Scone Race Club Ltd v Cottom

Court of Appeal (NSW)|2024-02-14|Before: Gleeson JA, Mitchelmore JA, Schmidt AJ

Background facts

The injury suffered by Mr Cottom occurred during his employment as a labourer by the Club, which involved a range of duties, including waste management. While removing a bag of rubbish from a garbage bin he slipped and twisted his right knee.
The immediate treatment for his symptoms were not successful and on 17 September 2008 he underwent an anterior cruciate ligament reconstruction. Pain continued and on 18 May 2011, further surgery in the form of a total knee replacement was carried out. On 30 November 2015, he made a claim for permanent impairment compensation relying on a whole person impairment assessed at 20%. The claim was accepted and the parties entered into a "complying agreement" under s 66A of the Workers Compensation Act 1987 (NSW). At that stage, the Club's insurer accepted his degree of whole person impairment satisfied the relevant threshold and no medical assessment was carried out under Ch 7, Pt 7 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) ("Workplace Injury Act").

Identifying the issues on appeal

That there could be an unresolved dispute as to the degree of permanent impairment suffered by the worker some 16 years after his injury to his right knee is troubling. Mr Cottom is presently 60 years of age. One consequence of the lack of finality is that there have been significant changes to the statutory regime governing workers' compensation during the last decade with the inevitable opportunity for confusion as to the precise statutory scheme governing the proceedings. The delay is otherwise of no present consequence, and beyond the brief explanation of key events set out above, it is unnecessary to dwell upon the matter.
The complaint underlying the present appeal is that the Appeal Panel either failed to access, or, if accessed, failed to consider Mr Cottom's AALD which was available electronically. Apart from one oblique reference in the statement of reasons of the Appeal Panel, there was no direct evidence of consideration of the application. The primary judge was satisfied that the Appeal Panel did not in fact consider the application, or resolve it. If it were necessary to address the AALD to resolve the appeal, it might be said that there had been a constructive failure on the part of the Appeal Panel to exercise its proper function according to law. The primary judge so held.
That finding was challenged by the Club, but the Club also sought to dispose of the factual issue on the basis that, had the documents sought to be relied upon by Mr Cottom in fact been considered by the Appeal Panel, they could not have affected the outcome. Indeed, the submission went one stage further, contending that it would have been wrong in law for the Appeal Panel to have had regard to the documents.
Because, if the latter contention should be upheld it provides a complete answer to the dispute, it may properly be addressed first. Some brief observations may then be made as to the manner in which the matter came before the Supreme Court and as to the resolution of the factual disputes.

An inconsequential omission?

The reason why it was said that the matters raised by the AALD did not affect the outcome was that those matters did not fall within the proper function of the Appeal Panel. The Panel was therefore legally obliged to disregard them so that, even if in other circumstances procedural fairness would have required attention to the matters raised, that was not so in the present circumstances. It is convenient to commence the analysis by identifying the scope of the function conferred on the Appeal Panel.
The method for making an appeal against a medical assessment (in 2020) was set out in s 327(4) of the Workplace Injury Act, which stated: [4] "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out."
The limitations on an appeal are otherwise specified in s 327(1)-(3) and (5), which reads as follows: 327 Appeal against medical assessment (1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds - (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. … (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.
Dealing with each of these in turn, it is first necessary that there be a "medical dispute" and a "medical assessment", being matters identified in s 327(1). The term "medical dispute" is defined in s 319 in the following terms: 319 Definitions In this Act - ... medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim - (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
In the present case, there was a medical dispute within the terms of par (c), namely as to the degree of permanent impairment of the worker as a result of an injury. Section 321 provides that a medical dispute may be referred for assessment and s 321(a) makes specific provision for regulations with respect to the assessment of medical disputes concerning permanent impairment. Section 322 provides for the assessment of impairment in terms not presently relevant, but to which reference will be made below. The result of a medical assessment was the giving of a certificate in accordance with s 325: 325 Medical assessment certificate (1) The approved medical specialist to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment. (2) A medical assessment certificate is to be in a form approved by the Registrar and is to - (a) set out details of the matters referred for assessment, and (b) certify as to the approved medical specialist's assessment with respect to those matters, and (c) set out the approved medical specialist's reasons for that assessment, and (d) set out the facts on which that assessment is based. …
Section 326 provides the circumstances and matters with respect to which a medical assessment certificate is conclusive, including, in any proceedings before a court or the Commission, as to the degree of permanent impairment of the worker as a result of an injury: s 326(1)(a). There was no dispute in the present case that subs (1) and (2) of s 327 were satisfied.
It is convenient to turn to the legal principles relating to the limitations on the functions of an appeal panel, as identified in recent cases.

