Perry v George Weston Foods Limited

Supreme Court of NSW|2021-02-03|Before: Rothman J, Dr J

Submitting Appearance (Second Defendant/Third Defendant)

Solicitors: Walker Law Group (Plaintiff) EMP|Michael Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant/Third Defendant) File Number(s): 2020/217094 Decision under appeal Court or tribunal: Workers Compensation Commission of New South Wales Date of Decision: 09 March 2020; 22 May 2020 Before: Dr J Parmegiani, Approved Medical Specialist; Ms B Gamble, Delegate of the Registrar File Number(s): M1-5785/19

Judgment

HIS HONOUR: By Amended Summons filed 10 August 2020, the plaintiff, Stephen Perry, seeks judicial review in relation to decisions of the Registrar of the Workers Compensation Commission of New South Wales (hereinafter "the Commission") and an Approved Medical Specialist appointed by the Commission (hereinafter "the Assessor"). The Review is sought of the whole of the decision of the Assessor, Dr Parmegiani, dated 9 March 2020 (hereinafter "the First Decision") and the whole of the decision of the Delegate of the Registrar of the Commission, dated 22 May 2020 (hereinafter "the Second Decision").

Background

The plaintiff was employed as an area sales manager for George Weston Foods Limited (the first defendant). In early 2018, the plaintiff developed psychiatric symptoms consequent upon his work. The plaintiff ceased work in September 2018.
The plaintiff lodged a claim under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereinafter "the 1998 Act"). An assessment was undertaken of the plaintiff's whole person impairment (hereinafter "WPI"), which was assessed at 9% by the Assessor. A level of assessment of 9% WPI does not entitle the plaintiff to lump-sum compensation and the plaintiff is not entitled to pursue work injury damages proceedings.
In assessing the plaintiff's WPI, the Assessor is required to apply the Psychiatric Impairment Rating Scale (hereinafter "PIRS"). In applying the PIRS there are various categories, one of which is "social and recreational activities". In relation to that assessment, the Assessor stated: "Mr Perry and his wife went out with other couples on average once per month. They recently had a holiday at Scotts Head, on the New South Wales coast. Mr Perry enjoyed following English soccer online." [1]
Pursuant to the provisions of ss 327 and 328 of the 1998 Act, the plaintiff appealed the decision of the Assessor alleging that incorrect criteria were applied and that there was a demonstrable error in relation to the First Decision. The Delegate of the Registrar of the Commission dismissed the plaintiff's appeal (or, more accurately, declined to allow the appeal to proceed). [2]
In these proceedings, the plaintiff challenges the Assessor's Decision and also challenges the Delegate's Decision, being the Second Decision. The Court will, in these reasons, refer to this decision as the decision of the Delegate or of the Registrar.

