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[2025] NSWSC 377
Supreme Court of NSW
2025-04-24
Payne JA
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWSC 377
Hearing dates: 13 March 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Common Law - Administrative Law
Before: Payne JA
Decision: (1) Declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024 is void and of no effect. (2) Set aside the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024. (3) Order that the matter be remitted to the President of the Personal Injury Commission to be determined according to law. (4) First Defendant to pay the Plaintiffs’ costs.
Catchwords: WORKERS COMPENSATION — Medical assessment — Medical assessment certificate — Appeal against medical assessment certificate — whether second appeal to Appeal Panel available where no change to medical assessment certificate effected and no certificate of determination issued following decision of first Appeal Panel
ADMINISTRATIVE LAW — judicial review — whether Appeal Panel misconstrued its jurisdiction — whether Appeal Panel denied Plaintiff procedural fairness in determining that it lacked jurisdiction
Legislation Cited: District Court Act 1973 (NSW) s 176
Personal Injury Commission Act 2020 (NSW) ss 6, 12, 33, 58
Supreme Court Act 1970 (NSW) s 69
Workers Compensation Act 1987 (NSW) ss 66, 66A
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 294, 322, 322A, 327, 328, 329
Personal Injury Commission Rules 2021 r 76
Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
New South Wales Department of Education v Connolly [2023] NSWPICPD 38
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52
Sleiman v Gadalla Ply Ltd [2021] NSWCA 236
Category: Principal judgment
Parties: Christopher Lovelee (plaintiff)
Sydney International Container Terminals Pty Ltd (first defendant)
President of the Personal Injury Commission of New South Wales (second defendant)
John Wynyard, Mark Burns and John Brian Stephenson as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (third defendant)
Representation: Counsel:
B G McManamey (plaintiff)
I Griscti and Ms B Gallifuoco (first defendant)
Solicitors:
McKay Compensation Lawyers (plaintiff)
Rankin Ellison Lawyer (first defendant)
Crown Solicitors Office (second and third defendants)
File Number(s): 2024/361049
Publication restriction: Nil
PAYNE JA: This is a judicial review of a decision of an Appeal Panel appointed by the Personal Injury Commission (“PIC”) delivered on 30 July 2024. The plaintiff, Mr Lovelee, seeks that the decision be quashed and the matter remitted to the PIC. The second defendant is the President of the PIC and the third defendant is an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). Both the second and third defendants filed submitting appearances.
On 1 October 2016, Mr Lovelee sustained injuries whilst working as a stevedore for the first defendant, the Sydney International Container Terminal.
On 5 July 2021, a Medical Assessment Certificate (“MAC”) was issued by Dr Kumar, the medical assessor to whom the dispute had been referred under the WIM Act. The MAC assessed Mr Lovelee as having a whole person impairment (“WPI”) of 14%, comprising 8% left lower extremity, 4% lumber spine and 2% scarring.
On 30 July 2021, Mr Lovelee lodged a notice of appeal pursuant to s 327 of the WIM Act. On 8 September 2021, the delegate of the President of the PIC referred the matter to an Appeal Panel for determination, having reached the state of satisfaction required by s 327(4) of the WIM Act. On 24 September 2021, the Appeal Panel decision found no error in the MAC and “confirmed” the MAC.
Mr Lovelee then elected to discontinue the appeal proceedings on 27 September 2021, as he was permitted to do, without leave, by r 76 of the Personal Injury Commission Rules 2021. The PIC then closed its file. As a result of Mr Lovelee’s successful discontinuance, a Certificate of Determination under s 294 of the WIM Act was never issued by the PIC. The consequences of Mr Lovelee’s successful discontinuance lie at the heart of the present case.
On 13 June 2023, Mr Lovelee had another operation in his lumbar spine. On 7 February 2024, Mr Lovelee recommenced his appeal against the MAC pursuant to s 327 of the WIM Act. Mr Lovelee relied on both the deterioration of his condition (s 327(3)(a) of the WIM Act) and the availability of additional relevant information (s 327(3)(b) of the WIM Act).
The first defendant submitted to the President that the matter should be referred back to the maker of the MAC, Dr Kumar, for “reconsideration” limited to the lumbar spine pursuant to s 329 of the WIM Act. Mr Lovelee objected to Dr Kumar conducting a reconsideration and requested a re-examination by a Medical Assessor who was a member of the Appeal Panel.
