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Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Neader v Trustee for Vestito Unit Trust t/as TS 14 Plus Australia Pty Ltd [2025] NSWSC 866
Ryder v Sundance Bakehouse [2015] NSWSC 526
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216
Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54

Category: Principal judgment

Parties: Ellen Walton (Plaintiff)
State of New South Wales (Hunter New England Local Health District) (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (Third Defendant)

Representation: Counsel:
E G Romaniuk SC (Plaintiff)
J Hart (Defendant)
Submitting Appearances (Second & Third Defendants)
Solicitors:
LHD Lawyers (Plaintiff)
Gair Legal (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2025/486034

Publication restriction: No

JUDGMENT

1. The plaintiff, Ms Ellen Walton, has made an application for judicial review under s 69 of the Supreme Court Act 1970 (NSW), challenging the legality of a decision made on 16 September 2025 by a Medical Appeal Panel (the Panel) convened under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The decision relates to the degree of impairment suffered by the plaintiff because of a work injury.

2. The first defendant is the plaintiff’s employer (insurer), the second and third defendants are the President of the Personal Injury Commission of New South Wales and the Panel, respectively. The second and third defendants have filed submitting appearances. The first defendant has opposed the interference with the Panel’s assessment, submitting that it was correct. I will now refer to the first defendant as the defendant.

3. The source of the dispute essentially comes down to the interpretation and application of s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which provides:

Deduction for previous injury or pre-existing condition or abnormality

(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.

4. The plaintiff, an enrolled nurse, was injured at work on 10 June 2022. As part of the workers compensation process, she was required to have an assessment of her whole person impairment (her WPI).

5. A dispute arose between the plaintiff and the defendant about the level of the plaintiff’s WPI. The dispute was referred to a Medical Assessor, Dr Anderson, who found that the plaintiff’s WPI was 15%.

6. The defendant was not happy with this assessment and lodged an appeal challenging the Medical Assessor’s failure to apply a deduction in respect of a pre-existing condition in the plaintiff’s thoracic spine, which resulted in the matter being referred to the Panel. The Panel allowed the appeal and reduced the assessment to 14%.

7. The reduction to 14% is obviously only a reduction of 1%, however it has significant consequences because unless the plaintiff has a WPI of 15% or more she is not entitled to bring a claim for work injury damages: s 151H of the Workers Compensation Act 1987 (NSW).

8. The plaintiff, naturally disappointed by the reduction down to 14%, filed a summons on 15 December 2025 and an amended summons on 4 March 2026, seeking judicial review of the Panel’s decision. The plaintiff seeks orders in the nature of certiorari to quash the Panel’s decision (and a declaration that the decision is void) and by way of mandamus to remit the matter to a differently constituted panel for determination according to law.

Background

9. The plaintiff injured herself in this way. She slipped on a patient’s urine lying on the floor. As she fell, she struck her left knee on a table alongside the patient’s bed and, in her attempts to remain on her feet, she twisted her body in an effort to grab a part of the bed.

10. The plaintiff needed surgery on her left knee, and this has left her with some scarring. More importantly, for present purposes, the plaintiff has continued to have pain at the level of her thoracic spine.

11. A CT scan of her spine carried out on 11 July 2022, (just about a month after the accident) appeared to show a thoracic kyphosis with a chronic anterior wedge fracture at the T8 level.

12. Although the significance of the Panel’s review was the reduction from 15%, the plaintiff submitted that the constituents of the 15% were important. The 15% originally determined by the Medical Assessor was made up of 7% for the knee, 1% for scarring and 7% for the thoracic spine. The 7% for the spine was itself made up of 5% plus another 2%, the former because the condition fell into the second category of the applicable Diagnostic Related Elements (DRE) for the spine, in this case specifically DRE Thoracic Category II. The 2% was for the activities of daily living.

13. The plaintiff and the defendant had no difficulty with the starting point of 15% or how it was made up. The issue before me is entirely about the 1% difference, owing to the Panel’s 10% reduction to the plaintiff’s WPI in relation to the thoracic spine (from 7% to 6% rounded off).

14. It can be seen from s 323 that a reduction is permissible under subsection (1) and an assumed reduction of 10% where the extent of deduction is costly or difficult to determine is catered for by subsection (2).

15. One background matter about which there was no dispute was the Panel’s finding about some thoracic spine problems the plaintiff suffered in 2020. The Panel concluded:

“48. The evidence regarding a pre-existing condition that could affect the assessment of impairment of the thoracic spine appears to be restricted to the questionnaire [form] completed by Dr Law in October 2020, the report from Ms Faulkner dated 5 November 2020, and the CT scan of the thoracic spine dated 11 July 2022 which identified degenerative changes in that part of the spine.