Evidence and Submissions

The plaintiff relies on the Affidavit of Stephen James Walker, filed 14 September 2020. It is, as appropriate for judicial review decisions, formal in nature.
The Affidavit annexes the Application to Resolve a Dispute filed in the Commission on behalf of the plaintiff; the Reply to the aforesaid Application; the Certificate of Determination remitting the impairment dispute to the Registrar for referral to the Assessor; the Referral for Assessment Notice setting out the materials supplied to the Assessor; an Application to Admit Late Documents remitted to the Assessor; the Medical Assessment Certificate issued by the Commission certifying the 9% WPI; the Application to Appeal Against the Decision of the Assessor; the Notice of Opposition to the Appeal; the Decision on Appeal, being the Second Decision; and the Final Certificate of Determination assessing WPI at 9%. The Affidavit also annexes the Amended Summons filed in Court.
Essentially the plaintiff submits that the reference by the Assessor to the plaintiff having "enjoyed following English soccer online" wrongly categorises the activity, which is not otherwise discussed or described in the Assessor's reasons. In so doing, the plaintiff submits that the Assessor's path of reasons does not discuss the topic of the enjoyment of following English soccer online in any way, despite the Assessor giving the topic apparent determinative significance in arriving at the 9% assessment of the plaintiff's WPI. This wrong categorisation was the basis for the plaintiff's appeal in relation to the First Decision.
The plaintiff submits that, because there is no other material in the body of evidence about the topic of online soccer, there is a reasons obligation error and an error in that there has been a lack of findings by the Assessor. [3]
Separately, the plaintiff also submits that under the PIRS rating scale, the finding that the plaintiff "enjoyed following English soccer online" does not fit within "social and recreational activities", because undertaking an online activity of that type does not fit within the genesis of that category. [4] In part, at least, the plaintiff relies upon the judgment of the Court of Appeal in Ballas. [5]
In Ballas, supra, the Court of Appeal held that solitary poker machine gambling did not fit within "social and recreational activities" in the PIRS rating scale. And, accordingly, by using the online soccer topic in the category of "social and recreational activities", the Assessor took into account an irrelevant consideration.
As to the Second Decision, the plaintiff submits that the error by the Assessor in miscategorising the activity of following English soccer online as a social and recreational activity is at least "arguable" as a ground of appeal. Consequently, the plaintiff submits that the appeal to the Delegate of the Registrar should have been allowed.
Again the plaintiff relies upon the judgment of the Court of Appeal in Ballas. The plaintiff submits that the Second Decision, properly characterised, determines whether there is error rather than performing the "gateway" role with which the Registrar is tasked.
The plaintiff submits that the Registrar, rather than performing the role of the "gateway", determined the correctness of the proposed appeal ground. The plaintiff submits that the role of the Registrar should be to look at the capacity of an appeal ground being made out in the sense that it amounts to an arguable error and not to determine the correctness of the ground.
The plaintiff submits that the Second Decision, read as a whole, makes clear that the Commission, through the Delegate of the Registrar, determined the correctness of the proposed appeal ground rather than considering the arguability of the proposed appeal ground, which latter approach is the correct approach to the role of the Registrar. In so doing, the Registrar (which, for present purposes, includes the Delegate) misconstrued and misapplied the "gateway" role and determined the application for an appeal to be arranged by reference to an incorrect test. [6]
The defendant adduced no evidence beyond that which had been adduced by the plaintiff. In these reasons the reference to the "defendant" unless otherwise clear, is a reference to the first defendant. The second and third defendants, appropriately, filed submitting appearances, submitting to any order of the Court save as to an order for costs.
The defendant categorises the plaintiff's submission on the First Decision in two ways. First, the defendant summarises the plaintiff's complaint about the Assessor's judgment as a complaint about the history under the heading Reason for Decision, rather than the body of the Certificate. Secondly, the description of the plaintiff's complaint about the First Decision is that the Assessor impermissibly considered the question of watching English soccer online under the rubric of "social and recreational activities".
The defendant submits that in relation to both aspects of these complaints, they were amenable to appeal under s 327 of the 1998 Act, either as a demonstrable error or the application of incorrect criteria. However, this is a remedy the plaintiff should have sought but failed so to do.
The first defendant submits that the Court is being asked to consider the merits of the Decision, rather than to undertake judicial review. The first defendant submits that it is for the Medical Appeal Panel, under the 1998 Act, to undertake a merits appeal.
As a consequence, the first defendant submits that the Supreme Court should not act as an alternative to an appeal pursuant to the 1998 Act and, in the exercise of the Court's discretion, the Court should decline to entertain this part of the application. In so submitting, the first defendant relies upon Boral Gas (NSW) Pty Ltd v Magill. [7]
The first defendant's submission in relation to the First Decision seems to be that the Court ought not to deal with a ground in judicial review that is capable of being the subject of appeal in circumstances where an appeal has been sought but has not been referred to an Appeal Panel. It should be noted, at this point, that the 1998 Act was amended significantly, taking effect on 1 March 2021. Appeals are now dealt with by the President, whereas previously they were dealt with by the Registrar.
Of course, in these proceedings, error must be disclosed as a consequence of the application of the 1998 Act as it then applied. For present purposes, it is convenient to refer to the Application to the Registrar and the referral by the Registrar to an Appeal Panel, as leave to appeal, although there is no reference to the term "leave".
There was an application to the Registrar for the matter to proceed to an Appeal Panel. That application was refused.
As I understand the submission of the first defendant, it is not that the Court should not deal with the matter because there was an appeal process which had not been utilised. Rather it is that, because there is an appeal process that has been utilised, the Court ought not to deal with the First Decision, being the decision that was the subject of the application for referral. It is not clear, from the submission of the first defendant, whether it is submitted that the decision of the Registrar, or the Registrar's Delegate, is the operative decision as a consequence of which no orders in the nature of judicial review should be made involving the First Decision.
As to the Second Decision, the first defendant submits that the Delegate's Decision involved the exercise of the statutory power conferred by the provisions of s 327 of the 1998 Act. The first defendant submits that the Delegate was aware of her role and that it was not to assess, nor to determine, the ground of appeal.
In the latter submission, the first defendant relies on the reasoning of the Decision of the Delegate, in particular that part of the Second Decision in which the Delegate expresses the view that the grant of the application to refer to an Appeal Panel "involves an assessment of whether an appeal ground is arguable, or capable of being made out, on the face of the application and the parties' submissions."
In so doing, the first defendant submits that the plaintiff's interpretation of the test applied by the Delegate in the Second Decision is incorrect. Further, the first defendant refers to the provisions of the 1998 Act itself, and in particular s 327(4), which require that the Registrar be satisfied that "at least one of the grounds of appeal has been made out". [8]
The first defendant submits that the error upon which the plaintiff seeks to fasten is difficult to discern in circumstances where the Delegate has expressly referred to a test of whether the ground is "capable of being made out", which accords with the authorities upon which the plaintiff relies.
In support of the foregoing, the first defendant submits that the perceived reliance by the plaintiff on the use of the term "in my view" utilised by the Delegate of the Registrar is misplaced, as the Delegate is required to express a degree of satisfaction as to the availability or otherwise of arguable grounds. The Court makes it clear that the use of the term "in my view" does no more than refer to the conclusion of the Delegate as to the availability or arguability of the ground of appeal and cannot and does not, of itself, constitute an error supporting judicial review.

