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[2025] NSWCA 40
Court of Appeal (NSW)
2025-03-17
Stern JA at [1], Griffiths AJA at [102], Price AJA at [115]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40
Hearing dates: 28 February 2025
Date of orders: 17 March 2025
Decision date: 17 March 2025
Before: Stern JA at [1];
Griffiths AJA at [102];
Price AJA at [115]
Decision: (1) Amended summons filed 14 October 2024 is dismissed.
Catchwords: WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor fabricated evidence or made factual errors resulting in jurisdictional error
WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in an error of law on the face of the record
WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor adopted wrong criteria in NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in jurisdictional error or error of law on the face of the record
WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor had conflict of interest or decision was affected by actual or apprehended bias or he abused his power such that the assessment suffers from jurisdictional error
WORKERS COMPENSATION — medical assessment — medical assessment certificate —decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel — whether limited time to submit application to appeal constituted denial of procedural fairness — whether decision was open to delegate
WORKERS COMPENSATION — medical assessment — certificate of determination — whether certificate of determination tainted by jurisdictional error or error of law on face of the record in decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel
Legislation Cited: Independent Commission against Corruption Act 1988 (NSW), s 8
Personal Injury Commission Act 2020 (NSW), ss 3, 16, 18, 33, 58
Personal Injury Commission Regulation 2020 (NSW), reg 6
Personal Injury Commission Rules 2021, r 108
Privacy and Personal Information Protection Act 1998 (NSW), s 59D
Supreme Court Act 1970 (NSW), ss 51, 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Workers Compensation Act 1987 (NSW), ss 15, 65A, 151H
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 35, 294, 321, 322, 326, 327, 329
Cases Cited: AB v Director of Public Prosecutions [2016] NSWCA 73
Application of the Presumption of Regularity (1974) 48 ALJ 118
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177
Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281
Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175
Bunnings Group Ltd v Hicks [2008] NSWSC 874
Cassell v R (2000) 201 CLR 189; [2000] HCA 8
Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649; [1990] HCA 46
Insurance Australia Group t/as NRMA Insurance v Keen [2021] NSWCA 287
Jones v Registrar Workers Compensation Commission (WCC) [2010] NSWSC 481
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94
Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112
McGovern v Ku-ring-gai Council [2008] NSWCA 209
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Murlan Consulting Pty Ltd v Ku-ring-gai Council (No 4) [2010] NSWLEC 95
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Najjar v Haines (1991) 25 NSWLR 224
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALRJ 464; [2022] HCA 15
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Viscariello v Legal Practitioners Disciplinary Tribunal [2021] SASCFC 18
Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: JA Griffin and John Goldring, Proof of the Due Exercise of Delegated Powers
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (seventh ed, 2022, Thomson Reuters)
Category: Principal judgment
Parties: Plaintiff: Eduardo Checcia Stolzenberg
First Defendant: Workers Compensation Nominal Insurer
Second Defendant: Glenn Capel in his capacity as a Member appointed by the Minister under s 9 of the Personal Injury Commission Act 2020
Fourth Defendant: Nicholas Glozier in his capacity as a Medical Assessor appointed by the President of the Personal Injury Commission under s 33 of the Personal Injury Commission Act 2020
Fifth Defendant: President of the Personal Injury Commission of New South Wales
Sixth Defendant: Hellenic Club Limited
Representation: Counsel:
Plaintiff (self-represented)
D Stiles (First and Sixth Defendants)
Solicitors:
Bartier Perry (First and Sixth Defendants)
Crown Solicitor’s Office (Second, Fourth and Fifth Defendants) (Submitting appearance)
File Number(s): 2024/00319653
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The plaintiff was employed on a casual basis as a bartender at Alpha Restaurant by the Hellenic Club (the sixth defendant). In the course of his employment he suffered from psychological injury precipitated by his treatment by other members of staff at Alpha Restaurant. He made a claim on the basis of permanent impairment seeking lump sum compensation for “psychiatric and psychological disorders” resulting in whole person impairment (WPI) from the injury of 15% (in the sum of $36,700). Liability was initially disputed, but the Workers Compensation Nominal Insurer (the first defendant) withdrew the dispute and the matter was referred to the President of the Personal Injury Commission for subsequent referral to a Medical Assessor, to assess the extent of the plaintiff’s WPI.
The Medical Assessor, Professor Nicholas Glozier, assessed the plaintiff as having a WPI of 6% by a Medical Assessment Certificate (the Medical Assessment). The plaintiff sought to appeal against the Medical Assessment, but a delegate of the President (the Delegate) determined under s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) that the appeal was not to proceed as she was not satisfied a ground was capable of being made out (the Gateway Decision). A Certificate of Determination was subsequently issued under s 294 of the 1998 Act stating that the plaintiff suffers 6% WPI and is not entitled to lump sum compensation (the May Certificate of Determination). The plaintiff sought to challenge, by judicial review, the Medical Assessment, the Gateway Decision and the May Certificate of Determination and asked the Court to quash all three decisions.
Noting that a number of the grounds advanced by the plaintiff were found not to provide any basis for the relief sought, the principal issues before this Court were:
As to the Medical Assessment:
(i) whether Professor Glozier fabricated evidence or made factual errors resulting in jurisdictional error;
(ii) whether Professor Glozier failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), resulting in an error of law on the face of the record;
(iii) whether Professor Glozier adopted the wrong criteria in the Guidelines, resulting in jurisdictional error or error of law on the face of the record;
(iv) whether Professor Glozier had a conflict of interest, or his decision was affected by actual or apprehended bias, or he abused his power, such that the Medical Assessment suffers from jurisdictional error;
As to the Gateway Decision:
(v) whether there was a denial of procedural fairness in the Gateway Decision by reason of the plaintiff having limited time to submit his application to appeal from the Medical Assessment;
(vi) whether the Gateway Decision was open to the Delegate; and
As to the Certificate of Determination:
(vii) whether the May Certificate of Determination was tainted by jurisdictional error or error of law on the face of the record in the Gateway Decision.
Held, granting an extension of time to appeal, but dismissing the appeal:
Per Stern JA (Griffiths AJA agreeing at [102] and Price AJA agreeing at [115]):
As to issue (i):
(1) There is no evidence that Professor Glozier deliberately misrepresented anything that the plaintiff told him or otherwise fabricated evidence: [40].
(2) The plaintiff’s contentions that Professor Glozier made inadvertent factual errors did not meet the threshold to found jurisdictional error, namely that that there was no evidence which could support the conclusions reached by Professor Glozier or that his conclusions were not open to him: [24]-[25], [41]. In any event, the evidence adduced by the plaintiff fell short of showing on the balance of probabilities that Professor Glozier erred as alleged: [58].
Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited.
As to issue (ii):
(3) [1.32] of the Guidelines permits, but does not require, a Medical Assessor to increase the % WPI where a claimant is likely to revert to his or her original degree of impairment if treatment is withdrawn. There was no evidentiary foundation for the plaintiff’s assertion that Professor Glozier should have increased the % WPI and therefore no basis to find that his discretion miscarried in this regard: [59].
As to issue (iii):
(4) The plaintiff’s contention that the wrong criteria were used in the Medical Assessment did not rise above the plaintiff’s contention that Professor Glozier misrepresented the plaintiff’s history and current level of impairment, which was rejected.
(5) The plaintiff’s assertions that Professor Glozier should have assessed his impairment on each scale in the Psychiatric impact rating scale differently disclosed neither error of law on the face of the record nor jurisdictional error: [61].
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86, distinguished.
As to issue (iv):
(6) Conflict of interest was relied upon in support of claims of actual and/or apprehended bias.
(7) Complaints of actual bias should not be made lightly and cogent evidence is required; here, the matters relied upon fell well short of showing any actual bias: [62]-[63].
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16, cited.
(8) None of the evidence relied upon by the plaintiff supported the conclusion that the fair-minded lay observer might think that Professor Glozier might not have brought an impartial mind to his work as Medical Assessor: [82].
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51, cited; Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300, distinguished.
(9) There was no evidence that Professor Glozier used his position as a Medical Assessor to obtain funding for the University of Sydney, and this was not an inference that the Court would draw from the evidence that the University of Sydney received funding from icare. The complaint that Professor Glozier abused his power could not be made out: [83].
As to issue (v):
(10) Nothing the plaintiff pointed to amounted to practical injustice so as to constitute a denial of procedural fairness; he had a reasonable opportunity to be heard for the purposes of the Gateway Decision, and he did not in any event establish materiality: [89]-[90].
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, cited.
As to issue (vi):
(11) The Delegate’s conclusions that there was no arguable contention of actual bias or conflict of interest, or factual error, which amounted to a demonstrable error was one which was open to her: [93].
(12) Where the Medical Assessment on its face disclosed a careful and comprehensive assessment, as here, the Delegate was entitled to conclude that the matters relied upon by the plaintiff, including the supplemental facts in his statement submitted in support of the appeal, did not arguably establish demonstrable error. The Delegate was entitled, in these circumstances, to find that it was not arguable that the errors asserted by the plaintiff were material to the assessment of WPI: [95]-[98].
(13) Any errors in the Delegate’s reasoning were not material: [93], [94] (Griffiths AJA at [114]).
