sleiman which addressed the importance of s 322A:

20. [30]

    Of course, s 322A(4) provides, relevantly, that “this section does not affect the operation of section 327 (Appeal against medical assessment)”. The critical conclusion in the above paragraph of Sleiman is that a “great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule”. Pausing there, no submission was made by the first defendant that Mr Lovelee had engaged in conduct such that any doctrine of preclusion preventing relitigation of the same issue such as res judicata, issue estoppel, or abuse of process applied.

21. [31]

    If the Appeal Panel intended to reach a conclusion that a doctrine of preclusion applied, that should have been clearly put and Mr Lovelee given a chance to respond.

Grounds of application

1. [32]

   The summons contained three grounds:

Relevant law

1. [33]

   No appeal lay from the Appeal Panel’s decision. This application was commenced in the Common Law Division pursuant to s 69 of the Supreme Court Act 1970 (NSW). Review of the decision is available for jurisdictional error and errors of law on the face of the record. This Court’s jurisdiction to review for jurisdictional error cannot be removed: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], and while the same is not true for non-jurisdictional error of law on the face of the record, there is no privative clause in the WIM Act which was submitted to have that effect (contrast s 176 of the District Court Act 1973 (NSW) and see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]).

2. [34]

   As Leeming JA explained in Sleiman:

3. [35]

   In the context of a decision of an Appeal Panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing).

Ground 1

1. [36]

   It appears that the Appeal Panel proceeded on the basis that the decision in Sleiman was determinative of the present case. I do not agree.

2. [37]

   In Sleiman the clear words of s 327(2) and (7) applied to preclude a second appeal. Those subsections do not preclude the present appeal.

3. [38]

   As to s 327(2), the principal difference between this matter and Sleiman is that in Sleiman the first Appeal Panel revoked the MAC issued by an approved medical specialist and issued a new certificate: Sleiman at [17]; [30]; [57]-[58]; [60]; [70]-[76]. Mr Sleiman subsequently sought to appeal against the Medical Assessment Certificate issued by the Appeal Panel. In the present case, the appeal was framed as an appeal from a medical assessment certificate of a medical assessor: s 327(2).

4. [39]

   Sleiman is authority for two propositions:

   1. (1)

      that s 327(2) does not permit an appeal from a medical assessment certificate issued by an Appeal Panel under s 328(5) because it is not a certificate issued by a medical assessor; and

   2. (2)

      that s 327(7) does not permit an appeal after the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under s 66A of the Workers Compensation Act 1987 (NSW).

5. [40]

   Although the terminology of the WIM Act has changed since Sleiman, the fundamental point made by Leeming JA still applies.

6. [41]

   As to s 327(2), in the present case, the assessment being appealed was the medical certificate issued by a medical assessor. As the respondent submitted to the 2024 Appeal Panel: “[the] Mac still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021”.

7. [42]

   The 2024 Appeal Panel did not find that it lacked jurisdiction because the MAC had been confirmed by an earlier Appeal Panel. The finding of the Appeal Panel at [39] that Mr Lovelee’s action “might more accurately be described as an application to appeal against the decision of a Medical Assessor and a Medical Appeal Panel” finds no support in the statutory language of s 327(2) and was contrary to the concession made by the first defendant. Section 328(5) of the WIM Act, which provides the relevant power to the Appeal Panel provides:

8. [43]

   Thus it is only when an Appeal Panel revokes a MAC that the power to “issue a new certificate as to the matters concerned” is enlivened. No new certificate was ever issued here. The first defendant’s concession before the 2024 Appeal Panel that the “Mac [made by Dr Kumar] still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021” is correct. At the time of the 2024 Appeal Panel hearing, there remained “a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission” within the meaning of s 327(2). Section 327(2) did not preclude Mr Lovelee’s 2024 appeal.

9. [44]

   As to s 327(7), the principal difference between this matter and Sleiman is that in this matter proceedings were discontinued before a Certificate of Determination was issued. In Sleiman it was clear that the conclusion of the Court that a second appeal was impermissible was based, at least in part, upon the application of s 327(7): Sleiman at [43]; [47]; [64]-[65]; [70]; [73]; [74] and [76].

10. [45]

    The defendant in the present case submitted that the 2021 Appeal Panel decision was a decision of the PIC and, thus, s 327(7) prohibited a further appeal. That submission should be rejected.

11. [46]

    The PIC is constituted by s 6 of the Personal Injury Commission Act 2020 (NSW) (“PIC Act”). The separate divisions, including the Workers Compensation Division, are established by s 12 of the PIC Act. Medical assessors for the purposes of the WIM Act are appointed by the President of the Personal Injury Commission under s 33 of the PIC Act. Section 58 of the PIC Act clearly distinguishes between decisions of the Personal Injury Commission and “decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998”:

12. [47]

    The PIC, in the ordinary course, would make a decision following an Appeal Panel Determination and issue a Certificate of Determination under s 294 of the WIM Act. This determines the amount of permanent impairment compensation payable pursuant to s 66 of the Workers Compensation Act 1987 (NSW). The decision of an Appeal Panel performing its function under Chapter 7 Part 7 of the WIM Act is not a decision of the Commission.

