CSR Limited v Ewins

Supreme Court of NSW|2020-05-06|Before: Adamson J

Solicitors: Leigh Virtue & Associates (Plaintiff) Gillis Delaney Lawyers (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2019/298749

Introduction

By summons filed on 24 September 2019, the plaintiff, CSR Limited (the Employer), seeks an order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the decision made on 27 August 2019 by the third defendant, the Medical Appeal Panel (the Panel), to dismiss an appeal from the decision of Dr Mason, an Approved Medical Specialist (the AMS). The AMS had, on 24 April 2019, certified that Marion Ewins, the first defendant (the Claimant), had a permanent impairment of 17%. The Registrar of the Workers Compensation Commission (the Commission), the second defendant (the Registrar), and the Panel have filed submitting appearances.
Unless otherwise indicated, all references to legislation in these reasons are references to the Workplace Injury Management and Workers Compensation Act 1998 (the Act).

Medical reports considered by the AMS

The reasons given by the AMS in his certificate included reference to the following reports, the relevant extracts of which are as follows.
On 30 October 2017 the Claimant was assessed by Dr Roberts, a psychiatrist retained by the Employer. In a report dated 3 November 2017, Dr Roberts recorded that he had been given the following history by the Claimant: "Mrs Ewins stated that she had gone back to church and was praying after having stopped doing so."
On 27 February 2017 the Claimant was assessed by Dr Teoh, a psychiatrist retained by her instructing solicitors. In a report of the same date, Dr Teoh recorded: "Ms Ewins' presentation is consistent with a [sic] diagnoses of a Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood (DSM 5 Diagnostic Criteria)."
In a table which formed part of his report, Dr Teoh assessed the Claimant to belong to category 3 for "Social and Recreational Activities" and gave his reason: "She reported significant loss of interest in her usual activities and social isolation."
Dr Teoh assessed her final Whole Person Impairment at 17%.
In a report dated April 2018, Kim Malone, the Claimant's treating psychologist noted: "Mrs Ewins reported she had been experiencing depressed mood most of the day, almost daily, psychomotor agitation, with a sense of restlessness, low energy, anhedonia, wherein she no longer enjoyed activities such as going out and socialising, with resultant decreased activity. She stated she avoided people, places, things causing anxiety, had much difficulty with memory and concentration and decision making, experienced suicidal ideation, reduced appetite, sleep difficulties, and increased irritability and anger."

