Mark Edward Passey v The Registrar of Workers Compensation Commission of NSW & Ors

Mr C Jackson - Plaintiff COUNSEL : Mr D Nock SC - Second Defendant

P K Simpson - Plaintiff SOLICITORS : Vandervord - Second Defendant

• 21 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Common Law LIST

No:30014 0f 2005 Mark Edward Passey v The Registrar of The Workers Compensation Commission of NSW & Ors

JUDGMENT: 1 The First Amended Summons before the Court filed on behalf of the Plaintiff (Mr Passey) seeks the following orders: "1. That the First Defendant's endorsement of and the decision of the Third Defendants (the Medical Appeal Panel) made on 8 November 2004 be quashed. 2. That the First Defendant instruct the Third Defendants (the Medical Appeal Panel) to decide the question of the extent of the permanent loss of the efficient use of the Plaintiff's sexual organs in accordance with the law. 3. That the First Defendant and/or Second Defendant and/or Third Defendants pay the Plaintiff's costs. 2 The summons joined as Defendants, the Registrar of the Workers Compensation Commission of NSW (the Registrar); Trent Nathan Pty Ltd (Trent Nathan); and three individuals who constituted an Appeal Panel constituted by the Registrar (the Panel). Both the Registrar and the Panel filed appearances submitting to the orders of the Court save as to costs. Trent Nathan appeared by counsel, Mr D Nock SC, to oppose the making of the orders sought by Mr Passey. 3 The relevant facts were uncontroversial and may be shortly stated. Mr Passey commenced employment with Trent Nathan as a storeman on or about 26 October 2000. On or about 14 November 2000, in the course of his employment with Trent Nathan, he lifted a roll of fabric which weighed about 40 kilograms. As he did so he suffered an injury to his low back in the nature of a left postero-disc protrusion at L5/S1 that impinged upon the left nerve root. 4 He made a claim for permanent impairment compensation pursuant to s66 of the Workers Compensation Act, such claim being governed by the provisions of the Workplace Injury Management and Workers Compensation Act (the Act). The claim as it related to the frank injury to his back resulted in an award, in December 2004, that he be paid lump sum compensation of $7,500, in respect of a 12.5% back impairment. 5 Mr Passey also made a claim for sexual impairment, related to his back injury. He was referred by the Workers Compensation Commission for examination by Dr E I Korbel, an approved medical specialist within the meaning of s320 of the Act. Subsequently, Dr Korbel issued a medical assessment certificate of permanent impairment, pursuant to s325 of the Act. It is relevant to note some parts of Dr Korbel's certificate, which I do as under: "Workers Compensation Commission Medical Assessment Certificate of Permanent Impairment 1. The details of the matters referred for assessment are: To assess the worker for all other body parts (sexual organs). I note that Dr Edward Bates is to assess the worker for the back. 2. ………………………………….. 3. ………………………………………. A brief history of the incident and of the subsequent related events, including treatment: This gentleman was on a work trial at Trent Nathan Pty Ltd. On the date in question he picked up a bolt of fabric weighing 40-50 kilograms and threw it over his left shoulder. During this episode, he stooped and twisted. He had no immediate problem. He drove back to the warehouse, felt a tightness around his back and abdomen. He states that he drove home in pain. …………………………………………. Present treatment: Mr Passey's present treatment consists of analgesics when needed. 4. Clinical history including:- Present symptoms: This gentleman states that he has lower back pain, which is present most of the time. It is a dull pain and it does get worse every now and again. He tells me that on the 21st August 2002 he got out of bed and bent down to pick up his car keys. The pain returned quite severely and he had to go to bed for 3 days. His flat mate took him to Prince of Wales Accident and Emergency where he was kept in over night and given Valium and Voltaren. He had a week off work and then returned to work. He now has a dull lower back pain still. He states that he has no permanent sexual partner and is single. He does have sex when the opportunity arises and states that he gets pain in his lower back after 10minutes in the male superior position but that he can last 30 minutes in the female superior position with no problems. ………………………………………. He states that as far as his physical activities are concerned he used to surf 4 or 5 days a week and he can only surf 2 or 3 days a week now because of his lower back pain. Findings on physical examination: On examination I could find no abnormality in his abdomen. His external genitalia were normal. He has normal sensation and reflexes in the area of his genital organs. He has no bladder or bowel symptoms. Detail and dates of clinical investigations: The only investigation he brought with him was a CT scan dated the 29th 2002. This x-ray suggested that he had a minor disc bulge at L4/5 and at L5/S1 there was postero-lateral herniation of the disc centrally and to the left side and that this involved the left side of the thecal sac compressing on the left nerve root. This was reported on by Dr Bass. 5. Summary Including:- Summary of injuries and diagnoses: Lower back injury with alleged sexual dysfunction related to the lower back pain. ………………………………….. The worker was consistent on presentation and did not embellish his symptoms or signs. He was quite co-operative and was noted to be able to walk and move quite comfortably today. 6. ………………………………. 7. My answers to the following questions regarding the assessment of the percentage of permanent loss of efficient use or permanent impairment with respect to the injuries suffered before the 1 January 2002 in accordance with the Table of Disabilities are:- a) Is the worker claiming for any body part outside your field of expertise? If so, please indicate which body part. Yes - back. b) Has the worker's injury resulted in loss of efficient use or impairment? Yes. c) Is the worker claiming that he/she suffered more than one injury to any body part? Yes. d) Is the loss of efficient use or impairment related to the accident or accidents? Yes. e) Is apportionment between the several accidents necessary? No. f) Is the worker's injury stable as at the date of the examination? Yes. g) Is there any injury related to the accident/s that has not yet stabilised? No. ………………………….. j) Is the loss of efficient use or impairment permanent? Yes. …………………………… k) What is the percentage of the total permanent loss of efficient use or impairment? I have indicated the total % loss in column 3 in the Table below. l) Is any proportion of the permanent loss of efficient use or impairment due to any pre-existing injury, abnormality or condition? No.

