Siddik v WorkCover Authority of NSW [2008] NSWCA 116 | Case summary

Siddik v WorkCover Authority of NSW [2008] NSWCA 116 | Case summary | Zoe

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Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Attorney-General v Sillem (1864) 10 HL Cas 704; 11 ER 1200 Australian Gas Light Company v Samuels (1993) 9 NSWCCR 616 Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 Campbelltown City Council v Vegan [2004] NSWSC 1129 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Crampton v R [2000] HCA 60; (2000) 206 CLR 161 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 CASES CITED: Estate of Heinrich Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283 Horne v Locke [1978] 2 NSWLR 88 Kalil v Bray [1977] 1 NSWLR 256 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149; (2007) 4 DDCR 607 Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129 State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234 The Commonwealth of Australia v Bank of New South Wales [1950] AC 235 Tomko v Palasty (No. 2) [2007] NSWCA 369 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190

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(iii) that the assessment of the AMS was based on incorrect criteria and contained a demonstrable error, in that the date of injury was misrecorded (paras (c) and (d)). 5 The Appeal Panel did not accept any of the grounds for appeal as given content in the first respondent's statement of the grounds. It did, however, find that the assessment of the AMS was based on incorrect criteria in that the AMS had misapplied the criteria in the AMA 5 guidelines. 6 The question for this Court is not answered, it seems to me, by analysis of the nature of the appeal to the Appeal Panel as an appeal strictly so-called, an appeal by way of rehearing or a hearing de novo. The Appeal Panel did not purport to conduct a rehearing regardless of error, but found error in what the AMS had done. It did not purport to act on material additional to that before the AMS, or to consider circumstances or law other than as at the time the AMS made his assessment. The question for this Court arises from s 327. In the "appeal … by way of review of the original medical assessment", these words being found in s 328(2), could the Appeal Panel act upon the ground for appeal in s 327(3)(c) by finding that the assessment was made on the basis of incorrect criteria in a respect other than as had been stated by the first respondent? 7 I respectfully agree with McColl JA that the nature of the appeal by way of review is to be found in the terms of the Workplace Injury Act. Such an appeal plainly empowered the Appeal Panel, in reviewing the original medical certificate, to find that the assessment was made on the basis of incorrect criteria, and to revoke the certificate and issue a new certificate "as to the matters concerned" (s 328(5)). This the Appeal Panel did; but were its powers confined to the complaint of assessment on the basis of incorrect criteria as stated in the first respondent's statement of the ground for appeal? 8 The so-called "gateway" in s 327(4) did not relevantly confine the Appeal Panel's powers. The first respondent's appeal had been made by application to the Registrar, and the Registrar had been satisfied that at least one of the grounds for appeal specified in s 327(3) existed. That was past history, and the prohibition on the appeal proceeding in s 327(4) did not apply. The question is what the Appeal Panel could then do. 9 For a number of reasons, I do not think that as a matter of its powers the Appeal Panel was confined to the ground of appeal as stated in the first respondent's statement of the grounds. · While essentially neutral on the question, the description of the appeal as "by way of review of the original medical certificate", did not suggest a narrow power of review. · As McColl JA has explained, resolution of medical disputes by the system of assessments with provision for appeals is integral to the Commission's determinations, and can significantly affect common law remedies. While subject to s 327, the importance of the MACs also does not indicate a narrow power of review. · Accepting that s 327 is intended to reduce the opportunity to contest an AMS's assessment, once an appeal is proceeding on a ground for appeal under the section the Appeal Panel with its special expertise should not be hamstrung if it emerges that the ground for appeal has poorly stated or misstated by the party appealing, nor would it be just that an assessment of impairment open to appeal on a ground for appeal under s 327 had to be left intact for that reason. · Once an appeal is proceeding, it is difficult to see why the deterioration in the worker's condition (s 327(3)(a)) to which the Appeal Panel pays regard should be limited to that stated in the application to the Registrar, when there may have been further deterioration by the time the Appeal Panel conducts its review. Similarly, further additional relevant information (s 327(3)(b)) may become available. If the Appeal Panel is not tied on these grounds for appeal to what was stated in the appealing party's grounds for appeal, it should not be tied to what was stated in the appealing party's grounds for appeal on the other permissible grounds for appeal. 10 These are similar to reasons given by McColl JA in coming to her Honour's conclusion. In my opinion, there was no want of power in the Appeal Panel finding that the assessment of the AMS was based on incorrect criteria in that the AMS had misapplied the criteria in the AMA5 guidelines. 11 The problem in what occurred was not want of power, but that the Appeal Panel so found without notice to the appellant, or the first respondent, that it had taken under consideration this different error in assessment on the basis of incorrect criteria. 12 It is self-evident that the Appeal Panel was obliged to afford procedural fairness to the appellant in this respect, and if support for that be needed it can be seen in s 328(4) in relation to presentation by a worker of his or her case in the Appeal Panel. Presentation of a case includes knowing what the worker must answer. There was a denial of procedural fairness to the appellant. For that reason, its decision can be quashed: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. There is no discretionary reason why it should not be quashed. 13 The extent of the Appeal Panel's powers of review was not relied on in argument before Malpass AsJ, and in this Court the associated matter of procedural fairness arose only in the course of submissions. The first respondent did not oppose reliance on these matters in this Court. 14 I concur with the orders proposed by McColl JA. 15 McCOLL JA: This is an application for leave to appeal heard concurrently with the appeal. The appellant, Hussein Siddik, seeks to challenge the decision of Malpass AsJ dismissing his application for judicial review pursuant to s 69 of the Supreme Court Act 1970 of the decision of an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (the "Workplace Injury Act"): Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129. The Registrar of the Workers Compensation Commission and the relevant Appeal Panel were joined as parties and submitted to such orders as the Court may make save as to costs.