Assessment of permanent impairment

On 28 June 2018, the Claimant made an application to resolve a dispute to the Commission in order that any permanent impairment sustained as a result of the injury could be assessed. The Registrar referred the assessment to the AMS.
On 5 April 2019 Dr Mason conducted an examination of the Claimant. On 24 April 2019, he issued a medical assessment certificate (the MAC) assessing her whole person impairment as 17% as a result of a Major Depressive Disorder.
In the reasons, which form part of the MAC, Dr Mason recorded that he had questioned the Claimant about her current functioning. He relevantly recorded: "Social and recreational activities Ms Ewins said she no longer entertains friends at home, which they frequently did in the past, or visits other families. She said she has an occasional cup of coffee with a group of girls every few months if she is pushed. She went out with her husband for lunch on one occasion two weeks ago when she was in the city for a conference in relation to the workers compensation case. She said she no longer participates in her children's sporting and social activities, but will go to their soccer games if accompanied by her husband. She has stopped attending her local Catholic Church. She is moderately impaired."
Dr Mason attached to the MAC, as Table 11.8, a "PIRS [Psychiatric impairment rating scale] rating form" in which he gave reasons for rating the Claimant as class 3 in PIRS Category, "social and recreational activities", which reproduced verbatim the Claimant's history set out above.
On 14 May 2019, the Employer retained a surveillance firm to conduct surveillance of the Claimant. The report provided contained the firm's understanding that the purpose of the surveillance was "to expose video footage of her engaging in activities" and "to confirm the current activities".
On 16 May 2019 the Employer filed an application to appeal against the MAC on two grounds: first, that the assessment was made on the basis of incorrect criteria (s 327(3)(c) of the Act); and, second, that the assessment certificate contains a demonstrable error (s 327(3)(d) of the Act). In submissions of the same date which were filed in support of the application, the Employer said: "The Appellant is of the view that this matter should have an oral hearing before the Appeal Panel having regard to the volume of material admitted in the proceedings and the number of errors relied on and says that while re-examination by a Medical Appeal Panel may be necessary consideration of that re-examination should follow the oral hearing sought."
The firm conducted surveillance over four days: Friday 17 May 2019, Saturday 18 May 2019, Sunday 19 May 2019 and Sunday 26 May 2019. In the summary contained in its report dated 30 May 2019, the firm said: "During the surveillance period the claimant was observed not sighted to emerge on the Friday or Saturday and despite positioning at the residence for the entire morning period, no significant movement was detected. On Sunday 19th May 2019 however we followed the claimant from the stated address to a nearby residence where she collected a young child before driving to the St Frances Xavier Church in Lurnea where she attended the 9.30am service. At the conclusion of that service, the claimant departed with the two children and drove back to the residence in Fox Valley Way where she remained for some time whilst the children played outside before returning to the stated address. No further movement was observed from the claimant on that day however the following Sunday when observations continued, the claimant was again seen departing that morning to collect the same young child before attending the church service in Lurnea. The claimant then returned directly back home after church where she remained indoors and inactive on that day. We note that during the observation period there was no apparent display of stress, anxiety or depression noted in the claimant's demeanour and she seemed quite relaxed when in public. …"
On 6 June 2019, the Claimant filed a Notice of Opposition to Appeal Against Decision of Approved Medical Specialist. It attached submissions to its notice.
On 7 June 2019 the Employer wrote to the Commission and attached to its letter an Application to Admit Late Documents. It said further: "Would you please also note that in view of the late documents that we now seek to have admitted, we also wish to amend the Grounds of Appeal relied on in that Appeal to include reliance on Section 327(3)(b) of the Workplace Injury Management Act 1998. We ask that this letter and the attached Application and late document be provided to the Medical Appeal Panel and we note that a copy of the Application and this letter have been served on the solicitors for the Respondent worker."
On 20 June 2019, the Employer filed further submissions in the Commission (which were the only submissions filed after the surveillance had been conducted) which said, of present relevance: "1. The Appellant again notes firstly that in view of the late documents provided to the Commission on 7 June, last [sic] the Appellant extends the grounds of appeal to include reliance on Section 327(3)(b) of the WIM Act by reference to the late document. That document makes quite plain that complaints and constraints complained by the Respondent Worker to the Approved Medical Specialist are clearly false and cannot be relied upon for the purpose of determining impairment being specifically contradicted by the observation of her activities. This involves both the presentation of the Respondent Worker while socialising and the specific and unequivocal contradiction of the assertion contained on page 5 of the Certificate under the heading "Social and Recreational Activities". The Appellant says that in these circumstances, none of the assertions made by the Respondent Worker to the Approved Medical Specialist can be accepted without independent and clear corroboration which corroboration is not provided otherwise within that Certificate. 2. The submissions on behalf of the Respondent Worker seek to assert that the findings of the Approved Medical Specialist were based on a physical examination; however, there is no reference to any physical examination being carried out by the Approved Medical Specialist and, as indicated, to the extent that the Approved Medical Specialist relied on information provided by the Respondent Worker that information is clearly inherently unreliable for the reasons set out in the initial submissions and in the late document. … 4. … The uncorroborated complaints by the Respondent Worker should clearly be given no weight or consideration at all having regard to their being specifically contradicted by objective observations… 5. In relation to social and recreational activities the fact that Dr. Teoh noted the Respondent reporting significant loss of interest in her usual activities and social isolation is clearly of no consequence in view of the observations of her activities and is not, as suggested, supported by the medical evidence. While under observation the Respondent Worker specifically engaged in her usual activities and in social activities including attending her church (an activity which she specifically sought to deny). 6. The same considerations apply in respect of issues of travel and social functioning. There is simply no basis at all (other than vague and unfounded complaints) for placing the Respondent Worker in anything other than Class 1."