As to issue (viii):
(14) The plaintiff’s application to review the May Certificate of Determination was rejected, as the plaintiff’s contentions did not rise above his complaints about the Medical Assessment and the Gateway Decision: [99].
Per Griffiths AJA *(*Stern JA agreeing at [11] and Price AJA agreeing at [115]:
(15) Additionally, Griffiths AJA offered observations on the presumption of regularity, as referred to at [41] of the Delegate’s reasons. The presumption of regularity, at least in a public law context, is narrower than suggested by the Delegate. The presumption does not operate to confer a presumption of validity as to the administrative decision itself. Rather, it operates with reference to conditions or formalities which precede the ultimate administrative decision. The cases cited by the Delegate provide no support for her statement, demonstrating that she has misunderstood the presumption; despite this, the error is not material having regard to the Delegate’s reasoning overall: [103]-[114].
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649; [1990] HCA 46; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; Viscariello v Legal Practitioners Disciplinary Tribunal [2021] SASCFC 18; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49, cited.
STERN JA: Mr Stolzenberg, the plaintiff in this application for judicial review under s 69 of the Supreme Court Act 1970 (NSW), was employed on a casual basis as a bartender at Alpha Restaurant by the Hellenic Club (the sixth defendant) from September 2019 until 5 February 2020. In around early 2020 he suffered from psychological injury precipitated by his treatment by other members of staff at Alpha Restaurant from around 19 December 2019. He made a claim on the basis of permanent impairment seeking lump sum compensation for “psychiatric and psychological disorders” leading to whole person impairment resulting from the injury (WPI) of 15% (in the sum of $36,700). This was supported by a medical report dated 18 March 2022 that he had obtained from Dr Hooi-Beng (Ben) Teoh, Psychiatrist. It is that claim which is at the heart of these proceedings.
Given that the plaintiff’s injury is psychological, by reason of ss 65A(3) and 151H of the Workers Compensation Act 1987 (NSW) (1987 Act), his entitlement to compensation for permanent impairment (and to “modified common law damages”) depends upon his WPI being assessed as being at least 15%. That assessment must be carried out by an Approved Medical Specialist (a Medical Assessor) who is required to issue a medical assessment certificate (MAC): s 35 of the Workplace Inj**ury Management and Workers Compensation Act 1998 (NSW) (1998 Act), in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) issued by the State Insurance Regulatory Authority (SIRA): s 322(1) of the 1998 Act. The Guidelines include what is described as the “Psychiatric impairment rating scale” (PIRS), which guides an assessment of WPI. A Medical Assessment Certificate is conclusively presumed to be correct as to the degree of WPI: s 326(1) of the 1998 Act.
Whilst liability was initially disputed, on 7 July 2023 the Workers Compensation Nominal Insurer (the Nominal Insurer), the first defendant, withdrew the liability dispute. It should also be noted that the Nominal Insurer had commissioned a report from Dr Tanveer Ahmed, Consultant Psychiatrist, on 6 September 2022 who (like Dr Teoh) assessed the plaintiff’s WPI at 15%.
By consent, the matter was referred to the President of the Personal Injury Commission (the President and the Commission, respectively) for referral to a Medical Assessor pursuant to s 321 of the 1998 Act. This was for assessment of the extent of the plaintiff’s whole person impairment on account of psychiatric and psychological disorders with a deemed date of injury (under s 15(1) of the 1987 Act) of 15 June 2022.
By MAC of 12 October 2023, issued after an assessment by Microsoft Teams on 11 October 2023, the Medical Assessor, Professor Nicholas Glozier, assessed the plaintiff as having a WPI of 6%. This is the first decision that the plaintiff asks this Court to quash. I will refer to it as the Medical Assessment. The plaintiff says that Professor Glozier made a number of factual errors in the Medical Assessment, that these were deliberate falsifications, and that Professor Glozier’s decision was flawed as he was both actually biased and that there was an appearance of bias and conflict of interest by reason of what the plaintiff alleges are financial connections between Professor Glozier and icare, who acts for the Nominal Insurer.
The summons seeking judicial review was filed on 29 August 2024. This sought only that the Medical Assessment and the May Certificate of Determination be quashed for jurisdictional error or error of law. The plaintiff filed an amended summons on 14 October 2024, which sought judicial review also of the Gateway Decision.
Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires that, subject to any extension of time given by the court, proceedings for judicial review must be commenced within three months of the date of the decision. The dates of the decisions the plaintiff seeks to challenge are 12 October 2023 (Medical Assessment), 10 April 2024 (Gateway Decision) and 30 May 2024 (May Certificate of Determination). Whilst the Nominal Insurer identified that the plaintiff needed an extension of time under UCPR, r 59.10, no prejudice was said to flow from the delay. Given the significance of the decision to the plaintiff, that the plaintiff is representing himself and has not had the benefit of legal advice or assistance for the purpose of this application, and the lack of any identified prejudice I would extend time to the extent necessary.
Where, as here, a decision under s 327(4) of the 1998 Act precludes there being a concluded appeal to a Medical Appeal Panel, the Medical Assessment and the Gateway Decision remain justiciable under s 69(3) of the Supreme Court Act notwithstanding the later May Certificate of Determination: Insurance Australia Group t/as NRMA Insurance v Keen [2021] NSWCA 287 (“IAG v Keen”) at [60]-[62] (Leeming JA, Basten JA and Simpson AJA agreeing); see also the analysis in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 (“Ballas”) [102]-[131] (Bell P and Payne JA, Emmett AJA agreeing).
As regards the Gateway Decision and the May Certificate of Determination, moreover, no appeal to the President was available under s 352 of the 1998 Act.
By amended summons filed 14 October 2024 the plaintiff advances a number of grounds for seeking judicial review of the three decisions identified above. These grounds are identified discursively. Below I set out the essence of the plaintiff’s complaints as regards the three decisions challenged.
As to the Medical Assessment, the plaintiff claims that:
Professor Glozier fabricated or misrepresented information in order to deny compensation and to favour icare or EML who donate funds for psychiatric research to the University of Sydney, which in turn employs Professor Glozier. This is claimed to have resulted in jurisdictional error. As advanced in submissions, this ground included a contention that Professor Glozier made factual errors as to the plaintiff’s history, misdescribed the plaintiff’s presentations, system and impairment in the Medical Assessment and misrepresented the duration of his assessment of the plaintiff by Microsoft Teams.
The wrong PIRS scale was applied by Professor Glozier, resulting in an error of law.
Professor Glozier failed to apply [1.32] of the Guidelines, which allows a Medical Assessor to increase the % WPI where a claimant is likely to revert to his or her original degree of impairment if treatment is withdrawn.
Professor Glozier failed to comply with the Guidelines and with the “PIC Guidelines” as regards conflict of interest. It appears that the latter is a reference to the Personal Injury Commission Medical Assessor Code of Conduct (the Code of Conduct) published by the President under s 16 of the PIC Act. This includes a section on Conflicts of Interest. This contention ultimately was explained in the plaintiff’s submissions as one that Professor Glozier had a conflict of interest such that the decision to issue the Medical Assessment was tainted by jurisdictional error being either actual bias, or a lack of procedural fairness by reason of there being actual or apprehended bias.
The Commission failed to uphold s 8 of the Independent Commission against Corruption Act 1988 (NSW) (ICAC Act), which defines corrupt conduct, as the financial relationship between icare, the University of Sydney and Professor Glozier “could adversely affect the honesty or impartial exercise of his official functions”.
The Commission failed to uphold s 59D of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), which defines “an eligible data breach”, because, the plaintiff claims, there were three additional participants on the Microsoft Teams call during his assessment.
Professor Glozier abused his power by using his position as Medical Assessor to receive multi-million-dollar grants from icare through the University of Sydney.
It can immediately be observed that neither ground (5) nor ground (6), even if made out, could disclose jurisdictional error or error of law on the face of the record. As to ground (5), the mere fact that conduct could be characterised as corrupt for the purposes of the ICAC Act would not constitute jurisdictional error tainting the Medical Assessment. As to ground (6), the mere fact of a breach of obligations under the PPIP Act would similarly not constitute jurisdictional error or an error of law on the face of the record. In any event for the reasons set out at [44] below the plaintiff has not established that anyone other than Professor Glozier and the plaintiff were in the Microsoft Teams meeting during the medical assessment of the plaintiff. I will not say anything more about those grounds.
“The answer to the Worker’s complaint lies in the implicit finding of the Medical Panel that the Worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law.”
The plaintiff relied upon his affidavit sworn 4 January 2025 (with annexures) and a bundle of documents comprising 29 numbered documents (one of which, Document 15, included two documents). I will refer to these documents by the Document number given to them by the plaintiff, save that I will divide Document 15 into 15.1 and 15.2. Of these 29 numbered documents, one was rejected as hearsay. The plaintiff also relied upon the statement dated 9 November 2023 that he submitted to the Commission in support of his application to appeal on 13 November 2023.
The defendants objected to some paragraphs of the plaintiff’s affidavit sworn 4 January 2025 and a number of the documents he sought to rely upon on the basis of relevance. In large measure, the defendants’ objections were to evidence that they contended would not establish bias or an appearance of bias on the part of Professor Glozier. During the hearing the Court indicated that we would deal with the objections based upon relevance in our judgment. Below I deal with each of the Defendant’s objections.
