Ballas v Department of Education

Court of Appeal (NSW)|2020-02-18|Before: Bell P, Payne JA

The application to the Registrar

On 8 June 2018, pursuant to s 327(4) of the 1998 Act, Ms Ballas lodged with the Registrar an application to appeal against the medical assessment, on the basis that when making the assessment of Social and Recreational Activities, Dr Hong had made a "demonstrable error" and applied "incorrect criteria", adopting the terminology of ss 327(3)(c) and (d) of the 1998 Act.
Ms Ballas's application was accompanied by submissions styled "Draft Appellant's Submissions". It was submitted in this Court that both the form prescribed for the making of applications to appeal to the Appeal Panel, and the practice before the Commission, required that such submissions accompany the application to the Registrar but were for the benefit of the Appeal Panel, if the Registrar permitted the appeal to pass through the gateway. This submission would appear to be consistent with the submissions being styled "Draft Appellant's Submissions" in much the same way as an applicant in this Court who requires leave to appeal is required to file a Draft Notice of Appeal with any application for leave.
In truth, the Draft Submissions which accompanied the application to the Registrar were required for dual purposes: first, consideration by the Registrar in the discharge of the statutory task assigned to the Registrar by s 327(4) of the 1998 Act; and, secondly and contingently, for the benefit of the Appeal Panel if the gateway was passed.
For the purpose of understanding the decision of the Delegate of the Registrar, and the basis for the application for judicial review, it is necessary to set out in full the Draft Appellant's Submissions which accompanied the application to the Registrar. They were as follows, subject only to the fact that for ease of later consideration, we have assigned paragraph numbers to the submissions: "1. The Appellant was referred to the Approved Medical Specialist, Dr Hong, to assess whole person impairment resulting from a psychiatric/psychological disorder with a deemed date of injury of 24 October 2016. The AMS assessed an 8% whole person impairment. In arriving at that assessment, the AMS assessed social and recreational activities as Class 2. In doing so, the AMS has made a demonstrable error and applied incorrect criteria. 2. In respect of social and recreational activities, the AMS took a history that when the Appellant is not working she usually stayed at home and does not do much. About once a month, she would go to the RSL club by herself, where she would gamble on the poker machine. He recorded that prior to her injury, she was sociable and took pride in her appearance. She used to enjoy entertaining guests at home. In his history, he did not record any other social interactions. 3. Despite the fact that he did not record it in his history, when commenting on Dr Rastogi's assessment the AMS added that the Appellant would attend to family activities particularly Christmas and birthdays. He made no record of the circumstances in which the Appellant would attend those family activities. In particular, he did not record whether the Appellant went out to attend those activities of whether they occurred within her home. He also did not record if the Appellant only attended because she was encouraged to by her family. It should be noted that she continues to live with her second husband although they are separated. Otherwise, the AMS observed that the Appellant would attend the RSL club by herself typically once a month and would spend an hour there. 4. When completing the PIRS rating form, the AMS cited as his reasons for assessing social and recreational activities as Class 2 as 'frequency of social recreation reported to have reduced, sees one friend regularly, goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.' 5. By assessing social and recreational activities in the way that he has, the AMS has both failed to take into account relevant considerations and has taken into account an irrelevant consideration. 6. The assessment of social and recreational activities is carried out in accordance with Table 11.2 of the NSW Worker's Compensation Guidelines for Evaluation of Permanent Impairment 4th Edition. It should first be observed that social and recreational activities are not travel and are not social functioning. It is apparent from a reading of the table that social and recreational activities is directed to the kind of activities that involve interactions with other people. For example, Class 1 refers to being actively involved with clubs or associations. Class 2 refers to being actively involved, e.g. dancing, cheering favourite team. 7. The table is not directed to solitary activities that do not involve interactions with other people. 8. It is apparent from the reasons given in the medical assessment certificate, that the AMS placed great significance on the fact that the Appellant would attend the RSL club about once a month to gamble on the poker machines for one hour. The major feature of such an activity is that it is a solitary activity that does not involve interactions with other people. It does not require any of the type of participation which is contemplated by social and recreational activity. The fact that the Appellant is able to travel to the RSL club is relevant to the assessment of travel and is consistent with the assessment of Class 2 for that category. It is not, however, relevant to the assessment of social and recreational activities. By including that matter in his assessment, the AMS has both applied incorrect criteria in that he has not properly applied the guidelines and has made a demonstrable error. 9. When assessing social and recreational activities, the AMS also refers to the Appellant seeing one friend regularly. There is no reference to this in the history and accordingly, it is unknown in what circumstance[s] this contact occurs. In any event, the AMS has repeated the same error of taking into account an irrelevant consideration. The issue of ability to maintain friendships is relevant to the Class of social functioning not social and recreational activities. To the extent that it is relevant to social and recreational activities, it is only to the extent that the appellant responds to prompting by a close friend or tolerates the company of a close friend. It should be noted that the ability to tolerate the company of a close friend is consistent with a rating of Class 4. 10. When he saw the Appellant, Dr Rastogi recorded that the Appellant does not get too involved in social activities and will only attend events with family. 11. In her statement, the Appellant describes how she attempted to go on a holiday and ended up in hospital. She went to Perisher with a few friends and that night she could not cope. She had a massive panic attack and was taken to Cooma. She described how she lost a close friend due to what was happening because she couldn't go out with her. She cannot function like a friend should be functioning. 12. When Dr Kaplin saw the Appellant in January 2018, she said that she had some contact with her siblings at Christmas but gave no other history of social contact, other than attending at the RSL club to gamble. 13. The descriptor for Class 3 is 'moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friends. Will not go out without a support person. Not actively involved, remains quiet or withdrawn.' 14. The evidence discloses that the only social and recreational events to which the Appellant attends are family events at Christmas. She attends those with her family. There is no evidence of her attending any social and recreational event without a support person. There is no evidence that she ever becomes actively involved. Her only activity which takes her outside the house is the solitary activity of attending at the RSL club once a month to play the poker machine. When the relevant evidence is properly considered, the Appellant should have assessed as Class 3 for social and recreational activities. 15. The result of properly assessing social and recreational activities is that the median Class becomes 3 and the aggregate score 16, resulting in a 17% whole person impairment. 16. The medical assessment certificate dated 14 May 2018 should be revoked and a new certificate issued which certifies 17% WPI."

