Sleiman v Gadalla Pty Ltd

Background

1. The issue being one of statutory construction, a substantially abbreviated summary of the factual background will suffice.
2. Mr Ali Sleiman was employed by the first respondent, which seems to have traded under the name AGR Tyres (the documents suggest there may have been some confusion as to its identity; nothing turns on this). On 14 May 2014, he notified his employer of a workplace injury. His employer's workers compensation insurer accepted liability, and as a matter of substance, the insurer has been the active party in what has occurred over the following seven years. Weekly compensation payments and medical expenses were paid to Mr Sleiman.
3. In 2016, Mr Sleiman made a claim in respect of a whole person impairment of 46%. That claim was rejected by the insurer's letter of 5 October 2016, on bases the details of which are immaterial, save that they indicate the breadth of the dispute (the insurer contended that the conditions were not work related, the neck condition arose from a pre-existing condition, the gastrointestinal claim was not made as soon as possible and the lump sum compensation claim was excessive).
4. Mr Sleiman lodged an application in the Commission to resolve a dispute on 13 October 2016, and on 21 December 2016, following a conciliation/arbitration hearing, the parties reached agreement on a number of issues. The result of the agreement was that Mr Sleiman's application for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) was referred to an approved medical specialist for assessment of Mr Sleiman's whole person impairment.
5. On 19 January 2017, an approved medical specialist (Dr Phil Truskett) certified that Mr Sleiman suffered injuries resulting in a total of 2% whole person impairment. Mr Sleiman appealed from that decision and the matter was referred to a medical Appeal Panel comprising arbitrator Mr Graham Edwards, Dr Drew Dixon (an orthopaedic surgeon) and Dr John Garvey (a general surgeon). The grounds of his appeal were those in s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("WIM Act"), namely, that the assessment had been made on the basis of incorrect criteria or contained demonstrable error. Mr Sleiman was examined by Dr Dixon on 24 May 2017, and on 16 June 2017 the Appeal Panel determined that the earlier medical assessment certificate should be revoked and a new medical assessment certificate certifying a whole person impairment of 14% should be issued. Consequently, on 21 July 2017, the Commission issued a certificate of determination in the amount of $20,350 pursuant to s 66 of the Workers Compensation Act in respect of 14% permanent impairment resulting from the injury.
6. The details of the legislation are reproduced later in this judgment. However, it may be helpful to note that the foregoing steps taken in 2017 reflected the working out of the statutory regime as follows: 1. the referral of a "medical dispute" (in this case, the dispute as to the degree of Mr Sleiman's permanent impairment) for medical assessment under s 321; 2. the assessment of permanent impairment by an approved medical specialist under ss 322 and 324 resulting in the production of a medical assessment certificate under s 325; 3. the exercise by Mr Sleiman of his right of appeal to an Appeal Panel. The right was available because the certificate issued by Dr Truskett was by reason of s 326(1) conclusively presumed to be correct as to the degree of Mr Sleiman's permanent impairment in proceedings before a court or the Commission, thereby satisfying s 327(2), and it was propounded on the grounds specified in s 327(3)(c) and (d); 4. the Appeal Panel's exercise of the power in s 328(5) to revoke the earlier certificate and issue a new one, with the result that s 326(1) applied to render the new certificate conclusively presumed correct as to Mr Sleiman's permanent impairment, and 5. the Commission's issuing of a certificate, based on the 14% permanent impairment determined by the Appeal Panel, determining the dispute as to Mr Sleiman's entitlement to compensation under s 66 for permanent impairment.
7. Thus, following his successful appeal to the Appeal Panel in 2017, Mr Sleiman and his employer and its insurer and the Commission and any court became bound by (a) a medical assessment certificate dated 16 June 2017 assessing his whole person impairment at 14% and (b) a certificate of determination from the Commission requiring his employer to pay him a lump sum under s 66 of the Workers Compensation Act. The Commission's certificate determined as between the parties Mr Sleiman's entitlement to compensation pursuant to s 66. The new medical assessment certificate issued by the Appeal Panel determined, conclusively, Mr Sleiman's degree of permanent impairment of 14% in any proceedings before a court or the Commission.