As to the plaintiff’s assertion in his affidavit at [11] that icare was exposed by the ABC for having paid hundreds of millions of dollars to “dodgy doctors” and having cherry picked information to deny liability and to Documents 1 and 2 which appear to provide the foundation for this assertion, I would reject this assertion by the plaintiff (being the first two lines and all but the last word of the third line of [11] of the plaintiff’s affidavit) on the basis of relevance and would also reject Documents 1 and 2. Document 1 is a screenshot of extracts from an article posted on the website “sydneytimes.net.au” that relates to icare overpaying doctors in what appeared to be fraudulent claims and to icare having allegedly secretly funded members of the NSW Treasurer’s staff. That does not go to the issues raised by the plaintiff. Document 2 is a screenshot from an article posted on the ABC News website which included reference to the Victorian Ombudsman having told an investigation that she had found that some “agents were doctor shopping and cherry-picking evidence to terminate [workers’] claims”. That does not say anything about icare.
As to material relied upon by the plaintiff relating to professional conduct proceedings involving, and other material relating to, Dr Vickery who examined the plaintiff and reported on 9 April 2020 and whose report was before Professor Glozier, that material, comprising [11] of the plaintiff’s affidavit and Documents 3, 4, 28 and 29, is not relevant and is rejected. Those matters do not bear in any way upon the issues in these proceedings.
As to the plaintiff’s assertion at [19]-[21] of his affidavit that five participants were showing on the Microsoft Teams link during the Medical Assessment, this evidence was relevant given the way the plaintiff framed his grounds.
To the extent that the plaintiff’s affidavit at [22] and [60]-[81] includes some material that is effectively submission, it is read on that basis. Moreover, these paragraphs, together with the attachments to the plaintiff’s affidavit and Documents 11, 12, 13, 14, 15.1, 15.2 and 18 is plainly relevant given how the plaintiff frames his grounds. Attachments 3 and 4 to the plaintiff’s affidavit are similarly relevant on this basis. The plaintiff’s affidavit at [87], however, is rejected as it simply records hearsay accounts of complaints by other patients about Professor Glozier.
As set out above, s 322 of the 1998 Act, which is in Part 7 of Chapter 7, requires that the assessment of WPI be made in accordance with the Guidelines, which include, at [11.11]-[11.20] the PIRS and guidance as to how it is to be used to determine WPI. The PIRS includes six scales, each of which evaluates an area of functional impairment, being: self-care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace; and employability. In each of these scales there are five classes, going from Class 1: no deficit to Class 5: totally impaired. The assessor is then required to identify the median class, which equates to a % range of WPI. Within that range, the aggregate of the scores on each scale determines the precise % WPI. As is apparent, the % WPI is heavily influenced by the median score, such that the selection of, for example, a 2 rather than a 3 on two of the scales may result in a wholly different range for % WPI. That largely explains how it is that Professor Glozier assessed WPI at 6% (with a median class score of 2 and an aggregate of 12) whereas Dr Teoh and Dr Ahmed assessed it as 15% (with a median class score of 3 and an aggregate of 15).
The appointment of Medical Assessors for the purpose of the 1998 Act is dealt with under s 33 of the PIC Act. A Medical Assessor may be appointed by the President, in accordance with the Personal Injury Commission Regulation 2020 (NSW) (the Regulations). Section 65(2)(a) of the PIC Act provides that regulations may make provision for or with respect to the qualifications or criteria for the appointment of medical assessors. Regulation 6 of the Regulations provides:
For the purposes of section 65(2)(a) of the Act, a person is eligible for appointment as a medical assessor if the person is—
(a) a registered health practitioner or a medical practitioner within the meaning of the Health Practitioner Regulation National Law (NSW), but only if the practitioner does not have a condition imposed against the practitioner’s registration as a result of disciplinary proceedings under that Law, and
(b) a member of an Australian or Australasian medical college, faculty or other Australian or Australasian health profession body, and
(c) in the opinion of the President, suitably qualified and has the necessary skills and expertise to exercise the functions of a medical assessor in relation to the Act or the enabling legislation.
Importantly, Medical Assessors are “decision makers” within the meaning of s 32 but are not members of the Commission: s 8 cf s 33 of the PIC Act. Subsection 36(2) provides that: “a decision-maker is not subject to control and direction by the Commission (or a member), the Authority or any Public Service employee with regard to any of the decisions of the decision-maker that affect the interests of the parties to the merit review or medical assessment concerned”. This enshrines a basal principle that decision-makers, including medical assessors, should be free independently to exercise their clinical judgment and expertise when evaluating WPI using the PIRS.
That is further underscored by the terms of the Code of Conduct which is published by the President under s 16 of the PIC Act, presumably as part of the function of exercising “general direction and control over the exercise [by medical assessors] of their functions”: s 16(1)(e). As to independence and conflicts of interest, at [16]-[24] the Code of Conduct requires that medical assessors conduct medical assessments in an impartial manner, avoid actual or potential conflicts of interest, perform their duties independently, and do not allow themselves to be put in a position where their independence may be compromised or perceived to be compromised.
To similar effect, the Workers Compensation Medical Dispute Assessment Guidelines published by SIRA (the Assessment Guidelines) include provisions emphasising that conflicts of interest should be avoided, at [2.16]-[2.22]. At [2.16] the importance of transparency, impartiality and fairness in promoting public confidence is identified. Given the amendment to s 331 of the 1998 Act by the PIC Act (Sch 6.11, [66]-[67]) there is some doubt as to whether these guidelines were applicable to the Medical Assessment, but it is unnecessary to resolve this for the purposes of the plaintiff’s application. I am content to assume that the Assessment Guidelines continued to apply for the purposes of determining the plaintiff’s application for judicial review.
Turning to the plaintiff’s grounds, the complaint that Professor Glozier fabricated information is not made out. The plaintiff bears the burden of proof and there is no evidence that Professor Glozier deliberately misrepresented anything that the plaintiff told him, or otherwise fabricated evidence. The plaintiff sought to support this contention by identifying what he says were misdescriptions and misrepresentations (as considered and rejected below) and tethering these to what he says is material which indicates a conflict of interest on the part of Professor Glozier. This contention fails at the first hurdle because none of the material relied upon by the plaintiff establishes that Professor Glozier had a relevant conflict of interest.
As was elaborated upon in submissions, this ground also included a contention that Professor Glozier made inadvertent factual errors as to the plaintiff’s history, misdescribed the plaintiff’s presentation, symptoms and impairment and misrepresented the duration of his assessment of the plaintiff by Microsoft Teams. As I have already explained, to found jurisdictional error or error of law it is necessary to show either that there was no evidence which could support the conclusions reached by Professor Glozier or that his conclusions were not open to him. The matters relied upon by the plaintiff, both individually and cumulatively, do not come close to meeting these demanding thresholds.
As to such matters, the observations of Hodgson JA in Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 (“Lukacevic*”*) at [78] have resonance. His Honour found that it would be reasonable for an appeal panel not to admit evidence raising a dispute as to the history in a MAC or observations made by a medical assessor “unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support”. Whilst I am not considering the same issue as was before this Court in Lukacevic, the exhortation to consider the probative value of evidence disputing matters in a MAC by reference to its “particularity, plausibility and/or independent support” is equally apt when considering whether the plaintiff has discharged his onus of proving factual errors or misdescriptions in the MAC.
Turning to the matters the plaintiff relies upon, first, the plaintiff asserts that Professor Glozier’s observation that the plaintiff “was able to concentrate well over 60 minutes” is false, and was a lie added to support his assessment, because he (the plaintiff) logged out after 35 minutes. Document 16 tendered by the plaintiff shows that the Microsoft Teams meeting lasted for 70 minutes and 53 seconds. The plaintiff’s complaint is not made good merely by his assertion as to the length of his participation in the call given, in particular, the evidence of the length of the Microsoft Teams meeting.
The plaintiff’s assertion that the Microsoft Teams meeting involved participants other than Professor Glozier and himself and continued after he left the meeting is undermined by the explanation given by Marianne Christmann, Principal Registrar at the Commission in her letter to the plaintiff dated 19 August 2024 in Document 7. Ms Christmann explained that five participants were showing on the plaintiff’s screen because the Commission Dispute Support Officer initiated the meeting and made sure there were no technical issues, then left (but was listed twice on the Microsoft Teams invitation so showed twice on the screen). She further advised that a Commission email is also required for reference purposes and shows as a further participant. On that explanation, which the Court has no reason to doubt, the only active participants in the Microsoft Teams meeting after the Commission Dispute Support Officer left were the plaintiff and Professor Glozier.
The plaintiff’s contention that the wrong criteria were used in the Medical Assessment is premised upon the plaintiff’s contention that Professor Glozier misrepresented the plaintiff’s history and current level of impairment. It thus cannot rise above the complaint, which I have already rejected, that Professor Glozier erred in recording those matters.
Beyond this, the plaintiff’s complaint amounts to nothing more than a series of assertions that Professor Glozier should have assessed his impairment on each scale differently. That discloses neither error of law on the face of the record nor jurisdictional error: cf, eg, Ballas at [94] (Bell P and Payne JA, Emmett AJA agreeing).