Functions of appeal panel

The statutory scheme set out above has been discussed in a number of cases in this Court. Some of the cases were discussed in the reasons of the Appeal Panel in dealing with the scope of its own functions, including Siddik v WorkCover Authority of NSW. [5] However, the reasoning in that case should be treated with some caution as the statutory scheme has been amended several times since it was decided in 2008.
It is sufficient to refer to the reasoning in three decisions of this Court in 2021. The first, Skates v Hills Industries Ltd, [6] involved an appeal panel which had reviewed a medical assessment in accordance with the description of the injury included in the referral to it. The referral contained an error (conceded by the employer) in making no reference to an injury to the claimant's left wrist, which had been a part of the injury identified in the medical dispute, as set out in the ARD, which had commenced the proceeding. The claim was thus wider in its terms than the referral, which omitted reference to "injury to left wrist". The medical reports enclosed with the ARD referred to specific injuries to the left wrist and hand; it was those injuries to which the insurer admitted liability and as to which a dispute had arisen concerning the level of resulting permanent impairment. [7] There was, as the appeal panel noted, demonstrable error on the part of the medical assessor in that case "in failing to be limited to the terms of the claim". [8] However, there was also error on the part of the appeal panel in failing to assess the wrist injury, which formed part of the claim. As Leeming JA explained: "44 The starting point is a 'medical dispute'. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) .... The term is defined by reference to the existence of a 'dispute between a claimant and the person on whom a claim is made' about any of seven related subject matters including the degree of permanent impairment as a result of an injury …. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims."
The second case, Queanbeyan Racing Club Ltd v Burton, [9] addressed an issue as to "whether, having found error on the part of the medical assessor, the appeal panel was obliged to reconsider the assessment afresh, or whether its remit was limited to correcting the identified error". [10] The appeal panel commenced with the following proposition as to the scope of its function: [11] "The Registrar is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made."
In addressing the scope of an appeal panel's functions, the Court considered first the terms of s 327 of the Workplace Injury Act. Referring to s 327(4), the Court observed: [12] "Although subs (4) refers to the grounds of appeal specified in subs (3), as a practical matter the Registrar must consider the specific 'demonstrable error' relied upon by an applicant in order to determine whether at least one of the grounds is made out."
After then referring to the terms of s 328, the reasoning proceeded: "25 Three propositions should be accepted as flowing from this statutory scheme. First, although the Registrar is required to be satisfied that a 'demonstrable error has been made out', the Appeal Panel may dismiss the appeal, and is no doubt obliged to do so, unless it is satisfied that there was an error and that the error is material. 26 Secondly, s 328(2) requires that the review 'is limited to the grounds of appeal on which the appeal is made.' Because the gateway function of the Registrar is satisfied if 'at least one of the grounds' has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made."
Further, in addressing the observations in a decision in the Common Law Division in another matter, the Court in Queanbeyan Racing Club further noted that "[i]t would have been impermissible for the appeal panel to reconsider an element of the assessment which had not been the subject of the appeal to it". [13]
The third case to be addressed is Sleiman v Gadalla Pty Ltd. [14] The reasoning in that case is only indirectly relevant to the present matter. Leeming JA (with the agreement of Gleeson and Payne JJA) concluded that the statute allowed only one appeal from a medical assessment. The commencing point for the reasons was s 322A, introduced into the Workplace Injury Act in 2012, which provides that there is to be "only one assessment… of the degree of permanent impairment of an injured worker": s 322A(1). The section does not limit the right of appeal under s 327: s 322A(4). [15] Much of the discussion in Sleiman turned on the apparent injustice which might arise if an appeal was brought on the basis of demonstrable error on the part of the medical assessor, but later events indicated a deterioration in the worker's condition due to the same injury, which could not then be the subject of an appeal under s 327(3)(a) if there had been a prior appeal. That issue did not arise in the present case. However, two aspects of the reasoning should be identified. First, in addressing the statutory preconditions, Leeming JA noted that "the first precondition requires that an appeal be in respect of 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'". [16] Reliance was also placed on the terms of s 328(2) that states that the appeal "is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made". [17]
There were observations in Sleiman as to how the Registrar might have dealt with the application for an appeal to avoid the apparent hardship arising from the conclusion that there was only one appeal. To the extent that those observations were relied upon by the respondent in the present matter, they will be addressed below.