……………………………………………. 8. The facts on which I have based my assessment of the percentage of permanent loss of efficient use or permanent impairment are: The history as obtained from the worker today. My clinical examination and the x-rays that he brought with him. 9. Below are my reasons for:- a. my opinion and assessment of the percentage of permanent loss of efficient use and/or whole person impairment, b. an explanation of my calculations in addition to the worksheet or actual calculations attached. c. my comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:- I note that Dr Breit, Orthopaedic Surgeon considers that this gentleman has 10% permanent impairment of his back. He commented that this gentleman has no loss of actual sexual function and that impairment for pain during sexual intercourse is contained within the back assessment. This is not correct and sexual dysfunction is allowable as this accident occurred prior to 2002. I note that Dr Frank Breslin has commented that this gentleman does have back strain and that he has problems during intercourse. He considered that he had sexual dysfunction in the order of 5% when compared to a worse case scenario. I note that Dr H Stenning, Practitioner in Musculoskeletal medicine has suggested that this gentleman has 20% permanent impairment of his back and 30 % impairment of sexual organs. I feel that these assessments are rather high. I note that Dr Richard Crane, General Surgeon, considers that he has 15% permanent impairment of his back and 20% impairment of his sexual organs. Once more I feel that this sexual organ assessment is high, given the history that this gentleman has given me today. I also note that Dr Bleasel, Neurosurgeon considers that this gentleman has 30% permanent impairment of his back and 20% permanent impairment of his sexual organs. Also that Dr E Matalani, Consultant occupational Physician has also considered that this gentleman has exactly the same sexual organ dysfunction of 20% and 15% impairment of his back. I note that Mr Passey has also been seen by Dr M Lowy, Sexual Health Physician on the 21st May 2003 and he commented that this gentleman's libido is normal and that he was able to have erections and have intercourse. However, Mr Passey's main complaint was that if intercourse lasted longer than 15 minutes, his back became painful

He considered that Mr Passey's sexual problems were related to his lower back problem. I note that Dr Lowy has assessed his permanent loss of use of sexual organs at 10%. If this gentleman's back problem has been assessed as being related to his work and it appears that this is so, then he does have sexual dysfunction related to his back pain, which is directly related to his employment with Trent Nathan Pty Ltd. I would consider that he has sexual dysfunction in the order of 5% when compared to a worse (sic) case scenario." 6 At the conclusion of his report, Dr Korbel set forth a table in which he identified the relevant body part as "sexual organs" and assessed at 5% the "total amount of % of permanent loss of efficient use or impairment attributable to the injury". 7 The Act conferred by s 327 and s328 rights of appeal against a medical assessment. Those sections are as follows: "327 Appeal against medical assessmen t (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 (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (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 it appears to the Registrar that at least one of the grounds for appeal specified in subsection (3) exists. (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 Registrar is satisfied that special circumstances justify an increase in the period for an appeal. (6) If the appeal is on a ground referred to in subsection (3) (a) or (b), the Registrar may refer the medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment. (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.