The decision of the Delegate of the Registrar

The decision of the Delegate of the Registrar was made on 17 July 2018. As has been noted at [7] above, she refused the application. It is necessary to reproduce the entirety of the Delegate's decision, as follows: "1. The Medical Assessment Certificate (MAC) of Dr Michael Hong, an Approved Medical Specialist (AMS), was issued on 14 May 2018. 2. On 9 June 2018, the appellant, Fiona Ballas, lodged an Application to Appeal the Decision of the AMS on the following grounds: the assessment was made on the basis of incorrect criteria (section 327(3)(c)); the MAC contains a demonstrable error (section 327(3)(d)). 3. On 29 June 2018, the respondent, NSW Department of Education, lodged a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist. 4. Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and the submissions made to the Registrar, at least one of the grounds of appeal as specified in subsection 327(3) of the 1998 Act has been made out. 5. On the face of the application and submissions made, I am not satisfied that a ground of appeal as specified in section 327(3) is made out. Submissions 6. The appellant alleges that the AMS has made a demonstrable error and applied incorrect criteria when assessing the appellant worker as Class 2 in the Psychiatric Impairment Rating Scale (PIRS) category of social and recreational activities. 7. The respondent opposes the appeal. I will refer to their submissions where necessary. Background and Powers 8. The role and powers in making this decision are that of a 'gatekeeper': Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88. In Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 (Kolundzic), Campbell J at [51] provided the following summary of the role of the Registrar: 'As has been said, the Registrar performs a gatekeeper function: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8] and [82]. His or her power is to determine whether on the face of the application and any submissions made 'at least one of the grounds of appeal specified in subsection (3) has been made out'. This is a precondition to an appeal involving an evaluative decision that at least one ground, on its face, is 'valid and apparently credible': Vegan at [8].' 9. The appellant relies on grounds of appeal provided in sections 327(3)(c) and (d) of the 1998 Act, that is, 'incorrect criteria' and 'demonstrable error'. 10. An AMS is to apply various criteria as part of the medical assessment process. The criteria to which section 327(3)(c) refers are found in the workers compensation legislation and in the Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th Edition (the Guidelines). The Guidelines adopt the 5th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA5) in most cases ([1.1] of the Guidelines). 11. In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 (Merza) at [39], Hoeben J made the following observations about the appeal ground of demonstrable error: 'I do not propose to, nor is it necessary, that I define what is 'demonstrable error' for the purposes of s 327 of the Act in an exhaustive way. It is sufficient for the purposes of this matter that I conclude that 'demonstrable error' is an error which is readily apparent from an examination of the medical assessment certificate and the document referring the matter to the AMS for assessment.' 12. The appellant alleges that the MAC contains a demonstrable error and application of incorrect criteria in the PIRS category of social and recreational activities. Social and Recreational Activities 13. The psychiatric impairment rating scale (PIRS) provides that behavioural consequences of psychiatric disorders are assessed on six scales, each of which evaluates an area of functional impairment (the Guidelines at [11.11]). One of the scales is 'social and recreational activities.' 14. The AMS assessed class 2 impairment in this category. The appellant submits that the AMS erred and should have assessed Class 3. 15. Table 11.12 of the PIRS provides that impairment on each of the six scales is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. Relevantly Class 2 and 3 of the category of social and recreational functioning provide: 'Class 2- Mild Impairment: occasionally goes out to such events eg without the needing a support person but does not become actively involved (eg dancing, cheering favourite team. Class 3- Moderate Impairment: rarely goes out to such events and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.' 16. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J observed that the classes in the PIRS were examples of activities which would indicate an assessable level of disability, and further, that the boundaries between the classes are were not 'bright line boundaries' (at [62] - [[65]). 17. In Ferguson v State of New South Wales & Ors [2017] NSWSC 887 (Ferguson), Campbell J referred to a decision of a Medical Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, stating (at [33]): 'By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: "... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'." 18. In this matter the AMS made the following clinical observations relevant to the category of social and recreation: 'Ms Ballas reads her social media posts. She does not read books. Around once a month she would go to the RSL Club by herself. Ms Ballas said she gambles on the poker machine and at times feels like she is out of control with her gambling - she can gamble $500 in one setting.' 19. At Table 11.8 of the MAC the AMS has summarised his findings: 'Class 2- Frequency of social recreation reported to have reduced Sees one friend regularly. Goes to RSL club, around once each month, unaccompanied. Gambles on poker machines, at times $500. Spends around 1 hour at the club.' 20. The AMS found class 2 for social and recreational activities, noting that she regularly saw one friend. The ability to maintain friendships is also factor common to the PIRS category of social functioning. Similarly, that the appellant travels to the RSL club unaccompanied is relevant to the category of travel. 21. The appellant submits that the AMS erred by 'placing great significance on the fact that the appellant would attend the RSL club once a month to gamble on poker machines'. According to the appellant this activity is a 'solitary activity that does not involve interactions with other people. It does not require any type of participation which is contemplated by social and recreational activity'; and the fact that appellant can travel to the RSL club is not relevant to the assessment of social and recreational activities. 22. Similarly, the appellant submits that the AMS has fallen into error when referring to her seeing 'one friend regularly because the 'issue of ability to maintain friendships is relevant to the class of social functioning and not social and recreational activities.' 23. PIRS categories are examples of activities only ([11.12] of the Guidelines) and are 'generic and general in their description': Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [62]. 24. In my view, the appellant's submission attempts to unreasonably place limitations on the manner in which the PIRS categorises are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS's discretion based on his or her clinical assessment. 25. I do not accept that the activity of attending the an [sic] RSL club once a month to play poker machines is necessarily an activity that ought to fall within Class 3 (Moderate Impairment) of social or recreational functioning, and not class 2 (Mild Impairment) as the AMS found. Whilst the activity may be undertaken individually, it seems to me it is undertaken regularly (not rarely) and requires active involvement (playing machines). The activity does not appear to require prompting by family or friends or the attendance of a support person. In any event, the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination. 26. The AMS's overall findings are consistent with the description of mild impairment for social and recreational activities. The AMS was not provided with a history that indicated the appellant did not go out without a support person. The appellant statement records 'I find it very hard to go to the shops. Sometimes I have to go back to the car and leave because I get severe anxiety and panic attacks when there is a lot of people'. On the face of the MAC, the history taken by the AMS as to the appellant's activities are is [sic] consistent with a Class 2 mild impairment. 27. The appellant also refers to the report of Dr Rastogi who assessed Class 3 for social and recreational activities. Having considered the report of Dr Rastogi, the AMS commented at page 7 of the MAC: 'Dr Rastogi had performed a Whole Person Impairment Assessment with a final rating of 15%. Dr Rastogi's ratings are largely comparable to mine except in social and recreational activities. Dr Rastogi noted that Ms Ballas was moderately impaired as she does not get too involved in social activity and will only attend events with family. In my assessment I noted that Ms Ballas confirmed she would attend to family activities particularly Christmas and birthdays. She also attends the RSL Club by herself typically once a month and would spend around an hour there - overall I consider this to be more consistent with a Class 2 impairment. I have rated her social function as 4, as her second marriage has ended, she has been physically aggressive, and is no longer able to care.' 28. To the extent that the appellant relies on the report of Dr Rastogi, I note a mere difference of opinion is not a ground of appeal (Merza at [51]). The Guidelines are clear that the task of assessing permanent impairment involves clinical assessment of the worker as they present on the day of the assessment. The fact that Dr Rastogi came to a different conclusion as to the class of social and recreational functioning is therefore immaterial. 29. I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC. The AMS has provided reasons in relation to his assessment for social functioning and he appropriately considered the material before him, including the report of Dr Rastogi, and the history provided by the worker in reaching his conclusion. The appeal is not to proceed. Decision 30. As I am not satisfied that at least one of the grounds of appeal as specified in section 327(3) has been made out, the appeal is not to proceed."

Proceedings before Wright J

On 14 September 2018, Ms Ballas commenced proceedings in this Court for judicial review, pursuant to the Supreme Court Act 1970 (NSW) s 69. The Department was named as first defendant. The other defendants were the Registrar of the WCC, the Delegate of the Registrar of the WCC and the Arbitrator of the WCC respectively.
The application for judicial review sought the following relief: "(1) A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and Decision of the Third Defendant dated 17 July 2018 is void and of no effect. (2) An order setting aside the Decision issued by the Second Defendant, constituted by the Third Defendant on 17 July 2018. (3) An order remitting the matter back to the Second [D]efendant for referral to a different delegate to determine the dispute according to law. (4) An order setting aside the Certificate of Determination issued by the Fourth Defendant on 22 August 2018. (5) Such further order[s] as this Honourable Court deems necessary to give effect to the plaintiff's claims in the nature of judicial review. (6) Costs".
No argument was advanced in the judicial review proceedings at first instance on behalf of any of the defendants that the Court did not have the power to grant any of the relief sought as set out above, including the power to set aside the Certificate of Determination issued by the Fourth Defendant on 22 August 2018. Notwithstanding this, Senior Counsel for the Department sought to raise this question by a Notice of Contention filed in this appeal. This Notice of Contention is addressed at [102] - [132] below.
The Summons for judicial review also set out what it was contended were the jurisdictional errors and errors on the face of the record which Ms Ballas relied upon. These were as follows: "(a) The Third Defendant erred in failing to determine that at least one of the grounds of appeal in section 327(3) of the 1998 Act had been made out, in particular, a demonstrable error by the AMS. (b) The Third Defendant erred in point of law when it failed to consider whether the Approved Medical Specialist had considered the correct criteria when assessing Social and Recreational Activities. (c) The Third Defendant erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the guides. (d) The Third Defendant erred in point of law when it failed to consider whether the activity of attending at the club by herself to play poker machines was a matter that could properly be taken into account when assessing Social and Recreational Activities. (e) The Third Defendant erred in point of law when she failed to properly consider the argument made in support of the appeal. (f) The Third Defendant erred in failing to determine that a Medical Appeal Panel should be constituted to provide an assessment of WPI in accordance with the Guidelines as read with AMA5. (g) The Third Defendant erred in failing to determine that the Plaintiff had made out a basis for appeal in that it is open to a Medical Appeal Panel to find that the Medical Assessment Certificate should be revoked and replaced with a certificate recording that, in accordance with the Guidelines as read with AMA5."
His Honour grouped grounds (a), (b), (d) and (e) and treated them together under the heading "Failure to Consider the Submission Ground". He styled ground (c) as the "Discretion as to Category Ground", and treated grounds (f) and (g) as consequential and dependent on the other grounds being established.
The application for judicial review was dismissed on 8 March 2019: [2019] NSWSC 234.
In relation to what the primary judge styled the "Failure to Consider the Submission Ground", his Honour summarised his conclusions at [61], stating that the Delegate: "(1) at [21] and [22] adequately summarised Ms Ballas's relevant submissions, thereby indicating that the Delegate understood what she was required to address; (2) at [23], [24] and [25], considered and rejected the submissions that: (a) the PIRS categories of 'social and recreational activities', 'travel' and 'social functioning' are distinct and do not overlap so that matters that are relevant to one category are irrelevant to others; (b) the fact that Ms Ballas is able to travel to the RSL club is not relevant to 'social and recreational activities' and the fact that Ms Ballas sees one friend regularly is relevant only to 'social functioning' and not to 'social and recreational activities'; (c) 'social and recreational activities' are directed to the kind of activities that involve interactions with other people not solitary activities, such as gambling on poker machines at an RSL club; (3) at [23], [24] and [25] said, in effect, that these submissions should be rejected because the PIRS categories are generic and general in description and, to some extent, overlapping. They are not rigidly exclusive and which category applies is a matter within the AMS's discretion based upon his or her clinical assessment and the history."
His Honour said that "[f]or these reasons, I conclude that the Delegate has not misunderstood Ms Ballas's submission or failed to address it. The Failure to Consider the Submission Ground is not made out": at [62].
Wright J's reasoning in relation to what his Honour described as the "Discretion as to Category Ground" was as follows (at [65]-[69]): "This ground was formulated as the Delegate 'erred in point of law when she considered that what matters were relevant to each category was a matter of discretion rather than an application of the [Guidelines]'. The problem with this ground is that it poses a false dichotomy and does not accurately reflect what the Delegate said. Her point was put in two ways in her reasons: (1) at [24], '[t]he PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS's discretion based on his or her clinical assessment'; (2) at [25], 'the PIRS categories are not a rigid in formation and they are to be applied by an AMS based on the history taken by him and her during the clinical examination.' The Delegate did not say that the question of what activities are relevant to each PIRS category is entirely a matter of discretion for the AMS and does not involve the application of the Guidelines. There was no such dichotomy in her comments. Moreover, there is no doubt that the PIRS categories are generic and general in description. They are only identified at a very high level of generality: 'Self care and personal hygiene'; 'Social and recreational activities'; 'Travel'; 'Social functioning (relationships)'; 'Concentration, persistence and pace'; and 'Employability'. The wording used to describe the categories suggests that some may overlap. For example, impairment in the ability to relate socially may well be reflected in both 'social and recreational activities' as well as 'social functioning (relationships)'. Similarly, impairment of 'employability' may well involve, or result from, impairment in some or all of the other categories. The description of each scale, and the examples given in relation to each class from 1 to 5 within each scale in Tables 11.1 to 11.6, also suggests that overlap is quite possible between different PIRS categories. The PIRS categories, as specified in ch 11, do not appear to be rigidly separate and exclusive. Fairly understood, what the Delegate was saying was that the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history. There is nothing erroneous in such an observation."
It should also be noted that the primary judge accepted that the Draft Appellant's Submissions relied upon by Ms Ballas before the Delegate expressly raised the argument that, when assessing "social and recreational activities", the AMS took into account irrelevant considerations and failed to take into account relevant considerations: at [41]. It had evidently been argued that this ground was not clear on the face of Ms Ballas's submissions, such that the Delegate could not be criticised in the way sought to be agitated in the application for judicial review. No challenge was made by way of cross-appeal to this aspect of the judgment below.