On 21 June 2019 the Commission made directions that the Claimant file submissions in response to the Employer's further submissions.
In submissions dated 5 July 2019, the Claimant made the following submissions regarding the "new evidence": "4. The appellant relies on grounds of appeal provided in ss.327(3)(c) and (d) of the 1998 Act, of 'incorrect criteria' and 'demonstrable error' but also seeks to rely on 'new evidence' being surveillance of the worker attending her church. 5. Putting to one side the fact the report as to what is depicted in the surveillance is made up of opinions of a surveillance operative only, it is what is not depicted that is of some relevance but not commented on by the employer. 6. Surveillance is said to have been conducted over four days, the worker does not emerge from her home for the first two days, Friday and Saturday and is then seen only when she emerges to attend her local church on consecutive Sundays. Notably, the worker does not go to children's sport, the worker does not get the mail, the worker does not work in the garden and the worker does not otherwise go for a walk, walk the dog, go socialising, go to the gym or go shopping. 7. The attempt to rely on new evidence is misguided in any event. 8. The surveillance material in the first instance is not material that was before the AMS as it came into existence after the MAC was issued and consequently has no probative value to the issue before the registrar that is whether the AMS was in error with respect to his clinical judgement on the day he saw the worker. 9. In the second instance the attempt to rely on the surveillance report places the worker at a distinct disadvantage as she does not, in the clinical setting, have the opportunity of discussing the relevance of same with an AMS tasked to perform the PIRS assessment. 10. Reliance on the report as a ground 'of appeal' should be rejected."
The Panel published its statement of reasons on 27 August 2019. In addressing the new evidence sought to be relied on by the Employer, the Panel said: "13. In short, the appellant makes no submissions as to why it should be permitted to rely upon material gathered well after the AMS examination and the MAC. The appellant seems to assume that there is a right for it to adduce the material merely by recitation of the ground under s 327(3)(b) of the 1998 Act. If so, it is clearly mistaken. 14. The worker says the surveillance report is not material that could not have been obtained before the AMS examination. Additionally, it is plain from the worker's further submissions that it considers it has no probative value. This so [sic] because it is a reported opinions from an investigator 'operative' only. Further, although surveillance was conducted over four days, it shows only that the worker does not emerge from her home for the first two days, is then seen only when she emerges to attend her local church on consecutive Sundays. It is submitted that it also shows the worker does not go to children's sport, does not get the mail, does not work in the garden does not otherwise go for a walk, walk the dog, go socialising, go to the gym or go shopping. 15. It is also submitted that if the fresh evidence were to alter the MAC, re-examination would be necessary as a matter of procedural fairness. This latter statement may be accepted without argument. 16. The ground identified in the appellant's further submissions is the ground of appeal under s 327(3)(b) of the 1998 Act. That provision reads (our emphasis): "(3) The grounds for appeal under this section are any of the following grounds (a) … (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)…" 17. Section 328(3) of the 1998 Act is also relevant and also prevents the Panel from receiving evidence that is fresh evidence, or evidence in addition to, or in substitution for, the evidence received in relation to the medical assessment appealed against, "unless the evidence was not available to the appellant before the medical assessment, or could not reasonably have been obtained by the appellant before the medical assessment" (again, our emphasis). 18. The reception of such evidence is a discretionary matter Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 (Lukacevic). 19. Although the application to appeal is statutory terms [sic] in s 327 of the Act, the principles regarding fresh evidence may be instructive …"
The Panel proceeded to refer to a number of authorities which concerned the admission of fresh evidence on appeal in the context of curial proceedings, including Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; [1955] HCA 16 and Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; [1991] HCA 61 (Quade). In [21] of its reasons the Panel extracted a lengthy passage from Quade of which it highlighted the following part: "While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so."
The Panel returned to the statutory context and referred to decisions which specifically considered s 327 of the Act, such as Workers Compensation Nominal Insurer v Bui [2014] NSWSC 832 (McCallum J) and State of New South Wales v Ali [2018] NSWSC 1783 (Harrison J).
The Panel continued: "25. The 'additional relevant information' sought to be relied upon by the appellant is the surveillance report. That, in this case, is clearly not information 'of a medical kind or which is directly related to the decision required to be made by the AMS'. 26. Further, even if it were, it is not information that was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against. The appellant does not submit otherwise. The date of the report is the only aspect of the material that would suggest it could not have been obtained before. The activities depicted are not suggested to have arisen only after the AMS examination. 27. If a worker is to be prevented from challenging the history recorded by an AMS (as in Petrovic v BC Serv No 14 Pty Ltd & Ors [2007] NSWSC 1156), there seems to be no reason that the employer should be permitted to continue digging for evidence to undermine the recorded history in the MAC, absent special circumstances. This is more so, when the appellant has, in this case, been faced with a claim for 17% WPI since at least 20 March 2018. That claim was based on aggregate PIRS scores of 16, and a median score of 3, precisely the same aggregate and median recorded by the AMS in the MAC. 28. The appellant provides no evidence or submissions as to why the surveillance report could not have been obtained before the proceedings were commenced or at least before the AMS examination. On face value, there is no reason why it could not have. 29. All of the forgoing reasons against receiving the further surveillance material in the appeal assume that the information is 'relevant', as required by s 327(3)(b). Given the content of the surveillance report, the Panel considers the information to be either irrelevant, or of marginal relevance. 