49. The Appeal Panel does not consider that the material regarding the treatment which Ms Walton underwent for her thoracic spine in late 2020 contributes to the impairment of her thoracic spine. That material is limited to a short and discrete period of no more than two months and some 19 months before she sustained the work injury.

50. Furthermore, Ms Walton was able to work for those 19 months as an enrolled nurse, which is a job that does involve arduous work which can place undue strain upon the spine.”

16. The disputed, and determinative, reasons are as follows:

“44. The appellant does not dispute that Ms Walton fits the category of DRE II for the thoracic spine (5%) with a further 2% for the activities of daily living. The issue which is now necessary for the Appeal Panel to consider and determine is the application of s 323 of the 1998 Act to the assessment of impairment of the thoracic spine.

…

51. However, the Appeal Panel considers that the degenerative changes reported on in the CT scan taken just one month after the work injury contribute to the impairment of the thoracic spine. The report from the CT scan identifies degenerative changes at the site of the injury, namely mild T7/8 facet OA, and not merely widespread degenerative changes throughout the thoracic spine.

52. The Appeal Panel concludes that the degenerative changes found at T7/8 would be the source of some pain and restriction of movement in that part of the spine, and this contributes to the impairment of the thoracic spine.

53. This conclusion is reinforced by the treating specialist, Dr Siu, who considers that facet joint arthropathy seen on the CT scan at T7/8 is a possible cause of the underlying pain complained of by Ms Walton.

54. Although the Appeal Panel concludes that the degenerative changes at and around T8 contribute to the impairment, it is otherwise too difficult and costly to determine any further the contribution of those degenerative changes to the assessment of impairment, and therefore the one-tenth deduction provided for by s 323 (2) of the 1998 Act should be applied. Such a deduction is not at odds with the available evidence.”

Principles

17. A jurisdictional error occurs if an administrative tribunal makes an error of law that causes it to identify the wrong issue or ask itself the wrong question, such that it exceeds the limits of its statutorily conferred authority and the resulting decision is, in law, no decision at all (see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58, and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] and [82]). The plaintiff is entitled to the remedies sought if such an error of law can be shown in the Panel’s approach to resolving the s 323 inquiry.

18. The parties were generally agreed on the appropriate authorities as to the proper construction and application of s 323, both quoting from the decision of Campbell J in Ryder v Sundance Bakehouse [2015] NSWSC 526, and the decisions of Schmidt J in Cole v Wenaline Pty Ltd [2010] NSWSC 78 and Neader v Trustee for Vestito Unit Trust t/as TS 14 Plus Australia Pty Ltd [2025] NSWSC 866.

19. The plaintiff said [45] in Ryder was the correct description of the test to be applied:

“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”

20. The same test, although expressed in different words, had earlier been stated by Schmidt J in Cole, at [29]-[30]:

“… The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”

21. Finally, in Neader, Schmidt AJ, said this at [27]:

“The deduction required by s 323 did not depend on the mere existence of a preexisting condition. It required a consideration of any evidence which established that the arthritic condition contributed to Ms Neader’s level of impairment after the knee replacement. If it did make a contribution to that impairment, an assessment had to be made as to the extent of its contribution, so that a deduction could be arrived at. If it did not there could be no deduction.”

22. The defendant also took me to the decision of Chen J in Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54, where his Honour at [27] referred to another decision of Schmidt J that set out a three-stage test:

“Subsequently, in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 (‘Elcheikh’), Schmidt J summarised the ‘steps’ involved in applying s 323 as follows (at [126]):

• Firstly, what the extent of the resulting impairment is.

• Secondly, whether the pre-existing condition contributed to the impairment.

• Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”

23. The plaintiff submitted the test was perhaps not as “simple” as the three-stage test referred to by Chen J, and that the benchmark test was that expressed by Campbell J in Ryder (as quoted above).

24. There is of course no bar to simplicity especially when explaining to a litigant, and in particular, a losing litigant, why the case has been lost. While I think Schmidt J’s three-part test is correct, and consistent with the authorities, I intend to proceed in accordance with the test as described by Campbell J in Ryder, noting that both parties have no argument with this formulation.

25. Finally, on principles, the defendant may be seen as having suggested there could be a defect in the Panel’s reasoning, but I should not look too closely to find the defect. This submission was derived from the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6:

“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’” (footnotes omitted)

26. The plaintiff responded that the appeal Panel was not only made up of two doctors, but also by a full-time member of the Personal Injury Commission who is a lawyer, rendering the decision open to appropriate scrutiny.