Grounds of appeal in this Court

In her Notice of Appeal in this Court, two grounds were raised by the appellant as follows: "1. The primary Judged [sic] erred in misconstruing the Workplace Injury Management and Workers Compensation Act 1998 (NSW), section 327(4) 2. The primary Judge erred in holding that the registrar's delegate did not err in her application of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), section 327(3), to the grounds of appeal sought to be raised by the appellant in respect of the assessment of whole person impairment by the application of the PIRS categories as mandated by the WorkCover Guides."
The first of these grounds goes to the role of the Registrar (in the present case, performed by a Delegate), under s 327(4) of the 1998 Act.
The second ground is essentially a challenge to Wright J's conclusions reproduced at [45] above.
Before turning to a consideration of each of these grounds, it is necessary to make a number of observations about the expression "demonstrable error" as used in s 327(3)(d) of the 1998 Act.

Demonstrable error

In Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 (Merza), Hoeben J (as his Honour then was) said that it was sufficient for the purposes of determining that case to conclude that a "demonstrable error" is an error that is "readily apparent" from an examination of the MAC and the document referring the matter to the AMS for assessment: at [39]. He had earlier observed that "error alone [was] not sufficient": at [35].
The Second Reading speech to the Workers Compensation Legislation Amendment Bill 2001 (NSW) (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14775) contains the following statement in relation to a "demonstrable error", noting that the meaning of the expression, left undefined in the 1998 Act, is for the Court to determine: "A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion".
In Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101, Basten JA referred to the observations of Hoeben J in Merza before going on to say (at [59]-[60]) that: "The concept of 'demonstrable error' is not defined, and may be open to various interpretations, ranging from the broad to the narrow. At the narrowest end of the spectrum, it may be thought that the error must be apparent from reading the certificate itself, thus equating the error with error 'on the face of the record' for the unrelated purpose of relief in the nature of certiorari. There is no obvious reason why such a construction should be adopted when the purpose is review on the merits, rather than review for legal error. The word 'demonstrable' does not in any event import such a constraint. As noted at [37] above, the example given in the second reading speech suggested that the error must be a manifest error. In Plaintiff S 157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [13], Gleeson CJ made comments relevant to such a concept, stating: 'The concept of "manifest" defect in jurisdiction, or "manifest" fraud, has entered into the taxonomy of error in this field of discourse. The idea that there are degrees of error, or that obviousness should make a difference between one kind of fraud and another, is not always easy to grasp. But it plays a significant part in other forms of judicial review. For example, the principles according to which a court of appeal may interfere with a primary judge's finding of fact, or exercise of discretion, are expressed in terms such as "palpably misused [an] advantage", "glaringly improbable", "inconsistent with facts incontrovertibly established", and "plainly unjust". Unless adjectives such as "palpable", "incontrovertible", "plain", or "manifest" are used only for rhetorical effect, then in the context of review of decision-making, whether judicial or administrative, they convey an idea that there are degrees of strictness of scrutiny to which decisions may be subjected'. As noted above, in Merza Hoeben J thought it was sufficient that an error is one 'readily apparent from an examination of the medical assessment certificate'. That is also sufficient for the present case, although it may not constitute a necessary element of the statutory formulation."
The meaning of "demonstrable error" was also considered by this Court in Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88 at [47]-[49] (Pitsonis), where Mason P said: "The word 'demonstrable' means capable of being demonstrated (The Macquarie Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia, 2005, New Penguin English Dictionary 1st ed, Penguin, London, 2000). If the word 'contained' in para (d) were read as no more than 'have within itself' (Macquarie Dictionary), then it would follow that s 327(3)(d) would confer the equivalent of a right of appeal on all grounds subject only to the persuasive burden being carried by the appellant. This would render para (c) redundant and would tend to trespass over the areas addressed in paras (a) and (b). One thing, I think, is clear, namely that the 'appeal' to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh. I agree with the observations of Basten JA in Vegan at 400[137] when he stated that two factors suggested that the jurisdiction and powers of the Appeal Panel are limited: 'First, if the Appeal Panel's powers were at large, the need to specify grounds of appeal limited to particular categories, would be rendered largely otiose. Second, the Appeal Panel is not a tribunal which has any powers other than those necessary to deal with the appeals in question'. I am therefore driven to conclude that s 327(3)(d) uses 'contained' in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39] ('an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment'.)"
In Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [87] (Vannini), Gleeson JA noted that it was not in dispute that an error is not demonstrable merely because the Panel disagrees with the opinion of the AMS. There is, however, a difference between mere disagreement and a conclusion that, even with regard to a decision of a kind that permits "some latitude of opinion such as to admit a range of legally permissible outcomes", the decision was outside the range: Vannini at [92].