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A table was attached to the MAC setting out the percentages of impairment Dr Bosanquet attributed to each body part. In the column requiring reference to the relevant part of the AMA Guides, against the neck it stated "P389, Table 15-5" and in the column dealing with the percentage impairment, "5%". 21 The first respondent appealed against the medical assessment on two grounds. First, it alleged that there was additional relevant information that was not available to it, or which could not have reasonably been obtained, before the medical assessment. It relied on a medical report by Dr Davis, prepared after Dr Bosanquet's assessment, to assess the appellant's capacity for employment after the expiration of benefits he had been receiving pursuant to s 38 of the 1987 Act. Secondly, the first respondent contended that Dr Bosanquet's assessment was based on incorrect criteria and that the assessment contained a demonstrable error. It asserted that it was unclear from the MAC whether Dr Bosanquet had taken into account specialist and medical reports, and various other documents which formed part of its Application to Resolve a Dispute and other documents it had lodged with the Worker's Compensation Commission under cover of a letter dated 15 February 2005. It asserted that if there had been a failure to take all the evidence into account, there must be a new assessment. This appears to have constituted its demonstrable error ground, although it also asserted that if the assessment was made without regard to this material it was made on the basis of incorrect criteria. It also complained that the date of injury had been incorrectly recorded as 21 and not 20 September 2002. In his reply the appellant stated he was uncertain what medical reports were before Dr Bosanquet at the time of his assessment and suggested the Registrar should "ascertain whether or not the AMS had all the medical reports before him and therefore proceeded according to the rules". 22 The first respondent suggested the appeal could be determined on the papers "provided the Appeal Panel considers this suitable and provided all the material noted above is taken into consideration". The appellant also accepted the appeal could be dealt with on the papers. 23 The Registrar permitted the appeal to proceed to an Appeal Panel on both bases relied upon by the first respondent: see s 327(4), Workplace Injury Act. The Appeal Panel was constituted to include at least one AMS with the same speciality as Dr Bosanquet. The notice to the parties advising them of the referral stated: "Should the Appeal Panel require the worker to be re-examined by the Appeal panel, or set the matter down for hearing, separate advice in relation to this will be issued." 24 The Appeal Panel directed itself that its task was "to conduct a review of the Approved Medical Specialist's assessment". It referred to Wood CJ at CL's decision in Campbelltown City Council v Vegan [2004] NSWSC 1129 and stated: "25 Though the power of review is far ranging, it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding. 26 In this matter the Registrar has determined that at least one of the grounds of appeal exists. The Panel has accordingly conducted a review of the material before it and reached its own conclusion concerning the impairment and loss suffered by the Appellant [sic, Mr Siddik, being the respondent to the appeal]." 25 The Appeal Panel rejected both of the first respondent's grounds of appeal. It refused to admit Dr Davis's report because it was not persuaded that the information was either not available or could not have been obtained prior to Dr Bosanquet's assessment. It was also satisfied that Dr Bosanquet had properly considered the history provided and the medical reports which accompanied the Application and the Reply. It rejected the complaint about the date of injury as a typographical error with no bearing on the integrity of the MAC. 26 However, it determined that Dr Bosanquet's decision about the appellant's cervical spine was based on incorrect criteria for the following reasons: "32 In considering the MAC the Panel observed that the AMS categorised the injury to the Respondent's cervical spine as DRE Cervical Category II and allocated 5% whole person impairment in this regard. 33. The Panel confirmed the requirement for this category according to the AMA 5th edition is for a clinical finding of non-specific radiculopathy or an asymmetrical range of movement. 34. In this respect the Panel notes that the AMS did not make a finding of non-specific symptoms of radiculopathy or an asymmetrical range of movement. Rather the AMS noted that the Respondent had " some restriction of movement ". In this regard the Panel formed the view that the AMS based his assessment on incorrect criteria. 35 The Panel finds the history, symptoms and investigations to demonstrate a category of DRE I as provided at table 15.4** page 389 of the AMA 5th edition. In this regard the Panel has determined to revoke the MAC and issue a new MAC."