The purported appeal in 2019

1. Two years later, Mr Sleiman claimed that his condition had deteriorated, and obtained medical reports to that effect. By application made on a "Form 10" dated 14 August 2019, he sought to bring another "appeal". Rule 4.1 of the Workers Compensation Commission Rules 2011, which was then in force, authorised the President to approve forms and provided that "(3) Every document lodged at or served on the registry must ... (b) be in the approved form". The Form 10 was drafted to accommodate an appeal from a medical assessment by an approved medical specialist to an Appeal Panel, and was titled: "Application Application to Appeal Against Decision of Approved Medical Specialist"
2. Mr Sleiman's solicitor identified, under the heading "Details of the Medical Assessment Appealed Against", the date of the medical assessment decision appealed against as 21 July 2017 and gave the name of the approved medical specialist appealed against as Dr Drew Dixon, the member of the Appeal Panel who had examined him two years earlier. The application annexed submissions written by counsel, which commenced "The Appellant appeals against the Medical Assessment Certificate issued by a medical Appeal Panel on 21 July 2017." The submissions stated that "The appeal is brought for the purposes of a work injury damages threshold dispute". Section 313 of the WIM Act prevented Mr Sleiman from commencing proceedings for "modified common law damages" while there was a dispute concerning whether his whole person impairment equalled or exceeded the 15% threshold in s 151H of the Workers Compensation Act. Mr Sleiman contended as a result of deterioration that his whole person impairment should be greater than 14%. The details of this do not presently matter (their flavour may be sufficiently gathered by noting the claim that his lumbar spine had degenerated such that it should be assessed as DRE Category II, rather than DRE Category I, and that would add "at least 5%" to the whole person impairment). Mr Sleiman said he did not seek to undermine the payment of s 66 compensation which had been based on an assessment of permanent impairment of 14%. He merely sought to be permitted to commence proceedings for modified common law damages.
3. Significantly for the purposes of the present appeal, the submissions referred to Michelle Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21, of which it was said that "Arbitrator Harris was considering an application to reconsider a certificate of determination in order to allow an appeal of a medical assessment certificate". The submission sought to explain the arbitrator's reasoning (which need not be summarised here) and concluded: "Arbitrator Harris concluded that there was no need to reconsider the commission's orders. In respect of the threshold dispute, a worker can at any time bring an appeal against the medical assessment certificate on the basis of a deterioration and/or additional relevant information."

The decision of the Registrar's Delegate

1. On 18 September 2019, the Registrar's Delegate determined that the "somewhat unusual appeal" was incompetent. The Delegate was exercising the function conferred by s 327(4).
2. The Registrar's Delegate stated that the appeal under s 327 was against a "medical assessment", which was "specifically defined" to be an "assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7" (original emphasis), and noted that an assessment was appealable under s 327(2) if an approved medical specialist provided the certificate. The Delegate said that a matter was not appealable under s 327(2) where an Appeal Panel had issued a decision determining an appeal, whether or not that appeal included a further examination. The Delegate repeated that a "matter is appealable if it relates to 'the assessment of an approved medical specialist'". The Delegate rejected a submission that because the certificate issued by the Appeal Panel is the certificate for the purposes of s 322A, an appeal lay from that certificate. The Delegate said that if an appeal were available, this "would be an affront to the finality of litigation and would open a never-ending right of appeal". The Delegate also said that "[t]he construction proposed by the appellant would also lead to an appeal being determined at the same level of authority, constituted in the same manner, as the decision maker".

The proceedings for judicial review at first instance

1. No appeal lay from the Delegate's decision dismissing as incompetent Mr Sleiman's application. However, the Supreme Court's supervisory jurisdiction is available, and was invoked by Mr Sleiman, who commenced proceedings in the Common Law Division pursuant to s 69 of the Supreme Court Act 1970 (NSW). He claimed that the Delegate's decision disclosed a range of jurisdictional errors and errors of law on the face of the record. Both grounds of review were available. This Court's jurisdiction to review for jurisdictional error cannot be removed: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], and while the same is not true for non-jurisdictional error of law on the face of the record, there is no privative clause which does so (contrast s 176 of the District Court Act 1973 (NSW) and see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]).
2. However, the formulation of those grounds fell short of disclosing a firm grasp of the distinction between jurisdictional error and error of law on the face of the record. By way of example, it was said that the Registrar's Delegate "erred in point of law when he decided the application to appeal on a basis that had not been raised by the parties and in respect of which he did not invite submissions, thereby denying the plaintiff procedural fairness". Further, a vast swathe of material was tendered with neither objection nor articulation of how it could constitute the record or be relevant to any claim for jurisdictional error. All that was necessary was the evidence of the steps mentioned above. So far as I can see, at no stage in this litigation has reference been made to the first 370 pages of the documents in the appeal books.
3. It may assist other litigants invoking this Court's supervisory jurisdiction to observe the following. 1. The principal bases of review of administrative decision-making in this Court's supervisory jurisdiction are jurisdictional error and error of law on the face of the record. 2. Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]: "Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case." 1. Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because "no satisfactory test of universal application has yet been formulated": Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]. The absence of novelty in that statement may be seen from a passage in Holdsworth's History of English Law, first published precisely one century ago, to "the debatable boundary line between law and fact" (see now W Holdsworth, A History of English Law (7th ed, 1956) Vol 1, p 298). Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law. 2. Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the "record". The term "record" is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299-301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62]-[78]. 3. Considerable care should be taken if reliance is to be placed on United Kingdom authorities. In that country, the distinction between jurisdictional error and non-jurisdictional error of law on the face of the record which is fundamental to the supervisory jurisdiction of Australian superior courts is not observed: R v Hull University Visitor; Ex parte Page [1993] AC 682 at 701-702 (Lord Browne-Wilkinson), 705-706 (Lord Slynn).