To the extent that the plaintiff’s complaint is one of actual bias, more particularly that Professor Glozier fabricated and misrepresented material because he sought to favour the interests of icare, that allegation is wholly unsubstantiated and should be rejected. Such complaints should not be made lightly and cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] (McColl JA, Giles and Tobias JJA agreeing) and the authorities there cited. Even recognising that actual bias is not confined to an intentional state of mind but includes subconscious (or unconscious) bias provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (1997) 149 ALR 281 at 289-290 (Finkelstein J); Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 (Burchett J) and 135 (North J), here, the matters relied upon fall well short of showing any actual bias.
A fanciful or speculative possibility must be put to one side and the reasonable fear of the observer must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 364 (Wilson J); [1986] HCA 39. Moreover, “[i]t is insufficient if a reasonable bystander merely had a vague sense of unease or disquiet”: AB v Director of Public Prosecutions [2016] NSWCA 73 at [21] (Emmett AJA, McColl and Leeming JJA agreeing); see also Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [30] (Bell P).
As to apprehended bias, the question is whether a fair-minded lay observer might reasonably consider that a person might not carry out his or her functions with an impartial and unprejudiced mind to the resolution of the issues arising: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (“Ebner”) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51 at [70] (McHugh J). This entails two steps: first identifying what it is said might lead the decision-maker to decide a case other than on the merits, then articulating the logical connection between the matter and the feared deviation from deciding the case on its merits: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Impartiality and independence can be undermined in different ways: Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 (“Murlan Consulting”) at [44] (Basten JA, Macfarlan JA agreeing). The doctrine of disqualification by the appearance of bias encompasses a number of sometimes overlapping categories including, as is alleged here, where there is a direct or indirect interest in the proceedings, whether pecuniary or otherwise: Webb v The Queen (1994) 181 CLR 41 at 74 (Deane J); [1994] HCA 30. This could include a referee having a significant and substantial financial interest in a company which dealt with one of the litigants before him: Najjar v Haines (1991) 25 NSWLR 224 at 228-229 (Kirby P), 239-240 (Clarke JA), 265-266 (Rogers AJA). By analogy, it could also include a medical assessor having a significant and substantial financial interest in maintaining his or her research funding. A second category of apprehended bias is where there is an association between the decision-maker and a party, as in Murlan Consulting (see also the remitted proceedings Murlan Consulting Pty Ltd v Ku-ring-gai Council (No 4) [2010] NSWLEC 95 at [82] (Pain J)).
Administrative decision-makers are not to be held to same standards as judges: Ebner at [4] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (“Jia”) at [102] (Gleeson CJ and Gummow J) and [180]-[181] (Hayne J). Rather, regard may be had to the statutory context in which the relevant decision-maker acts and to the nature of the decision-maker: Jia at [188] (Hayne J, Gleeson CJ and Gummow J agreeing at [100]) and to the context in which a particular power comes to be exercised: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [7]-[9] (Spigelman CJ) and [71] (Basten JA). Here, that includes that a Medical Assessor appointed under the PIC Act for his expertise has the role, under the 1998 Act, of making assessments using that professional expertise. She or he is involved in evaluative, not judicial, decision-making: at [40] (Leeming JA, Basten JA and Simpson AJA agreeing). Whilst the context of medical assessment is that there is a dispute between a claimant and an insurer, it is no part of a medical assessor’s role to adjudicate a dispute.
The plaintiff here contends that Professor Glozier stood to make financial gain by favouring the interests of icare, including in fabricating and misrepresenting information, in his work as a medical assessor. The plaintiff’s complaints of interest, bias and apprehended bias fall within three broad categories.
First, the plaintiff says that prior to 2021 Professor Glozier worked for icare as an independent medical examiner and “doing talks”. In support of this the plaintiff relies upon Document 7, being the letter dated 19 August 2024 from Ms Christmann responding to a complaint by the plaintiff about his medical assessment by Professor Glozier. Ms Christmann says that Professor Glozier had confirmed that he had not done any workers’ compensation reports for either insurers or workers’ lawyers or for insurers directly since his application and appointment to the Commission in October 2021. Ms Christmann also said that her inquiries had confirmed that Professor Glozier was not an assessor with any providers on icare’s Medicolegal Panel.
Given that the plaintiff was assessed by Professor Glozier in October 2023, I would readily reject the contention that Professor Glozier’s professional activities prior to October 2021 gave rise to conflict of interest, bias and apprehended bias. The fair-minded lay observer, in the context I have already described, would not consider this to pass the “double might” test established by Ebner.
Second, the plaintiff says that Professor Glozier is employed by the University of Sydney which receives “billions of dollars” in funding every year from different sources including from icare. More particularly, he alleges that the Brain and Mind Centre, where he says Professor Glozier works, has received $1.5 million from icare. His contention, although more simply expressed, can be understood as one that the fair-minded lay observer would consider that it is in Professor Glozier’s interest to advance icare’s interest in the Medical Assessments he performs for the Commission because that will make it more likely that icare will give further funding to the University of Sydney and to the Brain and Mind Centre which will, in turn, benefit Professor Glozier as employee.
The plaintiff has clearly established that Professor Glozier works for the University of Sydney and is a member of the Brain and Mind Centre at the University of Sydney. Beyond this, the plaintiff relies a document which he describes as an “[e]xtract from Sydney university 2023 annual report page 77”. This identifies the University of Sydney’s operating revenue as being $3,418.5 million including $692.1 million described as “Research and consultancy activities”. The mere fact that the University of Sydney receives funding from icare, even if that money goes towards psychiatric research, is not something that would meet the “double might” test. Consistent with the analysis at [68] above, the asserted link is too tenuous to give rise to any apprehended bias.
“The original app build and evaluation study was developed in partnership with Beyond Blue with donations from the Movember Foundation. Continued funding for the program has come from SafeWork NSW. Rafael A. Calvo is funded by an Australian Research Council Future Fellowship (FT140100824). Samuel B. Harvey and Richard Bryant are supported by National Health and Medical Research Council (NHMRC) investigator grants (grant numbers 1178666 and 1173921). Mark Deady and Aimee Gayed are supported by funding from the iCare Foundation and NSW Health. Andrew Arena is supported by funding from NSW Health. The funding sources had no role in the study design, data collection and analysis, decision to publish or preparation of the manuscript.”
This explanation of funding for associated with the build and evaluation of the HeadGear app makes no mention of Professor Glozier receiving any funding for his involvement. More particularly, whilst it expressly identifies some of the health professionals involved as being funded by the icare Foundation, it does not suggest that Professor Glozier was so funded. Had he received any funding from the icare Foundation for his involvement, I would have expected this to be mentioned in this explanation of funding. It should also be observed that the involvement of each of the funding sources for the HeadGear app identified in the first document relating to the HeadGear app relied upon by the plaintiff is explained in the second document. The conclusion I would draw is that Professor Glozier was not funded by icare for his involvement in the HeadGear app. I would also find that funding from the icare Foundation was not funding which went generally to the project.
It follows that none of the evidence relied upon by the plaintiff supports the conclusion that Professor Glozier had a conflict of interest or that the fair-minded lay observer might think that he might not bring an impartial mind to his work as Medical Assessor for the Commission. The plaintiff’s contention that the Medical Assessment suffers from jurisdictional error by reason of a lack of procedural fairness should be rejected.
So too must the complaint that Professor Glozier abused his power by using his position as Medical Assessor to receive multi-million dollar grants from icare through the University of Sydney. There is simply no evidence that Professor Glozier in any way used his position as a medical assessor to obtain funding for the University of Sydney. Nor is that an inference that I would draw from the evidence that the University of Sydney received funding from icare.
The present case can readily be distinguished from Murlan Consulting where the Acting Commissioner of the Land and Environment Court (who was one of the relevant decision-makers in the proceedings) was one of three chief investigators on a project which involved collaboration between the university who submitted the grant application for the project and the Ku-ring-gai Council who was one of the parties to the proceedings, and where the evidence disclosed ongoing research collaboration between the Acting Commissioner and the council: [14]-[26] (Basten JA, Macfarlan JA agreeing). In that context Basten JA (with Macfarlan JA agreeing) found that the Commissioner’s research activities “affected his proper role as a Commissioner and the cases on which he could sit”: at [60]. Here there is no evidence of any past or ongoing collaboration between icare, or the icare Foundation, and Professor Glozier.
I would add that, contrary to the plaintiff’s oral submission, there is no evidence that Professor Glozier and icare, and the ARC, have engaged in “a coordinated effort to hide the direct connection from icare to Professor Glozier”. Nor is there evidence that icare is leveraging its connection to the University of Sydney to influence Professor Glozier’s assessment. Rather, on the evidence, there is simply no established connection between icare and Professor Glozier.
The plaintiff’s appeal against the decision of the Medical Assessor was, as set out above, on the grounds that: (1) the Medical Assessment was made on the basis of incorrect criteria, and (2) the Medical Assessment contains a demonstrable error. Those grounds entailed essentially four complaints:
Professor Glozier had a conflict of interest because the plaintiff asserted that he worked “for icare having multiple sources of income coming from them, as an advisor, doing [independent medical assessments] and working researches funded by icare”. This was said to have “heavily influenced” his report.