On 20 March 2024, the President of the PIC’s delegate, having reached the state of satisfaction required by s 327(4) of the WIM Act, referred Mr Lovelee’s appeal to another Appeal Panel.
On 30 July 2024, for reasons that I will explain, the second Appeal Panel determined that it did not have jurisdiction to consider Mr Lovelee’s appeal and confirmed the MAC.
On 30 September 2024, Mr Lovelee filed a summons in this Court seeking judicial review of that decision.
[12] The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
[13] As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no further Medical Appeal Panel determination is possible.
Quite why the Appeal Panel determined that “no further Medical Appeal Panel determination is possible” is not explicitly stated. I have concluded that the Appeal Panel regarded the matter as decided by the Court of Appeal decision in Sleiman v Gadalla Ply Ltd [2021] NSWCA 236.
The Appeal Panel first recited the evidence of the lumbar spine deterioration. The Appeal Panel decision records, correctly that:
[14] Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
[18] The Appeal Panel determines that the evidence should not be received on the appeal because we are unable to entertain this appeal, for the reasons given below.
The Appeal Panel then described its task on appeal by reference to s 328 of the WIM Act and Campbelltown City Council v Vegan [2006] NSWCA 284. The MAC and the decision of the Appeal Panel delivered on 24 September 2021 were described.
The respondent’s submissions to the 2024 Appeal Panel were cited in the Appeal Panel decision as being:
[28] The respondent conceded that the appellant should be re-examined, and suggested the mechanism provided by s 329 of the 1998 Act, by which, in certain circumstances, a matter could be referred back to the Medical Assessor. The respondent said:
“[The] Mac still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021.”
[29] From a factual and medical perspective, the Panel is satisfied that this subsequent surgery could well have caused a deterioration in the condition of Mr Lovelee’s lumbar spine, and the concession made by the respondent was appropriate.
[30] It is also clear that the respondent has agreed that the appellant should be re-examined, although once a matter is referred to a Medical Appeal Panel, the option under s 329 of the 1998 Act of having the Medical Assessor reassess a claimant is no longer available.
The Appeal Panel noted, correctly, that it was a fundamental rule that parties cannot bestow jurisdiction on themselves where none exists: at [31].
The Appeal Panel found (at [33]) that “the present facts are similar” to those in Sleiman. After reciting the facts and some of the conclusions in Sleiman, the Appeal Panel (at [33]-[39]) recorded that the Court of Appeal rejected Mr Sleiman’s construction of the WIM Act, without, however, identifying what that construction was*.*
In Sleiman, a Certificate of Determination was issued following the Appeal Panel decision in that case, which increased the percentage of WPI. What was decided in Sleiman was that Mr Sleiman’s further appeal was precluded on clear words of s 327(2) and s 327(7) of the WIM Act, as Leeming JA explained at [41]-[48].
The Appeal Panel in the present case apparently overlooked the critical importance in Sleiman of the clear words of s 327(2) and s 327(7), as neither sub-section was reproduced when quoting s 327. I note that those provisions have since been amended, although the effect of s 327(2) and s 327(7) remains relevantly the same.
Section 327 now provides:
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 a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(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 President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.
(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note—
Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.
(8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note—
Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
In Sleiman, the Court of Appeal rejected a submission that s 327(3) of the WIM Act was the leading provision, for the purposes of harmonisation undertaken in accordance with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, such that s 327(2) and s 327(7) should be read as permitting successive appeals.
In the present case, unlike in Sleiman, it will be recalled that no Certificate of Determination had been issued, because proceedings in 2021 were discontinued by Mr Lovelee before a Certificate was issued.
Although the Appeal Panel noted the “distinction that Mr Lovelee did not obtain a Certificate of Determination” (at [33]), the Appeal Panel did not address the impact of the discontinuance and absence of a Certificate of Determination on the analysis contained in Sleiman. The Appeal Panel merely concluded that by reason of Sleiman*,* Mr Lovelee was precluded from bringing his appeal against the decision of a Medial Assessor:
[39] Accordingly, Mr Lovelee Is precluded from bringing his Application to Appeal Against the Decision of a Medial Assessor, as Form 10 describes the action, although his action might more accurately described as an application to appeal against the decision of a Medical Assessor and a Medical Appeal Panel.
[40] Whether Mr Lovelee is able to claim at all is debateable. The parties have proceeded on the assumption that the MAC is still valid, and no submission was made against that proposition.