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37 As to the second argument, Mr Jackson submitted that the primary judge erred in failing to find that the Appeal Panel treated the list in DRE Cervical Category II as exhaustive. He submitted that his Honour's reference (at par [9]) to what he saw as the substance of the Appeal Panel's view failed to deal with the fact that the Appeal Panel stated that there needed to be a finding of "non-specific symptoms of radiculopathy or an asymmetrical range of movement". He contended that his Honour had erroneously substituted his clinical judgment to discern the substance of the Appeal Panel's reasoning. 38 Mr Marsh submitted that the primary judge correctly concluded that the Appeal Panel had identified and corrected a "demonstrable error" in the MAC, namely the deficiency in Dr Bosanquet's findings and his application of incorrect criteria. He argued that the Court should be restrained in interpreting the reasons of a body primarily comprised of medical practitioners. Legislative framework 39 The purpose of the Workplace Injury Act is "to establish a workplace injury management and workers compensation system with the following objectives": s 3. Those objectives include providing injured workers and their dependants with payment for permanent impairment (s 3(c)) and delivering the objectives efficiently and effectively: s 3(f). The Commission's objectives include providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts (the Workplace Injury Act and the 1987 Act, see s 4): s 367(1)(a). 40 Part 7 of the Workplace Injury Act deals with medical assessments. A medical dispute may be referred for assessment under Pt 7 by a Court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. If it is referred, the Registrar is to give the parties notice of the referral: s 321. 41 The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines (as in force at the time the assessment is made) issued for that purpose: s 322(1). 42 The approved medical specialist assessing a medical dispute has the powers set out in s 324, which include the power to require the worker to submit himself or herself for examination by the approved medical specialist: s 324(1)(c). Section 324 extends to the assessment of a medical dispute in the course of an appeal or further assessment under P 7. An AMS who is a member of the Appeal Panel hearing the appeal or who is assessing the matter by way of further assessment has all the powers of an approved medical specialist under s 324 on an assessment of a medical dispute: s 324(3). 43 The approved medical specialist to whom a medical dispute is referred is to give a medical assessment certificate as to the matters referred for assessment: s 325. Section 325 provides: " 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. (3) If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error. (4) An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but may not be compelled to give evidence." 44 The status of medical assessment certificates is set out in s 326 as follows: " 326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings." 45 Section 327 of the Workplace Injury Act determines the nature of an appeal from the decision of an approved medical specialist: "327 Appeal against medical assessment

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(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section. (2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission. (3) The grounds for appeal under this section are any of the following grounds: (a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment, (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), (c) the assessment was made on the basis of incorrect criteria, (d) the medical assessment certificate contains a demonstrable error. (4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless 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) exists. (5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal. (6) The Registrar may refer a medical assessment for further assessment or reconsideration under section 329 as an alternative to an appeal against the assessment. (7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act. (8) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section." 46 Section 328 provides for the procedure on appeal:

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48 A matter may be referred for further medical assessment or reconsideration in accordance with s 329: " 329 Referral of matter for further medical assessment or reconsideration (1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by: (a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or (b) a court or the Commission. (2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency." 49 Medical assessments, appeals and further assessments under Pt 7 are subject to relevant provisions of the WorkCover Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments: s 331. The reference to the "WorkCover Guidelines" is a reference to the guidelines issued under s 376. 50 Sections 327 and 328 were amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005, with the amendments commencing from 1 November 2006. I have set out the provisions in force at the time of the medical assessment and the Appeal Panel's decision which are those which must be considered for the purposes of the appeal: Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales [2007] NSWCA 149; (2007) 4 DDCR 607 (at [59] per Campbell JA (Hodgson JA agreeing, and Handley AJA relevantly agreeing)). 51 Medical assessments play a key role in determining an injured worker's rights to compensation and/or damages in respect of permanent impairment. 52 The provisions concerning medical assessments appear in Ch 7 of the Workplace Injury Act which deals with the making of a "new claim" under the Workers Compensation Acts. It is unnecessary to explain the meaning of "new claim", save to note that it means a claim for compensation under the Workers Compensation Acts: s 4. It was uncontroversial that Ch 7 applied to the appellant. 53 Part 4 of Ch 7 deals with "Compensation Dispute Determination". Section 288, which appears in that part, entitles any party to a dispute about a claim to refer the dispute to the Registrar for determination by the Commission. If the dispute concerns the degree of permanent impairment of an injured worker, the Registrar must refer that aspect of the dispute for assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment: s 293(2). 54 Part 6 of Ch 7 deals with "Court Proceedings for Work Injury Damages", being damages recoverable from a worker's employer in respect of either an injury to the worker caused by the negligence or other tort of the employer, or the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer (see s 250). If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Div 3 of Pt 7 unless the degree of permanent impairment has been assessed by an approved medical specialist under Pt 7: s 313. 55 Part 7, Ch 7 is also relevant to determinations under the 1987 Act. Part 3, Div 4 of that Act deals with compensation for non-economic loss. For the purposes of Div 4, the degree of permanent impairment that results from an injury is to be assessed as provided by s 65 and Pt 7 of Ch 7 of the Workplace Injury Act: s 65(1). If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist: s 65(3). 56 Part 5 of the 1987 Act deals with common law remedies. No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15 per cent: s 151H. The degree of permanent impairment that results from an injury is to be assessed as provided by s 151H and Pt 7 of Ch 7 of the Workplace Injury Act: s 151H(4). 57 The integral role the resolution of a medical dispute may play in decisions of the Commission and, I would add, common law proceedings, was one of the factors which persuaded Basten JA that the Appeal Panel, as well as the approved medical specialist, was obliged to give reasons for its decision: see Vegan (at [115]). 58 In the Legislative Assembly the Minister for Police, the Honourable Paul Whelan, said in the Second Reading Speech to the Bill which became the Workplace Injury Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001, at 14772): "Proposed part 7 of chapter 7 will establish a system of medical assessment, through which arbitrators will be able to obtain advice on medical questions arising in the course of proceedings … The registrar or an arbitrator in proceedings will be able to refer medical questions to approved medical specialists for consideration and advice. …