Decision of the Approved Medical Specialist (the First Decision)

The First Decision is structured in a way that is typical of the decisions of approved medical specialists. It sets out the details of the matters referred for assessment which, relevantly, include psychiatric/psychological disorder and involve a WPI arising from any injury deemed to have occurred on 5 September 2018.
The Assessor sets out the documentary evidence and additional information and the details of the worker including the date of examination; the date of birth and age at examination; hand dominance; details of person attending examination; date of injury; and the employer and occupation.
The First Decision then sets out the history of the injury, which is relatively uncontroversial. It is unnecessary to deal with the history of the incident or the onset of symptoms. Nor is it necessary to deal with the present treatment. Neither of the foregoing is particularly controversial in the context of this judicial review.
Under the heading "present symptoms", the Assessor makes the following comments: "Mr Perry felt anxious and depressed. He lacked confidence and self-esteem. He slept poorly, and he still woke up ruminating about work problems. He avoided social and recreational activities. He did not answer telephone calls unless he recognised the number. Mr Perry's mood was not reactive. He told me his son was about to marry, and Mr Perry did not feel capable of giving a speech. His wife will be performing this task. Mr Perry added that his grandson will be born in two weeks, but Mr Perry did not feel excited about it." [9]
Apart from reciting that there is a reference to Mr Perry's childhood being unremarkable, it is unnecessary to deal with the details of previous or subsequent accidents. The Assessor makes clear that the plaintiff did not have "a past history of mental illness, substance abuse or self-harm" and had "no family history of psychiatric disorder".
Under the heading "social activities/ADL", the Assessor makes the following comments: "Mr Perry lived with his wife in Manly Vale. She worked four days per week as an accountant. A boarder also lived there. Mr Perry did not shower daily, due to reduced motivation. He was able to purchase groceries, and he ate regular meals. He cooked dinner on average once per week. Mr Perry was able to travel alone in familiar areas. He did not however travel to unfamiliar places without a support person. Mr Perry and his wife had dinner with other couples on average once per month. In January 2020 they travelled to Scotts Head, for a two-week holiday in their caravan. Mr Perry saw his children on average once per fortnight. Mr Perry did not undertake activities that required intellectual effort. He could only read a few lines before losing focus. His wife drove to their holiday destination in January 2020. Mr Perry explained that he felt too nervous because they were towing the caravan. Mr Perry's irritability undermined the quality of his relationships. He lost his temper with his wife. There were however no separations or episodes of domestic violence." [10]
Further in the findings on mental state examination, the Assessor noted that Mr Perry reported memory problems. Under Part 10 of the First Decision, under the heading "Reasons for Assessment", the Assessor noted: "Mr Perry experienced occupational stress during the course of his employment. He became depressed, withdrawn and unmotivated. He suffered a significant disturbance of appetite, weight and sleep pattern. Mr Perry lacked confidence and self-esteem. His concentration deteriorated, and he felt no longer capable of discharging his duties. His symptoms are best described as a Major Depressive Disorder, in accordance with [DSM-5]. His impairment is rated using the WorkCover Guidelines for the evaluation of permanent impairment." [11]
The Assessor expresses the view that he has "explained [his] calculations in Table 11.8". Table 11.8 is, in so far as it deals with the PIRS Category, in the following terms: [12]
From the foregoing it can be seen that the Assessor made the comment, in the category of "Social and Recreational Activities" that "Mr Perry enjoyed following English soccer online". This is the first and only reference to following English soccer online in the decision. It is that reference that is sought to be impugned, in a number of ways, in the application for judicial review.