Ground 1 and the proper role of the Registrar under s 327(4) of the 1998 Act

Section 327(4) of the 1998 Act provides that: "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out."
Under s 327(4), the Registrar plays a "gatekeeper" role, in that before an appeal under s 327 can proceed, the Registrar must be "satisfied" that at least one of the grounds for appeal in ss 327(3)(a)-(d) has been "made out".
Section 327 was amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (NSW) Sch 1.1 cl 22. In Bunnings Group Limited v Hicks [2008] NSWSC 874 at [56] (Bunnings), Simpson J (as her Honour then was) noted that, prior to the amendments which took effect from 1 November 2006, s 327(4) took the following form: "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists." (emphasis added).
Her Honour noted that, in this form, the role of the Registrar was that of a "gatekeeper", and had been so interpreted in the Supreme Court. Thus, in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [74]-[75], Wood CJ at CL referred to an argument advanced by the WorkCover Authority to the effect that: "…[section] 327 provides a gatekeeper role for the Registrar, whose task it is to consider, pursuant to s 327(4), whether 'at least one of the grounds for appeal specified in sub-section (3) exists.' If it appears to the Registrar that this is the case, then in accordance with s 327(4), the appeal can 'proceed' and be referred to an Appeal Panel. Thereafter, it was submitted, the Appeal Panel can conduct a review afresh, and is not itself required to determine whether any of the four grounds referred to in s 327(3) has been made good. Nor is it confined to correcting the assessment in relation to such ground or grounds as have been made good. This was said to follow from: (i) The fact that the grounds set out in paras (a) to (d) are described in s 327(3) as 'grounds for appeal under this section'; (ii) The absence of any reference, in s 328(5), to the Appeal Panel needing to find that an 'appeal ground' has been established, or to it 'allowing an appeal'; (iii) The fact that, pursuant to s 328(2) the appeal 'is to be way of a review of the original medical assessment'; and from (iv) The circumstance that pursuant to s 327(6) and s 329(1)(a) the Registrar may refer the matter for a further assessment, as an alternative to an appeal (at least where the relevant ground falls within s 327(3)(a) or (b))." (emphasis in original). His Honour concluded at [76] that there was "force in this submission for the four reasons mentioned", and observed that "[a]lthough the result is perhaps somewhat unusual it is consistent with the legislative policy of placing a tight control on appeals, and of confining the grounds for them."
The decision went on appeal (Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284), but the appeal focussed on the extent of any obligation on the part of the Appeal Panel to give reasons.
In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149; (2007) 4 DDCR 607, Campbell JA, with whose reasons in this respect Hodgson JA and Handley AJA agreed, said (at [74] and [76]): "…It seems to me that section 327(4) requires the Registrar to form an opinion, bona fide, about whether one of the grounds for appeal specified in sub-section (3) exists. While the ground must be alleged, I doubt that it could be said that it 'appears to the Registrar' that one of the grounds 'exists' unless the Registrar had actually formed an opinion that it existed. ... To decide that a ground of appeal 'exists' is not the same as deciding that the ground of appeal has actually been made out. A ground of appeal is a statement of a contention one wishes to make in the course of an appeal, as a reason why the appeal should succeed. A ground of appeal can 'exist' if it is a contention of that type, made in circumstances where there is a sufficiently realistic prospect of the ground being made out. And in deciding whether the prospect of the ground being made out is 'sufficiently' realistic, one turns to the context in which, and purpose for which, the question is being asked. In the context of this particular piece of legislation, deciding that the ground exists involves the Registrar forming a view that the ground of appeal has enough substance to warrant the appeal proceeding."
These paragraphs were quoted by Mason P (with whom McColl and Bell JJA agreed) in Pitsonis at [20].
Returning to Bunnings, Simpson J concluded that the change of terminology effected by the 2006 amendments to s 327(4) had not altered the role of the Registrar as a "gatekeeper", but that it had "varied or altered the test that she must apply in determining whether the gates are to be opened, and the appeal permitted to proceed": at [58]. Her Honour went on to consider the extent of that variation or alteration in an analysis which is of direct relevance to the present case. Thus, at [64]-[76], her Honour said: "The principal issue that arises concerns the construction of the phrase 'one of the grounds of appeal .. has been made out' as distinct from 'exists'. I was provided with a copy of the Second Reading Speech introducing the amendment (NSW Legislative Assembly Hansard, 29 November 2005) but this casts no light upon the purpose of the alteration to the subsection. It contains not the slightest indication of the reasons or circumstances that led the Parliament to make the amendment, or the perceived mischief it was intended to cure. Examination of the before and after versions of subs (4) suggest to me, fairly emphatically, that the intention of the legislature in enacting the amendment was to put in the way of a would-be appellant a hurdle higher than that which had previously existed - or, to adopt and continue the analogy constructed by Wood CJ at CL in Vegan, to make the gates to the Appeal Panel more difficult to open. No longer is the Registrar or her delegate required only to 'form an opinion' (see Riverina Wines) about the existence of a ground for appeal; he/she is to 'be satisfied' (in my opinion, a more stringent test); no longer is he/she to address the question whether the ground of appeal 'exists'; the question to be addressed is whether the ground of appeal 'has been made out' (also, on the express authority of SRA, a more stringent test). … The question remains as to the extent to which it is necessary for a would-be appellant to satisfy the Registrar if an appeal is to be permitted to proceed. It may be that the key to this is to be found, not in the use of the words 'exists' and 'made out', but in the use of the word 'demonstrable' as distinct from 'demonstrated'. As Mason P pointed out in Pitsonis, in a related but slightly different context, 'demonstrable' means 'capable of being demonstrated' - that is, capable of being demonstrated to the tribunal charged with the determination of the appeal. That tribunal is the Appeal Panel. It is not the Registrar or her delegate. 'Demonstrable' does not mean 'has been demonstrated'. It is true that 'demonstrable' is, in common parlance, frequently used to mean, or as interchangeable with, 'demonstrated'. But an Act of Parliament is not common parlance, and the legislature (and its parliamentary drafting teams) are taken to be familiar with the niceties and nuances of language. Recognition of the proper meaning of 'demonstrable' would yield an interpretation of subs (4) that would retain the role of the Registrar as 'gatekeeper', and preserve the role of the Appeal Panel as the tribunal to which determination of the appeal is, by that section, committed. S 327(4) cannot be construed in isolation from the other provisions which make up Part 7 of the WIM Act. Important, for present purposes, are the terms of s 328: by that section an appeal against a medical assessment is to be heard, not by the Registrar, but by an Appeal Panel constituted in accordance with subs (1). It is not, even in the post-amendment regime, the role of the Registrar (or her delegate) to decide an appeal. That task remains firmly in the hands of the Appeal Panel. I recognise that some uncertainty or ambiguity exists, particularly in the light of the remarks of Giles JA in SRA, concerning the meaning of the words 'made out' - I must accept that they demand more than the mere existence of an arguable ground of appeal. But, giving full weight to the opening sentence of s 328(1), and to s 328(2), they cannot be taken to require final determination of the ground of the appeal by the Registrar or her delegate. It may seem attractive, from a superficial reading of the plain words of the amended subs (4), to conclude that the Parliament did indeed intend the Registrar to have the power finally to determine, and the role of finally determining, the fate of a ground of appeal. But there are other circumstances pointing to the contrary of that proposition. The appeal is from an expert tribunal - the AMS - that is, a person with specialised medical training and expertise. The Registrar is not required to, and ordinarily would have, no such expertise. While a Registrar is required to have legal training, his/her delegates are not. This was considered worthy of comment in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [47] and [59]. It would be strange, although not impossible, if the determination of error by an AMS were left to a person without either legal or medical qualifications. And this was one circumstance that, in Riverina Wines, moved Campbell JA to take the view he did (set out above) about what was the role of the Registrar or her delegate ([80], [82]). And when Campbell JA made these observations, the legislation had already been amended, although not in such a way as to apply to the determination of that case. Campbell JA was well aware that what he there said could equally apply to the subsection as amended. And, because the amendment predated the judgment in Riverina Wines, it cannot be thought that the amendment was provoked or instigated by those observations - or, indeed, the circumstances that appertained in Riverina Wines. In relation to the ground of appeal specified in s 327(3)(d), by reason of the use of the word 'demonstrable' as distinct from 'demonstrated', it is possible to conclude that what subs (4) requires is that the Registrar be satisfied that the would-be appellant has made out a case that error (the error identified) was capable of being demonstrated to the Appeal Panel. But that construction will be effective only if it can apply equally to the other grounds specified in s 327(4). Can the same formulation work in relation to the other grounds? I think it can. The Registrar may be satisfied that an applicant has made out a case (to be determined by the Appeal Panel) that the original assessment was made on the basis of incorrect criteria: and equally with respect to the other grounds for which the subsection provides."
Simpson J's focus in [72]-[73] on the contrast between the expertise of the AMS (which is required by s 121(1) of the 1998 Act) and the Registrar (see s 369(3)), and the implications of that contrast for the role of the Registrar under s 327(4) was, in our opinion, particularly apposite and, as her Honour observed, the contrast is even more acute when it is appreciated that the Registrar's task under s 327(4) may be delegated to an officer of the Commission who is not even required to have the basic legal qualifications required of the Registrar.
The contrast to which her Honour drew attention may also be made between the lack of medical expertise required of a Registrar and any Delegate, and the qualification requirements for the Appeal Panel which, pursuant to s 328(1), requires two approved medical specialists and one arbitrator, as chosen by the Registrar. Section 121(1) of the 1998 Act defines an "approved medical specialist" as: "…a medical practitioner who is on a list of medical practitioners approved from time to time by the Authority as approved medical specialists for the purposes of this section".
These matters and considerations of context bear profoundly on the meaning to be attributed to the words "at least one of the grounds for appeal specified in subsection (3) has been made out" in s 327(4). It cannot have been the intention of the legislature that the Registrar, still less his or her Delegate, determine appeals, a conclusion that may otherwise be suggested by the words "made out", especially when juxtaposed with the expression "is satisfied". Such an interpretation would also be at odds with the very existence of, and role to be performed by, a Medical Appeal Panel for which the 1998 Act makes provision (and see, for example, in relation to the nature of an appeal to that body, Siddik v WorkCover Authority of NSW [2008] NSWCA 116).
In Vannini at [19], Gleeson JA referred to [58] of Simpson J's decision in Bunnings for the proposition that the "amendments to s 327(4) of the Management Act in November 2006 have not altered the role of the Registrar as gatekeeper". The Court did not expressly consider what her Honour had said about the role of the Registrar and the degree of satisfaction required under s 327(4), as Vannini was a case which involved a challenge to the decision of the Appeal Panel, and not the Registrar. Gleeson JA, with whom Macfarlan JA and Barrett AJA agreed, did, however, make the following observation at [83], which is consistent with Simpson J's analysis of the Registrar's role under s 327(4): "Nonetheless, this case does not turn on what was intended by the reference to the 'referral document' in Merza and Pitsonis. The Registrar's satisfaction as gatekeeper under s 327(4) whether to refer the application to an Appeal Panel is not the same as a Panel's finding on review that a certificate contains a demonstrable error. The former looks to the capacity of the appeal ground being made out, that is, an arguable case of error. The latter looks to the determination of an Appeal Panel whether such an error has been demonstrated."
On the hearing of the appeal in the present case, Senior Counsel for the Department, Dr Allars SC, accepted and did not seek to challenge the correctness of the formulation of the approach articulated by Simpson J in Bunnings. Nor was any submission put that the passage from Vannini that we have set out at [68] above was wrong, insofar as it made reference to the task of the Registrar under s 327(4). Indeed, that decision was positively referred to in the Department's written submissions in support of the submission that "[t]he Registrar looks to the capacity of the appeal ground being made out (ie an arguable case of error) while the Appeal Panel determines whether such an error has been demonstrated."
In both written and oral submissions, Senior Counsel for Ms Ballas contended that the Delegate misconstrued the "gatekeeper" nature of the task ascribed by s 327(4) to the Registrar. He submitted that the Delegate, rather than looking to whether the appeal grounds were capable of being made out, proceeded to determine the appeal. An analysis of the Delegate's language lends strong support to this submission. Thus phrases such as "I do not accept that …" (see [25] of the Delegate's decision extracted at [37] above) and "I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC" (see [29] of the Delegate's decision) both have the tone of final determination.
Certainly, the Delegate did not express herself in terms of whether Ms Ballas' proposed grounds of appeal were capable of, in the sense of having the potential to be, made out. Dr Allars sought to counter this argument by stating that it followed from the conclusory language in which the Delegate expressed herself that she must have necessarily formed the opinion that the proposed grounds were not capable of being made out. In other words, a conclusion that something is not made out must carry with it an implicit conclusion that it is not capable of being made out.
The fallacy with this submission is that it reasons backwards from the non-expert conclusion that the Delegate was not authorised (or qualified) to reach. An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment "on the face of the application, and in any submissions made to the Registrar": at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable.
In the present case, we are not satisfied that this is what the Delegate did. Not only did she fail to pose the correct questions and embark on the correct process, namely to achieve satisfaction that an "arguable case of error" had been established (this being sufficient to establish the first ground of appeal), she fundamentally misconstrued the nature of the error that Ms Ballas had identified as a "demonstrable error" within the meaning of s 327(3)(d) in the submissions accompanying the application.
The learned primary judge accepted, as we have already pointed out, that this argument was sufficiently articulated in the submissions put before the Delegate (see at [47] above). His Honour also found that the Delegate properly considered this argument.
For the reasons that follow under the consideration of the second ground of appeal, the Delegate did not do so, and the primary judge should have found that her decision was infected by jurisdictional error: Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.