Application of principles

In applying the principles identified above, a matter of some importance was the scope of the referral for medical assessment. The first relevant document would usually be the ARD. That document was not in evidence, but a remittal to the Registrar by an arbitrator was in evidence, being a "Certificate of Determination - consent orders" dated 10 September 2020. It relevantly provided: "By and with the consent of the parties, the determination of the Commission in this matter is as follows: 1. The Application to Resolve a Dispute (ARD) dated 17 June 2020 is amended on page 7 by inserting a full stop after the words 'right knee' and deleting the words 'and suffered a consequential injury to his lumbar spine'. 2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist Orthopaedic Surgeon (AMS) to determine the extent of the applicant's whole person impairment, if any, which results from injury to the applicant's right lower extremity (right knee, peripheral nerve damage and TEMSKI scarring) which occurred on 23 May 2008."
As will be noted below, one aspect of the "late documents" involved an apparent attempt to extend the medical appeal to cover injury to the lumbar spine. Such an injury may have been part of the initial ARD, but the consent amendment removed it.
This understanding of the ARD is confirmed by the referral for assessment made by a delegate of the Registrar which identified the matters to be determined as those arising under s 319(c), (d), (f) and (g), all dealing with permanent impairment. The referral continued: "Date of Injury: 23 May 2008 Body part/s referred: right lower extremity (right knee, peripheral nerve damage and TEMSKI scarring) Method of assessment: Whole Person Impairment."
The assessment was carried out by Dr Burns and a medical assessment certificate dated 21 October 2020 identified the matters referred for assessment in the terms set out above in the referral. As has been noted, the certificate identified the degree of whole person impairment as 20%, attributable solely to the "right lower extremity (knee) and a date of injury of 23 May 2008".
On 18 November 2020, Mr Cottom lodged an application to appeal against the determination of the medical assessor, and included with the application a statement dated 16 November 2020. The application was in a form which included each of the grounds set out in s 327(3) with a box which the applicant might tick or leave blank. The boxes for (b), (c) and (d) were ticked; the box against (a) (deterioration of the worker's condition) was not ticked. That was, perhaps, unsurprising as the application to appeal was made less than a month after the medical assessment certificate was provided and only two months after the referral to the medical assessor for assessment. The statement by Mr Cottom of 16 November 2020 was solely devoted to describing what happened at his appointment with Dr Burns on 15 October 2020 and his complaint that he did not get "a proper examination" by Dr Burns. That complaint was addressed by the Appeal Panel and found to be without substance. There is (and could be) no complaint about the manner in which that document was addressed.
The appeal having been reinstated on 28 January 2022, a delegate of the President (the Personal Injury Commission having by that stage replaced the Workers' Compensation Commission) stated that she was satisfied, "on the face of the application and submissions made" that "a ground of appeal is capable of being made out". The stated ground was "an arguable case of error under s 327(3)(d)". [18] She accordingly referred the appeal to the Appeal Panel. In the first half of March, there was an extensive exchange of emails between the solicitors for the parties and the Commission. On 15 March 2022, the Club filed further submissions. Those submissions expressed a wish to be heard on the worker's attempt to file late documents. They were described in the following terms: [19] "The documents are first, a statement from the worker which culminates in the worker's statement that he 'believe[s his] lower back problems are related to [his original knee injury', and he wishes to 'claim same as part of [his] whole person impairment', and second, some medical records from his GP, including a referral to a specialist, and a report of a CT scan."