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Where the medical question in dispute concerns permanent impairment of an injured worker - including hearing loss - the opinion of the approved medical specialist will be conclusive evidence, and cannot be overturned or challenged by an arbitrator in subsequent proceedings. Obviously in some cases mistakes or errors may be made. It is for this reason that the bill provides a right of appeal against a conclusive permanent impairment certificate to a panel consisting of two approved medical specialists, and an arbitrator. The panel will take submissions from the parties and review the original decision, with the possibility of conducting further medical examination. The role of the arbitrator will be limited to ensuring procedural fairness given that most issues arising in appeals will call for the exercise of medical judgement and expertise . The bill carefully and closely confines the grounds of appeal. Appeals will be allowed where there has been a deterioration in the worker's condition, additional information has become available - that could not have been obtained before the original hearing - the assessment was made on the basis of incorrect criteria, or the certificate contains a demonstrable error. A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion. It should also be noted that the appeal on the grounds of incorrect criteria does not allow appeals to challenge or overturn the guidelines. It is designed to cover circumstances where the guides themselves have been incorrectly applied. The bill also includes numerous protections to ensure that the parties are afforded procedural fairness. This includes notification of a proposed referral of a medical question, and requirements for detailed reasons to be given in support of certificates ." (emphasis added) Nature of a s 328 review: consideration 59 The appellant's contention is, in effect, that a s 328 review is confined to correcting error in the MAC, and that the error must be one which has been the subject of the grant of s 327(3) leave. This suggests an appeal by way of rehearing. The first respondent's submission that, once leave is granted, the Appeal Panel starts, in effect, with a blank page, suggest an appeal de novo. Both submissions proceed on the premise that by using the word "appeal" the legislature has invoked the concept of an appeal in the judicial context. It is convenient to commence an examination of the nature of a s 328 review by examining that concept. It will be necessary too to consider the concept of a "review". It is also necessary to bear in mind that the s 328 appeal is from an expert's assessment of the injured worker's medical condition to an expert panel, comprised of two medical specialists, and an Arbitrator who may or may not be a lawyer. 60 An appeal is the right to enter a superior court, and invoke its aid and interposition to redress the error of the court below: Attorney-General v Sillem (1864) 10 HL Cas 704 at 724; 11 ER 1200 at 1209 per Lord Westbury LC; CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172 (at [111]) per McHugh, Gummow and Callinan JJ. It is the formal proceeding by which an unsuccessful party seeks to have the formal order of a court set aside or varied in his favour by an appellate court: The Commonwealth of Australia v Bank of New South Wales [1950] AC 235 (at 294); Vegan (at [16]). 61 These apparently simple expositions of the concept of an appeal are somewhat confounded by the multiple senses in which the concept of an appeal is understood. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 (at [11]), Gleeson CJ, Gaudron and Hayne JJ commented that "[t]here is … no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another". Kirby J (at [68]) quoted with approval Glass JA's statement in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297) that the word "appeal" encompasses "different litigious processes which have few unifying characteristics". 62 An appeal is always a creature of statute: Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 244 ALR 257 (at [2]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Mason J (with whose judgment Barwick CJ and Stephen J agreed) outlined four categories of appeal in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 (at 619 - 622) but, as was pointed out in Dwyer (at [2]): "… these categories cannot represent a closed class and particular legislative measures … may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of those just described. It was in that vein that McHugh J pointed out in Eastman v The Queen: 'Which of these meanings the term 'appeal' has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.' In short, it is the proper construction of the terms of any particular statutory grant of a right of appeal which determines its nature" 63 In Sperway (at 619 - 620), Mason J explained the distinction