Professor Glozier misapprehended relevant facts, including: that the plaintiff was depressed because his partner had moved overseas when the plaintiff said that this was a lie included in an earlier report from Dr Vickers (that was before the Medical Assessor); that the plaintiff had said that he was depressed because of an argument with his girlfriend when that was not the case; that the plaintiff had depression in 2011 when this was never diagnosed; that the plaintiff could not work because he lost his driver’s licence when he didn’t need a licence to work and could not drive because this stressed him; that Professor Glozier said he worked a few days a week but he hadn’t been working “for over 3 months now”; and that Professor Glozier observed that he had trimmed hair and an ironed shirt when that was not the case.
The plaintiff was not comfortable with the online assessment and could not talk properly over the camera as he was “scared that depending on what [he] said [he] could end up stuck in a psychiatrist hospital.”
More broadly, the plaintiff identified aspects of his current condition and impairment. By implication, he was in this way asserting that the matters he raised were matters that Professor Glozier had failed to appreciate or in respect of which Professor Glozier had erred or misunderstood him. These matters included: that the plaintiff could not really do the TAFE courses he had enrolled in because he could not really focus; that his reluctance to drive was because of stress; that he no longer can fall back on a career in hospitality because he “can’t stand people”; his difficulty being around other people; his inability to focus; his lack of social life; and his debt and poor credit score.
Under s 327(4) of the 1998 Act, the Delegate had to consider whether she was satisfied that, on the face of the application and any submissions made in support, at least one of the plaintiff’s two grounds of appeal was made out. That role is one of “gatekeeper”, as the analogous role of the Registrar under s 327(4) prior to its amendment effective 1 March 2021 was described by Bell P and Payne JA in Ballas at [58]. The exercise under s 327(4) must be carried out “on the face of the application, and in any submissions made”: Vannini [2018] NSWCA 324 at [19] (Gleeson JA, Macfarlan JA and Barrett AJA agreeing) applied in at [72] (Bell P and Payne JA, Emmett AJA agreeing). It involves an assessment of whether the argument put forward in support of the nominated grounds is arguable, rather than an assessment of the correctness of the argument: at [72] (Bell P and Payne JA, Emmett AJA agreeing). When considering the ground of “demonstrable error” in s 327(4), this requires the delegate to “be satisfied that the would-be appellant has made out a case that error (the error identified) was capable of being demonstrated to the Appeal Panel”: [2008] NSWSC 874 at [74] (Simpson J) cited with approval by Bell P and Payne JA in at [64]-[65].
“[29] Medical Assessors appointed by the Commission are required to adhere to the Personal Injury Commission Medical Assessor Code of Conduct. Clause 16 of this Code of Conduct expects that Medical Assessor[s] conduct medical assessments in an impartial manner and withdraw from the assessment process where they are unable to do so. There does not appear to be any reason why undertaking work for icare would give rise to a conflict of interest in the circumstances of the appellant’s case. It is not unusual for medical practitioners such as Professor Glozier, to have multiple sources of income. On face value, as the Medical Assessor has proceeded with the assessment, it would indicate he did not consider he had any conflict of interest.
…
[31] In relation to ‘apprehended bias’, the test is whether ‘a fair minded lay observer’ might reasonably apprehend that a decision-maker has not brought an impartial mind to the matter they are decided (Johnson v Johnson [2000] HCA 38 at [11]). There is nothing on the face of the MAC or reported comments made by the Medical Assessor to suggest that the Medical Assessor was influenced by any alleged conflict or that there was any bias on behalf of the Medical Assessor.
[32] I therefore do not consider it is arguable that there is an error in this regard.”
Whilst I doubt that much weight could properly be given to Professor Glozier’s decision to proceed with the assessment, and I would not support the Delegate’s assessment that undertaking work for icare would not give rise to a conflict of interest, ultimately I am satisfied that the Delegate’s conclusion that there was no arguable contention of actual bias or conflict of interest so as to amount to a demonstrable error was one which was open to her. The matters relied upon by the plaintiff relied solely upon unsupported vague assertions and did not properly support an arguable contention of actual or apprehended bias (or for that matter conflict of interest). In these circumstances, even if I consider some of the Delegate’s reasoning to be erroneous, that is not a material error of law given the way in which the plaintiff’s assertions were put to the Delegate. In any event I would not quash the Gateway Decision on account of any errors in the Delegate’s analysis. Having regard to my conclusion that there was no actual or apparent bias in any event, there would be no purpose in remitting those questions for reconsideration.
As regard the various “factual disputes” raised by the plaintiff, the Delegate, in summary, found that:
to the extent that the plaintiff’s submissions dealt with things that were said during the consultation there was a presumption of regularity that a Medical Assessor has done what is required of him: at [41]. I disagree that the presumption of regularity which attends administrative action supports the rejection of factual disputes such as those raised by the plaintiff. The Delegate’s reliance upon the judgment of Handley AJA in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] to support that conclusion is misplaced. However, this erroneous reliance upon the presumption of regularity is not a material error having regard to the Delegate’s reasoning overall;
an argument that the Medical Assessor did not record, or did not correctly record, certain matters in the Medical Assessment, or take a history from the plaintiff as to certain matters, is not a ground of appeal capable of being made out and is instead an attempt to cavil with matters of clinical judgment. Matters which were not recorded were likely not recorded because the Medical Assessor did not place any weight on them and the significance of matters raised at the consultation is a matter for the clinical judgment of the Medical Assessor: at [42] and [47];
it is not permissible for the plaintiff to seek to supplement his history with additional facts as a means of demonstrating demonstrable error: at [49]; and
it is not arguable that the Medical Assessor’s inquiry and assessment was limited or incomplete, or that the asserted errors were material to the assessment of permanent impairment: at [50]. As to the question of why the plaintiff was depressed, the Delegate observed that liability was not in dispute so the Medical Assessor was required to accept that this was a work injury. As to the plaintiff’s appearance, the Delegate found that the Medical Assessor was entitled to rely upon his own observations. As to whether the plaintiff had depression in 2011, the Delegate observed that this was a matter for the Medical Assessor on his review of the material and the plaintiff had not in any event explained how this was material. (I would note that the medical records before the Medical Assessor did in any event show that the plaintiff had a history of depressive symptoms in 2011 for which he was prescribed Escitalopram and that the plaintiff had said that “the depression was in [the] context of being isolated”: letter from Dr Kumar dated 7 February 2020).
It follows that this application for judicial review should be dismissed. Quite properly, given the important questions of some public importance raised, the defendants did not seek their costs.
The orders I propose are:
Amended summons filed 14 October 2024 is dismissed.
GRIFFITHS AJA: I agree with Stern JA’s reasons and the order proposed by her Honour.
I wish to add some additional observations regarding the “presumption of regularity”, which the Delegate referred to at [41] of her reasons. The Delegate wrote there:
To the extent that the appellant’s submissions deal with the things that were said during consultation, there is a presumption of regularity that a Medical Assessor has done what is required of him or her when conducting medical assessments (see Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; Jones v Registrar Workers Compensation Commission (WCC) [2010] NSWSC 481 at [50].
There are several problems with this paragraph. First, I do not consider that the presumption of regularity operates in the manner which appears to be suggested by the Delegate as justifying a finding that a medical assessor has done what is required of him or her when conducting medical assessments. The Delegate appears to suggest that a medical assessment (and a certificate to which it relates) is presumptively valid because of a presumption that the medical assessor has done all this is required of him or her in conducting the medical assessment and in providing the related certificate. I consider the presumption of regularity, at least in a public law context, is significantly narrower than that.
As Gaudron J observed in Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671; [1990] HCA 46, the presumption is sometimes expressed as one or other Latin expressions, namely omnia praesumuntur rite et solemniter esse acta (i.e. all acts are presumed to have been done rightly and regularly) or omnia praesumuntur legitime facta donec probetur in contrarium (i.e. all things are presumed to be legitimately done, unless the contrary is proved). Her Honour said that the latter expression is more appropriate in a judicial review context where reasons have been provided for an administrative decision. Her Honour added that the presumption applies to official acts and operates such that “all necessary conditions and formalities have been satisfied until the contrary is proved”.
Secondly, the reference to “conditions and formalities” is significant. In my view, the presumption does not operate to confer a presumption of validity to the administrative decision itself. Rather, it operates with reference to conditions or formalities which precede the ultimate administrative decision. Thus, for example, the presumption operates so that it is presumed that an administrative decision-maker has been properly appointed, subject to evidence to the contrary.
This Court’s decision in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 is a helpful example of how the presumption operates in a public law context. The primary judge had held that the presumption of regularity did not apply to an instrument of delegation authorising the secretary of the Western Lands Commission to execute a document granting permissive occupancy to land the subject of a claim under the Aboriginal Land Rights Act 1983 (NSW).
On appeal, the Court held that the primary judge erred in holding that the maxim was not applicable. McHugh JA (Kirby P agreeing) explained at 164 why the maxim applied:
In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):
“… One of the fundamental maxims of the law is the maxim ‘omnia praesumuntur rite esse acta’. It has many applications … The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.”
The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M’Gahey v Alston (1836) 2 M & W 206 at 211150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
The maxim was applied in a statutory context in this Court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of parking area rates on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim. His Honour said (at 46-47):
“… as the case is one where the opinion required by s 121(1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed … In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote.”