The submissions expressed the view that the material was "not relevant to a fact in issue or a ground of appeal". The scope of the referral for assessment was noted. If error were established, it was submitted that the Appeal Panel's task was "confined to reviewing the original referral, which was to assess 'right knee, peripheral nerve damage and TEMSKI scarring'". The submission concluded: "Just as the AMS had no jurisdiction to consider an alleged consequential injury to the back, because such an injury was not referred to it for assessment, neither would the Appeal Panel, if it were to reach the second stage of the review process."
The submissions further noted that the documents sought to be admitted were "unaccompanied by any expert opinion linking the injury to the worker's knee injury or assessing WPI to the back". The employer expressed a wish to have the worker assessed independently in relation to the claim not previously advanced.
The statement of reasons given by the Appeal Panel on 31 March 2022 did not expressly advert to the AALD or the attached documents; it did, however, expressly deal with Mr Cottom's supplementary statement of 16 November 2020. [20]
The Appeal Panel then stated: "31. Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel." The Panel also stated: "52. Quite apart from the absence of neurological findings made by the MA, there is no evidence in the long clinical record in this case, which is summarised above, that the appellant suffered injury to a peripheral nerve in the right leg in the incident or as a consequence of the subsequent surgery. None of the treating doctors, including several pain specialists, have recorded findings consistent with such an injury. Dr Mastroianni, who assessed the appellant in the 2015 recorded no findings consistent with a nerve deficit in the right lower limb. Dr Isaacs is the only doctor who suggests the contrary. As the MA points out his assessment and his methodology is difficult to understand. It does not undermine the clear findings in the MAC. 53. Conversely, there are tentative suggestions of problems emanating from the lumbar spine in the evidence. But a lumbar spine injury is not part of the medical dispute referred for assessment."
The Panel then returned to consider the appellant's 16 November submission concluding: [21] "The panel determines that the supplementary statement of the worker is irrelevant. It should not be admitted. In its absence, there is no real basis for the second ground of appeal. The argument that the MA failed to address the referral, or adequately examine the applicant, or reached incorrect conclusions on the basis of his findings must fail."
The thrust of the Club's case lies in the Panel's statement at par 53 that "a lumbar spine injury is not part of the medical dispute referred for assessment". The Club submitted that that statement was undoubtedly correct and that the Appeal Panel would have been in error had it considered the documents attached to the AALD.
The Club's submission in that regard should be accepted, but before explaining why that is so, it is convenient to give a brief account of what was contained in the documents proposed to be admitted.
The AALD was lodged under cover of a letter from Mr Cottom's solicitor dated 9 March 2022. One of the documents was a statement by Mr Cottom dated 25 February 2022. The statement contained two propositions. The first was that his right knee was slowly deteriorating. That, he said, had occurred since the assessment by Dr Burns and he continued to be treated by his GP, Dr Leon Sykes, for that slow deterioration. [22] The attached document dated 17 November 2021 from Dr Leon Sykes included a record of Mr Cottom's history under the headings "Active" and "Inactive", but the only relevant active matter was an entry for 10 November 2021 where the condition was identified as "Disc prolapse". There was also a list of his current medications. The history appeared to accompany a referral to a Dr Salaria at Maitland Private Hospital, for opinion and management in relation to "chronic back pain with right sided radiculopathy". (Mr Cottom's statement had explained that he had not seen Dr Salaria.)
There was also an entry in Dr Sykes' records of a referral dated 22 October 2021 for a CT scan of Mr Cottom's lumbar spine and a report from the radiologist dated 4 November 2021. It reported moderate lumbar spondylosis, central canal narrowing, left paracentral disc extrusion and foraminal stenosis. The problems were pronounced at L3/4 and L4/5. These conditions, one may assume, could have accounted for the back pain, but there was no medical opinion linking them with the knee injury. With respect to the deterioration in the state of his knee, there was no medical evidence to support such a deterioration, nor was deterioration a ground of appeal.