between an appeal stricto sensu and an appeal by way of rehearing. In the former, "the question considered is whether the judgment complained of was right when given … that is whether the order appealed from was right on the material which the lower court had before it". In the latter, there is: "[a] rehearing of the cause at the date of the appeal, that is 'by trial over again on the evidence used in the Court below; but there is special power to receive further evidence' [and] the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo ; the court does not hear the witnesses again" 64 In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order the subject of the appeal is the result of some legal, factual or discretionary error. In a hearing de novo the appellate tribunal's powers may be exercised regardless of error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ; Coal and Allied Operations (at [14]). 65 Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo: Sperway (at 621); Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283 per Jordan CJ. However this is not an absolute rule as Mason J explained in Sperway (at 621 - 622): "There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo … The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo . On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing." 66 Conferring discretion on an appellate body to admit further evidence is indicative of a rehearing function. Such a power is of a remedial nature conferred "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures". Its purpose is to give the appellate body a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous or, too, what is "in practice [a] subsidiary purpose is to give the [appellate body] a discretion to admit further evidence to buttress the findings already made": CDJ v VAJ (No 1) (at [109]). 67 In Strange-Muir v Corrective Services Commission (NSW) (1986) 5 NSWLR 234 (at 249) McHugh JA considered the nature of the hearing by one administrative body of an appeal against the decision of another administrative body. In his Honour's view (at 250) "there is a presumptive rule that in an administrative appeal to an administrative body the issue is whether the decision was correct when it was made. The hearing is not de novo. This is so whether or not the tribunal is empowered to hear additional evidence". His Honour drew that presumptive rule from Horne v Locke [1978] 2 NSWLR 88 and Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 which, he said, were consistent with "the principle that, in the absence of a contrary legislative indication, the conferring of a right of appeal to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision". This observation was referred to with apparent approval by Deane, Gaudron and McHugh JJ in Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 (at 273) where, however, their Honours added, "whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right". 68 The concept of a review per se is attended by no greater clarity than that of an appeal. In Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 (at 261) Mason CJ, Brennan and Toohey JJ observed that while "the expression 'review' is commonly used in the context of judicial control of administrative action and in the context of comprehensive administrative review by an administrative tribunal of administrative decisions … 'review' has no settled pre-determined meaning [and] … takes its meaning from the context in which it appears". In like vein, in Tomko v Palasty (No. 2) [2007] NSWCA 369 (at [43]), Basten JA (Hodgson and Ipp JJA agreeing) observed that the "term [review]… may be said to have 'a quite amorphous meaning' [which] will often depend upon the statutory context". 69 In Re Coldham s 88F(1) of the Conciliation and Arbitration Act 1904 (Cth) required leave to be given before the Australian Industrial Relations Commission could entertain an appeal from the decision of a Registrar to register an organization of employees. The High Court (at 275) held that the appeal was by way of rehearing. However it also held that although leave could only be granted if there was an arguable case that the Registrar had erred, once leave was granted, the Commission was bound to make its own decision on the evidence. The consequence was that the Commission could entertain an objection to registration of the organisation which had not, and could not have, been relied upon before the Registrar. In Coal and Allied Operations (at [14]), Gleeson CJ, Gaudron and Hayne JJ explained (at [15]) the conclusion in Re Coldham as flowing from the requirement that the Commission "make such order as it [thought] fit", which "indicated that the Commission's appellate powers were not constrained by the need to identify error on the part of the primary decision-maker, but, rather, that the Commission was obliged to give its own decision on the evidence before it."