[41] Suffice it to say that such an assertion is debateable, at best. In Secreta**ry, New South Wales Department of Education v Connol**ly [[2023] NSWPICPD 38 at [85]] President Judge Phillips referred with approval to Singh v B & E Poultry Holdings Pty L**td [[2018] NSWWCCPD 52] and DP Michael Snell’s dicta at [55]:
“The course adopted by the appellant, if it were properly available, potentially has the effect of avoiding the application of s 322A of the 1998 Act. A worker could make a claim, undergo medical assessment by an AMS, obtain a MAC, and if he or she was dissatisfied with the assessed level of permanent impairment, simply discontinue the proceedings before a Certificate of Determination was issued consistent with the binding MAC. If the worker subsequently obtained a higher medicolegal assessment, the worker could simply ‘amend’ the claim, and repeat the process, potentially on more than one occasion.”
322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).
[52] Section 322A serves an important role in the administrative regime established for the determination of permanent impairment. A decision of a court after a final hearing will ordinarily determine that issue once and for all. A great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule. This is also subject to well-recognised exceptions, which are found at general law and also under statute (these include the slip rule, setting aside judgments for fraud, and the ability to reopen associated with Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 and under rules of court such as UCPR rr 36.15 and 36.16). Section 322A broadly speaking places the administrative determination of permanent impairment on the same footing as curial determination (as had occurred, by the Compensation Court, before the introduction of medical assessment)....
Of course, s 322A(4) provides, relevantly, that “this section does not affect the operation of section 327 (Appeal against medical assessment)”. The critical conclusion in the above paragraph of Sleiman is that a “great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule”. Pausing there, no submission was made by the first defendant that Mr Lovelee had engaged in conduct such that any doctrine of preclusion preventing relitigation of the same issue such as res judicata, issue estoppel, or abuse of process applied.
If the Appeal Panel intended to reach a conclusion that a doctrine of preclusion applied, that should have been clearly put and Mr Lovelee given a chance to respond.
1. The Third Defendant erred in law and made a jurisdictional error when it held that it did not have jurisdiction to hear the Appeal.
2. The Third Defendant erred in law and made a jurisdictional error when it considered despite the agreement of the parties, that it was debatable that the MAC of 5 July 2021 was still valid.
3. The Third Defendant erred in law and made a jurisdictional error when it determined the Appeal on a basis not raised by the parties and without giving the Plaintiff the opportunity to be heard.
No appeal lay from the Appeal Panel’s decision. This application was commenced in the Common Law Division pursuant to s 69 of the Supreme Court Act 1970 (NSW). Review of the decision is available for jurisdictional error and errors of law on the face of the record. This Court’s jurisdiction to review for jurisdictional error cannot be removed: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], and while the same is not true for non-jurisdictional error of law on the face of the record, there is no privative clause in the WIM Act which was submitted to have that effect (contrast s 176 of the District Court Act 1973 (NSW) and see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]).
As Leeming JA explained in Sleiman:
[20] It may assist other litigants invoking this Court’s supervisory jurisdiction to observe the following.
(1) The principal bases of review of administrative decision-making in this Court’s supervisory jurisdiction are jurisdictional error and error of law on the face of the record.
(2) Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:
“Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case.”
(3) Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because “no satisfactory test of universal application has yet been formulated”: Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]. The absence of novelty in that statement may be seen from a passage in Holdsworth’s History of English Law, first published precisely one century ago, to “the debatable boundary line between law and fact” (see now W Holdsworth, A History of English Law (7th ed, 1956) Vol 1, p 298). Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law.
(4) Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the “record”. The term “record” is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299-301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62]-[78].
…
It appears that the Appeal Panel proceeded on the basis that the decision in Sleiman was determinative of the present case. I do not agree.
In Sleiman the clear words of s 327(2) and (7) applied to preclude a second appeal. Those subsections do not preclude the present appeal.
As to s 327(2), the principal difference between this matter and Sleiman is that in Sleiman the first Appeal Panel revoked the MAC issued by an approved medical specialist and issued a new certificate: Sleiman at [17]; [30]; [57]-[58]; [60]; [70]-[76]. Mr Sleiman subsequently sought to appeal against the Medical Assessment Certificate issued by the Appeal Panel. In the present case, the appeal was framed as an appeal from a medical assessment certificate of a medical assessor: s 327(2).