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. The WorkCover Guidelines may 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 unless the evidence was not available to the appellant before that medical assessment or could not reasonably have been obtained by the appellant before that medical assessment. (4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker's advocate and assist him or her to present his or her case to the Appeal Panel. (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. (6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel." 8 Availing himself of the appeal rights, Mr Passey on 11 March 2004 applied for leave to appeal against the assessment of Dr Korbel. Grounds relied upon were stated to be "the assessment was made on the basis of incorrect criteria" and "the medical assessment contains a demonstrable error". Mr Passey sought in his application that the matter be referred to an appeal panel. 9 Among the documents which accompanied the application for leave to appeal were three documents signed by Mr Passey's solicitor. The first of such documents headed "Appellant/Applicants' Submissions Regarding Threshold Issues" which, omitting formal parts, was in the following terms: "The Appellant/Applicant submits that the AMS certificate of Dr E Korbel regarding his examination of the Applicant on 24 February 2004 contains demonstrable errors and was decided on the basis of incorrect criteria, such matters being more fully described in the submissions." 10 The second document headed "Appellant/Applicant's Submissions Not To Deal with Appeal on Papers" provided in substance: "1. It is apparent that the AMS adopted an inappropriate method of assessing loss of efficient use of sexual organs. 2. The appeal Panel should conduct its own examination of the Applicant and adopt the appropriate method of assessment of the loss of efficient use of sexual organs as sexual organs, noting that a reduction of strength, stamina, robustness and vigour while engaged in sexual activity are significant matters to be taken into account."