[61]

Review in the workers compensation environment 70 With these general observations in mind, it is convenient to return to the concept of a review in the workers compensation environment. 71 Section 36 of the Compensation Court Act 1984 conferred on a member of the Compensation Court a power to review a Commissioner or Registrar's decision in the following terms: "36(1) Where a commissioner or registrar makes a decision or does any other act in any proceedings, the Court may, on application by any party, review the decision or act, and may make such order by any of confirmation, variation or discharge or otherwise as the Court thinks fit…" 72 The nature of the review contemplated by s 36 was considered in a number of decisions soon after that provision was inserted in the Compensation Court Act, the first being Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190. Kirby P (with whose reasons Handley JA and Hope A-JA relevantly agreed) concluded (at 199 - 200) that the use of the word "review" in s 36 of the Act indicated that Parliament intended a procedure different from an appeal of the nature of those referred to by Glass JA in Turnbull v New South Wales Medical Board. 73 His Honour inferred (at 202) from the scheme of the Compensation Court Act, including the fact that Commissioners could be non-lawyers and were, like Registrars, subordinate officers of the Court, the straightforward nature of the work expected to be assigned to them, the informality of proceedings before Commissioners, the fact that there was no "appeal" from their decisions, only a "review", and the power to confirm, vary, discharge or make other orders provided by s 36(1), that "the Judge constituting the Court for the purpose of the 'review', has a very large power which he or she must exercise in disposing of the review jurisdiction". It is apparent his Honour did not regard the review as involving a de novo hearing because he was of the view that s 36 required the aggrieved party to provide a proper basis for disturbing the decision under challenge and the Commissioner's decision remained valid unless the Judge, on review, otherwise ordered. He accepted, however, (at 205 - 206) that it was open to the parties on review to call evidence including either that which was led before the Commissioner, or "entirely fresh evidence". He concluded (at 205) that it was "undesirable to attempt to delimit exactly the scope of a 'review' as contemplated by s 36", apart from accepting that "that something wider than the narrow form of reconsideration on an appeal, strictly so called, is contemplated". 74 Handley JA (with whose qualification on this point Hope A-JA agreed) did not wish to indicate a view on whether an applicant for review was entitled as of right, or as of course in the exercise of the Court's discretion, to re-call before a judge all the witnesses called in his or her case before the Commissioner to give the same oral evidence again, in the hope of securing different findings on credibility: Watson (at 210 - 211). In his view, it was arguable that an applicant for review was only entitled to a hearing de novo before the judge "on a proper case". 75 The issue arose again in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580. Kirby P (with whom Waddell A-JA and Samuels A-JA agreed) noted (at 586) that Handley JA's remarks in Watson concerning the tender of fresh evidence and the conduct of a hearing de novo were obiter. He rejected (at 587) the employer appellant's submission that a s 36 review involved a narrower function than an appeal by way of rehearing and that the Commissioner's decision should only be disturbed "in an extreme case". In so doing he emphasised (at 587) the "large consequences" decisions of the Commission had both for the worker and the employer in determining "substantive entitlements under a statute often intended to provide a means of sustenance for injured workers". 76 In Australian Gas Light Company v Samuels (1993) 9 NSWCCR 616 (at 622) Kirby P held that Watson was authority for the proposition that on a s 36 review "a reviewing judge would be entitled to substitute his opinion for the Commissioner's, even if the latter was said to be based on a question as to credibility, if displaced by incontrovertible evidence indicating that the Commissioner was mistaken". He emphasised the "special" nature of such a review as a "special procedure, established within a specialised tribunal, to recognise the particular skills which judges of that tribunal enjoy and refine by years of considering very large numbers of like claims, many of them in large part (as here) determined on paper without oral evidence". In that light he reiterated the view he had expressed in Boston Clothing that it was inappropriate to apply to a review all of the principles applied by the courts to appeals by way of rehearing. Meagher JA accepted (at 625) that Watson was authority for the proposition that the reviewing judge had wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist. It is clear his Honour was of the view that the reviewing judge had to give weight to the Commissioner's credit finding. Handley JA (at 630) was of also of that view, concluding that the reviewing judge had misdirected himself as to the nature of the review function that he had been asked by the parties to undertake. His Honour appears to have treated the review as, in a sense, an appeal of a rehearing nature, holding that it was not open to the reviewing judge to disregard the credit based findings of the Commissioner on the critical issues in the absence of the worker demonstrating that the Commissioner's decision was inconsistent with established facts or glaringly improbable.

[63]

The concept of "review" in the Workplace Injury Act 78 In addition to the power of review reposed in the Appeal Panel by s 328, s 352 of the Workplace Injury Act enables appeals to the Commission, by leave of the Commission constituted by a Presidential member, such appeals to be "by way of review of the decision appealed against." Leave may only be granted if the amount of compensation at issue on the appeal is both (a) at least $5,000 (or such other amount as may be prescribed by the regulations), and (b) at least 20 per cent of the amount awarded in the decision appealed against: s 352(2). Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission: s 352(2). On appeal, the decision may be confirmed or may be revoked and a new decision made in its place; alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission: s 352(7). 79 A series of cases has held, applying Boston Clothing, that the review contemplated by s 352 "is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider": Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38] per Bryson JA (Handley JA and Bell J agreeing) and the authorities collected in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (at [29]). 80 In Chemler the Court considered whether the Commission entertaining a s 352 review and considering what action to take to reverse findings of fact, should remit the matter to the primary decision-maker unless it was satisfied that there could not be a different result. Spigelman CJ (with whom Basten JA and Bryson AJA agreed) (at [22]) described the appeal as "an internal merits review by a Presidential member [which] is an important safeguard for the proper operation of the legislative scheme". He rejected (at [28]) the appellant's submission that a s 352 review was not a hearing de novo, holding that "[t]he concept of a review on the merits is wider than the concept of an appeal in a judicial context". In his Honour's view: "30 A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends." 81 Basten JA delivered additional reasons for agreeing with the Chief Justice. He interpreted (at [63]) the appellant's argument as a contention that the appeal undertaken by the Deputy President was in the nature of a "review" and was therefore not a hearing de novo, with the consequence that the Presidential member considering the appeal was required to identify error on the part of the arbitrator. In his Honour's view (at [64]) the nature of the appeal by way of review should not be seen to be constrained by the principles which depend upon the classification of appeal referred to in Builders Licensing Board and Coal and Allied Operations. He observed (at [65]): "65 The precise scope of a provision such as s 354 will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision… So long as each party has notice of, and a reasonable opportunity to address, the case against it, there is no reason to suppose that the Commission is not at liberty to determine how it will proceed and whether it should make a new decision…"