Sleiman is authority for two propositions:
that s 327(2) does not permit an appeal from a medical assessment certificate issued by an Appeal Panel under s 328(5) because it is not a certificate issued by a medical assessor; and
that s 327(7) does not permit an appeal after the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under s 66A of the Workers Compensation Act 1987 (NSW).
Although the terminology of the WIM Act has changed since Sleiman, the fundamental point made by Leeming JA still applies.
As to s 327(2), in the present case, the assessment being appealed was the medical certificate issued by a medical assessor. As the respondent submitted to the 2024 Appeal Panel: “[the] Mac still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021”.
The 2024 Appeal Panel did not find that it lacked jurisdiction because the MAC had been confirmed by an earlier Appeal Panel. The finding of the Appeal Panel at [39] that Mr Lovelee’s action “might more accurately be described as an application to appeal against the decision of a Medical Assessor and a Medical Appeal Panel” finds no support in the statutory language of s 327(2) and was contrary to the concession made by the first defendant. Section 328(5) of the WIM Act, which provides the relevant power to the Appeal Panel provides:
(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.
Thus it is only when an Appeal Panel revokes a MAC that the power to “issue a new certificate as to the matters concerned” is enlivened. No new certificate was ever issued here. The first defendant’s concession before the 2024 Appeal Panel that the “Mac [made by Dr Kumar] still stands, as confirmed by the Medical Appeal Panel decision dated 24/09/2021” is correct. At the time of the 2024 Appeal Panel hearing, there remained “a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission” within the meaning of s 327(2). Section 327(2) did not preclude Mr Lovelee’s 2024 appeal.
As to s 327(7), the principal difference between this matter and Sleiman is that in this matter proceedings were discontinued before a Certificate of Determination was issued. In Sleiman it was clear that the conclusion of the Court that a second appeal was impermissible was based, at least in part, upon the application of s 327(7): Sleiman at [43]; [47]; [64]-[65]; [70]; [73]; [74] and [76].
The defendant in the present case submitted that the 2021 Appeal Panel decision was a decision of the PIC and, thus, s 327(7) prohibited a further appeal. That submission should be rejected.
The PIC is constituted by s 6 of the Personal Injury Commission Act 2020 (NSW) (“PIC Act”). The separate divisions, including the Workers Compensation Division, are established by s 12 of the PIC Act. Medical assessors for the purposes of the WIM Act are appointed by the President of the Personal Injury Commission under s 33 of the PIC Act. Section 58 of the PIC Act clearly distinguishes between decisions of the Personal Injury Commission and “decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998”:
58 Publication of decisions
(1) The Commission must cause details of the following to be published in accordance with the Commission rules—
(a) decisions of the Commission,
(b) decisions of merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017,
(c) decisions of review panels for merit reviewers under Division 7.4 of the Motor Accident Injuries Act 2017,
(d) decisions of Appeal Panels for medical assessments under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998,
(e) decisions of review panels for medical assessments under Part 3.4 of the Motor Accidents Compensation Act 1999 or Division 7.5 of the Motor Accident Injuries Act 2017,
(f) any other decisions prescribed by the Commission rules.
…
The PIC, in the ordinary course, would make a decision following an Appeal Panel Determination and issue a Certificate of Determination under s 294 of the WIM Act. This determines the amount of permanent impairment compensation payable pursuant to s 66 of the Workers Compensation Act 1987 (NSW). The decision of an Appeal Panel performing its function under Chapter 7 Part 7 of the WIM Act is not a decision of the Commission.
There was no determination made by the Commission within the meaning of s 327(7) of the WIM Act following the 2021 Appeal Panel decision, as the proceedings were discontinued without any determination being made. Section 327(7) did not preclude Mr Lovelee’s 2024 appeal. Sleiman was not determinative of the present case.
It is perhaps surprising that it was possible for an unsuccessful applicant to discontinue his application, without any leave requirement, after the completion of an Appeal Panel deliberation and before a Certificate of Determination had been issued by the PIC. It is also perhaps noteworthy that the plaintiff apparently deliberately chose to discontinue his application to seek to keep alive his ability to conduct a second or further appeal. In Mr Lovelee’s statement dated 7 February 2024 he said:
[5] I understood that the assessment of 14% whole person impairment would mean that I did not qualify to seek damages under Common law.