13. [48]

    There was no determination made by the Commission within the meaning of s 327(7) of the WIM Act following the 2021 Appeal Panel decision, as the proceedings were discontinued without any determination being made. Section 327(7) did not preclude Mr Lovelee’s 2024 appeal. Sleiman was not determinative of the present case.

14. [49]

    It is perhaps surprising that it was possible for an unsuccessful applicant to discontinue his application, without any leave requirement, after the completion of an Appeal Panel deliberation and before a Certificate of Determination had been issued by the PIC. It is also perhaps noteworthy that the plaintiff apparently deliberately chose to discontinue his application to seek to keep alive his ability to conduct a second or further appeal. In Mr Lovelee’s statement dated 7 February 2024 he said:

15. [50]

    Whether, for example, there is room to describe the plaintiff’s course of conduct in the present case as an abuse of process is not a matter before me. As there may be a question on remitter about whether Mr Lovelee’s rights are limited or curtailed in the putative second appeal, it is undesirable to say more.

16. [51]

    Both parties agreed in submissions that reconsideration pursuant to s 329(1A) was available when the matter was before the President to make a decision pursuant to s 327(4). Reconsideration was not the route taken. The plaintiff noted that an Appeal Panel does not have the power to remit a matter for reconsideration. The reconsideration route is a matter for the President when making a decision pursuant to s 327(4). Given what I have said about possible arguments available on remitter to the first defendant, I propose to remit the matter to the President of the PIC to permit consideration by Mr Lovelee of whether he should take the opportunity of have a reconsideration conducted, rather than seek to prosecute an appeal before an Appeal Panel.

17. [52]

    Ground 1 should be allowed.

Ground 2

1. [53]

   The 2024 Appeal Panel referred in its decision to New South Wales Department of Education v Connolly [2023] NSWPICPD 38 and Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52, as quoted above at [25].

2. [54]

   The first defendant submitted that the “process adopted in the present case essentially involves the pretence that the 2021 [Appeal Panel] determination did not occur”. The first defendant emphasised the need to guard against a course of action circumventing the prescribed process and permitting multiple attempted claims through the method of discontinuance in the event of dissatisfaction with assessment(s).

3. [55]

   It is no doubt correct that there is a need to guard against a course of action which has the deliberate effect of circumventing a “prescribed process”. I agree that that it is undesirable to permit “multiple attempted claims through the method of discontinuance in the event of dissatisfaction” with assessments or appeals.

4. [56]

   My problem with this ground of appeal is that although the Appeal Panel referred to Connolly and Singh, they did not rely on the existence of any doctrine of preclusion or abuse of process preventing the Appeal Panel from hearing Mr Lovelee’s 2024 appeal. That is, whilst it may be correct that the 2024 Appeal Panel could have considered that the circumstances of this case gave rise to an abuse of process, it did not do so. If it had, there would have been a real problem with procedural fairness. This is because the first defendant did not say to the Appeal Panel and does not submit in this Court that there was an abuse of process by Mr Lovelee. If it had, no doubt Mr Lovelee would have wished to be heard. He would have been entitled to do so.

5. [57]

   As this was not the basis of the Appeal Panel’s decision, I would reject ground 2. I have said enough to indicate that if the matter is again referred under s 327(4) by the President to an Appeal Panel it may be open to the defendant to assert that there has been an abuse of process. As such a claim has not been made, much less determined, it is undesirable that I say any more about it.

Ground 3

1. [58]

   By this ground, Mr Lovelee complained that it was procedurally unfair for the Appeal Panel to determine that it had no jurisdiction in circumstances where neither party made any submission contesting jurisdiction.

2. [59]

   The first defendant submitted that the better characterisation of the Appeal Panel’s determination was that the plaintiff was not entitled to appeal the MAC and so the MAC was confirmed in accordance with s 328(5) and the application was refused.

3. [60]

   It is true that neither party asserted that the Appeal Panel was without jurisdiction. It is also true, as the Appeal Panel found (at [31]) that it is a “fundamental rule that parties cannot bestow jurisdiction on themselves where none exists”. The first duty of every court (and Tribunal) is to determine whether or not it has jurisdiction: Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211.

4. [61]

   If (contrary to the conclusion I have reached in relation to ground 1) the Appeal Panel was bound by Sleiman to conclude that it lacked jurisdiction to determine the appeal it would not have been procedurally unfair to give effect to that legally inevitable conclusion.

5. [62]

   I would dismiss ground 3.

Conclusion and orders

1. [63]

   For the foregoing reasons I make the following orders:

   1. (1)

      Declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024 is void and of no effect.

   2. (2)

      Set aside the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024.

   3. (3)

      Order that the matter be remitted to the President of the Personal Injury Commission to be determined according to law.

   4. (4)

      First Defendant to pay the Plaintiffs’ costs.