11 The third document contained what were described as "Submissions and Grounds of Appeal". They were as follows: "The appellant (Applicant) appeals against the AMS assessment of Dr E I Korbel that was made on 24 February 2004 (received 3 March 2004) on the grounds that the assessment was made on the basis of incorrect criteria and the medical assessment certificate contains demonstrable errors as described below:- 1. It is apparent that the questions and matters referred to the AMS may have been inappropriate and may have lead the AMS to make an inappropriate assumption as to what he was required to assess. The Applicant is prejudiced in addressing this ground as the Applicant has not been provided with a copy of the AMS referral documentation. 2. The AMS made an error as to his method of assessment. On page 8 of the Certificate it is stated that the Applicant, "has sexual dysfunction in the order of 5% when compared to a worse case scenario." 3. If the Applicant were having neck, back or pelvis impairment assessed it would be appropriate to compare it to a "most extreme case". However, with regard to the loss of use or loss of efficient use of sexual organs, it is not appropriate to make an assessment with regard to a most extreme case or a worse case scenario. 4. The AMS should have had regard to the broad concept of loss of efficient use of a thing (in this case being sexual organs) as referred to in Sections 65 and 68 of the Workers Compensation Act, 1987 (the 1987 Act) noting that the assessment is based on the law as it applies to an injury that happened before 1 January 2002. 5. The AMS certificate makes it clear that the Applicant experiences pain and some limitations while engaging in sexual activities. 6. It is submitted that 5% loss of sexual dysfunction "when compared to a worse case scenario" is very different from the loss of efficient use of sexual organs. An assessment of loss of efficient use of sexual organs would be much greater. 7. It is submitted that the efficient use of sexual organs is a clear reference to the use of sexual organs as sexual organs. The reduction of strength, stamina, robustness and vigour while engaged in sexual activity are significant matters that should have been taken into account. It is reasonably clear from the certificate that the Applicant's use of sexual organs as sexual organs is restricted to a degree that would be in a range of 10%-20% (say 15%) when regard is had to the appropriate method of assessment". 12 The Registrar of the Workers Compensation Commission in terms of s327 (4) of the Act was apparently satisfied that at least one of the grounds for appeal specified in subsection (3) existed, because he established an Appeal Panel in accordance with s328 (1) constituted by Mr John Wynyard, Dr Gregory Watters and Dr Ross Mellick. On 8 November 2004, the Panel published its decision that the medical assessment certificate given by Dr Korbel should be confirmed. It also published a statement of reasons for that decision. I set out hereunder those parts of the Statement of Reasons which, as it seems to me, are relevant to this appeal: "Background to the Application to Appeal: 1 ………………………………. 2. ………………………………. 3. ………………………………. 4. The Appellant claims, in summary, that the medical assessment by the AMS should be reviewed on the following grounds (s327(3) of the Act): · The assessment was made on the basis of incorrect criteria, · The medical assessment certificate contains a demonstrable error. 5. It appears (sic) to the Registrar that at least one of the grounds for appeal exists in accordance with section 327(4) of the 1998 Act and the Registrar has referred the Appeal to this Appeal Panel (the Panel) for review of the original medical assessment. 6. ……………………………………….. Preliminary Review 7. The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Guidelines. 8. As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because, despite the Applicant's submission such an examination should take place, the Panel found no reason to do so in view of its (sic) decision, below. Evidence Documentary Evidence 9. The Panel has before it all the documents that were sent to the AMS for the original assessment and has taken them into account in making this determination. The documents before the Panel include: ………………………………………. ……………………………………….. Medical Assessment 10. The parts of the medical certificate given by the AMS and issued on 2 March 2004 that are relevant to the Appeal set out below: · "I would consider that he has sexual dysfunction in the order of 5 percent when compared to a worse (sic) case scenario" Paragraph 9, page 8 of the MAC. The Appellant's Medical Evidence 11. The medical evidence is not repeated here in full, however, in summary the relevant medical evidence of the Applicant is as follow: Dr Lowy 21.5.03, "I assess Mark Passey's permanent loss of sexual organs at 10%". Dr Bleasel 10.4.03, " I assess Mark Edward Passey's:- Permanent loss of use of sexual organs of 20%". The Respondent's Medical Evidence 12. The medical evidence is not repeated here in full, however, in summary the relevant medical evidence of the Respondent is as follows: Dr Breslin 7.3.03, " I would state that his percentage permanent disability related to the episode, which occurred at Trent Nathan with regard to sexual function is 5 percent of a most extreme case." Decision Made After Preliminary Review Without Holding an Assessment Hearing 13. The Respondent in its submissions agreed to the determination of the matter without an assessment hearing. The Applicant as part of its submissions gave a two paragraph submission under the heading "Applicant's submissions not to deal with appeal on the papers." These submissions were addressed to the question of the Panel itself conducting an examination of the Applicant in view of the criticisms the Appellant makes of the AMS finding. The Appellant did not give any opinion as to whether the matter could be determined without an assessment hearing, and we assume from the content of that document dated 11 March 2004 that its silence on that question is an indication that the matter may indeed proceed without an assessment hearing. Submissions 14. Both parties made written submissions, the Appellant's dated 11 march 2004 and the Respondent dated 22 June 2004. 15. The issue raised in the Appellant's submission is of short compass and is dealt with under our findings and reasons. Findings and Reasons. 16. The Appellant submits that the assessment by the AMS was made on the basis of incorrect criteria and that it contains demonstrable error. The basis for that submission is contained in paragraph 6, which states:- "6. It is submitted that 5 percent loss of sexual dysfunction "when compared to a worse case scenario" is very different from the loss of efficient use of sexual organs. An assessment of loss of efficient use of sexual organs would be much greater than 5 percent". 17. This submission is based upon the provisions of the now repealed section 68 of the 1987 Act which says relevantly: "68(1) If a loss suffered by a worker consists of a loss of proportion (but not all) of a thing mentioned in Table to this Division, a percentage of the compensation payable for the total of the thing equal to the percentage loss by the worker is payable as compensation under s66. …………………………… (4) This section does not apply to a loss for which the Table to this Division provides a range of percentages." 18. The now repealed s73 contains a range of impairment percentages for bowel injury, brain damage, permanent impairment of the back, neck and pelvis, and disfigurement. A loss of sex organs is therefore subject to s68(1). Where there is a range, the relevant test is to compare the impairment with "a most extreme case." See Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678. 19. The Appellant submits (paragraph 7) that there is a significant difference between the two tests in this case and that "the reduction in strength, stamina, robustness and vigour while engaged in sexual activity are significant matters that should have been taken into account". 20. We are of the view regardless of the precise language used by the AMS, that those matters were precisely what the AMS considered. It was common ground between all the medical specialists that there was no abnormality in the genitalia itself but that the worker's difficulties arose because of his back pain - a not unusual basis for a claim for loss of sexual function. The assessments made by all the medical specialists were based upon the difficulties that the Appellant was suffering when engaged in sexual intercourse. 21. We note that the Appellant is now 33 years of age, and a bachelor without any "permanent sexual partner" as the AMS records in the history given to him (paragraph4, page 3 MAC). When he does have the opportunity, the history he gave the AMS was that after ten minutes he gets pain in the lower back in the "male superior position" but that he can last 30 minutes in the "female superior position" without any problem. In his summary at page 8 of the MAC the AMS notes that Dr Lowy, who specialises in matters of sexual health, commented that the Appellant's libido is normal and that he was able to have erections and intercourse. The complaint recorded by the AMS to Dr Lowy was that if intercourse lasted longer than 15 minutes his back became painful. The AMS noted in the same paragraph that because of the back problem he does have sexual dysfunction related to his back pain. 22. It seems to us that the criteria which all medical specialists including the AMS applied were as to the reduction of strength, stamina, robustness and vigour, effecting (sic) the Appellant's sexual performance. The Appellant presented in a co-operative manner and did not embellish his symptoms or signs according to the AMS at paragraph 5, page 4 of the MAC. At paragraph 8, page 7 of the MAC the AMS dealt with the various opinions of the medical specialists qualified by both sides of the record. Although different percentages were advanced, we note that all experts based their assessment on the limitations caused by back pain during sexual intercourse. 23. We do not accept the submission of the Appellant that a 5 percent loss of sexual dysfunction when compared to a worse case scenario is very different from the loss of efficient use of sexual organs. It seems to us in this sphere of assessment that whilst there is a difference in semantics, there is in fact no distinction between the two methods of assessing loss of sexual organs. I t seems to us that in cases such as this that the only possible criteria an expert can use is to assess the loss of sexual performance according to the complaints related to the back pain during sexual intercourse. Whether that assessment be described as compared to a most extreme case or the loss of efficient use, we find the result is the same. 24. For these reasons, the Panel has therefore determined that the Medical Assessment Certificate dated 2 March 2004 given in this matter should be confirmed." 13 Sections 327 and 328 of the Act were considered and closely analysed by Wood CJ at CL in Campbelltown City Council v Vegan (2004) NSWSC 1129. The WorkCover Authority of NSW (WorkCover) participated in the proceedings before Wood CJ at CL and referring to its submission in relation to the proper interpretation of s327 of the Act, His Honour said: "74. (the submission) is to the effect that s 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.