The appeal to this Court

1. Mr Sleiman purported to appeal as of right from the dismissal of his application for judicial review. The judgment and order of the Associate Judge have effect as a judgment and order of the Court: Supreme Court Act, s 118(4). However, the appeal created by s 101 from judgments or orders of the Court in a Division is not necessarily available. That comes about by reason of s 104, which provides: "104 Exclusion of appeal from associate Judges and others Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by an associate Judge, registrar or other officer."
2. Thus, if no other provision in the rules confers a right of appeal, then the appeal does not lie to the Court of Appeal: see Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80 at [9]. Instead, it lies to a single Judge of the Court sitting in a Division pursuant to UCPR r 49.4, which confers a right of appeal from any decision of an Associate Judge "except in any case where an appeal lies to the Court of Appeal". But the prohibition on appeals in s 104 is "[s]ubject to the rules". The hearing before the Associate Judge being within Pt 60 r 17(a) of the Supreme Court Rules, the prohibition in s 104 of the Supreme Court Act does not apply: see CBX2 Pty Ltd v National Australia Bank Ltd [2016] NSWCA 79 at [6]; a fuller analysis may be found in El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172 at [45]-[59].
3. It is possible that neither side had regard to the foregoing when the proceeding was commenced in this Court. If so, it would be a little ironic, in litigation where the only point was the nature of an appeal, although such errors are not without precedent: cf Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 at [1] and [58]. The short point is that a litigant who is disappointed with a decision of an Associate Judge should consult Pt 60 r 17 in order to determine whether any further right of appeal is to the Court of Appeal pursuant to that rule or else to a single Judge pursuant to UCPR r 49.4. (To the extent that there may be tension between the foregoing provisions and s 48 of the Supreme Court Act assigning classes of proceedings to the Court of Appeal, the former prevails.)
4. Until the point was raised in this Court, limited attention was given to the requirement for leave. The right of appeal which falls within the exception to s 104 created by Pt 60 r 17 is an appeal which is "in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply". Relevant for present purposes is the $100,000 threshold in s 101(2)(r). It seems probable that an appeal lies only by leave, notwithstanding the assertion on the notice that it "involves (directly or indirectly) a claim, demand or question to or respecting property or civil rights amounting to or of the value of $100,000 or more". Even if Mr Sleiman's application should have been determined on its merits and even if as a result of that determination Mr Sleiman obtained a whole person impairment of greater than 15%, it is far from certain that he will sue for modified common law damages and obtain a judgment against his insurer in an amount which will satisfy the $100,000 threshold in s 101(2)(r) of the Supreme Court Act. Substantially the same point was made in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [59]-[61]. However, in circumstances where the active respondent appears to have raised no question as to leave, and where Mr Sleiman's proceeding raises a question of principle, a grant of leave is appropriate to the extent necessary.

Applicable statutory regime

1. The question is one of construction. Although the critical provisions are ss 327 and 328 of the WIM Act, those sections presuppose that there has been an assessment from which an appeal is sought to be brought. It is best to deal with Part 7 of Chapter 7 as a whole.
2. Part 7 of Chapter 7 of the WIM Act is headed "Medical assessment". Section 319 defines "medical dispute" to mean a range of disputes between a claimant and the person on whom a claim is made, including a dispute about the degree of permanent impairment as a result of an injury. Section 321 authorises the referral of disputes other than disputes concerning permanent impairment to a court, the Commission or the Registrar, a provision which was considered by this Court in Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88.
3. Section 322 requires the assessment of the degree of permanent impairment to be made in accordance with the Workers Compensation Guidelines. Some significance was attributed by both sides to s 322A: "322A One assessment only of degree of permanent impairment (1) Only one assessment may be made of the degree of permanent impairment of an injured worker. (1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part. (2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages). (3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of: (a) assessment and a medical assessment certificate under this Part, or (b) a determination by the Commission under Part 4. (4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by Arbitrator)."