30. In Lukacevic, Handley JA said at [102]: '102. Section 328 does not, in terms, require the Panel to receive new evidence which meets the threshold in subs (3) and it cannot be required to receive irrelevant evidence. 103. Guideline 43 requires the Panel to decide, at its preliminary review, on 'the appropriate action to take in the appeal', including whether 'new evidence should be allowed'. In my judgment this gave it the power to reject otherwise relevant evidence on discretionary grounds. 104. The next question is whether the Panel's exercise of its discretion was irrational or vitiated by patent legal error. 105. I reject the applicant's argument, based on the sequence of paras 8 and 12 of the Panel's reasons, that it decided that it was 'not necessary' to have a further medical examination before it considered whether it would receive the new evidence. 106. The Panel considered both questions during its preliminary review. Guideline 43 required a decision on a further medical examination, and the allowance of new evidence, in that order. This probably explains the order in which the Panel recorded its decisions." 31. Apart from broad assertions, the appellant's submissions are devoid of detail as to the precise error in each category alleged, the specific evidence that would support the assertion, or identification of any evidence with precision as to time, date, or author. 32. The surveillance shows that the worker can drive to church on a Sunday, but is not otherwise seen to emerge from her house. It does not demonstrate the worker socialising, maintaining relationships, travelling, concentration or demonstrating employability capacity that would impact on any of the assumptions or clinical conclusions of the AMS in the MAC. Rather, the surveillance is consistent with the MAC, where it is accepted she could drive to the city, drive her children to school, but could not use public transport alone because of anxiety in crowds, leaving a mild impairment. Attendance at church (in the absence of any socialisation demonstrated, as is the case) is more likely to be an exercise in introspection or self-contemplation. The presence of another child in the car during the activity does not alter these observations. 33. While, in Bui, the Panel was criticised for not addressing each PIRS category and providing individually specific reasons why the surveillance did not establish error by the AMS, the surveillance was said to 'plainly inform' the relevant PIRS categories. In this case, the material is, in the context of the MAC, uninformative, and it serves little purpose to recite all PIRS categories and reject the possible effect on each example activity (for they are examples only: cl 11.12 of the Guidelines, p55). 34. The Panel determines that the surveillance report should not be received in the Appeal, and determines that the ground based on additional information is not made out. …"
In respect of the application for an oral hearing, the Panel said: "PRELIMINARY REVIEW 39. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines. Hearing on the papers and Further Medical Examination by an AMS Panel Member 40. The appellant says it 'is of the view' that this matter should have an oral hearing before the Appeal Panel due to the volume of material and number of errors alleged. It also says a re-examination should occur. 41. The worker opposes an oral hearing and says re-examination would only be necessary if the Panel receives the further surveillance into the materials for consideration. 42. On the basis of the preliminary review, and the fact that the Panel does not receive the further surveillance report, the Panel determined that there is sufficient evidence in the materials before the AMS and the Panel and the written submissions identify the alleged errors and grounds of appeal with sufficient detail to allow the Panel to deal with the appeal without such a hearing in accordance with the Registrar's Guideline: Appeal Against Medical Assessment. 43. In the preliminary review the Panel concluded that for reasons expressed below, further examination is not necessary to deal with the appeal."
In addressing the other grounds of appeal, the Panel said, of present relevance: "The appellant's submissions: Social and Recreational Activities 100. The appellant appeals the AMS's assessment of Class 3 for social and recreational activities, and asserts the AMS examination justify only a Class 1 or at best Class 2 assessment, being mild impairment. 101. Again, Dr Roberts' history (that "she had gone back to church and was praying after having stopped doing so") is relied upon which is said to specifically contradict the information recorded in the MAC. The appellant refers to "the large volume of other evidence available" without elaboration other than reference to the worker's return to work without apparent restriction). The respondent worker's submissions: social and recreational activities 102. The worker notes both Dr Teoh and the AMS assessed social and recreational activities, in Class 3. It is submitted the AMS recorded that the worker no longer entertains friends at home or visits other families, has an occasional cup of coffee with friends every few months 'if she is pushed', and a single outing with her husband for lunch. The Panel's consideration and findings: social and recreational activities 103. In addition to the observations by the AMS noted by the worker, the Panel notes Dr Roberts' report that she is 'embarrassed to be around people; that she feels in a bubble; that it is as if her soul had been taken out as if it was somewhere else'. 104. Given the imprecision in the appellant's submissions, it is not possible, or at least extremely difficult to address items of evidence in turn in these reasons. 105. However, the MAC records the worker's history, which has not been undermined by any other clinical material, including the rejected surveillance report. She 'wants to be invisible', will not attend school activities with the children on her own. She will only go to school soccer if her husband accompanies her. She is anxious and experiences panic quite often for no apparent reason. She described a panic attack in the car driven by her husband when she jumped out of the car on the Hume Highway, ran across the traffic, and then spent three days in bed. 106. The appellant's reliance upon the worker resuming church attendance does not assist the appeal. As noted above [it] is likely to be an exercise in introspection or self-contemplation, or even, a 'reaching out' in her injured circumstances. 107. The workers presentation is more than 'mild impairment' of Class 2 in Table 11.2. With acceptance that the descriptors within the Classes are examples only, and based on these reactions to social situations, it is relatively clear that Class 3 was open to the AMS and indeed, appropriate. The ground of appeal is dismissed. If reassessment was required, the Panel assesses Class 3."