[64]

Section 328 authorities 82 There are no decisions of this Court whose ratio identifies the nature of the s 328 review. The question arose in Vegan, but as the following discussion reveals, not in a determinative manner. 83 As I have said, the Appeal Panel referred to, and applied, Wood CJ at CL's conclusions in Vegan concerning the nature of the s 328 review. His Honour held (at [80]) that the fact that "the powers of the Panel are confined to revoking the certificate of the AMS, or to issuing a 'new certificate as to the matters concerned', [are] powers which are consistent with an appeal being a review de novo of the original assessment". He concluded that: "81 It would follow, in the present case, that once the Registrar as gatekeeper was satisfied, of the existence of the 2% error appearing on the face of the table, or of any other error, then it was appropriate for the matter to be referred to the Appeal Panel. It was then free to conduct a review upon the basis of the material properly available before it, without any need to make a formal finding itself as to the existence of an error falling within an available ground of appeal, and without being confined to the correction of that error. 82 This gives rise to a somewhat novel form of appeal, but being a statutory appeal it has to be understood in the light of the relevant provisions, and in the light of the Legislative intent, in so far as that can be identified." 84 In his Honour's view (at [83] - [84]) it was more consistent with a review by a Panel of Experts, that, once a ground for appeal had been identified, it should be free to conduct a full review de novo on the available material. To confine a lay panel, even though chaired by an Arbitrator, to an appeal conducted by a court of law, would, in his view, be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way. 85 It was not necessary to resolve this issue on appeal in Vegan. However Basten JA made observations in Vegan (at [131] ff) about the power of the Appeal Panel to review the whole of the matter on the merits, once invested with jurisdiction, which the appellant urged the Court to adopt. His Honour also suggested (at [133]) that if only one ground for appeal existed in the opinion of the Registrar, "it would appear that the whole of the appeal may proceed and that, being satisfied as to one ground, the Registrar is not required to address other grounds". His Honour acknowledged (at [135]) however, the difficulties which had arisen in other situations from the tendency of the legislature "to identify the available grounds for an appeal, without separately determining the scope of the appellate tribunal". 86 Basten JA tentatively concluded (at [137]) that "the powers of the Appeal Panel may be limited to addressing, and if thought necessary, correcting, errors identified in the certificate granted by the approved medical specialist, as specified by the appellant". His Honour's tentative observations were approved by Mason P (McColl and Bell JJA agreeing) in Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 (at [48]), where Mason P also observed that "the 'appeal' to the Appeal Panel is not intended as the opportunity for an application on the basis of fresh evidence tendered without any constraint and/or on the basis of no more than the Appeal Panel being invited to decide the application afresh". 87 The first respondent contends that s 328 of the Workplace Injury Act required the Appeal Panel to conduct a fresh and full review of the matter based on the material properly before it and that it was not restricted to correcting error in the assessment, although it also contended that the Appeal Panel had, in fact, corrected an error in the MAC. However its primary submission was that the Court should adopt Handley JA's observations in Vegan (at [18]) apparently contending that they described the Appeal Panel's power on review as in effect a de novo hearing: "Since an appeal is a means of redressing or correcting an error of the primary decision maker a successful appeal should produce the correct decision, that is the decision the original decision maker should have made. It is therefore an inherent feature of the appellate process that the appellate decision maker exercises, within the limits of the right of appeal, the jurisdiction or power of the original decision maker." 88 In my view Handley JA's observation did not indicate a view that a s 328 review is an appeal de novo. Rather they are consistent with the proposition that the power of a court, entertaining an appeal by way of rehearing to give such judgment as ought to be given and to make such further or other order as the case may require, means that such an appeal may involve the exercise of original jurisdiction: Crampton v R [2000] HCA 60; (2000) 206 CLR 161 (at [149]) per Hayne J.