Ground 2

Whilst it is true (and indeed was accepted by Ms Ballas) that the Delegate correctly stated what Ms Ballas's argument was at [21] of her reasons (see [37] above), the consideration of that argument in the paragraphs that followed revealed that the Delegate had, with respect, not properly understood it, and had conflated "scales" and "classes" in the Guidelines and had misunderstood the process that an AMS was required to go through in making his or her assessment of WPI.
It was put that the conflation of concepts, as reflected in the language of the Delegate's decision, had the consequence that the Delegate could not have given proper consideration to Ms Ballas's argument (or indeed to its arguability, had the Delegate asked herself the correct question). It was put that, in addition to the language employed by the Delegate (which we will consider further below), the conflation of concepts in the Delegate's reasons was also to be seen in her reference in [16] and [23] of those reasons to the decision of Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins).
Dr Allars sought to counter this submission by invoking the well-known words of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Wu Shan Liang) that: "the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". (footnote omitted).
The Court is, of course, well familiar with the High Court's injunction in Wu Shan Liang. However, given that reasons and therefore erroneous reasons (if there be error) will generally manifest themselves in the language of the decision-maker, the injunction cannot be taken too far nor invoked so as to mask jurisdictional error that emerges in, or from, a decision-maker's reasons. In this context, reference was made to the observations of Hamill J in Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47], who in turn had cited the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] as follows: "The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked."
For the reasons given below, we do not think that Wu Shan Liang can be deployed in the present case to explain away what we consider to be the Delegate's error (and the primary judge's error in concluding that there was no error by the Delegate).
For the purpose of considering the criticism of the Delegate's decision and the primary judge's consideration of it, it is convenient to focus upon the following four paragraphs from Ms Ballas's submissions to the Delegate (the complete submission having been set out at [35] above): "6. The assessment of social and recreational activities is carried out in accordance with Table 11.2 of the NSW Worker's Compensation Guidelines for Evaluation of Permanent Impairment 4th Edition. It should first be observed that social and recreational activities are not travel and are not social functioning. It is apparent from a reading of the table that social and recreational activities is directed to the kind of activities that involve interactions with other people. For example, Class 1 refers to being actively involved with clubs or associations. Class 2 refers to being actively involved, e.g. dancing, cheering favourite team. 7. The table is not directed to solitary activities that do not involve interactions with other people. 8. It is apparent from the reasons given in the medical assessment certificate, that the AMS placed great significance on the fact that the Appellant would attend the RSL club about once a month to gamble on the poker machines for one hour. The major feature of such an activity is that it is a solitary activity that does not involve interactions with other people. It does not require any of the type of participation which is contemplated by social and recreational activity. The fact that the Appellant is able to travel to the RSL club is relevant to the assessment of travel and is consistent with the assessment of Class 2 for that category. It is not, however, relevant to the assessment of social and recreational activities. By including that matter in his assessment, the AMS has both applied incorrect criteria in that he has not properly applied the guidelines and has made a demonstrable error. 9. When assessing social and recreational activities, the AMS also refers to the Appellant seeing one friend regularly. There is no reference to this in the history and accordingly, it is unknown in what circumstance[s] this contact occurs. In any event, the AMS has repeated the same error of taking into account an irrelevant consideration. The issue of ability to maintain friendships is relevant to the Class of social functioning not social and recreational activities. To the extent that it is relevant to social and recreational activities, it is only to the extent that the appellant responds to prompting by a close friend or tolerates the company of a close friend. It should be noted that the ability to tolerate the company of a close friend is consistent with a rating of Class 4." (emphasis added).
This submission had, underpinning it, an argument that each of the "scales" referred to in s 11.11 of the Guidelines was focussed on different particular behavioural consequences of the injured worker's psychiatric disorder, and that each "scale" was a distinct area of functional impairment (see [22] above) falling to be separately assessed. It was important in this regard, so the argument ran, that only matters relevant to the distinct area or "scale" were taken into account in making an assessment of the degree of impairment in that particular area.
It will be recalled that for each area of functional impairment, an AMS was required to assign a "class" of between 1 and 5 in order to "rate" each particular area of functional impairment. Tables are supplied in the Guidelines in respect of each particular area or "scale" which supply examples of behaviour or conduct that would merit a particular rating or "class" of between 1 and 5. The tables relevant to the area or "scale" of functional impairment described in s 11.11 as "social and recreational activities" and "social functioning" have been reproduced at [23] above.
Misassignment of conduct to a particular area or "scale", and assessment of that conduct for the purposes of assigning a rating or "class" to that area, has the potential to distort the overall WPI of an injured worker. Thus it was submitted and accepted as correct that, had Dr Hong assigned a rating of 3 rather than 2 to the "social and recreational activities" area of impairment, then, applying the formulae in ss 11.13-11.20 of the Guidelines (see [24] above), Ms Ballas's overall WPI would have been 17% rather than 8%. This difference would have major implications for Ms Ballas, including entitling her to permanent impairment compensation (see [6] above).
The argument advanced by Mr Hooke SC on behalf of Ms Ballas was that, in giving his reasons for the particular rating of 2 assigned to the "social and recreational activities" area of impairment (the reasons are set out in the prescribed form reproduced at [31] above), Dr Hong took into account matters that, whilst they may have been relevant to other areas of impairment that fell for assessment such as "travel" and "social functioning", did not bear upon that area identified as "social and recreational activities". In particular, the solitary nature of Ms Ballas's gambling was said not to be relevant to "social and recreational activities" because, to quote from para 6 of her submission to the Delegate, that scale "is directed to the kind of activities that involve interactions with other people". This was the essence of what made it "arguable" that the AMS had made a "demonstrable error".
The question for the primary judge was whether the Delegate properly considered this argument, and the question for this Court is whether, in concluding that the Delegate did, the primary judge erred.
It should at this point be observed that the nomenclature employed in the Guidelines is apt to confuse. The word "scales" is used in the Guidelines to describe areas or categories of functional impairment, even though the word "scale" is not a natural synonym for either of those two concepts. The word "classes" is actually closer in ordinary English meaning to "categories", but is used in the Guidelines to mean degrees of impairment. The Guidelines moreover allow for the assignment of a range of impairment from 1-5 which may be thought of in terms of a "scale" in its ordinary English sense. It is not difficult to understand how, therefore, confusion may arise.
A review of the Delegate's decision shows that, on a number of occasions, she conflated these concepts. One example is supplied by contrasting the Delegate's use of the word "category" in [18] of her reasons (which clearly was a reference to "scale", because she spoke of a "category of social and recreation", corresponding to the second of the six scales in s 11.11 of the Guidelines) with her statement in [23] that "PIRS categories are examples of activities only" and are "generic and general in their description", citing Garling J's decision in Jenkins. Here, she was using the word "categories" to refer to the "classes" by reference to which activities are rated. That is so both as a matter of language and context, for Jenkins was a case which focussed on "classes".
Further, in [25] of her reasons, the Delegate having stated that she did not accept that the activity of attending a RSL Club once a month was necessarily an activity that ought to fall within class 3 and not class 2, she went on to state that "the PIRS categories are not a [sic] rigid in formation and they are to be applied by an AMS based on the history taken by him [or] her during the clinical examination". Here, as a matter of context, the Delegate would appear to be using "PIRS categories" to refer to "classes", rather than to "scales". This would appear to be inconsistent with her earlier use of the word "category" in [18] (referred to at [88] above).
When one turns to [24] of the Delegate's reasons, it is frankly unclear whether the Delegate was intending to refer to "scales" or "classes", although we incline to the view that it was the latter. In that paragraph the Delegate stated that: "In my view, the appellant's submission attempts to unreasonably place limitations on the manner in which the PIRS categorises are applied by Approved Medical Specialists. The PIRS categories are generic and general in description and they are, to some extent, overlapping. The categorisation of what category applies is a matter within the AMS's discretion based on his or her clinical assessment." (emphasis added). The use of the phrase "generic and general in description" is taken from Jenkins at [62], referred to in the previous paragraph of the Delegate's reasons and which was, as we have noted at [88] above, a decision describing the various "classes". Moreover, the verb "applies" more aptly describes the task of assigning a class to a pre-existing scale or category of behaviour.
It is for these reasons that we reject the primary judge's conclusion at [57] that "it is clear that, when referring to 'PIRS categories' in [24] and 'categories' elsewhere, the Delegate was referring to the scales or functional areas and not classes within them." The Delegate used the word "categories" at some points in her reasons to refer to "scales" and at other points in her reasons to refer to "classes". At the very least, there was no clarity as to the Delegate's decision.
If, in [24] of her reasons (see [90] above) and contrary to our preferred view, the Delegate was referring to categories as "scales", as the primary judge found, then the Delegate was wrong to speak in the language of "discretion". The scales are fixed and are treated by the Guidelines as distinct from each other. The structure of the Guidelines, and the mandated use of a standardised form on which an AMS must specify the "class" he or she assigns to each "scale" and give his or her reasons for doing so, are designed to add transparency and rigour to the exercise of WPI assessment.
Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to "social and recreational activities" on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to "self care and personal hygiene", "social and recreational activities", "travel", "social functioning (relationships)", "concentration, persistence and pace" or "employability". This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation.
In the present case, it was plainly "arguable", to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale "social and recreational activities" when he made reference in his reasons to "[s]ees one friend regularly" (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled "Social functioning (relationships)" to which that conduct is more directly relevant.
Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the "Social functioning (relationships)" scale.
The aim of the Guidelines (which have been held to have the force or effect of delegated legislation: see Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 at [25]-[28]; Jenkins at [29]) would be subverted if the decision as to which scale to place certain conduct in for the purposes of assessing seriousness of impairment were left to the discretion of an AMS, as the Delegate indicated it could be. This would also have ramifications for the reviewability of decisions by an AMS. There is an important difference between a characterisation exercise and an exercise of discretion.
We are unable to accept the primary judge's conclusion in [60] of his judgment in relation to [25] of the Delegate's reasons that: "While the paragraph may not be entirely elegant, it is sufficiently clear, in the context of the reasons as a whole, that the Delegate was here rejecting the argument that the activity in question could not fall within 'social and recreational activity' because that category or scale was not 'directed to solitary activities that do not involve interactions with other people', as Ms Ballas submitted in her submissions in support of the application to appeal. The Delegate addressed that argument. In doing so, she accepted that regular activities that required active involvement, even if they were undertaken individually and, in that sense, were 'solitary', could still be relevant to assessing the 'social and recreational activities' category of functional impairment, depending on the circumstances revealed by the history and clinical examination. In this way, she rejected Ms Ballas's argument that such activities were not relevant the 'social and recreational activities' category."
As we have already stated at [89] above, the Delegate's decision at [25], in using "categories" to refer to "classes" rather than "scales" in this paragraph, appeared to be responding to an argument that the AMS had assigned the wrong class (a "2" rather than a "3") to the scale of social and recreational activities. So much follows from the opening words of [25] of the Delegate's decision. The primary judge's conclusion in [60] of his Honour's judgment set out at [98] above cannot be sustained. His Honour's opening reference to the fact that this paragraph of the Delegate's decision may not be "entirely elegant" highlighted the confusion that was immanent in the Delegate's reasons.
The "social and recreational activities" scale looks to the injured worker's degree of participation in such activities. This scale, it was argued, was directed towards an assessment of an injured worker's interaction with other people, and not a solitary activity such as gambling on poker machines. As was put in the submissions to the Delegate, when one examined the examples that were given for classes 1-5 in Table 11.2 of the Guidelines, all involved some degree of interaction with others, to a greater or lesser degree and on a sliding scale. It was plainly arguable in our opinion that that was the case, and this being so, the requisite level of satisfaction under s 327(4), as explained earlier in these reasons, should have been held to have been met.
For all of the above reasons, the Delegate erred and that the primary judge in turn erred in holding to the contrary. It follows that appeal ground 2 has been sustained. Subject to consideration of the Notice of Contention, the appeal should be allowed.