[6] As I have not worked since 2018 and my future prospects to re-enter the workforce are not good, I did not wish to finalise my section 66 claim on the basis of a whole person impairment of 14%.
Whether, for example, there is room to describe the plaintiff’s course of conduct in the present case as an abuse of process is not a matter before me. As there may be a question on remitter about whether Mr Lovelee’s rights are limited or curtailed in the putative second appeal, it is undesirable to say more.
Both parties agreed in submissions that reconsideration pursuant to s 329(1A) was available when the matter was before the President to make a decision pursuant to s 327(4). Reconsideration was not the route taken. The plaintiff noted that an Appeal Panel does not have the power to remit a matter for reconsideration. The reconsideration route is a matter for the President when making a decision pursuant to s 327(4). Given what I have said about possible arguments available on remitter to the first defendant, I propose to remit the matter to the President of the PIC to permit consideration by Mr Lovelee of whether he should take the opportunity of have a reconsideration conducted, rather than seek to prosecute an appeal before an Appeal Panel.
Ground 1 should be allowed.
The 2024 Appeal Panel referred in its decision to New South Wales Department of Education v Connolly [2023] NSWPICPD 38 and Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52*,* as quoted above at [25].
The first defendant submitted that the “process adopted in the present case essentially involves the pretence that the 2021 [Appeal Panel] determination did not occur”. The first defendant emphasised the need to guard against a course of action circumventing the prescribed process and permitting multiple attempted claims through the method of discontinuance in the event of dissatisfaction with assessment(s).
It is no doubt correct that there is a need to guard against a course of action which has the deliberate effect of circumventing a “prescribed process”. I agree that that it is undesirable to permit “multiple attempted claims through the method of discontinuance in the event of dissatisfaction” with assessments or appeals.
My problem with this ground of appeal is that although the Appeal Panel referred to Connolly and Singh, they did not rely on the existence of any doctrine of preclusion or abuse of process preventing the Appeal Panel from hearing Mr Lovelee’s 2024 appeal. That is, whilst it may be correct that the 2024 Appeal Panel could have considered that the circumstances of this case gave rise to an abuse of process, it did not do so. If it had, there would have been a real problem with procedural fairness. This is because the first defendant did not say to the Appeal Panel and does not submit in this Court that there was an abuse of process by Mr Lovelee. If it had, no doubt Mr Lovelee would have wished to be heard. He would have been entitled to do so.
As this was not the basis of the Appeal Panel’s decision, I would reject ground 2. I have said enough to indicate that if the matter is again referred under s 327(4) by the President to an Appeal Panel it may be open to the defendant to assert that there has been an abuse of process. As such a claim has not been made, much less determined, it is undesirable that I say any more about it.
By this ground, Mr Lovelee complained that it was procedurally unfair for the Appeal Panel to determine that it had no jurisdiction in circumstances where neither party made any submission contesting jurisdiction.
The first defendant submitted that the better characterisation of the Appeal Panel’s determination was that the plaintiff was not entitled to appeal the MAC and so the MAC was confirmed in accordance with s 328(5) and the application was refused.
It is true that neither party asserted that the Appeal Panel was without jurisdiction. It is also true, as the Appeal Panel found (at [31]) that it is a “fundamental rule that parties cannot bestow jurisdiction on themselves where none exists”. The first duty of every court (and Tribunal) is to determine whether or not it has jurisdiction: Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211.
If (contrary to the conclusion I have reached in relation to ground 1) the Appeal Panel was bound by Sleiman to conclude that it lacked jurisdiction to determine the appeal it would not have been procedurally unfair to give effect to that legally inevitable conclusion.
I would dismiss ground 3.
For the foregoing reasons I make the following orders:
Declare pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024 is void and of no effect.
Set aside the Decision and the Statement of Reasons for Decision issued by the Third Defendant on 30 July 2024.
Order that the matter be remitted to the President of the Personal Injury Commission to be determined according to law.
First Defendant to pay the Plaintiffs’ costs.
**********
Typographical error amended at [51]
Lovelee
Sydney International Container Terminals Pty Ltd [2025] NSWSC 377
(2014) 87 NSWLR 394
(2014) 86 NSWLR 214
(2011) 80 NSWLR 620
(2010) 239 CLR 531
(1998) 194 CLR 355
(1993) 176 CLR 300
(2013) 250 CLR 135
(1995) 184 CLR 163
(1996) 40 NSWLR 297
(2018) 264 CLR 1