The second part of Mr Cottom's statement of 25 February 2022 related to an incident which had occurred in February 2021 (that is 12 months earlier), when he was watching as his son rolled a mower off the back of a trailer. He stated: "10 I stood up and attempted to help by stopping the mower rolling before it got too much momentum. I was trying to move swiftly but my right leg, due to my injury, pain and weakness, could not support me. I could not move my feet quickly enough and had to twist my lower back to try and stop the mower rolling. 11 As I did so I felt an onset of increasing lower back pain on my right-hand side, groin and left buttock. 12 I did have some back pain previously, but I thought this was all due to my leg injury and not being able to walk straight. … 18 I believe my lower back problems are related to my original knee injury and wish to claim same as part of my whole person impairment."
The thrust of the second aspect of this statement was that, having sought to do a physical task which the injury to his right knee precluded him doing safely, and hurting his back in the process, he treated the aggravation of his back pain as related to his knee injury. With respect to the injury to his lumbar spine, to the extent that it appeared to depend upon the incident in February 2021, there was no medical or other evidence connecting it to the knee injury and causation would (and may still) be controversial.
As the Appeal Panel was restricted to the grounds of appeal raised in the referral (and any submissions accompanying the referral) and to the injury the subject of the referral (namely to the right knee), it could not properly have dealt with either of the matters raised in the late documents accompanying the application of 9 March 2022.
It is not in doubt that a ground of the appeal to the Appeal Panel in the present case did not involve "deterioration" of the worker's condition, resulting in an increase in the degree of permanent impairment. Secondly, it is beyond doubt that the locus of the injury which was the subject of the medical assessment certificate was the right knee: it did not include a separate injury to the lumbar spine.
Perhaps more correctly, reliance should be placed upon the fact that the Appeal Panel itself stated that "a lumbar spine injury is not part of the medical dispute referred for assessment". [23] The Club relied upon that finding; the respondent did not seek to contradict it. Indeed, contradiction, had it been attempted, might have run into an insuperable obstacle. As noted in Skates, "once it is accepted that the scope of the referral was properly capable of restriction by reference to body parts/systems, the question as to how the appeal panel read the referral may well have been a matter for its professional judgment and not one involving reviewable error". [24]
Accordingly, on its own views as to the scope of its functions, which involved no legal error, the two matters raised in the additional documents were beyond the scope of the appeal. On the basis that, even if considered, they could not, consistently with legal principle, have affected the outcome of the appeal in any respect, any failure to consider them was immaterial and did not give rise to reviewable error.
The last proposition involves an application of the principle expressed by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs: [25] "As the Courts below recognised, the Tribunal's error in failing to afford the appellant procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal's decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome. The appellant bore the onus of demonstrating that the denial of procedural fairness was material in this sense." In the present case, the onus lay on the respondent, as the party alleging procedural unfairness at the trial.
Alternatively, it might be said that the issue of materiality did not arise. The joint reasons in Nathanson elaborated upon the principle set out above in the following passage: "[33] There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration." (Footnotes omitted.)
In the present case, the assumed failure was to consider material which was not directed to an issue that required consideration. Not only did the two issues raised by the additional documents not require consideration, they addressed issues the consideration of which was not permitted. They were fundamentally irrelevant.