The parties' submissions on whether a further appeal was available

1. Mr Sleiman's submissions on the principal point noted a distinction in s 327(3) between grounds (a) and (b) on the one hand, and (c) and (d) on the other hand. The latter were limited in time by s 327(5), and turned on matters which might be expected to be known at the time an approved medical specialist conducted a medical assessment and produced a certificate. The former looked into the future, and turned on matters not known at the time. There was no time limit for appeals based on those grounds.
2. Mr Sleiman maintained that it would be extremely harsh and unfair if the exercise of a ground of appeal under s 327(3)(c) or (d) had the effect of precluding a further appeal based on information not presently known. The point was encapsulated in argument thus. Suppose an approved medical specialist made an egregious error, through no fault of the worker, on the certificate, requiring a s 327(3)(c) or (d) appeal. Suppose the worker's condition then deteriorated. Mr Sleiman submitted that the legislation should be construed so as to avoid the result that the worker was disentitled to bring an appeal based on deterioration, in circumstances where deterioration after assessment had been explicitly contemplated by the Legislature. Why should the availability of an appeal on the ground stated in s 327(3)(a) depend on the happenstance that the worker had not been forced to use his or her right of appeal to correct an error not of his or her making? That is not far removed from the facts of the present case, where the initial determination of Mr Sleiman's permanent impairment was 2%, but was replaced on appeal by a determination of 14%. The force of Mr Sleiman's construction rests in the conclusion that if the Delegate's construction is right, the explicitly contemplated right of appeal in cases of deterioration is unavailable to Mr Sleiman, who in practice had no choice but to use his one and only right of appeal following the determination of 2%.
3. Submissions to much the same effect were directed to avoiding the literal operation of s 327(7). Why should the happenstance that s 327(7) applied (because, say, there had been a decision of the Commission) deny a right of appeal on the basis of grounds explicitly contemplated by the statute such as deterioration, in circumstances where the deterioration was unknown and perhaps unanticipated at the time of the decision which precluded the appeal?

Consideration

1. Like most appeals raising questions of statutory construction, the resolution of this appeal turns on a careful examination of the text. But before doing so, it is helpful to commence with the context of the right of appeal within the legislative regime. The same course was adopted in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [70].

Context and purpose

1. Statute has very substantially altered the position at common law concerning workers who sustain personal injury. No longer is it necessary to establish a breach of duty which caused the injury. The injured worker is entitled to the benefits specified under statute. That regime depends, in a variety of ways, upon the determination of a worker's degree of permanent impairment as a result of an injury. 1. One consequence of that determination, which was important to Mr Sleiman in 2017, was the computation of compensation pursuant to s 66 of the Workers Compensation Act. 2. Another aspect, which is of importance today, is that Mr Sleiman is prevented from commencing proceedings for modified common law damages against his employer unless his degree of permanent impairment is at least 15%. 3. There are other consequences of the determination of permanent impairment, such as the aspect of the regime considered in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW (2020) 102 NSWLR 941; [2020] NSWCA 113, namely, whether the 5 year limit on weekly payments in s 39 of the Workers Compensation Act applies.
2. The legislative regime by and large placed the assessment of permanent impairment in the hands of approved medical specialists and Appeal Panels. Both are required to incorporate the conclusions of their assessment in a certificate, and the certificate is given conclusively presumptive correctness both in the Commission and in a court (there are some relatively minor qualifications to that, but none is presently relevant). As was said by this Court in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 at [16]: "The scheme for the settlement of compensation disputes established by the 1998 Act read with ... [the 1987 Act] is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel."
3. Section 322A serves an important role in the administrative regime established for the determination of permanent impairment. A decision of a court after a final hearing will ordinarily determine that issue once and for all. A great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing relitigation of the same issue), as well as substantive doctrines like the once-and-for-all rule. This is also subject to well-recognised exceptions, which are found at general law and also under statute (these include the slip rule, setting aside judgments for fraud, and the ability to reopen associated with Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 and under rules of court such as UCPR rr 36.15 and 36.16). Section 322A broadly speaking places the administrative determination of permanent impairment on the same footing as curial determination (as had occurred, by the Compensation Court, before the introduction of medical assessment). That said, s 322A is qualified by the exceptions in s 322A(4), one of which is an appeal under s 327. The parties correctly proceeded on the basis that s 322A accordingly did not speak directly to the resolution of the question of construction raised in the present appeal.