Notice of Contention

The Department's Notice of Contention provided, relevantly: [1] "DETAILS OF CONTENTION The First Respondent contends that the decision of the court below should be affirmed on grounds other than those relied by the court below, but does not seek a discharge or variation of any part of the orders of the court below. GROUNDS 1 The Decision made on 17 July 2018 by the delegate of the Registrar of the Workers Compensation Commission (Commission) (the Commission being the Second Defendant below), was not an operative decision that was justiciable under s 69 of the Supreme Court Act 1970 (NSW), having been overtaken by the decision made on 22 August 2018 by the Commission. 2 … 3 No legal error is established in relation to the decision made on 22 August 2018 by the Commission. 4 The Court would not in its discretion grant relief in respect of the decision made on 22 August 2018 by the arbitrator (Fourth Defendant below) of the Commission, or the Commission, since there is a more convenient and satisfactory remedy in relation to such a decision, by appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)."
Although the issues raised by the Notice of Contention were not agitated below, as grounds 1 and 3 of the Notice of Contention raise a question of jurisdiction it is appropriate that leave be granted to consider them.
The question raised is whether a Certificate of Determination issued by the WCC pursuant to s 294 of the 1998 Act has the effect of superseding the Delegate's decision and placing it beyond the Court's supervisory jurisdiction under s 69(3) of the Supreme Court Act. By reason of a subsequent application made by Ms Ballas after the hearing in this Court, the Department now seeks to advance a submission that the refusal by the WCC to reconsider the decision to issue the Certificate of Determination under s 350(2) of the 1998 Act (the reconsideration determination) also has the effect of placing the decision by the Delegate beyond the Court's supervisory jurisdiction.
For the reasons that follow both questions should be answered "no". Both the original Certificate of Determination and the reconsideration determination should be set aside. This is on two bases. First, setting aside the Certificate of Determination and the reconsideration determination is necessary consequential relief having regard to the established jurisdictional error in a critical step in the statutory process of the WCC making a determination. Secondly, the original Certificate of Determination and the reconsideration determination were themselves affected by jurisdictional error.
On this second point, the Department submitted that an order should not be made setting aside the Certificate of Determination and the reconsideration determination as themselves being affected by jurisdictional error as this was not relief originally sought by Ms Ballas in the Notice of Appeal. That submission should be rejected. The issue the subject of the Notice of Contention was not raised at all by the Department before the primary judge. Ms Ballas was entitled to take the view that the Notice of Appeal framed as seeking consequential relief about the Certificate of Determination was sufficient. In any event, both parties were permitted to make two rounds of additional written submissions about this issue and, having regard to the Department's conduct of the case, there is no unfairness in permitting Ms Ballas to advance the argument that the original Certificate of Determination and the reconsideration determination were each themselves affected by jurisdictional error.
The Certificate of Determination was issued under s 294 of the 1998 Act which provided: "294 Certificate of Commission's determination (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. (3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error." [2]
The nature of the "dispute" which was "determined by the Commission" the subject of the Certificate of Determination is here critical. Where there is a dispute in connection with a claim for compensation, any party to the dispute may refer the dispute for determination by the WCC: s 287(1) of the 1998 Act. Where the dispute is about lump sum compensation, only the claimant can refer the dispute: s 288(1) of the 1998 Act.
When, as in the present case, the dispute referred to the WCC comprises a medical dispute, s 293(1) of the 1998 Act applies. At the date the Certificate of Determination was issued on 22 August 2018, s 293 of the 1998 Act provided: "293 Medical assessment (1) When a dispute referred for determination by the Commission concerns a medical dispute within the meaning of Part 7, the Registrar may, in accordance with this section, refer the medical dispute for medical assessment under Part 7, and defer determination of the dispute by the Commission pending the outcome of that medical assessment. (2) If the dispute concerns the degree of permanent impairment (including hearing loss) of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Part 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment. (3) The Registrar may not refer for assessment: (a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or (b) a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment)."
The present case involves a "medical dispute within the meaning of Part 7" and the "medical dispute" was referred to Dr Hong for "medical assessment under Part 7". The "determination of the dispute by the Commission" is deferred pending the "outcome of that medical assessment".
This Court has an entrenched jurisdiction under s 69(3) of the Supreme Court Act to grant the necessary relief in relations to decisions affected by jurisdictional error. Section 350(2)(b) of the 1998 Act does not insulate the Certificate of Determination or the reconsideration determination from the Court's supervisory jurisdiction in the case of jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk). Section 350 provides: "350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not - (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission."
We reject the Department's central submission that in "the same manner as an appellate decision, [the Certificate of Determination and the redetermination decision] supersedes decisions made along the way, whether by an AMS, the Registrar or an Appeal Panel".
The principal case relied upon for this proposition by the Department, Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 (Wishart v Fraser) as applied by this Court in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [23]-[24] (Vitaz), is not authority which assists the Department in the present case. It is necessary to examine Vitaz in some detail. The essence of that decision is that, in applying the principles in Wishart v Fraser, a challenge by way of judicial review to the decision of the AMS is incompetent where there has been a concluded appeal to an Appeal Panel. Of course, in the present case, the decision of the Delegate which was affected by jurisdictional error meant that there has been no appeal from the AMS's medical assessment.
In Vitaz Basten JA (with whom McColl JA and Handley AJA agreed) explained that, in determining whether an order "confirming" a certificate may constitute the exclusive authority for the decision under review, close attention must be paid to the particular statutory scheme which is engaged. His Honour's conclusion was that in this statutory scheme, following a decision of the appellate body, judicial review proceedings may not be brought in respect of the original decision. That is not what occurred here. Indeed, one important aspect of the jurisdictional error was that the Delegate misunderstood the statutory power engaged and determined the question as if the Delegate was entitled to act in the place of Appeal Panel. Ironically, given this conclusion, the Department here submitted that relief should be refused to Ms Ballas on discretionary grounds as the appellate procedure had not been used. Basten JA's reasons at [19]-[24] of Vitaz (with which McColl JA and Handley AJA agreed) should be set out in full: "The earlier case law with respect to procedural unfairness was helpfully summarised by Fitzgerald JA (with whom Beazley JA agreed) in Hill v Green [1999] NSWCA 477; 48 NSWLR 161 at [155]-[164]. The manner in which obligations with respect to procedural fairness may be affected have since been explained by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [146]. However, neither the express language nor the scheme of the Workplace Injury Act requires that the claimant have fair procedures at each stage, so that an omission by the medical specialist cannot be 'cured' by an Appeal Panel. The powers of the Appeal Panel are to 'confirm' the certificate of assessment or revoke the certificate and issue a new certificate: s 328(5). Although the provisions of s 326 (dealing with the status of medical assessments) are expressly stated to apply to a new certificate, that is not said about a decision confirming an existing certificate. However, it does not follow that the confirmed certificate obtains its validity from the opinion of the original specialist, despite its review by an Appeal Panel. The authorities with respect to judicial proceedings support the conclusion that an order 'confirming' a certificate, may constitute the exclusive authority for the decision under review. A similar conclusion should be accepted by reference to the statutory scheme in respect of a decision of an Appeal Panel, being a body exercising judicial functions: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [104]-[109] and [117]; cf Sherlock v Lloyd [2010] VSCA 122 at [22] (Maxwell P, Ashley JA and Byrne AJA). It would follow that a challenge by way of judicial review to the decision of the specialist is incompetent where there has been an appeal to an Appeal Panel. There are other areas in which similar problems arise. Each requires attention to its own statutory scheme. In the area which has given rise to most judicial review cases in recent years, namely refugee claims under the Migration Act 1958 (Cth), analogous issues could arise. The original decision made by a delegate of the Minister is subject to review by the Refugee Review Tribunal: Migration Act, s 414. That Tribunal generally has power to 'affirm', vary, or set aside the decision and substitute a new decision: s 415(2). Where the decision is varied, or set aside and substituted, the Act specifically provides that the Tribunal's decision is taken to be a decision of the Minister. As with the scheme under the Workplace Injury Act, no such express provision is made in respect of a decision which is 'affirmed'. In Ex parte Miah, an applicant sought to review a delegate's decision, his solicitor having failed to lodge a timely appeal to the Refugee Review Tribunal. The availability of the proceedings for review was not in doubt; nor was relief refused on discretionary grounds: see also NAJT v Minister for Immigration and Multicultural Affairs [2005] FCAFC 134; 147 FCR 51; NAMG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 181. The Court has no knowledge of any case where judicial review has been sought of a delegate's decision in circumstances where there has been a review by the Refugee Review Tribunal. Thus, practice at least in this statutory arena is consistent with the application of Wishart. There remains a question as to whether the approach of the High Court in Kirk is inconsistent with this conclusion. The question arises because Mr Kirk and his company were convicted in the Industrial Court in respect of contraventions of the Occupational Health and Safety Act 1983 (NSW). From the judgment of a single judge an appeal was taken to a Full Bench of the Industrial Court, although leave was limited to a single point and the appeal was dismissed. Neither Wishart v Fraser, nor its progeny, were referred to in Kirk. Accordingly, there is no reason to suppose that they do not apply, although there may be an issue as to whether their operation may be qualified in some circumstances. The conclusion that, following a decision of an appellate body, judicial review proceedings may not be brought in respect of the original decision, does not mean that the original decision is irrelevant for all purposes. For example, the reasoning of the original decision-maker would remain relevant if it were adopted by the appellate body. Further, if the decision of the appellate body were set aside, the operation of the original decision would revive, subject to disposal of the undetermined appeal from it. The original decision might have significance in other respects, depending upon the nature of the challenge raised to the decision on appeal. For example, if there were an alleged defect in the commencement of the proceedings, that may infect both the original decision and the decision on appeal, if it cannot be rectified. Such arguments were raised in The Queen v Marks; see also Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 at [46]-[50]."