Refusal of Application for Referral to an Appeal Panel by the Delegate of the Registrar (the Second Decision)

A party to a medical dispute may appeal against a medical assessment on grounds prescribed by s 327(3) of the 1998 Act. Those grounds of appeal are: "(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."
To lodge an appeal, as the Act existed at the time of these Decisions, the appeal was made by application to the Registrar. Nothing in this Decision turns upon the fact that it is a Delegate to the Registrar, rather than the Registrar who determined the application.
Where an application to the Registrar has been made then 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." [13] There are time and procedural requirements, none of which are relevant to the current proceedings.
The expression "has been made out" as it appears in s 327(4) of the 1998 Act has been the subject of judicial consideration.
The Second Decision refers, under the heading "Relevant law", to the judgment of the Court of Appeal in Pitsonis v Registrar of the Workers Compensation Commission; [14] and cites from the judgment of the Supreme Court in Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523, per Campbell J.
In particular, the Second Decision makes clear that the "gatekeeper's" role is not to assess and to determine the grounds of appeal, but to assess "whether an appeal ground is arguable, or capable of being made out". [15] In so doing the Delegate referred to the judgment of the Court of Appeal in Vannini v Worldwide Demolitions Pty Ltd [16] and Ballas, supra. The Delegate summarises the grounds of appeal as those contained in s 327(3)(c) and (d) of the 1998 Act, namely, "demonstrable error" and "incorrect criteria".
I do not seek to do the Delegate disservice, but it is unnecessary to deal with all of the Second Decision in so far as it deals with the tests to be applied to the "gateway role" described in the authorities. It is sufficient for present purposes to refer to the judgment of the Court of Appeal in Meeuwissen v Boden, [17] albeit dealing, not with the 1998 Act but with the Motor Accident Compensation Act 1999 (NSW) in which the Court of Appeal referred to the "gatekeeper" role and the equivalent officer as being a "gatekeeper, not a decision-maker". The Court of Appeal went on to say: "Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred." [18]
Further, as the Court of Appeal said in Ballas: [19] "The fallacy with this submission is that it reasons backwards from the non-expert conclusion that the Delegate was not authorised (or qualified) to reach. An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment "on the face of the application, and in any submissions made to the Registrar". It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable."
As is clear from the foregoing, the role of gatekeeper that is performed by the Delegate under s 327(4) is a process that does not involve the Delegate in assessing the correctness of the argument that has been put or is to be put; it requires only that the ground or argument put forward is arguable. Where there are reasonable grounds or causes to suspect that the medical assessment is incorrect as a result of one of the matters to which the legislation refers in s 327(3), even though the Registrar or the Registrar's Delegate may have a strong view as to the correctness of the assessment, a reasonable cause to suspect incorrectness on the grounds agitated in the application is sufficient to give rise to the existence of an arguable ground warranting reference to an Appeal Panel.
The Second Decision refers to the basis upon which it is said the ground of appeal is not one capable of being made out. It does so from [22] of the Second Decision and following, which are in the following terms: "22. In my view, the appellant's ground of appeal is not one that is capable of being made out for the following reasons. 23. Firstly, it is not relevant that the AMS did not record the fact in the body of his report or that it was not recorded in the referral documents. The assessment of permanent impairment involves clinical assessment of a worker as they present on the day of assessment, taking account the worker's relevant medical history and all available relevant medical information to determine (Guidelines at [1.61). Clause 11.6 of the Guidelines provides, amongst other things, that the clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations. It was open the AMS to take his own history of matters relevant to the assessment of the PIRS scale. The appellant does not contend that the history of following English football online was incorrect or provide any evidence to the contrary. The appellant does also not contend that this fact was not one that would be relevant to the assessment of the 'social and recreational activities' scale. 24. Secondly, the fact that this matter was not recorded in the body of AMS's report is not capable of amounting to a demonstrable error. There is a presumption of regularity which attends administrative action, including the medical assessment process. Medical Assessment Certificates should not be read finely with an eye keenly attuned to the perception of error (see Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272; Jones v The Registrar Workers Compensation Commission [2010] NSWSC 481). It is neither necessary nor appropriate to adopt a 'hyper-critical' approach to a MAC with the object of finding error. I accept the respondent's submission that the mere placement of the history in the PIRS Rating Form, as opposed to the body of the MAC itself is not capable of amounting to a demonstrable error. 25. Thirdly, in my view, it is not relevant that the appellant's may have had a higher level of preinjury social and recreational activity. An assessment of permanent impairment requires an AMS to undertake a clinical assessment of a worker as they present on the day of assessment (Guidelines at [1.6]). The assessment of functionality under the different scales takes place at a point in time and not by having regard to the difference between pre and post injury functionality. The medical assessment process is a statutory dispute resolution process designed to bring finality to medical disputes by independent review by an appropriately qualified expert. The AMS was required to undertake an assessment of the appellant as he presented on the day of the assessment, and not at any other time or with regard to his preinjury functionality. 26. Lastly, the fact the appellant enjoyed following English football online was one of a number of matters relied upon by the AMS in forming his clinical judgment as to the class within which the appellant fell within for the scale. The appellant has provided no basis to support the submission that without the alleged factual error a finding of 'mild impairment' was not possible. As noted by the respondent, the appellant does not submit the history taken by the AMS is incorrect. Moreover, the descriptors describing each class of the PIRS scale are examples of activities which would indicate an assessable level of disability (see Jenkins at [62] - [65]). In my view, it was open to the AMS to include this matter in his assessment of the scale. The other factual matters referred to by the AMS in his PIRS Rating Form, would not appear to support a classification of moderate impairment. In other words, it cannot be said that the inclusion of this matter, even if it provided a false impression, had any impact on the AMS's classification for the scale. The various classes within which the appellant fell within the PIRS scales was a matter for the AMS's clinical judgment. It cannot be said that the AMS's classification of the appellant for the scale was glaringly improbable (see for example Ferguson v State of New South Wales & Ors [2017] NSWSC 887). 27. To the extent that it is submitted the AMS fell into error by recording a history that produced an assessment for the scale better than those who treated him, this does not amount to ground of appeal capable of being made out. The appellant's own submission identifies that a mere difference in opinion between medical specialists is not capable of amounting to a demonstrable error (see Second Reading speech to the Workers Compensation Legislation Amendment Bill 2001 (NSW) (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14775; Ballas at [52] - [56]) 28. For the above reasons I am not satisfied that the appellant's ground of appeal that the MAC contains a demonstrable error is one that is capable of being made out." [20]