Reasoning of primary judge

It remains to explain why the primary judge erred in her consideration of the application for review and to address two subsidiary matters which do not arise for determination on the appeal.
The primary judge made an affirmative finding that the Appeal Panel did not consider the AALD, nor give consideration to the content of those documents. The judge addressed the consequence of the Appeal Panel's error in the following passages: "56 It is not for this Court to determine what conclusion the panel would have reached in relation to Mr Cottom's application, had it and the Race Club's opposition to it been considered. But I am satisfied that there was a prospect that it might have succeeded, given what he sought to pursue. 57 As must the possibility that the appeal might then have taken a different course, an injury to Mr Cottom's spine then arising for consideration for the first time. That flows from the statutory requirement that not only all impairments which result from the same injury, but all impairments resulting from more than one injury arising out of the same incident, all be assessed together. That is required in order that the injured worker's resulting degree of permanent impairment is assessed at the one time."
With respect to the first proposition (at [56]) the conclusory form may be misleading: the basis for the conclusion appears to have been an earlier finding that if the documents had been considered, an issue would have arisen as to whether they could be relied upon by Mr Cottom, in the absence of an amendment to the grounds of appeal. Had that issue been raised, Mr Cottom would probably have sought to amend the appeal, and the primary judge stated that it was "difficult to see why such an amendment could not have been made or allowed". [26]
The point raised in the second passage at [57] relies upon the provisions of s 322 requiring that impairments that result from the same injury are to be assessed together and that impairments that result from more than one injury arising out of the same incident are to be assessed together. Section 322 does not, however, override the provisions discussed above relating to the scope of a medical assessment and the scope of an appeal.
As to the first point, the concept of amendment of an appeal, so as to avoid the constraint imposed by s 328, is not explained in the reasoning. There was no hearing by the Appeal Panel; the Panel was not obliged to carry on a running commentary with the parties as to which evidence it accepted and which it did not. Nor was it explained how the injury to the lumbar spine, which the worker had conceded was not part of the injury assessed by the medical assessor, could be dealt with for the first time on appeal. Conjecture as to what might have happened if a patent flaw in the material supplied had been pointed out before the Appeal Panel reached its conclusion, did not demonstrate jurisdictional error on the part of the Appeal Panel.
In this context, it is necessary to return to an aspect of Sleiman upon which Mr Cottom sought to rely in this Court. In order to understand the outcome in Sleiman, it is convenient to state more precisely the issue before the Court. Mr Sleiman had in fact appealed to an appeal panel successfully, so that the appeal panel issued a new certificate. Two years later Mr Sleiman claimed that his condition had deteriorated and obtained medical reports to that effect. He made a further application to bring an appeal, identifying the ground of appeal as deterioration of his condition. [27] There was reference in Mr Sleiman's submissions to the possibility of reconsideration and to an arbitrator's conclusion that the availability of an appeal rendered it unnecessary to reconsider the Commission's orders. [28] As Leeming JA noted: "14 Thus the application unequivocally identified itself as seeking to bring an 'appeal', and referred in terms to it being unnecessary to bring an application for reconsideration."
Having determined that no further appeal was possible, it became apparent that reconsideration was the course which should have been sought. In those circumstances, Leeming JA noted that Mr Sleiman had "squarely raised a claim that in light of his deterioration, the assessment of his permanent impairment was greater than 14%" and that there was "no lack of clarity in the claim". The Registrar dismissed his application (correctly) because Mr Sleiman's legal advisors had incorrectly sought to invoke a second right of appeal. [29] The Court decided however that in circumstances where Mr Sleiman had expressly sought to invoke the jurisdiction of an appeal panel, and there was an avenue for him to do that, the Registrar should have raised with him the possibility of taking the alternative route, rather than simply dismissing the application. The Court concluded that the Registrar had failed to address the substance of Mr Sleiman's application.
Whether or not the Registrar in Sleiman acted in a manner which was procedurally unfair, so that his decision could be set aside for jurisdictional error, may be put to one side. To justify that conclusion, there should be a finding that an officer has failed "to respond to a substantial, clearly articulated argument, relying upon established facts", in order to demonstrate procedural unfairness; [30] or has failed to consider the substance of an application which he or she could only have failed to do because of a misunderstanding of what is involved in the legal principles to be applied; [31] or has otherwise made a mistake which is "essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, [so that] the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way". [32] Otherwise a constructive failure to exercise jurisdiction will not have been proven. In any event, the role of the Registrar in determining whether to open the gate to a hearing by an appeal panel stands in a different category from the function of the appeal panel exercising a medical judgment as to the correctness of a medical assessment, and confined to the grounds raised before it. To permit an appeal panel to consider other grounds which did not pass through the gateway of the Registrar's consideration and, indeed, to require an appeal panel to take such a step if it thinks another ground could have been successful, would be not merely to deny procedural fairness to the respondent to the appeal, but would be to subvert the construction of the statute accepted by this Court in the cases set out above. The reasoning below in this regard should not be accepted.