Vitaz deals with a situation quite different to the present. On the correct construction of the 1998 Act, the Certificate of Determination was not an appellate affirmation of the decision of the Delegate. The WCC was not exercising appellate jurisdiction in respect of the Delegate, and the Certificate of Determination and the reconsideration decision did not "confirm", "uphold", or otherwise pass judgment on the Delegate's decision. Under s 293 of the 1998 Act, the WCC was required to "defer determination of the dispute by the Commission pending the outcome of that medical assessment". The decision by the WCC to issue the Certificate of Determination in circumstances where, by reason of the Delegate's jurisdictional error, the process of medical assessment miscarried, was itself jurisdictional error.
Nor did the Certificate of Determination make any relevant determination about the MAC or Dr Hong's decision. This is because, on the correct construction of the 1998 Act, in issuing the Certificate of Determination the WCC was bound by the outcome of the medical assessment. This is the effect of s 326 of the 1998 Act which provided: "326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned - (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings."
The MAC issued by Dr Hong related to the "degree of permanent impairment of the worker as a result of an injury". Section 326(1) of the 1998 Act provides that the MAC was "conclusively presumed to be correct". It was by reason of the decision of the Delegate, affected by jurisdictional error, that Ms Ballas's application to appeal the making of that MAC was not in truth considered.
It is not the role of the WCC to determine "medical disputes" about the assessment of permanent impairment, that is reserved to an AMS, subject of course to an appeal to an Appeal Panel: Haroun v Rail Corporation of NSW [2008] NSWCA 192; 7 DDCR 139 at [16]-[20]. As Handley AJA there explained (at [17]-[20]) about sections that were materially the same: "Section 65(1) and (3) of the 1987 Act provides that in the event of a dispute the degree of permanent impairment that results from an injury is to be assessed in accordance with Part 7 of the 1998 Act. This includes ss 321, 323, 326, 327 and 328. Section 326(1) provides that a MAC 'is conclusively presumed to be correct … in any proceedings before a Court or the Commission' as to (a) 'the degree of permanent impairment of the worker as a result of an injury' and (b) 'whether any proportion of permanent impairment is due to any previous injury or pre-existing condition.' This section also applies to a MAC issued by a Panel: s 328(5). The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise. If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but 'may refer it for assessment' by an AMS: s 321(1). That section confers a power which an Arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford [(1880) 5] App Cas 214, 235, 243, 244."
In this case, there was jurisdictional error in the Delegate's decision. This error was a critical causative step in the ultimate determination of the WCC leading to the issue of the Certificate of Determination. An alleged error in making the underlying MAC was identified by Ms Ballas. An appeal from the decision of the AMS was sought to be brought. By reason of the s 327(4) decision of the Delegate being affected by jurisdictional error Ms Ballas's application to have her appeal heard by an Appeal Panel failed to be considered.
As a matter of construction of the 1998 Act, the Certificate of Determination issued here could not have been issued save for the erroneous decision of the Delegate. This is because, in the present circumstances and on the correct construction of the 1998 Act, the "determination of the dispute by the Commission" reflected in the Certificate of Determination miscarried. The WCC was obliged by the statute to "defer determination of the dispute by the Commission pending the outcome of that medical assessment". Here there was no "outcome" of the medical assessment because a step mandated by the statute in the determination of the medical assessment was not taken by reason of the jurisdictional error of the Delegate. The same conclusion applies to the reconsideration determination. The Certificate of Determination and the reconsideration determination must be set aside as necessary consequential relief having regard to the jurisdictional error in the decision of the Delegate and as decisions themselves affected by jurisdictional error.
The cases referred to by the Department do not establish that the decision of the Delegate is here immune from this Court's supervisory jurisdiction. The case of Ali Ali v Rockdale City Council [2015] NSWSC 1481 (Ali Ali) deals with a different point. Stevenson J, sitting in the administrative law list, explained that after the impugned decision of the AMS to issue a MAC an Appeal Panel of the Commission confirmed the certificate. Critically, the Certificate of Determination in that case was made by consent. As his Honour explained: "[5] On 14 April 2014, the second defendant, the Appeal Panel of the Commission, made a decision in the Proceedings ('the Decision') pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('the Act'). The Appeal Panel purported to confirm a medical assessment certificate ('the Certificate') issued by the third defendant, Dr John Garvey, on 7 November 2013. … [12] The 24 June 2014 Orders were made following a teleconference ('the Teleconference') between Arbitrator Deborah Moore from the Commission, a solicitor appearing for Mr Ali Ali (Mr Andrew Silk), and a solicitor appearing for the Council (Mr Shane Koelmeyer). Mr Ali Ali and an interpreter were also present with Mr Silk. Mr Silk is an employee of Mr Martin Bell, the solicitor on the record in these proceedings for Mr Ali Ali. [13] The 24 June 2014 Orders are headed 'Certificate of Determination - Consent Orders' and in the following terms: 'In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows: 1. In accordance with the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 the applicant has no entitlement to lump sum compensation. 2. In respect of the claim for section 60 expenses, the respondent agrees to pay reasonably incurred section 60 expenses up to 9 May 2012 on production of accounts, receipts or Medicare charge. 3. The respondent agrees to pay the applicant's costs in respect of a section 60 claim only. Deborah Moore Arbitrator'. … [22] It is common ground that the 24 June 2014 Orders (if they stand) are a complete answer to Mr Ali Ali's claim for prerogative relief concerning the Certificate and the Decision. Ms Allars accepted that, if the challenge to the 24 June 2014 Orders failed, it would be futile for me to grant any relief in relation to the Decision or the Certificate, as the Decision would, in those circumstances, have been overtaken by the 24 June 2014 Orders."
The Certificate of Determination in Ali Ali was not issued pursuant to s 294 of the 1998 Act following "a determination by the Commission", but pursuant to r 15.9(1) of the Workers Compensation Commission Rules 2011 (NSW). At that time r 15.9(1) of the Rules was in the following terms: "15.9 Determination by consent order (1) Where the parties … to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order."
In order to engage r 15.9, the orders needed to be made by consent. The applicant's consent was a jurisdictional fact found against Mr Ali Ali. Ali Ali is not authority supporting the Department's jurisdictional argument.
Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136 at [35]-[36] per Murphy J also addresses a quite different issue. The case turned on the construction of a statutory review by the Australian Electoral Commission of a decision of its Delegate. The review which had taken place was unlimited in scope. The powers of the Electoral Commission on review extended to confirmation, variation, or setting aside of the decision, and included a power to substitute a different decision for that under review. As Murphy J explained at [35]: "As a matter of first principles, the delegate's decision of 8 January 2010 must have been superseded by the AEC decision. In an analogous circumstance in Wishart v Fraser (1941) 64 CLR 470 (Wishart) the High Court held that a magistrate's decision could not be impugned once the Court of Quarter Sessions had affirmed it. Wishart was applied in R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471 at 476 per Mason J, and at 489 and 493 Murphy and Aickin JJ agreed. The applicant was required to join the Full Bench of the Australian Conciliation and Arbitration Commission as a party to a proceeding which challenged a decision of a Deputy President of the Commission, where the Full Bench had affirmed that decision."
His Honour went on at [36]-[37] to examine and apply the passages from the judgment of Basten JA in Vitaz that are set out above. For the reasons already given, the present case is very different to Vitaz.
The Department's jurisdictional argument is inconsistent with the entrenched jurisdiction of this Court under s 69 of the Supreme Court Act. In Kirk, the High Court quashed both the orders of Walton J at first instance and the orders of the Full Bench on appeal because the same jurisdictional errors infected both sets of orders. As the plurality explained at [108]: "An order in the nature of certiorari could, and in this case should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error of the Industrial Court. Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed: [Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277; [1979] HCA 27; Ruddock v Taylor (2005) 222 CLR 612 at 656 [160]; [2005] HCA 48; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed (2009) at 801‑802 [12.25]; Grady and Scotland, The Law and Practice in Proceedings on the Crown Side of the Court of Queen's Bench, (1844) at 187‑188; Halsbury, The Laws of England, 1st ed (1909), vol 10 at 186‑187 [365]]."
The failure of the WCC to identify jurisdictional error in this case in issuing the Certificate of Determination and in making the reconsideration determination is itself jurisdictional error. So much was established by Kirk. The WCC was correct in making the reconsideration decision to observe at [55] that: "In any event, there is an available remedy to the mischief of which the applicant now contends. The Commission's usual practice, where a decision of a Registrar's delegate (or, more commonly, a Medical Appeal Panel) had been set aside by an order of the Court, where a Certificate of Determination had issued (which is in nearly all matters), is to rescind the Certificate in order to comply with the orders of the Court. Should the applicant succeed in the appeal, the Commission will take that action. If the applicant is unsuccessful, the Certificate does not need to be set aside."
Despite this evidence of practice the Certificate of Determination and the redetermination decision should be set aside.
Acceptance of the Department's submission would allow the WCC to define its own jurisdiction and insulate the correct determination of a medical dispute from review. A Certificate of Determination issued under s 294 immediately after a decision by a Delegate under s 327(4) would, on the Department's case, immunise a s 327(4) decision affected by jurisdictional error from review by this Court. That is precisely the vice against which the entrenched supervisory jurisdiction described in Kirk protects. The Department's submission that "any invalidity of an exercise of power under s 327(4) does not infect an exercise of power under s 294" is not correct. The exercise of power under s 294 followed inexorably and automatically in this case from the making of a decision under s 327(4) which was affected by jurisdictional error. The failure of the WCC to identify the jurisdictional error made in the s 327(4) decision was itself jurisdictional error. The same conclusion applies to the reconsideration decision. The exercise of power in making that decision was affected by jurisdictional error made in making the s 327(4) decision.
Ms Ballas's rights to an appeal to an Appeal Panel only came to an end by reason of a decision made by the Delegate which was affected by jurisdictional error. The steps which followed as a direct consequence of this erroneous decision under s 327(4) should be set aside and the matter remitted to the WCC to permit a proper consideration of the s 327(4) question.
Grounds 1 and 3 of the Notice of Contention should be dismissed. Orders should be made setting aside the Certificate of Determination and the reconsideration determination.
Ground 4 of the Notice of Contention was limited to discretion. The point was not taken before the primary judge. The hearing of this appeal is not the occasion to permit the Department to completely reformulate its case and raise matters which might have led to a different approach being taken by Ms Ballas before the primary judge. Leave to rely on ground 4 of the Notice of Contention should be refused.