A particular application of the maxim which is relevant to this case is stated in Broom’s Legal Maxims, 10th ed (1939) at 642 as follows:
“… where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium — everything is presumed to be rightly and duly performed until the contrary is shown.”
It is most often invoked in relation to the proper appointment of a person performing the process. Contrary to the appellant’s submissions before the Judge, the presumption of regularity does not confer on a party an entitlement to assume that a decision affecting them has been made in a regular fashion, with the effect that the challenger should be afforded an extension of time to challenge the decision. When it is said that the public has an entitlement to proceed on the basis that an exercise was performed lawfully, nothing more can be taken from that than a member of the public is not obliged to enquire as to that lawfulness before acting in accordance with the decision. R v Halmi, referred to in R v Janceski, addressed the quite different issue of a statutory provision that allows a party to presume the regularity of a signature on an indictment. If anything, the legislature’s provision for such a presumption is an indication that without it, a litigant may be required to make enquiries to ascertain the regularity of the instrument. A similar provision arose in R v Janceski.
Fourthly, different considerations may apply to the application of the maxim in criminal law cases (see generally JA Griffin and John Goldring, Proof of the Due Exercise of Delegated Powers; Application of the Presumption of Regularity (1974) 48 ALJ 118; Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49 at 107 ff per McHugh J and Cassell v R (2000) 201 CLR 189; [2000] HCA 8 at [63] ff per Kirby J).
Fifthly, it is evident that the Delegate has misunderstood the presumption of regularity because the two cases cited by her at [41] provide no support for the Delegate’s statement. The passage in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] per Handley AJA, to which the Delegate referred, is a passage concerning the need on a judicial review to read an administrative decision-maker’s reasons beneficially. As Stern JA correctly points out, this passage does not support the rejection of factual disputes such as those raised by the plaintiff here.
The passage referred to in Jones v Registrar Workers Compensation Commission (WCC) [2010] NSWSC 481 at [50] by the Delegate contains observations by James J that, in a judicial review of a medical assessment certificate where the medical assessor had conducted a clinical examination of the plaintiff and found that “the range of motion in the cervical spine was symmetrical”, a presumption of regularity applied that the medical assessor had performed such tests as required to make that determination. Again, that passage does not support the resolution of a dispute as to what was said during a consultation.
Sixthly, although I consider that while these limitations need to be borne in mind in applying the maxim in an administrative decision-making context, it is also relevant to acknowledge the observations at footnote 317 on page 256 of the leading text, Aronson, Groves and Weeks’ Judicial Review of Administrative Action and Government Liability (seventh ed, 2022, Thomson Reuters), where the learned authors note that “the maxim might be superfluous to a decision-maker’s needs, because applicants for judicial review bear the legal burden of proving all necessary facts in any event”.
Finally, despite the Delegate’s erroneous understanding of the maxim and the limits of its application in a public law context, I respectfully agree with Stern JA that the error is not material having regard to the Delegate’s reasoning overall.
PRICE AJA: I agree with Stern JA and the additional remarks of Griffiths AJA.
**********
Stolzenberg
Workers Compensation Nominal Insurer [2025] NSWCA 40
(2020) 102 NSWLR 783
(1997) 149 ALR 281
(2000) 201 CLR 189
(2000) 205 CLR 337
(2018) 264 CLR 123
(2002) 210 CLR 438
(1990) 170 CLR 649
Consistent with the Medical Assessment, a Certificate of Determination dated 15 November 2023 certifying that the plaintiff did not reach the threshold for lump sum compensation under s 65A(3) of the 1987 Act, signed by Glenn Capel, Division Head of the Workers Compensation Division, was issued under s 294 of the 1998 Act.
By application submitted on 13 November 2023 supported by a statement from the plaintiff dated 9 November 2023 elaborating on his grounds of appeal, the plaintiff sought to appeal against the Medical Assessment on the ground that it was made on the basis of incorrect criteria and/or contained a demonstrable error, both of which are available grounds under ss 327(3)(c) and (d) of the 1998 Act. The Nominal Insurer opposed the appeal. Under s 327(4), such an appeal is not to proceed unless the President (or a delegate: see s 18 of the Personal Injury Commission Act 2020 (NSW) (the PIC Act)) “is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out”. On 10 April 2024 Stephanie Small, a delegate of the President, allowed the plaintiff an extension of time to lodge his appeal but determined, under s 327(4) of the 1998 Act, that the appeal was not to proceed to a Medical Appeal Panel as she was not satisfied that a ground of appeal as specified in ss 327(3)(c) or (d) was capable of being made out. This is the second decision that the plaintiff asks this Court to quash. Having regard to the place of such decision in the statutory scheme, I will refer to this as the Gateway Decision.
By letter of 13 April 2024 the plaintiff requested that the matter be referred again by the President for consideration under s 329 of the 1998 Act. The first defendant opposed that course, and the President did not make any such referral. Instead, by a further certificate signed by Glenn Capel, Division Head of the Workers Compensation Division issued on 30 May 2024 under s 294 of the 1998 Act, the Commission determined that the plaintiff suffers 6% permanent impairment resulting from psychological injury deemed to have happened on 15 June 2022 and has no entitlement to lump sum compensation resulting from that injury. This is the third decision that the plaintiff asks this Court to quash. I will refer to this as the May Certificate of Determination.
The plaintiff’s application should have been issued in the Common Law Division of the Supreme Court rather than in this Court. In light of the seriousness of the allegations made by the plaintiff in his grounds and having regard to his strongly expressed opinion that the matter should be heard by this Court, the proceedings continued in this Court as remitted under s 51(1)(d) of the Supreme Court Act.
Whilst the summons names each of the Nominal Insurer, Mr Capel, Ms Small, Professor Glozier, the President and the Hellenic Club, only the Nominal Insurer and the Hellenic Club took an active role in the proceedings. The other defendants filed submitting appearances, save for the third defendant who was removed by order of the Court of Appeal Registrar on 2 December 2024.
For the reasons set out below, in addition to the additional observations of Griffiths AJA with which I agree, the plaintiff’s contentions that the three decisions identified above are tainted by jurisdictional error or error of law on the face of the record should be rejected. His application for judicial review should be dismissed.
As to the Gateway Decision, the essence of the plaintiff’s complaint is that the Delegate acted beyond authority or was in error of law in not being satisfied that the plaintiff’s grounds of appeal were capable of being made out. The plaintiff also complains that he was denied procedural fairness as he was given only three days to find a lawyer for his appeal against the Medical Assessment.
As for the May Certificate of Determination, the plaintiff complains that:
it was never published as required by s 58 of the PIC Act;
the Commission failed to uphold s 3 of the PIC Act because it failed to encourage early resolution, allowed icare to “doctor shop” and failed to promote public confidence in the decision-making and conduct of its members;
the wrong law was applied due to Professor Glozier having relied upon fabricated information; and
the Commission acted in bad faith by removing the appeal decision from the plaintiff’s files on the portal and refusing to provide it when requested.
As to grounds (1) and (4), these would not provide any basis for the relief sought by the plaintiff, which is that the May Certificate of Determination be quashed and the matter be remitted for fresh determination. Ground (2) is not supported by any evidence that suggests that icare had any say in the Commission’s choice of Medical Assessor. Accordingly, I will not consider these grounds further. As to ground (3), this is wholly dependent upon the plaintiff showing that Professor Glozier relied upon fabricated information so as to amount to jurisdictional error or an error of law on the face of the record.
In most respects the plaintiff did not, in his grounds for seeking judicial review, distinguish between jurisdictional error and error of law on the face of the record. As has been repeatedly observed, this distinction is important: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [19]-[20] (Leeming JA, Gleeson and Payne JJA agreeing) and IAG v Keen at [26] (Leeming JA, Basten JA and Simpson AJA agreeing). It is thus necessary to consider both possibilities as regards most of the plaintiff’s grounds. For the purpose of the latter, and whilst there is some controversy about this: see the observations of Basten JA in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [37] and in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [9], for the purpose of this case I am prepared to assume (without deciding) that the Medical Assessor and Delegate are each a “tribunal”, and that their reasons constitute the “face of the record” under s 69 of the Supreme Court Act.
A further distinction which is critical to a proper understanding of the plaintiff’s grounds is that between an error of law on the face of the record or jurisdictional error, on the one hand, and a factual error on the other. A central plank of the plaintiff’s complaint (leaving aside the questions of fabrication and bias) is that Professor Glozier relied upon erroneous facts and erred in his assessment of WPI. As Leeming JA (Basten JA and Simpson AJA agreeing) held in IAG v Keen at [40], the degree of WPI suffered by a person claiming a lump sum for permanent impairment is “a quintessentially factual issue”.
It may, of course, be jurisdictional error or an error of law to reach a factual conclusion for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] (Hayne, Heydon, Crennan and Kiefel JJ) applied in the context of the Supreme Court’s supervisory jurisdiction under s 69 of the Supreme Court Act in Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [7] (Bell CJ and Meagher JA). Jurisdictional error may also arise where a decision is legally unreasonable because it does not fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [81]-[82] (Nettle and Gordon JJ) referring to Gageler J in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [105]; Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [296] (Bell CJ and Meagher JA); see also Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALRJ 464; [2022] HCA 15 at [42]-[43] (Gordon J) . An error of fact, however, does not itself constitute an error of law or jurisdictional error. As the High Court explained in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [63] (French CJ, Crennan, Bell, Gageler and Keane JJ) as follows:
Attachment 1 to the plaintiff’s affidavit, showing the advertisement for the plaintiff’s former job at Alpha Restaurant, is not relevant to the issues before the Court and is rejected.