Challenges to the fact finding by the primary judge

Given the conclusion reached above it is not necessary to determine whether grounds of appeal challenging the fact-finding by the primary judge should succeed. What may be said, however, is that the basis on which those grounds were resisted by the respondent cannot be accepted. First, it was submitted that the Court could only interfere where the decision at trial is "glaringly improbable" or "contrary to compelling inferences", or otherwise falls within the categories identified in Fox v Percy. [33] That approach was misconceived: the observations of the High Court in that case were based upon findings of fact made on consideration of the evidence of witnesses, and particularly where such findings might be seen to be influenced by views as to the credibility of the witnesses. Where, as in the present case, the findings and inferences adopted by the primary judge are based on a documentary record, this Court is in no worse position than the primary judge to form a view as to the appropriate findings. Fox v Percy had no application.
Secondly, it was submitted that the findings made by the primary judge were essentially "discretionary" and accordingly appellate intervention would be constrained by the principles set out in House v The King. [34] That submission also must be rejected. The determination of a sentence is a true discretionary decision, requiring a determination as to where, upon a scale of possible outcomes, the judgment should settle. An inference as to a fact, namely whether the Appeal Panel considered a document or not, is not such a decision: it involves a binary choice which is to be assessed on appeal by reference to the standard principles established in Warren v Coombes.. [35] That a conclusion may involve an evaluative judgment does not render the decision discretionary. House v The King had no application in this case; indeed, the submission that it did was inconsistent with the reasoning of the High Court in the recent case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. [36]

Determination of issue by the Commission

It remains to note that the issue raised on judicial review by Mr Cottom had been the subject of a determination by an officer of the Commission, Mr John Wynyard. The question, raised by Mr Cottom, was whether the Commission had jurisdiction to order a reconsideration by the Appeal Panel. The same arguments were put to Mr Wynyard as were put to the primary judge, namely did the Appeal Panel have access to the AALD and did it address the application. The Commission resolved the first question on the basis that the documents had been received by the Panel, but did not resolve the second question. That was because, in terms similar to those expressed above, the deterioration of the referred injury was not reviewable, it not having been raised as a ground of appeal; nor was the evidence as to a lumbar spine injury reviewable, because that was not part of a medical dispute referred for assessment. Noting that there was only one appeal (as found in Sleiman) and that the applicant had expressly discontinued his application for reconsideration on 28 January 2022, the Commission rejected the application before it.
The status of that determination was not raised before the primary judge, but, in the absence of any challenge to the determination, its existence may have provided a sound basis for a discretionary refusal of relief by way of judicial review.

Orders

It follows that the appeal must be upheld and the orders made by the primary judge set aside. The decision of the Appeal Panel confirming the medical assessment certificate made by the medical assessor will therefore stand.
There is a question as to the appropriate orders for costs. The primary judge stated: "62 The usual order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that is an order that Mr Cottom's costs, as agreed or assessed, be paid by the Club. 63 Unless the parties' [sic] approach to heard within 14 days, that will be the Court's order."
The order as thus expressed was not set out on the coversheet to the judgment, nor was it entered on JusticeLink. However, that does not affect the validity of the order, although it necessitated a search of JusticeLink to ensure that subsequent submissions had not resulted in a variation of the order. [37] It follows that the order as to costs made by the primary judge should be set aside and that the Club should have its costs both in the Division and on appeal.
I propose the following orders: 1. Grant Scone Race Club Ltd leave to appeal from the judgment in the Common Law Division of 6 July 2023. 2. Allow the appeal and set aside orders 2 and 3, and the order as to costs, made in the Division. 3. Dismiss Mr Cottom's second amended summons filed 2 November 2022. 4. Order that Mr Cottom pay the costs of Scone Race Club Ltd in the Division and on appeal.

Endnotes

Cottom v Scone Racing [sic] Club Ltd [2023] NSWSC 779.
Scone Race Club Ltd v Cottom [2019] NSWCA 260.
Prior to amendments to the Workplace Injury Act on 1 March 2021, medical assessors were known as "approved medical specialists": for convenience the current nomenclature is adopted here.
Changes to the Workplace Injury Act which commenced on 1 March 2021 conferred relevant functions on the new Personal Injury Commission and its officers, but did not alter the relevant functions. Applications are now made to the President of the Commission.
[2008] NSWCA 116; (2008) 6 DDCR 228.
[2021] NSWCA 142.
Skates at [29].
Skates at [35].
[2021] NSWCA 304.
Queanbeyan Racing Club at [1].
Queanbeyan Racing Club at [11].
Queanbeyan Racing Club at [23].
Queanbeyan Racing Club at [32].
[2021] NSWCA 236.
Section 322A was not invoked in the present case, although there had been prior proceedings based on an assessment of permanent impairment, because the insurer had accepted the assessment and there had been no medical assessment to resolve a dispute.
Sleiman at [59].
Sleiman at [67].
P McAdam, Decision, 2 February 2022, par 6.
The parentheses, including the incomplete one, were in the original document.
Appeal Panel, Statement of Reasons, pars 24-28.
Statement of Reasons, par 56.
Statement, 25 February 2022, pars 3-6.
Statement of Reasons, par 53.
Skates at [31].
[2022] HCA 26; (2022) 96 ALJR 737 at [1] (footnote omitted).
Primary judgment at [45]-[46].
Sleiman at [11]-[12].
Sleiman at [13].
Sleiman at [92].
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ).
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] (Gaudron J).
Dranichnikov at [88] (Kirby J).
(2003) 214 CLR 118; [2003] HCA 22 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ).
(1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ).
(1979) 142 CLR 531; [1979] HCA 9.
[2023] HCA 32 at [16] (Kiefel CJ, Gageler and Jagot JJ), Steward J at [95] and Gleeson J at [161] agreeing as to the statement of principle.
See Sleiman at [22]. 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: 22 February 2024