Orders

The orders of the Court are: 1. Appeal allowed with costs. 2. Leave to rely on ground 4 of the Notice of Contention refused. 3. Set aside the decision of the primary judge and, in lieu thereof: (i) declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and decision of the Third Defendant dated 17 July 2018 is void and of no effect; (ii) order the decision issued by the Second Defendant, constituted by the Third Defendant on 17 July 2018 be set aside; (iii) remit the matter back to the Second Defendant for referral to a different Delegate to determine the dispute according to law; (iv) order the Certificate of Determination issued by the Fourth Defendant on 22 August 2018 be set aside; (v) order the reconsideration determination made by the Fourth Defendant on 8 April 2020 be set aside; and (vi) order that the First Respondent to pay the Appellant's costs of the proceedings before the primary judge.
EMMETT AJA: The question in this application concerns the operation of the appeal process under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Management Act). The question arises in the context of a dispute between the appellant, Ms Fiona Ballas, and the first respondent, the New South Wales Department of Education (the Department), in relation to the degree of impairment incurred by Ms Ballas as a result of psychological injury suffered in the course of her employment by the Department.
Ms Ballas lodged an application to resolve the dispute with the Workers Compensation Commission of New South Wales (the Commission). Following that application, the dispute was referred to an approved medical specialist (the AMS) who issued an assessment certificate that the whole person impairment suffered by Ms Ballas as a result of psychological and psychiatric injury was 8%. The consequence was that Ms Ballas was not entitled to the compensation that she claimed.
Ms Ballas applied to the Registrar of the Commission, to appeal against the decision of the AMS. The Delegate of the Registrar (the Delegate) decided that none of the grounds of appeal on which Ms Ballas wished to rely was made out and that the appeal was not to proceed. By summons filed on 14 September 2018, Ms Ballas sought judicial review of the Delegate's decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 8 March 2019, a judge of the Common Law Division dismissed the summons. On 5 April 2019, Ms Ballas gave notice of intention to appeal and filed a notice of appeal on 7 June 2019. She then filed a summons seeking leave to appeal on 7 August 2019. On 29 October 2019, leave to appeal was granted.

Statutory Framework

Ms Ballas was employed by the Department as a primary school teacher at Yagoona Public School. In the course of that employment, she was exposed to events that resulted in psychiatric injury. On 24 October 2016, she brought a claim against the Department for compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the Compensation Act). Liability was not disputed.
Section 65 of the Compensation Act relevantly provides that the degree of permanent impairment that results from an injury is to be assessed as provided for by Pt 7 of Ch 7 of the Management Act. Section 66 of the Compensation Act relevantly provides that a worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive compensation for that permanent impairment. However, under s 65A(3) of the Compensation Act, no compensation is payable in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%. A primary psychological injury is one that does not arise as a consequence of, or secondary to, a physical injury. Psychological injury includes psychiatric injury.
Section 293 of the Management Act relevantly provides that when a dispute referred for determination by the Commission concerns a medical dispute, the Registrar may refer the medical dispute for medical assessment and defer determination of the dispute by the Commission pending the outcome of that medical assessment. Under s 322, the assessment of the degree of permanent impairment of an injured worker for the purposes of the Compensation Act is to be made in accordance with workers' compensation guidelines issued for that purpose. Section 326 relevantly provides that an assessment certified in a medical assessment certificate pursuant to a medical assessment under Pt 7 of Ch 7 of the Management Act is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury in any proceedings before a Court or the Commission.
Section 327 of the Management Act provides that a party to a medical dispute may appeal against medical assessment under Pt 7, but only in respect of a matter that is appealable under s 327 and only on the grounds for appeal under s 327. The matter is appealable under s 327 if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate is conclusively presumed to be correct in proceedings before a Court or the Commission. The grounds for appeal under s 327 include the following:

the assessment was made on the basis of incorrect criteria; and
the medical assessment certificate contains a demonstrable error.

Under s 327(4), an appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in s 327 has been made out.
Under s 328, an appeal against a medical assessment is to be heard by an appeal panel constituted by two approved medical specialists and one arbitrator, chosen by the Registrar. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

The Dispute

The application to resolve a dispute lodged with the Commission by Ms Ballas stated that the dispute related to a claim for lump sum compensation where liability was in dispute. The date of injury was stated to be 24 October 2016 or by reason of the nature and conditions of employment from 1999 to that date. The claim for compensation was made on 18 December 2017. The application claimed $34,240 in respect of 15% whole of person impairment in respect of psychological injury. The Department lodged a reply to the application dated 18 April 2018. The reply was supported by medical reports by Associate Professor Robert Kaplan. A delegate of the Registrar referred the dispute to the AMS. The dispute was stated to be as follows:

the degree of permanent impairment of Ms Ballas as a result of her injury;
whether any proportion of permanent impairment was due to any previous injury or pre-existing condition;
whether impairment was permanent; and
whether the degree of permanent impairment was fully ascertainable.

On 14 May 2018, following an examination of Ms Ballas on 8 May 2018, during which the AMS took detailed history from Ms Ballas relating to the injury, the AMS issued a medical assessment certificate. The certificate stated that the opinion of assessment of whole person impairment by the AMS was as set out in a table in the form provided for in the guidelines. Chapter 11 of the guidelines deals with psychiatric and psychological disorders and lays out the method of assessing psychiatric impairment, the valuation of which is said to require a medical examination. The impairment rating must be based on a psychiatric diagnosis and the psychiatrist is expected to provide a rationale for the rating based on the injured worker's psychiatric symptoms.
Paragraph 11.11 of Ch 11 provides that behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment as follows: 1. self-care and personal hygiene; 2. social and recreational activities; 3. travel; 4. social functioning (relationships); 5. concentration, persistence and pace; and 6. employability. Impairment in each area is rated using class descriptors ranging from 1 to 5 in accordance with severity. A standard form must be used when scoring the psychiatric impairment rating scale that is set out in the guidelines. Rating the psychiatric impairment using that scale is a two-step procedure. First, it is necessary to determine the median class score. The aggregate score is then calculated. A conversion table is then used to arrive at percentage impairment.
On 8 June 2018, Ms Ballas lodged with the Registrar an application to appeal against the decision of the AMS in his certificate of 14 May 2018. The application stated that the grounds relied on for the appeal were:

the assessment was made on the basis of incorrect criteria; and
the medical assessment certificate contains a demonstrable error. Draft submissions detailing the grounds of the appeal were attached to the application.

On 29 June 2018, the Department lodged a notice of opposition to the appeal against the decision of the AMS. Submissions on behalf of the Department were attached to the opposition. The Department said that the appeal could be decided by the appeal panel solely on the basis of the written application and any written notice of opposition lodged.
On 17 July 2018, the Delegate made a decision that the appeal was not to proceed. The decision of the Delegate runs to some 30 paragraphs. Ultimately, the Delegate concluded that on the face of the application and the submissions made, she was not satisfied that a ground of appeal as specified in s 327 was made out.
By her notice of appeal, Ms Ballas complains that the primary judge, in his reasons of 8 March 2019, erred in misconstruing s 327 of the Management Act and erred in holding that the Delegate did not err her in her application of the Management Act to the grounds of appeal sought to be raised. By notice of contention, the Department asserts that the decision of the primary judge should be affirmed on the basis that the decision of the Delegate was not an operative decision that was justiciable under s 69, having been overtaken by the decision made on 22 August 2018 by the Commission. On 22 August 2018, an arbitrator appointed by the Commission, certified that Ms Ballas suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 24 October 2016. The certificate was said to be issued in accordance with the medical assessment certificate issued under Pt 7 of Ch 7 of the Management Act by the AMS and, accordingly, Ms Ballas did not reach the threshold for lump sum compensation as required by s 65A of the Compensation Act.
The approach of the Registrar in effect pre-empted the right of appeal. The function of the Registrar is not to assess the merits of the proposed appeal but simply to determine whether on the face of the documents in question the grounds were within the provisions of s 327. In the present case, they clearly were. It was not for the Registrar to form a view as to the possible merits of the grounds of appeal. The Registrar exceeded the jurisdiction conferred by s 327.
I have had the advantage of reading in draft form the proposed joint reasons of the President and Payne JA. I agree, for the reasons proposed by their Honours, that the appeal should be allowed with costs and that leave to rely on ground 4 of the notice of contention should be refused. I agree with the orders proposed concerning the decision of the primary judge.

Endnotes

Ground 2 of the Notice of Contention was abandoned at the hearing.
As at the date the Certificate of Determination was issued on 22 August 2018. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2020

Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005(NSW)

Workers Compensation Commission Rules 2011(NSW)r 15.9

Under the Workplace Injury Management and Workers Compensation Act 1998(NSW)

Occupational Health and Safety Act 1983(NSW)

Supreme Court Act 1970(NSW)s 69, s 69.

Workers Compensation Act 1987(NSW)ss 4, 9, 65(1), 65A(3), 66(1), 151H

Workplace Injury Management and Workers Compensation Act 1998(NSW)ss 121(1), 287(1), 288(1), 293, 294, 321A, 322(1), 324, 325, 326, 327, 328, 350(2), 369(3), 371, 376(1)(a), Ch

ales (2010) 239 CLR 531; [2010] HCA 1 Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Mulholland v Australian Electoral Commission (2014) 219 FCR 1; [2014] FCA 136 Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2007] NSWCA 149; (2007) 4 DDCR 607 Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 Category: Principal judgment Parties: Fiona Ballas (Applicant/Appellant) Department of Education (State of NSW) (First Respondent) Arbitrator of the Workers Compensation Commission of New South Wales (Second Respondent) Delegate of the Registrar of the Workers Compensation Commission of New South Wales (Third Respondent) The Registrar of the Workers Compensation Commission of New South Wales (Fourth Respondent) Representation: Counsel: D Hooke SC and B McManamey (Applicant/Appellant) M Allars SC (First Respondent) Submitting appearances (Second, Third and Fourth Respondents)

Solicitors: Turner Freeman (Applicant/Appellant) Moray & Agnew (First Respondent) Crown Solicitor's Office (Second, Third and Fourth Respondents) File Number(s): 2019/106555 Publication restriction: N/A Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 234 Date of Decision: 8 March 2019 Before: Wright J File Number(s): 2018/282756

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