Consideration

The PIRS Guidelines and the measurement of psychiatric and psychological disorders is before the Court. [21] The PIRS, sets out six categories, which are inferentially set out in the extract of the table from the decision of the Assessor at para 38 of these reasons. The second of those categories is social and recreational activities, as is clear from the table.
Clause 11.12 of Exhibit B describes how the impairment in each category is rated and is in the following terms: "11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."
The document then sets out a table which includes a section dealing with psychiatric impairment for social and recreational activities. That part of the table [22] is in the following terms: Table 11.2: Psychiatric impairment rating scale - social and recreational activities Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these. Class 2 Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team). Class 3 Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn. Class 4 Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate. Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

Of interest, given the issues in these proceedings, is that under the category of "social functioning", covered by Table 11.4 in Exhibit B, under the classification "Class 5", an example is given of a person actively avoiding social contact. It is neither the role of the Court, nor the intention of the Court as presently constituted, to attempt a PIRS score.
Nevertheless, the terms of Exhibit B and in particular Clauses 11.11, 11.12 and Table 11.2 and 11.4, readily disclose that the unexplained reference to "following English soccer online" is not a "social activity" nor, in the sense used, a recreational activity and does not qualify the plaintiff's avoidance of social contact.
The terms of the Assessor's Decision inferentially qualify that "activity" as a positive attribute under social and recreational activities. In so doing, the activity has been wrongly categorised.
If, on the other hand, the inference that this is a qualification on the lack of social and recreational activity is wrong, then the path of reasoning has not been disclosed adequately. Indeed, whether or not the use of following soccer online has been used positively or negatively in scoring the plaintiff's WPI, the lack of explanation of its use amounts to a failure to disclose the reasoning path by which the Assessor has utilised this factor.
The wrong assignment of conduct to one scale, when it should have been assigned to another, which incorrect assignment affects the assessment of the WPI, will result in the approved medical specialist taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. So much was made clear in Ballas, supra. In the joint judgment in Ballas, the Court said: "Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to 'self care and personal hygiene', 'social and recreational activities', 'travel', 'social functioning (relationships)', 'concentration, persistence and pace' or 'employability'. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation." [23]
Other than the reference to following England soccer online in the scale, extracted above, there is no reference in any of the material before the Court to this "activity". I do not suggest that the Assessor imagined it. I accept, readily, that this was mentioned by the plaintiff to the Assessor, during the course of the examination.
Nevertheless, its import is unexplained. The activity of "following English soccer online" does not easily or readily fit within the category of social and recreational activities. Unless it amounted to a process whereby Mr Perry, in the company of friends, watched live (or pre-recorded) games of soccer, it can hardly be described as "social"; nor can it be described as "recreational". The most likely scenario is that Mr Perry was following the scores in English soccer as part of the process of withdrawal from more usual social and recreational activities.
I accept the submission of the plaintiff that, to the extent that it is said online soccer was a factor determinative of the category and score in social and recreational activities, then the plaintiff suffered a number of difficulties. First, the plaintiff was not afforded the opportunity to put material in relation to that topic. Secondly, it is impossible, from the comment, to understand how the Assessor brought that factor into calculation in determining social and recreational activities and what the Assessor considered to be the activity that was actually undertaken.
More importantly, from the grounds of appeal raised with the Registrar and the grounds for judicial review, the "activity" of following English soccer online, whether enjoyed otherwise, does not fit within a category that is directed at interaction with other people. It seems little different from playing a poker machine, which when it was included in "social and recreational activities", amounted to mistake, at least according to the Court of Appeal. [24]
On the material before the Court, the following of English soccer online, assuming for present purposes that it is enjoyed, cannot correctly be ascribed to the category of "social and recreational activities". On the contrary, it is the pursuit of an online interest that is part of the overall withdrawal of the plaintiff from social and recreational activities, usually enjoyed by healthy persons.
The activity is a withdrawal from social functioning to an activity which is wholly solitary. If it is relevant at all to "social and recreational activities", it is relevant as a possible negative aspect, namely, to the extent that it involves non-attendance with friends at sporting events; not a positive aspect. The reasons for the First Decision do not establish how, if it were included in "social and recreational activities", it was being utilised.
The Assessor has, in using the enjoyment of following English soccer online as an activity in the category of "social and recreational activities" taken into account an irrelevant consideration. He has also misconstrued and misapplied the PIRS Guidelines.