(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 s327 (3) (a) or (b) 76. In my view there is force in this submission for the four reasons mentioned. Although 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." 14 As to the nature of the Appeal Panel's role, Wood CJ at CL said: "78 In Allesch v Maunz (2000) 203 CLR 172 Gaudron, McHugh, Gummow and Hayne JJ noted that there were three categories of appeal:

(i) An appeal in the strict sense, in which the function of the appellate body is "simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given", and in which the appellate body cannot receive further evidence;

(ii) An appeal by way of rehearing in which the powers of the appellate body "are exercisable only where the Appellant can demonstrate that, having regard to all of the evidence now before the appellate (body), the order that is the subject of the appeal is the result of some legal, factual and discretionary error" or

(iii) A completely fresh rehearing, called a hearing de novo, in which the power of the appellate body to re-exercise the power must be exercised "regardless of error" (at 180).

79 The analysis in this decision has been applied to Tribunals, for example, Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194.

80 In the present case the powers of the Panel are confined to revoking the certificate of the AMS, or to issuing a "new certificate as to the matters concerned", powers which are consistent with an appeal being a review de novo of the original assessment, falling within the third of the three categories mentioned in this decision, that is, a review which is not confined to correction of error which is established within one or other of the s 327(3) grounds. If it were a review of the second kind, one might have expected to see a power in the Panel to remit the matter to the AMS for revision.

81 It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error.

82 This gives rise to a somewhat novel form of appeal, but being a statutory appeal it has to be understood in the light of the relevant provisions, and in the light of the Legislative intent, in so far as that can be identified. 83 While I have not found this point, or indeed any other point which has been argued in these proceedings, as clear, or easy of determination, it does seem to me to be more consistent with a review by a Panel of Experts, once a ground for appeal has been identified, that it should be free to conduct a full review de novo on the available material. The position of the Racing Appeals Tribunal, which sat at a second level in an appellate framework, and which was considered in New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691 is distinguishable. The position of the Appeal Panel in that case was more akin to that of the present Appeal Panel, in so far as it was held able to conduct a review de novo, while the Tribunal, to which appeal lay from the Appeal Panel, was confined to error review.