The relevant legislation

Section 69 of the Supreme Court Act confers jurisdiction on this Court in respect of errors of law on the face of the record or jurisdictional errors.
Section 3 of the Act provides: "3 System objectives The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives - (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury, (b) to provide - • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible, (c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses, (d) to be fair, affordable, and financially viable, (e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work, (f) to deliver the above objectives efficiently and effectively."
Part 7 of Chapter 7 of the Act makes provision for medical assessments. Approved medical specialists are appointed under s 320 of the Act. An assessment of the degree of permanent impairment is required to be conducted in accordance with s 322 of the Act. Section 324 confers various powers on an AMS when conducting an assessment, including the power to require the worker to submit to an examination. Section 325 of the Act requires an AMS to give a certificate as to the matters referred for assessment which sets out, among other matters, the AMS's reasons for that assessment. Section 326 makes a certificate under s 326 conclusive in certain circumstances.
Section 327 relevantly provides for appeals against medical assessments as follows: "327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (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 subsection (3) has been made out. …"
Section 328 relevantly provides for the procedure on appeal as follows: "328 Procedure on appeal (1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar. (2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal. (3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. … (5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate. …"
Section 331 of the Act, entitled "Guidelines" provides: "Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments."
The Workers compensation medical dispute assessment guidelines (the Guidelines) relevantly provided: "Procedure of the medical appeal panel 5.14 A MAP [Medical Appeal Panel] consists of two AMSs and one arbitrator. 5.15 The MAP is to be constituted by the Registrar. Confirmation of the members of the MAP is to be communicated to the parties. 5.16 The MAP will undertake a preliminary review of the matter. 5.17 The MAP may adopt any of the following procedures in accordance with the needs of the individual case: 5.17.1 'on-the-papers' review 5.17.2 further medical examination by an approved medical specialist on the appeal panel 5.17.3 assessment hearing. 5.18 The MAP decides which of the procedures is to be adopted. 5.19 The decision of the appeal panel is to be informed by its assessment of the needs of the particular case. …"

The grounds of appeal

The Employer relies on the following grounds: 1. The [Panel] erred in its consideration of the additional relevant information, and in determining that it could have been obtained before the medical assessment. 2. The Panel erred in its rejection of the additional relevant evidence. 3. The Panel denied the [Employer] procedural fairness in determining the matter on a basis not put by or to the parties.

The plaintiff's submissions

It is convenient to address grounds 1 and 2 together. Mr Sheldon SC, who appeared on behalf of the Employer, submitted that the Panel was obliged to engage in a two-step process when considering the s 327(3)(b) ground. He submitted that the Panel was first obliged to determine whether the surveillance report was relevant. He argued that if the report was irrelevant, it was immaterial whether it met the other requirements of s 327(3)(b). He submitted that it was only if the report was found to be relevant, that the other requirements needed to be considered. He submitted that the second step (if it was reached) required the Panel to consider whether the information was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS.
Mr Sheldon contended that the Panel failed to perform the first step. He placed particular reliance on the words in [29] of the Panel's reasons that it "considers the information to be either irrelevant or of marginal relevance" and submitted that they indicated that the Panel did not address a fundamental threshold question required to be answered by the Act. He also submitted that the use of the adjective "marginal" to qualify "relevance" indicated that the Panel was applying the test in Quade (set out in the passage which the Panel highlighted in [21] of its reasons), rather than the words of the Act.
Further, he submitted that, in so far as the Panel refused to receive the surveillance report under s 328(3), its approach was erroneous since it had not first determined the relevance of the material. If irrelevant, the report could not be received in any event. If relevant, the Panel had to consider the requirements of s 328(3) and, if they were met, had further to consider whether to exercise its discretion to receive the evidence or to reject it.
Mr Sheldon contended that it was not open to the Panel to find, within the meaning of s 327(3)(b) of the Act, that the report was not information that was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS. He submitted that the findings of the report were new because the Claimant had not alleged, until the examination by the AMS on 5 April 2019, that she had stopped going to church and that therefore there had been no reason for the Employer to investigate that matter. Further, Mr Sheldon submitted that: "… [T]he worker never submitted that the surveillance material could have been obtained prior to the AMS. Such a submission would have been layered with problems."
While Mr Sheldon accepted that the Panel, in [34] of its reasons, expressly decided that the surveillance report ought not be received and that the ground was not made out, he submitted that it is plain from the terms of [106] of its reasons that it had not actually rejected the report since it continued to consider it and address its import. Mr Sheldon accused the Panel of engaging in impermissible speculation, particularly in [32] and [106] where it surmised that attendance at church, in the absence of evidence of socialisation, "is more likely to be an exercise in introspection or self-contemplation".
Mr Sheldon also submitted that the Panel had failed to have regard to the object of "fairness" in construing s 327 of the Act. I take this to be a reference to the "system objective" in s 3(d) of the Act (set out above).