[67]

93 The specificity of the scheme for review of medical assessment certificates established by Ch 7, Pt 7 of the Workplace Injury Act stands in stark contrast to the apparently untrammelled power of review conferred by s 36 of the Compensation Court Act. This suggests that the legislature intended to avoid conferring the sort of wide power on the Appeal Panel which it had been held s 36 of the Compensation Court Act conferred on a judge. 94 The legislature has confined appeals to matters that are appealable only on the grounds identified in s 327(3). Permission must be obtained before the putative appellant can appeal. To obtain permission, at the time of the present case, the putative appellant had to establish that one of the s 327 grounds existed. Although the appeal was "by way of review of the original medical assessment", if the Appeal Panel did not confirm that MAC, its only power was to revoke it and "issue a new certificate as to the matters concerned". "The matters concerned" were not expressly identified, but contextually their apparent subject was the "matter" the subject of the appeal identified by the appellant in accordance with s 327(1). 95 Section 327(3)(c) and (d) permit an appellant to attack the MAC on the basis of errors on the part of the AMS. That suggests, in my view, a jurisdiction to revoke the MAC which is only exercisable in the event error is identified in it, in other words an appeal by way of review which has indicia of an appeal by way of rehearing. 96 However s 327 is not only an error-based jurisdiction. It also contemplates an appeal arising because of changed circumstances: either a deterioration of the worker's condition or the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment): s 327(3)(a) and (b). While the power to receive further evidence is suggestive of a rehearing function (CDJ v VAJ (No 1)), the availability of that power to what might be classed as an administrative body is not determinative: Strange-Muir. 97 In such circumstances the Appeal Panel might be expected to review the MAC to determine whether the changed circumstances affect the conclusions the AMS reached. If it reaches that conclusion, then it must have the power to conduct the assessment anew, including, if necessary, undertaking an examination of the injured worker as contemplated by s 324. That appears to presume something in the nature of a hearing de novo, a proposition Basten JA found attractive in Vegan (at [85]). 98 Further, while the express limitations on opening the gate to an appeal are suggestive of an appeal limited to the grounds identified by the appellant, there is much to be said for the view that when used in the context of the review of an MAC by a panel including two specialists, that they should be entitled to determine "the true and correct view": Chemler (at [30]). The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise: Kalil v Bray [1977] 1 NSWLR 256 (at 262) per Street CJ (Moffitt P and Glass JA agreeing). 99 Such an approach recognises the importance of the medical assessment in the process of determining an injured worker's rights to, and an employer's obligation to pay, workers' compensation and/or damages. Although the legislature has deliberately separated determination of those issues from the curial decision-maker, it would be a curious to find it intended that the Appeal Panel could not cure an error in a conclusive certificate merely because the parties had not identified it, with the result that a court could be required to determine the parties' rights on the basis of what, in the Appeal Panel's view, was an erroneous MAC. The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the MAC. 100 While a conclusion that an appeal by way of review may, depending on the circumstances, involve either a hearing de novo or a rehearing invokes a novel form of appeal, it ensures the legislature has created a flexible model which as I explain below assists the objectives of the legislature. In New South Wales Thoroughbred Racing Board v Waterhouse [2003] NSWCA 55; (2003) 56 NSWLR 691 (at [103] - [104]) Hodgson JA (Santow JA agreeing) held that an appeal under s 15 of the Racing Appeals Tribunal Act 1983 involved both appeals of a de novo and rehearing nature.

[68]

101 In my view it is inappropriate to resolve the issues by applying prescriptive labels to the nature of the s 328 review. I am, however, of the view that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gate, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. This is not a backdoor resurrection of the appellant's abandoned third ground of appeal, simply a recognition of the proposition that determinations, which affect the "rights, interests and legitimate expectations" of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J. This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [14]-[18]) per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. The proposition that the Court may conclude the Appeal Panel could act of its own initiative on the basis that it accord the parties natural justice was raised in the course of argument, and not resisted by Mr Marsh. 102 It has already been held that the Appeal Panel is subject to an implied statutory obligation to give reasons arising from the statutory context and the nature of the functions imposed on it: see Vegan per Handley JA (at [26] - [31]); per Basten JA (at [117]). It might also be recalled that the Second Reading Speech clearly stated the legislature's intention that the appeal process be conducted in a procedurally fair manner, the inclusion of the Arbitrator being intended, in part, to ensure that outcome. 103 The conclusion that the Appeal Panel can consider grounds of appeal not the subject of s 327(3) leave as long as it accord procedural fairness, is consistent with the objectives of the Workplace Injury Act I earlier identified of providing injured workers and their dependants with payment for permanent impairment (s 3(c)), delivering the objectives efficiently and effectively (s 3(f)) and providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts: s 367(1)(a); see Chemler (at [23] - [24]); Riverina Wines (at [86]). It is also consistent with Kirby P's observations in the Watson line of authority about the undesirability of confining a review in the workers compensation context to a creature resembling an appeal in the judicial context.

Siddik v WorkCover Authority of NSW

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