Given the narrow controversy in these proceedings, it is neither necessary nor appropriate to describe at length the nature of the error and the reason, as a consequence, that judicial review is available and remedial orders should issue. It is sufficient, for present purposes, to recite the general proposition that judicial review is available for error of law on the face of the record and error of jurisdiction.
Jurisdictional error occurs, at least, where there is: a failure to take into account a relevant consideration; taking into account an irrelevant consideration; utilisation of the wrong test or asking oneself the wrong question; a misapprehension of the nature limits of the power of the decision-maker; or a denial of procedural fairness. [25] It is unnecessary, for present purposes, to deal with issues of logicality or unreasonableness. [26]
To the extent that the Assessor took into account following English soccer online as a criterion that involves the plaintiff engaging in social and recreational activities, the Assessor has had regard to an irrelevant consideration. Nevertheless, it is unnecessary for the plaintiff to show jurisdictional error in order to succeed in this application. It is sufficient to show error of law on the face of the record, which, for present purposes, includes the reasons for Decision. [27]
Error of law must be distinguished from merit review, otherwise the Court is "apt to encourage a slide into impermissible merit review". [28] The fundamental distinction between correcting administrative injustice or error by a review of the merits of that administrative conduct, on the one hand, and, on the other hand, determining the extent of power and legality of the exercise of the administrative function, is often hard to define.
Nevertheless the distinction is important. Judicial review does not go beyond the declaration and enforcement of the law which determines the limits and governs the exercise of the power of the decision-maker. If the consequence of that declaration and enforcement is the avoidance of administrative injustice, that is an ancillary aspect of judicial review. [29]
The distinction between error of law and error of fact often causes difficulty. The classic definition and taxonomy was expressed by Sir Frederick Jordan CJ. [30] The classic taxonomy was also, slightly differently, expressed by the Federal Court, [31] which was adopted by the High Court. [32]
The taxonomy developed by the Federal Court in Pozzolanic, supra, which was cited with approval by the High Court in AGFA-Gevaert, supra, was in the following terms: "[23] The principles according to which the jurisdiction conferred by s.44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases: 1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law - Jedko Game Co. Pty Ltd v. Collector of Customs (1987) 12 ALD 491; Brutus v. Cozens (1973) AC 854. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact - Jedko Game Co. Pty Ltd v. Collector of Customs (supra); NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (1956) 94 CLR 509 at 512; Life Insurance Co. of Australia Ltd v. Phillips (1925) 36 CLR 60 at 78; Neal v. Secretary, Department of Transport (1980) 29 ALR 350 at 361-2. 3. The meaning of a technical legal term is a question of law. Australian Gas Light Co. v. Valuer General (1940) 40 SR(NSW) 126 at 137-8; Lombardo v. Federal Commissioner of Taxation (1979) 28 ALR 574 at 581. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law - Life Insurance Co. of Australia v. Phillips (supra) at 79. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law - Hope v. Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v. Collector of Customs (supra) at 379 (Sheppard and Burchett JJ). [24] The fifth proposition as stated by the High Court in Hope v. Bathurst City Council (supra) was elaborated by reference to the remarks of Fullagar J in Hayes v. Federal Commissioner of Taxation (1956) 96 CLR 47 at 51: 'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.' [25] This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact - Hope v. Bathurst City Council (supra) at 8. Mason J there cited the observation of Kitto J in NSW Associated Blue Metal Quarries Ltd v. Federal Commissioner of Taxation (supra) at 512: 'The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the ... operations fall within the ordinary meaning of the words as so determined; and that is a question of law... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact;...'"
In Australian Gas Light Co, supra, the distinction was expressed in the following way: "In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: Girls' Public Day School Trust v Ereaut [1931] AC 12 at 25, 28; Life Insurance Co of Australia Ltd v Phillips 36 CLR 60 at 78 ; McQuaker v Goddard [1940] 1 All ER 471. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: Camden v Inland Revenue Commissioners [1914] 1 KB 641; In re Ripon (Highfield) Housing Confirmation Order, 1938. White and Collins v Minister of Health [1939] 2 KB 838 at 852; although evidence is receivable as to the meaning of technical terms: Caledonian Railway v Glenboig Union Fireclay Co [1911] AC 290 at 299; Attorney-General for the Isle of Man v Moore [1938] 3 All ER 263 at 267; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 580. (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: Girls' Public Day School Trust v Ereaut [1931] AC 12 at 35; Attorney-General for the Isle of Man v Moore [1938] 3 All ER 263 at 267. (3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: Farmer v Cotton's Trustees [1915] AC 922 at 931; Currie v Inland Revenue Commissioners [1921] 2 KB 332 at 338-341; Inland Revenue Commissioners v Lysaght [1928] AC 234 at 246-7, 249-251. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: In re Ripon (Highfield) Housing Confirmation Order, 1938. White & Collins v Minister of Health [1939] 2 KB 838, or (c) if it has misdirected itself in law: Farmer v Cotton's Trustees [1915] AC 922 at 930-1; Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation 49 CLR 171 at 175-6. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: Farmer v Cotton's Trustees [1915] AC 922 at 931; Mersey Docks and Harbour Board v West Derby Assessment Committee and Bottomley, etc [1932] 1 KB 40, 92 at 110-112. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law: Farmer v Cotton's Trustees [1915] AC 922 at 931; Currie v Inland Revenue Commissioners [1921] 2 KB 332 at 338-341; Inland Revenue Commissioners v Lysaght [1928] AC 234 at 246-7, 249-251; Mersey Docks and Harbour Board v West Derby Assessment Committee and Bottomley, etc [1932] 1 KB 40, 92 at 110-112."