Consideration of grounds 1 and 2

Reasons for decision are to be read fairly and as a whole. This principle is particularly important in the case of administrative decision-makers, who may be selected for their present role by reason of their expertise in a particular area other than the law. The Panel comprised an arbitrator and two approved medical specialists. The Act does not, in terms, impose an obligation on a Panel to give reasons for its decision. The Act, by s 328(5), makes s 326 applicable to any new certificate issued by the Panel, but does not require reasons to be given. The AMS, by contrast, is required by s 325 to give reasons. Nonetheless the Panel chose to give reasons. It was common ground that the Panel's reasons became part of the record by reason of s 69(4) of the Supreme Court Act, presumably on the basis that it was assumed by the parties that the assessor was a "tribunal": see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [17] (Basten JA).
In order to determine whether the ground in s 327(3)(b) was made out, the Panel was required to apply the statutory test: namely, it had to determine whether the report constituted additional relevant information that was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS. The words of s 327(3)(b) do not, in terms, impose a threshold test of relevance, although the information must be relevant before the ground can be made out. It was a matter for the Panel whether it chose to start by determining relevance or whether it chose to determine first whether the report was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS. If it decided either of these matters against the Employer, it was not necessary to proceed further to determine the other matter, although it was entitled to, either on an alternative or hypothetical basis.
The Panel's task of determining whether the ground in s 327(3)(b) was made out and whether the report ought be received under s 328(3) was governed by the terms of the sections. It is not to the point that the Claimant did not, in its written submissions to the Panel extracted above, specifically address whether the surveillance report constituted additional information that was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS. The Claimant instead chose to challenge the report on the grounds of relevance and, to this end, addressed the content of the report. The Panel was nonetheless obliged by the legislation to determine such matters for itself.
In my view, it is plain from the terms of [26] of the Panel's reasons that the Panel was satisfied that the surveillance report was not information that was not available to, or could not reasonably have been obtained by, the Employer before the medical assessment by the AMS. As long as this finding was open to the Panel, then it was immaterial whether the Panel considered the information to be relevant or not, since the ground under s 327(3)(b) would not be made out in any event. Further the final step, the discretion to receive the evidence under s 328(3), was not reached because of the Panel's finding that the evidence would not qualify for reception in any event.
Whether the surveillance report fitted within the terms of s 327(3)(b) was a matter for the Panel. The Panel was correct to note, in [26] of its reasons, that the Employer did not suggest that it was not available to or could not reasonably have been obtained since the Employer's submissions did not address the question at all (as is apparent from the extract set out above). Nonetheless the Panel addressed the point that the surveillance report was obtained after the assessment by the AMS and therefore, only on that basis, could not have been obtained before the medical assessment.
The Panel found that the report did not fit within the terms of s 327(3)(b), irrespective of its relevance, because, as it said in [26], "[t]he activities depicted are not suggested to have arisen only after the AMS examination". This finding was plainly open to the Panel. The extent of the Claimant's engagement in "social and recreational activities" was germane to an assessment of her psychiatric impairment. This was precisely what the surveillance firm was engaged to investigate. Its brief was not confined to church-going but to social and recreational activities generally. Its surveillance of the Claimant began on a Friday and not a Sunday. Further, the Claimant's church-going had been referred to in the report of Dr Roberts dated 3 November 2017, which was considered by the AMS. Dr Roberts recorded that the Claimant had told him that she had gone back to church after having stopped. The approach contended for by Mr Sheldon - that the report was "new" because the Claimant had not, until the assessment by the AMS, asserted that she was unable to go to church - does not take sufficient account of the need to determine the quality of the information as a matter of substance: see State of New South Wales v Ali at [31]-[39] (Harrison J) and Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802 at [73] (Adamson J).
Mr Sheldon accepted that a qualitative assessment of the new information was required to determine whether it fell within s 327(3)(b) and that it would "always depend on the precise circumstances." He submitted, in the alternative, that New South Wales v Ali was wrongly decided. I see no reason to indicate that either the principles set out in New South Wales v Ali or the result in that case was other than correct. The question whether the information fell within the section was one for the Panel. This Court's jurisdiction is limited to the question whether it was legally open to the Panel to reach that conclusion.