The text and structure of ss 327 and 328

1. Qualifications and limitations upon an appeal turn on the terms of the statute. It is plain from the provisions of ss 327 and 328 that the right conferred is substantially qualified as to the nature of the decision from which the appeal is brought, the timing, the grounds and depending upon what other steps have been taken (for example, the registration of an agreement under s 66A). The following matters emerge from a consideration of the text and structure of that provision.
2. First, the right of appeal is qualified by the two clauses within s 327(1) commencing with the word "only". The first prerequisite is that the appeal be "in respect of a matter that is appealable under this section", and the second in that the appeal be "on the grounds for appeal under this section". Subsection (2) articulates the first precondition. Subsection (3) identifies the grounds which comprise the second precondition.
3. There was a tendency in oral and written submissions to refer to the right of appeal conferred by s 327(1) and (3), omitting the limb of subsection (1) which refers to s 327(2). By way of example, it was put on behalf of Mr Sleiman that: "We would submit that, in terms of the hierarchy in 327, subss (1) and (3), which confer the right of appeal on specified grounds, are the leading provisions and the procedural bar in 327(7) is the subordinate provision that is to be read down ...".
4. In many cases, it is natural to emphasise subsection (3) because the decisively limiting constraint is imposed by the limited grounds in that subsection. But that is not to deny that the basic structure of s 327(1) is to confine the nature of the appeal by reference to the preconditions in each of subsections (2) and (3). In the present appeal, s 327(2) looms large.
5. Secondly, 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". The ordinary meaning of those words confines the statutory right of appeal to matters as to which there has been an assessment of an approved medical specialist. Mr Sleiman conceded, appropriately, that on his construction it was necessary for those words to extend to cases where there has been a further assessment by an Appeal Panel, to which s 326 applied by reason of s 328(5).

Evaluation of the competing constructions

1. The position then is as follows. Mr Sleiman points to circumstances when the regime could be seen to work harshly if given its literal meaning. But in order to obtain a construction which permits a further appeal, a strained meaning needs to be given to the following provisions. 1. First, to the opening words of s 327(1), so that the right of appeal is not confined to one which is against a "medical assessment" as that term is exhaustively defined. 2. Secondly, to s 327(2), the purpose of which is to delineate the words "a matter [that] is appealable under this section", and which words expressly limit such matters to ones in which "the assessment of an approved medical specialist" has been certified in a certificate. 3. Thirdly, to s 327(7), such that the words "There is to be no appeal against a medical assessment" are to be confined as if they read "There is to be no appeal on the grounds in s 327(3)(c) and (d) against a medical assessment". 4. Fourthly, to s 328(2), which states that the appeal "is to be by way of review of the original medical assessment"; if the appellant's construction is correct then "original medical assessment" needs to be understood as extending to the most recent determination of the Appeal Panel.
2. Further, Mr Sleiman's construction involves the potential for an endless number of appeals to the same body, which is contrary to the ordinary meaning of "appeal" in a statute which distinguishes between "appeal" and "reconsider", and which emphasises timeliness and the single determination of the degree of permanent impairment.
3. Ultimately, as Mr Sleiman himself contended, his construction involves regarding the right to appeal on the basis of deterioration or the availability of additional relevant information as controlling the meaning to be given to all of the provisions whose text points against a further appeal.
4. I do not accept Mr Sleiman's construction. I do accept that there is scope for a harsh or unjust operation in the classes of examples to which he refers, which are far from improbable. But the legislation must be construed in the first instance by reference to the text. Fundamentally I do not accept that s 327(3) is the leading provision, for the purposes of the harmonisation to be undertaken in accordance with Project Blue Sky, notwithstanding the capacity of the regime otherwise to operate harshly. There are four textual reasons for this. 1. First, the right of appeal is conferred by s 327(1), and the starting point is that it is an "appeal against a medical assessment under this Part". Mr Sleiman's submission accordingly needs to displace the exhaustive definition of "medical assessment". While it is true that a defined term may not, where the context otherwise demands, bear its defined meaning (even in a case such as the present where the statute is not expressed to apply subject to a contrary intention: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [40]), good cause needs to be shown to achieve that end. It is perhaps not so difficult to regard the decision of an Appeal Panel which supersedes that of an approved medical specialist as itself "a medical assessment under this Part". But the alterations to the ordinary meaning of ss 327(2) and 327(7) and s 328(2) which are also required by Mr Sleiman's construction are much more problematic. They do not turn on displacing the definition of a term defined 300 sections earlier to be used throughout the statute. They turn on giving a strained meaning to the very words which delineate the nature and character of the appeal. 2. Secondly, the structure of s 327(1) is that it has two limbs, both of which must be satisfied as elements of the new statutory entitlement. Both of those limbs commence with the word "only". That is the word ordinarily used in formal English, and in statutory English, to denote a necessary condition. I fail to see how s 327(3), which explicates the second limb of the right of appeal in s 327(1), outflanks the first limb of the right of appeal in s 327(1). That first limb, which requires that the appeal be "only in respect of a matter that is appealable under this section", is the raison d'etre of s 327(2). And s 327(2) is explicitly limited to assessments of an approved medical specialist. 3. Thirdly, s 327(3) limits the right of appeal by confining the grounds to those specified. Not lightly should a provision which limits the right created by s 327(1) be elevated to a leading provision which controls the balance of the section. 4. Fourthly, the mandatory words "is to be by way of review of the original medical assessment" in s 328(2) are clear and do not readily admit of a meaning consistent with Mr Sleiman's construction (which, in substance, invites "the original" to be read as "the most recent").