The defendants for their part relied upon an affidavit of Gary William Forster affirmed 31 January 2025. This exhibited the documents before Professor Glozier and the Delegate, as well as the Medical Assessment, Gateway Decision and the two Certificates of Determination.
Moreover, even if the plaintiff’s assertion that Professor Glozier erred as to the length of the assessment was accepted, this factual error would fall well short of establishing jurisdictional error in light of the principles discussed above.
Second, the plaintiff says that Professor Glozier recorded that the assistant manager at the Alpha Restaurant put his “finger up” and called him a “c***” whereas the plaintiff asserts that the true position is that his manager said “F*** you and gave me the middle finger in the during service”. This has no bearing on the assessment of WPI and is in any event an insignificant inconsistency.
Third, the plaintiff complains that Professor Glozier noted that Dr Kumar had recorded that the plaintiff had lost his licence “at the time” and therefore could not conduct his mobile wheel repair business, whereas the plaintiff asserts that he could have continued to operate this business by hiring a driver if he had been mentally able to work. This matter was recorded by Professor Glozier under the heading “History relating to the injury”. That this forms part of the history of the plaintiff’s symptoms nearly two years prior to Professor Glozier’s assessment is apparent from the fact that this information derived from a letter dated 26 November 2021 of Dr Kumar, the plaintiff’s treating psychiatrist. It played no part in the evaluation of current WPI, noting that against the PIRS category “travel” Professor Glozier recorded: “Although he lost his licence quite some time ago due to going through a red light, he is actually able to travel as and where he wants to, …”.
Fourth, the plaintiff relies on a series of asserted over or understatements by Professor Glozier as to the extent of his impairment of social life, the extent of his engagement in online courses he had enrolled in at TAFE, his use of computers to make music, his performance of chores and other activities around the house, his ability to live independently, in recording that the plaintiff had no “chronic health conditions” when he has plantar fasciitis (which he says he told Professor Glozier about), as to the extent or enjoyment associated with the plaintiff’s social and recreational activities and as to the extent to which he was working at the time of the assessment.
As to the plaintiff’s engagement with TAFE, under the heading “present symptoms” Professor Glozier recorded that the plaintiff had “tried further online courses and seems to be somewhat unmotivated for this although at times enjoys the content.” He further noted that the plaintiff “was doing a TAFE course but with limited engagement and so eventually ran out of time” and that “[o]ver the past month he has enrolled in another TAFE course for digital estate agency; again he lacks the motivation to do this fully”. In the PIRS Rating Form Professor Glozier recorded that the plaintiff “has lacked some motivation to complete courses but has undertaken them and is now undertaking a further one”. The plaintiff says, however, that he enrolled in but never started TAFE courses and that Professor Glozier lied when he said he had “limited” engagement and that he enjoyed the courses.
In support of this, the plaintiff relies upon Document 18, which looks to be a computer print-out of a number of units of study on a “My Results” webpage for the plaintiff with an entity called “ebs:ontrack”. This shows that the plaintiff withdrew from a unit “Prepare for professional practice in real estate” and as regards 17 other units the Grade was “No start” with a “Date Awarded” of 27 May 2024. The second page of Document 18 is an email from Education Administration Support, TAFE Digital, writing “regarding [the plaintiff’s] enrolment in CERT IV IN REAL ESTATE PRACTICE … at TAFE Digital” and recording that the plaintiff had not submitted any assessments for over six months and needed to submit an assessment within seven days to continue the course. This shows that the plaintiff did not submit any assessments in this course. It does not show that the plaintiff never logged into the digital course at all and is thus not inconsistent with the Medical Assessment. In particular, the email I have just described is consistent with the plaintiff being enrolled on an ongoing basis but not submitting any assessments. Without any explanation to the contrary, the entry “No start” for grades on the results page is also consistent with this, as it could be understood simply as reflecting that no work had been submitted by the plaintiff.
Moreover, as the results page in Document 18 has a “Date Awarded” of 27 May 2024, some seven months after the plaintiff’s assessment by Professor Glozier, it could only relate to the TAFE course that Professor Glozier described the plaintiff as having recently enrolled in. Given this, Document 18 does not support the plaintiff’s assertion that Professor Glozier misdescribed the extent of his engagement in the TAFE course he had previously enrolled in, nor does it show any error in Professor Glozier’s description that he had recently enrolled in a further course but lacked the motivation to do this fully.
The plaintiff’s complaint about Professor Glozier inaccurately recording what he said is also undermined by his statement in support of his appeal before the Commission, which said that he had “enrolled myself on [sic] Tafe 2 times before and could not do it because I could not really focus, even being online”. This suggests that he did at least attempt engagement with the TAFE courses. A similar inference comes from the report of Dr Ahmed in September 2022.
Beyond Document 18, the plaintiff does not provide any evidence to support his account in his affidavit of what he told Professor Glozier. In these circumstances, the plaintiff has not discharged the burden of proving that Professor Glazier made the factual errors alleged.
Moreover, the plaintiff says in his affidavit that “it had been over 3 or 4 years I had not played basketball”, in the context of criticising Professor Glozier’s statement that he had dramatically reduced the frequency of his street basketball games. However, in September 2022 Dr Ahmed recorded that one of the things he was told by the plaintiff as to his “day to day” was that “[h]e liked doing a bit of exercise such as playing basketball” and that he continued to play sport. That suggests that at least in September 2022 the plaintiff was still able to engage in sports including basketball, which somewhat undermines the plaintiff’s assertion that he had not played basketball for “over 3 or4 years”.
It is also apparent that the plaintiff’s complaints to some extent misconstrue what Professor Glozier said in the Medical Assessment. For example, Professor Glozier records that in his spare time the plaintiff “would go to the beach” with his girlfriend. In context, it is clear that this is a description of what the plaintiff did “[p]rior to working at Alpha”. In these circumstances, it is not to the point that the plaintiff did not tell Professor Glozier that “my girlfriend and I go to the beach”. Similarly, the plaintiff says that Professor Glozier knowingly included what the plaintiff describes as “false information” in the earlier report from Dr Vickery about the plaintiff having become distressed because his girlfriend returned overseas. However, that information was recorded in the Medical Assessment under the heading “Report by Dr Vickery … dated 9 April 2020” so did not purport to be anything other than a record of what Dr Vickery had said in his report. In any event, given that causation of the plaintiff’s injury was not in dispute this was not a matter which had any bearing on Professor Glozier’s assessment of WPI.
Fifth, the plaintiff asserts that Professor Glozier lied about his appearance and his symptoms to support his assessment. In particular, the plaintiff says that, contrary to Professor Glozier’s assessment, he was not “very well-kempt with an ironed T-shirt and trimmed hair”. He says he had not had a haircut or shaved for two months prior to the call with Professor Glozier and his T-shirt was not ironed. The general assessment of the plaintiff’s physical appearance, to the extent relevant, was a matter for Professor Glozier applying his expertise. His assessment is neither beyond his authority, nor legally erroneous, irrespective of the matters relied upon by the plaintiff.
Sixth, the plaintiff says that Professor Glozier’s statement that he “has not had any anxiety attacks for many months” is inaccurate and that he told Professor Glozier that he has panic attacks. As to this, against a heading of “Present symptoms”, Professor Glozier recorded in detail a range of matters, including that the plaintiff had “not had any anxiety episodes for at least four months”. The plaintiff’s assertion falls short of what would be required to persuade me that Professor Glozier erred. To some limited extent this is also supported by other material that was before Professor Glozier. As to this, there is no mention of the plaintiff currently suffering from anxiety attacks in Dr Teoh’s report of 18 March 2022 (although he says the plaintiff “reported anxiety symptoms”) or in Dr Ahmed’s report of 6 September 2022, although of course those reports covered an earlier period of time. It is also of some significance that this is not a matter about which the plaintiff complained in his statement in support of his appeal to the Commission.
Having regard to all the matters set out above, considered both individually and cumulatively, the evidence falls short of showing on the balance of probabilities that Professor Glozier erred as alleged. Professor Glozier’s report includes a great deal of detail, both as to matters which reflect impairment and as to those which do not. On its face, it appears to reflect a careful and detailed recitation of information provided. Having regard to this, something more than mere assertion by the plaintiff is required to prove that Professor Glozier has erred in his account of the plaintiff’s account of his symptoms and activities during the assessment on 11 October 2023. Thus, whilst Counsel for the first and sixth defendants quite properly conceded at the hearing that the cumulative effect of these matters, if established as erroneous, may have had an impact upon Professor Glozier’s assessment of WPI, the plaintiff’s assertions of error by Professor Glozier are not made out.
It is also relevant that a Medical Assessor must be someone with medical expertise who is a member of the medical profession. They are thus likely to be someone with expertise in their field who has undertaken work in a number of professional capacities. The fair-minded lay observer would well understand that a Medical Assessor may well, over his or her career, have conducted assessments or undertaken work for insurers or for icare prior to working for the PIC. That would not lead such an observer to doubt the impartiality of a Medical Assessor.