Workplace Injury Management and Workers' Compensation Act 1998(NSW)

Citation: [2023] NSWSC 779 Date of Decision: 6 July 2023 Before: Schmidt AJ File Number(s): 2022/309723

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Scone Race Club Ltd (the Club) sought leave to appeal from a judgment of the Common Law Division reviewing a decision of a Medical Appeal Panel of the Personal Injury Commission. The issue raised on appeal was whether the Appeal Panel wrongly failed to consider documents attached to an Application to Admit Late Documents (AALD) lodged by the respondent (Mr Cottom). In 2008 Mr Cottom suffered a serious knee injury while removing a bag of rubbish from a garbage bin during the course of his employment by the Club, resulting in an initial knee reconstruction followed by a subsequent knee replacement. After filing an Application to Resolve a Dispute under the Workers Compensation Act 1987 (NSW), Mr Cottom was referred to a medical assessor, who assessed his whole person impairment at 20%; the Commission issued a medical assessment certificate recording that determination. In November 2020 Mr Cottom lodged an application to appeal the medical assessment certificate to an Appeal Panel under s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The grounds for appeal were the availability of additional relevant information, that the assessment was made on the basis of incorrect criteria and that the medical assessment contained a demonstrable error. The application did not raise deterioration of the initial injury as a ground of appeal. In February 2022 a delegate of the President of the Commission determined that the application should be accepted and the appeal referred to an appeal panel. After the referral, Mr Cottom lodged the AALD seeking to bring additional documents to the attention of the Appeal Panel. The documents raised two issues, the slow deterioration of Mr Cottom's knee and an injury to Mr Cottom's lumbar spine. The Appeal Panel dismissed the appeal. Mr Cottom sought judicial review of that decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). The primary judge upheld that application, finding that the Appeal Panel had failed to look at or consider the documents attached to the AALD, which if properly considered could have had an impact on its determination, which was set aside. The Club sought leave to appeal from that decision. The Court (Basten AJA, Gleeson and Mitchelmore JJA agreeing) held, granting leave to appeal and allowing the appeal: 1 The Appeal Panel correctly held that its function was limited to (i) reviewing the injury (to the right knee) the subject of the initial referral to the medical assessor, and (ii) by considering the grounds listed in the notice of appeal (which did not include deterioration of the worker's condition). Both issues raised in the late documents therefore fell outside the jurisdiction of the Appeal Panel and, if aware of them, it was required to ignore them. There could therefore be no legal error, and therefore no procedural unfairness, in not addressing them: [30]-[33]; [53]-[54]; [59]. Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737; Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304; Skates v Hills Industries Ltd [2021] NSWCA 142; Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 applied. 2 The primary judge erred by finding that the Appeal Panel ought to have considered the further evidence which did not relate to the grounds of appeal, on the conjecture that had the difficulty been identified by the Appeal Panel and pointed out to the applicant, he might have sought to amend his appeal to include deterioration, and the amendment might have been granted. The Appeal Panel was not required to take any of these steps and, indeed, had no power to add grounds of appeal. Nor did this approach solve the problem that injury to the lumbar spine was not part of the initial medical assessment the subject of the initial referral and was therefore not capable of forming part of the appeal: [63]-[64]; [67].

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