Mr Sleiman's fallback submission and its resolution

1. The difficulties confronting Mr Sleiman's primary submission were raised during oral submissions. But so too was an alternative submission available to him. If, as the respondent maintained: 1. Mr Sleiman's "appeal" purported to invoke a process not known under the legislation, but 2. Mr Sleiman was able to apply to the Appeal Panel to reconsider its earlier decision, then why might not his application, although framed as one which was not available, properly be regarded as an application to reconsider the Appeal Panel's earlier decision? At the very least, should not Mr Sleiman have been given a chance to confirm whether, if the Registrar's Delegate were of the view that there was no jurisdiction for a further appeal, his application should be treated as an application to reconsider? The parties sought and obtained additional time to respond to this possibility.
2. In accordance with directions made at the conclusion of the hearing of the appeal, Mr Sleiman filed a proposed amended notice of appeal and amended summons in the Common Law Division, both of which maintained that the Registrar's Delegate fell into jurisdictional error by rejecting his application and failing to treat it as an application that the Appeal Panel reconsider its 16 June 2017 decision pursuant to s 378.
3. Mr Sleiman emphasised s 354(1) and (3) of the WIM Act, which provided that: "(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. ... (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
4. The first respondent maintained that leave was required to advance the additional ground, but acknowledged that if leave were granted there was no prejudice to which it pointed that could not be cured by costs. The first respondent accepted that the Commission had an obligation to deal with a claim or issue that was "squarely raised", but denied that Mr Sleiman's application did so. It submitted that the Commission and in particular the Registrar's Delegate was entitled to place some reliance on the manner in which the application was framed, and that more needed to have been done in the present case in order for the conclusion to be reached that the application should have been regarded as a reconsideration application.

Conclusion and orders

1. For those reasons, Mr Sleiman's primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar's Delegate's decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by Mr Sleiman is unnecessary, but the Delegate's decision dismissing his application should be quashed and the application remitted for determination in accordance with law.
2. There should be no order as to the parties' costs in this Court. Both sides have enjoyed some success. I also favour the view that there should be no order as to the costs of the hearing before the Associate Judge. There, Mr Sleiman failed on the issues raised. However, the entirety of the litigation in this Court could have been avoided by an application for reconsideration of the Appeal Panel's decision, which is what in substance Mr Sleiman's 2019 application was. Had the point raised in the hearing of this appeal been raised before the Associate Judge, the same result should have obtained. On that basis, there should be no order as to the costs in the Common Law Division, with the intention that the parties' bear their own costs. If any party wishes to be heard further in relation to those costs, application may be made within the time provided in UCPR r 36.16.
3. I propose the following orders:
4. To the extent necessary, grant leave to appeal in accordance with grounds 2 and 4 of the draft amended Notice of Appeal served on 13 September 2021.
5. Dispense with the need to file and serve the notice of appeal.
6. Appeal allowed.
7. Set aside the orders made on 15 February 2021, and in lieu thereof, set aside the decision of the Registrar's Delegate on 18 September 2019 and remit Mr Sleiman's application to the Commission for determination in accordance with law.
8. PAYNE JA: I agree with Leeming JA.

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