Whether the Claimant attended church was a matter which was relevant to her capacity to engage in social and recreational activities, which was a significant factor in the assessment of whole person impairment. The Panel's finding in [26] reflected its acceptance that whether the Claimant went to church, had stopped going to church or was going to church again was relevant to that capacity. It was, in these circumstances, open to it to find that the report did not fall within s 327(3)(b) because such a report could have been commissioned before the assessment by the AMS. The Panel was also entitled to take into account that the Employer had not made any submission as to why such a report could not have been commissioned earlier (see [28] of its reasons).
In these circumstances, it was not necessary for the Panel to determine the relevance or otherwise of the report since, in light of its finding, the ground had not been made out whether the report was relevant or not. The Panel appears, from [29] of its reasons, to have appreciated that it did not need to determine whether the information was relevant since the report did not meet the other requirements in s 327(3)(b) of the Act.
In these circumstances, the Panel's reasons in [29] are strictly obiter since its determinative finding, that the ground was not made out in any event, was made at [26]. The Panel was, however, entitled to express its view about relevance, even though it was not necessary to do so since it did not form part of the actual path of reasoning to its conclusion that the ground in s 327(3)(b) was not made out. Because it was unnecessary to the determination of the ground, the Panel was entitled not to be definitive about whether the report was irrelevant or of marginal relevance.
The Panel, in [31]-[33], also addressed the further question: whether the report ought be admitted into evidence under s 328(3). Section 328(3) contains a slightly differently worded test than is contained in s 327(3)(b). Nonetheless, in light of its finding at [26], the Panel was in effect bound, as a matter of consistency, to find that the report did not fulfil the requirements of s 328(3) either. The Panel was entitled to address the question of the relevance of the report, not because it was determinative, but for completeness. Thus, the Panel was entitled to express its view that attendance at church, absent evidence of associated social interaction was consistent with (and likely to amount to) introspection when not accompanied by social engagement.
While the Panel referred to authorities which were applicable to fresh evidence on appeals from decisions of single judges, its reasons made it clear that it had regard to such decisions only on the basis that they "may be instructive" (see [19] of its reasons). The Panel's frequent references to the applicable legislation and its terms are sufficient to indicate that it was aware of the relevant tests and applied them.
I reject the Employer's submission that the Panel was in error in failing to have regard to the objective of "fairness" in construing s 327 of the Act. There are limits to the extent to which such broad objects and objectives ought be taken into account by those who are bound by legislation. In Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53, Gleeson CJ said, in the context of notification of claims under the Motor Accidents Act 1988 (NSW), at [7]: "The various statements as to the objects of the legislation show that the legislature made its own evaluation of the importance of prompt notification of claims, and constructed a statutory scheme around that evaluation. It is not for a court to re-assess that policy on a case by case basis."
The statement also applies to the Panel. The Panel was bound to act in accordance with the Act and, in particular, ss 327 and 328. It had no authority to use the system objectives to undermine the express words of those sections on the basis of its understanding of the term "fair". The Panel applied the terms of ss 327 and 328 to its task in a way which does not demonstrate legal error.
The Employer cannot complain of the Panel's conclusions when it failed to make submissions to the contrary, having availed itself of the opportunity to do so in its submissions dated 20 June 2019. While the Panel may have said more than it needed to on the contents of the report, it said enough to show that it applied s 327(3)(b) and s 328(3) in accordance with their terms. For the reasons given above, I am not satisfied that either of grounds 1 or 2 is made out.
In these circumstances it is not necessary to consider the correctness of the passage at [39] of State of New South Wales v Ali in which Harrison J construed s 327(3)(a) of the Act as being the only ground which dealt with a change of circumstances. His Honour said that s 327(3)(b) "clearly anticipates the existence of a provable state of affairs at the time the decision is made" (my emphasis). Ms Tronson, who appeared with Mr McDonald-Norman on behalf of the Claimant, submitted that, as the surveillance report depicted the Claimant's activities after the MAC was issued, it could not fall into this category (this point was also made in [8] of the Claimant's submissions to the Panel on the "new evidence" extracted above). Mr Sheldon submitted to the contrary and maintained that it reflected adversely on the history given to Dr Mason by the Claimant which led to the MAC.
Nor is it necessary, having regard to the limits of this Court's jurisdiction, to address the obvious point that it did not follow from the circumstance that the Claimant went to church on 19 and 26 May 2019 that she was not telling the truth to Dr Mason on 5 April 2019 when she told him that she had stopped going to her local Catholic church. I note that Dr Roberts had recorded on 3 November 2017 that the Claimant, having stopped going to church for a period, had started again.