In the current proceedings, the primary fact that the plaintiff enjoyed following English soccer online cannot be the subject of review. It is a question of fact only. However, the utilisation of that primary fact as a criterion in determining a social and/or recreational activity is determining whether the particular fact comes within the description of the words in the instrument being applied by the decision-maker.
On one view, the Assessor has applied the wrong test or taken into account an irrelevant consideration. At least, the use of the primary fact to which the Court has referred, as an item of social and recreational activity is defining "social and recreational activity", which is a technical legal term and including the fact in that technical legal term.
It is also determining the effect or construction of a term whose meaning or interpretation is established and determining whether facts, fully found, fall within the provision of a statutory enactment.
Ultimately, whether the error of the Assessor is an error of jurisdiction or an error of law matters little difference for the purposes of the remedies in these proceedings. Error has been disclosed and the application will be granted.
I take the view that there has been error that is remediable by judicial review and judicial review shall issue against the First Decision. Further, at the very least, the argument raised in relation to the inclusion of following English soccer as a social and recreational activity is, at least, arguable and should have been the subject of reference to an Appeal Panel.
Earlier in these reasons for judgment I extracted the passage in the Second Decision relating to the reasons given for the conclusion that the plaintiff's ground of appeal is not one that is capable of being made out. In that passage it is clear that the Delegate makes two fundamental errors. First, while it is true that the assessment process is one that assesses an injured person as they present to the Assessor or approved medical specialist, that does not render irrelevant the activities of the injured person prior to the injury being sustained. An assessment of cognitive capacity, undertaken, for example, on the hypothetical Albert Einstein, post an injury to the brain, cannot be assessed on averages.
Further, while it was necessary for the plaintiff, in his application for referral to a Medical Appeal Panel, to show an arguable basis that the alleged error is significant, once an approved medical specialist includes in a category an incorrect criterion, there is error of law and it is for an Appeal Panel to determine whether the assessment, in the absence of that criterion, or utilising that criterion as a sign of withdrawal, rather than of a social and recreational activity, will result in a different assessment of WPI.
Lastly, the submission that, as a matter of discretion, the Court should allow to stand a decision that it has held is a result of error of law is difficult to accept. This is not a case where the First Decision is no longer operative. There is no appeal decision and the First Decision, and the assessment made by the Assessor, is extant.
The First Decision discloses error in that it has taken into account an irrelevant consideration. Alternatively, it discloses error of law in that it has insufficiently disclosed the path of reasoning that has led to the determination, including the use made of following, online, English soccer.
The errors are demonstrable and, at least, arguably so. The First Decision was based upon incorrect criteria and contains demonstrable error. The Delegate to the Registrar, in the Second Decision, while stating the correct test at the commencement of the decision, ultimately applied the wrong test.
Two other matters need mention. First, technically, the Summons challenging the First Decision, being the decision of the Assessor (as referred to in these reasons), was out of time. This is as a result of the attempt to appeal and the decision refusing the reference to an Appeal Panel.
It would be fundamentally inconsistent with the purposes of the 1998 Act to require a party who has sought to utilise the internal appeal mechanisms prescribed by the 1998 Act to apply to this Court because of the time limits before the internal appeal process had concluded. Time should be extended to allow the challenge to the First Decision.
In the determination of any application for judicial review from an approved medical specialist regard must be had to the expert nature of the decision-maker. Often, particularly where a diagnosis is involved or regard to impairment caused by one of a number of possible injuries, the expert decision-maker can only express a conclusion with little explanation. The decision in this proceeding cannot be wholly or substantially explained by reference to the expertise of the decision-maker.
The Court makes the following orders: 1. time to commence proceedings against the third defendant is extended to allow for the filing of the Amended Summons for judicial review filed and agitated in these proceedings; 2. a declaration that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), the certificate and decision of the third defendant, dated 9 March 2020, is set aside; 3. a declaration that, pursuant to s 69 of the Supreme Court Act, the decision of the Delegate of the Registrar, issued on 22 May 2020, is void and of no effect; 4. a declaration that, pursuant to the terms of 69 of the Supreme Court Act, the certificate of the third defendant, dated 9 March 2020, is void and of no effect; 5. remit the Application for Assessment by the plaintiff herein to the second defendant for referral to a different approved medical specialist to determine the medical dispute according to law; 6. the first defendant shall pay the plaintiff's costs of and incidental to the proceedings.

