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."