Ground 3

Mr Sheldon contended that the Panel's refusal to allow an oral hearing amounted to a denial of procedural fairness and was therefore a jurisdictional error, which ought lead to the decision being set aside. He submitted that the Panel only addressed the question of an oral hearing once it had determined that the surveillance report was to be excluded and contended that the Panel was obliged to consider the need for an oral hearing on the appeal as a whole, including on the question whether it ought receive the report.
Mr Sheldon argued that the effect of s 327(4) was that, once the Registrar had found that at least one of the grounds of appeal had been made out for the purposes of allowing the appeal to proceed, by the time the matter had been referred to the Panel, the appeal was actually proceeding. He contended that there was no room for consideration of specific grounds before a determination had been made of whether an oral hearing was necessary. He said in written submissions: "While the Panel could determine which of the foregoing procedures [those listed in cl 5.17 of the Guidelines] was apt, the submission seeking an oral hearing needed to be dealt with. It could not be determined after some part of the Appeal had been decided."
Further, Mr Sheldon contended that because the Claimant did not submit that the report did not constitute additional information that was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS, the Panel was obliged to put the Employer on notice that it was contemplating a conclusion that the material was available prior to the AMS.
The first point to be made is that s 327(4) is a gateway provision. For an appeal to proceed, the only matter of which the Registrar is required to be satisfied is that at least one of the grounds in s 327(3) is, on the face of the application and submissions, made out. If that gateway is passed, it is for the Panel to determine the appeal by reviewing the decision by reference only to the grounds of appeal: s 328(2). It is the Panel's, not the Registrar's, role to determine the appeal. As Bell P and Payne JA (Emmett AJA agreeing) said in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [67]: "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)."
The Panel was obliged, pursuant to cl 5.16 of the Guidelines to "conduct a preliminary review of the matter". However, there is nothing in the Guidelines or the Act which required the Panel to decide, before it determined any of the three grounds of appeal, which procedure it was to adopt for the remaining grounds of appeal. Indeed, the question of which procedure was to be adopted depended, at least in part, on the Panel's determination of the s 327(3)(b) ground. The reason for this is that it was accepted by the Claimant that, if that ground was made out and the surveillance report received into evidence under s 328(3), an oral hearing would be required. For this reason, it was open to the Panel to adopt an "on-the-papers" review of the s 327(3)(b) ground, determine the ground and then consider which procedure to adopt for the balance of the grounds.
Further, the Panel was entitled to take into account the Employer's statement, in its first set of submissions to it dated 16 May 2019 (before the surveillance had commenced and, necessarily, before the s 327(3)(b) ground had been added) that it was "of the view that this matter should have an oral hearing". The reasons given by the Employer for its "view" were the complexity of the matter, the volume of material and the potential need for re-examination of the Claimant. In its later submissions, provided after the s 327(3)(b) ground had been added, the Employer did not contend that the further ground provided a reason why there ought be an oral hearing, or that there ought be an oral hearing to determine whether the ground was made out and whether the report ought be received in evidence. Rather, the Employer submitted that the Panel could use the surveillance report to undermine the history given by the Claimant to the AMS and therefore revise the assessment from Class 3 to Class 1 in the category of social and recreational activities, thereby reducing the percentage whole person impairment.
In these circumstances, the Panel was obliged to undertake a preliminary review of the matter (under cl 5.16 of the Guidelines) and was entitled to adopt the procedure of an "on-the-papers" review for the s 327(3)(b) ground and the s 328(3) question and then decide that an oral hearing was not necessary for the balance of the grounds. I am not persuaded that the approach taken by the Panel was other than in accordance with the Act, the Guidelines or the general law in relation to procedural fairness.
I reject Mr Sheldon's argument that the Panel was obliged to put the Employer on notice that it was contemplating finding that the report did not constitute additional information that was not available to, or could not reasonably have been obtained by, the Employer before the assessment by the AMS. As the appellant to the Panel, it was for the Employer to persuade the Panel that the ground was made out. Neither the Employer's nor the Claimant's submissions specifically addressed that question. Nonetheless the Panel was obliged to determine it. Its role was "neither arbitral nor adjudicative": Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]. Procedural fairness requires only that a party be given an opportunity to make submission. That opportunity was provided to the Employer. It was its choice not to make submissions addressed to that question in its submissions of 20 June 2019. It cannot, in these circumstances, complain when the Panel made a finding on a matter which was squarely raised by the further ground which the Employer had propounded but which had not been addressed in its submissions.
For the reasons given above, ground 3 has not been made out.

Further matters

At various points, Mr Sheldon was critical of the reasons given by the Panel. These submissions were objected to by Ms Tronson on the basis there was no ground alleged in the summons that the reasons of the Panel were insufficient. In response, Mr Sheldon contended that as his written submissions contained complaints about the Panel's reasons, it was plain that the Employer was relying on the inadequacy of reasons to impugn the Panel's decision. As I consider, for the reasons given above, that the Panel's reasons were sufficient to indicate the course it was taking, why it took that course and for the decisions it made, I am not persuaded that, even were this ground to have been alleged, it has been made out. However, it is important to reiterate the importance to judicial review proceedings, such as the present, of the articulation of the grounds in the summons.
Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) makes provision for judicial review proceedings in this Court. UCPR, r 59.4(c) requires that the summons state "with specificity, the grounds on which the relief is sought". In Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113, Sackville AJA (Ward JA and Bergin CJ in Eq agreeing) said at [68]: "The obvious purpose of the sub-rule is to ensure that the initiating process identifies clearly the legal basis on which the party aggrieved by a decision says that he or she is entitled to the relief claimed. The requirement is intended to ensure that the aggrieved party articulates a case for relief in the initiating process which defines the nature and scope of the dispute and enables the Court to assess what issues are likely to arise in the proceedings."
It is not sufficient for a party to raise in written submissions exchanged before the hearing a ground which has not been articulated in the summons. Although sometimes the other party will not object to this course, it is still both necessary and desirable for an amendment to be made to the summons to reflect the grounds relied on in the plaintiff's claim for relief. Ms Tronson's invitation to the Employer to apply to amend its summons to include the ground was refused. Although Ms Tronson, for more abundant caution, addressed the submissions made on behalf of the Employer relating to the alleged inadequacy of the Panel's reasons, she was not obliged to do so since there was no ground which incorporated that complaint. To include a ground in written submissions which does not appear in the summons is to place the other party in the invidious position of not knowing whether to respond to it. It also makes it more difficult for the Court to discern the legal basis on which the aggrieved party seeks to impugn the decision under review.
Scant reference has been made to Ms Tronson's helpful submissions as they have largely been accepted and are reflected in my reasons for decision.

Costs

The parties agreed that there was no reason why costs ought not follow the event in accordance with the general rule: UCPR, r 42.1.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the summons. 2. Order the plaintiff to pay the first defendant's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2020

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