Endnotes

Court Book, Exhibit A, p 36 (Medical Assessment Certificate of Approved Medical Specialist Dr Julian Parmegiani dated 9 March 2020 p. 3).
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act), s 327(4).
Court Book, Exhibit A, p 26 (Plaintiff's Written Submissions at [16]).
Court Book, Exhibit A, p 26 (Plaintiff's Written Submissions at [18].
Ballas v Department of Education [2020] 102 NSWLR 783; [2020] NSWCA 86.
See, in particular, the Second Decision at [20]-[29], according to the Submission of the plaintiff.
Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501.
Court Book, Exhibit A, p 31 (First Defendant's Written Submissions at [10]).
Court Book, Exhibit A, p 35 (Medical Assessment Certificate of Approved Medical Specialist Dr Julian Parmegiani dated 9 March 2020 at p.2).
Court Book, Exhibit A, p 36 (Medical Assessment Certificate of Approved Medical Specialist Dr Julian Parmegiani dated 9 March 2020 at p.3).
Court Book, Exhibit A, p. 38 (Medical Assessment Certificate of Approved Medical Specialist Dr Julian Parmegiani dated 9 March 2020 at p.5).
Court Book, Exhibit A,p 41 (Medical Assessment Certificate of Approved Medical Specialist Dr Julian Parmegiani dated 9 March 2020 at p.8).
Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), s 327(4).
Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88.
Court Book, Exhibit A, p. 42 (Section 327 Decision of Delegate of the Registrar Ms Belinda Gamble dated 22 May 2020 at para [10]).
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [83].
Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253.
Meeuwissen v Boden (2010), supra, at [19] and [23] (Basten JA, with whom Beazley JA and Sackville AJA agreed).
Ballas, supra, at [72] (Bell P and Payne JA, with whom, relevantly, Emmett AJA agreed).
Court Book, Exhibit A, pp 44-45 (Section 327 Decision of Delegate of the Registrar Ms Belinda Gamble dated 22 May 2020 at para [22]-[28]).
Exhibit B.
Exhibit B, Table 11.2.
Ballas, supra, at [94] (Bell P and Payne JA, with whom Emmett AJA agreed).
See Ballas, supra.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [64], [66], [72], [76].
Supreme Court Act 1970 (NSW), s 69(4).
Swift v SAS Trustee Corporation (2010) 6 ASTLR 339; [2010] NSWCA 182 (Basten JA).
Attorney General v Quin (1990) 170 CLR 1; [1990] HCA 21 (Brennan J).
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126.
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 1993 FCR 280; [1993] FCA 456 ("Pozzolanic").
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 ("AGFA-Gevaert"). 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: 09 April 2021

Motor Accident Compensation Act 1999(NSW)

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