The fair-minded lay observer would also expect that a person with the expertise to be appointed to the role of Medical Assessor may well be involved in research activities for, or be employed or engaged by, academic or other institutions, and would not be surprised to know that such academic institutions may receive research funding from insurers, including from icare which is the NSW government agency that provides insurance and care services. That is not something that the fair-minded lay observer might consider might have an impact upon the assessments reached by the Medical Assessor. She or he would regard it as highly unlikely that a Medical Assessor would consider that the outcome of assessments would influence the future grant of funding to the academic institution that employs or otherwise engages her or him.
The plaintiff also relies upon two screenshots of a media release posted on the University of Sydney website on 11 November 2020, announcing a new partnership between the Brain and Mind Centre at the University and various entities including icare. More particularly, this media release says that three psychiatry fellowships in brain injury for advanced trainees have been established and that these are funded by the icare Foundation (which I would infer is associated in some way with icare) with $1.5 million over three years. There is no suggestion that any of this money is to go to Professor Glozier. The mere fact that Professor Glozier is a member of the Brain and Mind Centre and that icare has funded fellowships for advanced trainees at that centre does not support a finding of apprehended bias.
Similarly, the plaintiff’s reliance upon a number of documents showing that icare has funded the SMART Design for Care research project which is being developed and run by the “brain heart and mind centre, faculty of medicine SYD Uni”, is misplaced. There is nothing to suggest that Professor Glozier himself is the recipient of any of this funding. The asserted involvement of Professor Glozier in the “brain heart and mind centre” (and assuming that this is in fact a reference to the Brain and Mind Centre at the University of Sydney, of which Professor Glozier is a member), which is involved in this project, falls short of establishing apprehended bias.
Third, the plaintiff says that Professor Glozier has himself benefitted from research funding from icare. In this regard, the plaintiff’s contentions must be considered in light of the evidence of Ms Christmann’s letter (referred to above) which records that Professor Glozier has confirmed that “his University of Sydney research team has never received funding from icare for any of their research projects.” Ms Christmann also records that Professor Glozier has also confirmed that “he has authored a significant number of research papers (approximately 80), articles, chapters in medical textbooks and guidance material over the past three (3) years with none of this being funded by icare”. That evidence stands against a conclusion of apprehended bias.
Notwithstanding this, the plaintiff contends that the evidence that he has put before the Court suggests that Professor Glozier has himself benefited from icare funding. In this regard the plaintiff relies upon 2 pages from a document titled “Expert Guidelines: Diagnosis and treatment of post-traumatic stress disorder in emergency serviced workers”, published in March 2024 by the Black Dog Institute and the University of New South Wales in partnership with a number of entities including the University of Sydney. This document identifies that one of the six contributors to the expert guidelines is Professor Glozier and that funding was provided by EML. Whilst EML had had some email correspondence with the plaintiff in the early stage of his claim, as was explained by counsel for the defendants during the hearing before this Court, EML is an entity which sometimes acts as an agent for icare managing claims but which is a separate corporate entity with no corporate relationship to icare. There is nothing to suggest that EML has any interest in whether the plaintiff’s claim for lump sum compensation is allowed or denied. In these circumstances this evidence does not support a finding of apprehended bias.
The plaintiff also relies upon an undated extract from an unidentified document which shows a competing interest statement from Professor Glozier. This states that, over the past five years, Professor Glozier’s employer (presumably the University of Sydney) “has received related research funding” from a number of bodies including “SIRA, TAL, SafeWork NSW, [and the] NSW Dept of Health” but does not suggest that Professor Glozier himself has received any funding from any of these bodies.
Finally, the plaintiff relies upon two documents which relate to the development of a smartphone app called HeadGear aimed to reduce depressive symptoms in workers. The first of these show that the Black Dog Institute partnered with the University of Sydney and EML on this project, and that the icare Foundation and the Australian Research Council Future Fellowship provided funding. It is also apparent that Professor Glozier, together with six other health professionals, were involved in the design, development and testing of the HeadGear app. There is no evidence that Professor Glozier’s involvement was itself funded by the icare Foundation.
The second document relating to this project that the plaintiff relies upon comprises a two-page screenshot from a webpage “pdf.sciencedirectassets.com” showing what is described as a “Journal Pre-proof” of an article to appear in the journal Behaviour Therapy titled “Naturalistic Evaluation of HeadGear: A Smartphone App to Reduce Depressive Symptoms in Workers”. The article was co-authored by Professor Glozier and others (including a number of others who were identified in Document 15.1 as being involved in the design, development and testing of the HeadGear app). The following text appears under the heading “Funding” on page two of Document 15.2:
The Delegate here correctly understood that she was to apply these principles. That is clear from her conclusion at [52], that she was “not satisfied that at least one of the grounds of appeal as specified in section 327(3) is capable of being made out” (see also [5]), and with her conclusions at [32], [36] and [51] as to each of the grounds which were expressed in terms of it not being “arguable” that there was error or that the ground was not capable of being made out.
Dealing first with the plaintiff’s complaint of a denial of procedural fairness, this was premised upon the plaintiff having requested his lawyers to appeal from the Medical Assessment on 1 November 2023 and them notifying him that they would not represent him on 6 November 2023 when his appeal had to be lodged on 9 November 2023. He lodged his appeal on 13 November 2023, but says that he was denied the opportunity to be legally represented. One difficulty for the plaintiff is that he has not put on any evidence to show that he could and would have secured legal representation if he had had additional time. Nor has he identified any material that he could or would have submitted if he had secured legal representation. He made no application to the Commission for an extension of time to secure legal representation, nor sought leave for an extension of time to advance any supplemental submissions in the period between 13 November 2023 and 10 April 2024 when the Gateway Decision was made. He has thus not shown that there was any material denial of procedural fairness: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [31] (Kiefel CJ, Gageler and Keane JJ).
In any event, nothing that the plaintiff points to amounts to practical injustice so as to amount to a denial of procedural fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ). The plaintiff had a reasonable opportunity to be heard for the purposes of the Gateway Decision. The time limit of 28 days for submitting an appeal under s 327(5) of the 1998 Act provides such an opportunity, and as occurred in this case, the President (or a delegate) may extend that period where satisfied that this is justified by special circumstances.
I would also reject the plaintiff’s contention that the Delegate erred in not being satisfied that the plaintiff’s grounds of appeal as to demonstrable error in the form of factual errors, Professor Glozier having a conflict of interest, and him fabricating information in the medical assessment were made out.
The Delegate’s key reasoning in rejecting the contentions of conflict of interest and actual bias was that:
Given the nature of the matters raised before the Delegate (which I have summarised above), the Delegate’s conclusion was clearly open to her. As the Delegate observed, something more than mere assertion is required to establish arguable error on the part of a Medical Assessor where, as here, the Medical Assessment Certificate discloses what on its face is a highly detailed and careful account of the plaintiff’s history and current symptomatology. The Delegate was also entitled to conclude that in any event, the matters relied upon by the plaintiff as errors were not of a nature which arguably would have led to a different assessment as to WPI.
As to the matters which the plaintiff relied upon more as supplemental facts than as errors on the part of the Medical Assessor (summarised at [86(4)] above), where the Medical Assessment on its face discloses both a careful and comprehensive assessment, as here, the Delegate was entitled to conclude that these supplemental facts did not arguably establish demonstrable error. The Medical Assessor was clearly alive to the fact that the plaintiff was unmotivated and had not completed his online courses, that he was intolerant of others and got angry when driving and thus did not like to do so. The Medical Assessor was also clearly aware that the plaintiff sees his friends far less, although noted that one friend came to see him and he had daily contact with his family and continued to live with his partner. The plaintiff in his statement in support of his grounds of appeal said that he could not work more than two days a week, which is consistent with the Medical Assessor’s observation that he was working a “couple of days a week”. The Medical Assessor did not suggest that he could work in hospitality. His debt and credit score did not go to the matters on the PIRS.
The Delegate was in these circumstances entitled to find that it was not arguable that the errors asserted by the plaintiff were material to the assessment of WPI.
As to the plaintiff’s complaints about the assessment having been online the Delegate noted that r 108(2) of the Personal Injury Commission Rules 2021 (NSW) permits medical assessments to be conducted in person, by telephone or audiovisual link, or “by other means determined by the President to be appropriate in the circumstances.” A person can object to a selected procedure by providing written notice and reasons to the President: r 108(3). That did not occur here. Moreover, there was no indication that there were any technical difficulties during the assessment. Whilst the plaintiff made an observation about the assessment only being 35 minutes long in his statement supporting his grounds of appeal, the Delegate found that there was nothing to indicate that Professor Glozier had not carried out a thorough assessment. The Delegate thus found that these matters did not arguably constitute error: at [36]. That conclusion was plainly open to the Delegate.
(2010) 241 CLR 390
(2018) 264 CLR 541
(2013) 249 CLR 332
(2001) 205 CLR 507
(1987) 9 NSWLR 154
(2021) 273 CLR 506
(1991) 25 NSWLR 224
(1997) 192 CLR 69
(1986) 161 CLR 342
(2003) 214 CLR 1
(1997) 81 FCR 71
(1994) 181 CLR 41
(2013) 252 CLR 480
(1942) 66 CLR 535