84 To confine a lay panel, even though this one is chaired by an Arbitrator, to the narrow confines of an appeal which is more suitable for a court of law, would be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way (see ss 3 and 367 of the WIMWC Act). As a consequence, the Plaintiff's assertion that there was an error of law, in relation to the incorrect criteria argument, must fail." 15 In my opinion, in accordance with the well established principles of judicial comity, I should adopt and follow the reasoning of Wood CJ at CL. Accordingly, I hold that the Panel was bound to hold a completely fresh hearing, that is a hearing de novo and that it was not obliged to confine its attention to a determination as to whether any of the four grounds in s327 (3) had been established. 16 The summons before the court seeks to attract the jurisdiction referred to in s69 of the Supreme Court Act. The jurisdiction is dependant upon an error of law that appears on the face of the record of proceedings, which record includes the reasons expressed by the relevant court or tribunal. In my opinion, the Panel is a tribunal within the meaning of s69 of the Supreme Court Act. 17 Mr Jackson, counsel for the Plaintiff, submitted that on the face of the record, the Panel did not approach the matter before it as a hearing de novo, but rather, in effect, as an exercise to determine whether there was an apparent error by Dr Korbel. He submitted that the statement in paragraph 23 of its reasons, revealed that the Panel focussed its whole attention upon the reasons given by Dr Korbel as opposed to its proper task of determining the matter afresh on the material before it. In Mr Jackson's submission, the Panel's refusal of the Plaintiff's request of a further examination, reinforced his contention that the Panel concerned itself only with the question whether there was demonstrable error by Dr Korbel. 18 Principles which I regard as relevant to this matter were discussed by the Full Court of the Federal Court of Australia in Drake v Minister for Immigration and Ethnic Affairs 24 ALR 577. That was a case in which the Full Court was considering whether the Administrative Appeals Tribunal had erred in law in its consideration of an appeal from the decision of the Minister for Immigration and Ethnic Affairs, pursuant to s12 of the Migration Act. At page 589 Bowen CJ and Deane J under the heading "The Tribunal attached such importance to a policy statement of a Minister on the question of considerations relating to the deterrence of others as to result in a failure by the learned Deputy President of the Tribunal to exercise an independent judgment", said: "The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal. The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v Browning (1974) 74 CLR 492 at 496,498, 499-504), that regard must be had to the relevant considerations, and that matters "absolutely apart from the matters which by law ought to be taken into consideration" must be ignored: R v Cotham (1898) 1QB 802 at 806; Randall v North Corp (1910) 11 CLR 100 at 109-110; Shrimpton v Commonwealth (1945) 69 CLR 613 AT 620; r V Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR at 189; (1965) ALR 1067 at 1071." 19 The problem raised in this appeal is finely balanced. On the one hand Mr Jackson submits that on the face of the record the Panel did not adequately exercise its jurisdiction. On the other hand, Mr Nock submitted that on a fair reading of the Panel's reasons, it did, in truth, form its own assessment upon the material before it. He referred to the last sentence of paragraph 23 of the Panel's reasons for determination, "Whether that assessment be described as compared to a most extreme case or the loss of efficient use, we find the result is the same". 20 Although to an extent the matter may depend upon an exercise in semantics, it is relevant, in my opinion, to take into account the fact that the Panel was exercising jurisdiction under Chapter 7 of the Act which severely circumscribes the right of parties to a dispute to have recourse to the ordinary courts of the State. In that situation it behoves tribunals such as the Panel to exercise and manifestly exercise its powers with great care, in a way which demonstrates that it has understood the jurisdiction conferred upon it and acted in accordance with that jurisdiction. In saying that, I am not seeking to be critical of the Panel, which published its reasons well before the decision in Vegan. 21 In my opinion, the reasons for determination, on a fair reading, fall short of demonstrating that the Panel properly understood and exercised the jurisdiction conferred upon it by the Act, in light of what was said by Wood CJ at CL in Vegan. It is well open, in my view, to conclude that the Panel confined itself to the question whether error was demonstrated on the part of Dr Korbel and failed to consider what conclusion it would reach upon the material before it. Although unnecessary to my decision, it may also be that its reasons were deficient in their failure to explain why the assessment of 5% was selected as opposed to higher assessments available to be preferred. In my opinion, the matter should be referred back for re-determination by a differently constituted panel, according to law. Costs should follow the event. 22 I make these orders:

2. I order that the matter be returned for determination according to law by a fresh Appeal Panel established pursuant to s328 of the Act.

3. I order Trent Nathan Pty Ltd to pay Mr Passey's costs.

4. I make no order as to the costs of the Registrar and the Appeal Panel.

I CERTIFY THAT THIS AND THE PRECEDING 20 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR JUDGMENT OF ACTING JUSTICEGE PATTEN DELIVERED HEREIN.

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