27. I had this exchange with counsel for the defendant:

“HART: Please the Court. As your Honour is aware, for this Court to intervene and as it’s fallen from my friend, it’s not enough for your Honour to be satisfied that there was some factual error made by the appeal Panel. There has to be, as your Honour knows, a jurisdictional error or an error of law of the face of the record. The way that sharpens up in this case is, fundamentally, did the appeal Panel misunderstand it’s function when it applied 323, and for the reasons I’ll come to, our submission is that it didn’t, and there are effectively four parts of the reason that I wish to take your Honour to make good that submission.

HIS HONOUR: Sorry, you’re conceding an error of fact?

HART: No, I’m not conceding an error of fact, but even if your Honour was at that point, it wouldn’t be enough for your Honour to intervene…”

28. In his reliance on Liang I do not think counsel for the defendant was doing any more than emphasising the principle that errors of fact are not generally amenable to judicial review and urging me not create a defect in order to justify intervention.

29. Returning to Campbell J’s test as set out in Ryder, as I read his Honour’s judgment, and mostly adopting his Honour’s words, he asks these questions:

30. Are there other causes of an impairment caused by a work injury?

31. If there is a pre-existing abnormality, then does the pre-existing abnormality make a difference to the outcome in terms of the degree of impairment resulting from the work injury?

32. The difference referred to in the second question must involve the degree of impairment being greater than it otherwise would have been in order to say that a proportion of the impairment is due to the pre-existing abnormality, or as Campbell J put it:

“… the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”

The plaintiff’s case

31. The plaintiff’s summons sets out a series of legal errors said to constitute “jurisdictional errors and errors on the face of the record”:

“The Appeal Panel erred in determining that there be a deduction made to the whole person assessment for the Plaintiff's thoracic spine of one-tenth. The Appeal Panel erred as to the legal test, by error as to construction and interpretation, to be applied under s 323. The Appeal Panel erred in failing to address the legal requirements of s 323 and erred in failing to provide reasons as to the failure to address the legal requirements of s 323. In respect of the deduction applied under s 323 of 10 per cent, the Appeal Panel erred in failing to make findings, and in failing to give reasons, as to the required factual determination as to whether the impairment assessed after the workplace injury is greater by reason of the pre-existing condition (see, for example, Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45]). The Appeal Panel erred by determining a one-tenth deduction under s 323(2) where there was an absence of probative evidence that permitted a finding that the impairment assessed after the workplace injury is greater by reason of the pre-existing condition.”

32. Ultimately, as was revealed by oral and written submissions, the plaintiff’s central complaint is that the test applied by the Panel was incomplete. Specifically, the Panel only determined that the pre-existing spinal degeneration “contribute[d] to the impairment of the thoracic spine”, but only in the sense of a “causal pathway” (in the plaintiff’s words), and did not make the further finding that, but for that pre-existing condition, the degree of permanent impairment resulting from the plaintiff’s workplace injury would not have been as great. In other words, the Panel determined that the condition contributed to the impairment, but did not address how it did so, and thus failed to make the required determination that the impairment was made greater. In turn, it should not have applied the 10% deduction.

33. The plaintiff submitted that the plaintiff’s DRE categorisation is important:

“But what’s the real trigger to point to why the Medical Appeal Panel didn’t understand the test they had to apply, is they don’t go to the DRE guidelines and say because of the pre-existing thoracic injury, this is what the assessment is, and it’s made greater because of the pre-existing thoracic injury, and when - and that’s not a - that’s a task for the Medical Appeal Panel to do, but when your Honour looks at the DRE ratings, because of the way they’re done and they’re a form of evaluative narrative description of categories, it’s very hard on the face of the document to see how a pre-existing condition would have resulted in a higher level of impairment, but as I say, that’s the task that they’re supposed to do and they haven’t done it. In this case, they jumped straight to section 323, and 323(2), the 10% deduction. That’s just not something that they’re permitted to do.”

34. The plaintiff fell within DRE Category II of the Guidelines (MFI 1). Category II states:

“History and examination findings are compatible with a specific injury or illness; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion (dysmetria), or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of motion segment integrity

or

herniated disk at the level and on the side that would be expected from objective clinical findings, but without radicular signs following conservative treatment

or

fractures: (1) less than 25% compression of one vertebral body: (2) posterior element fracture without dislocation that has healed without alteration of motion segment integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement, but without a vertebral body fracture.”

35. The defendant contends that the Panel’s failure to use words like “greater” or “increase” does not mean that the Panel failed to undertake the required fact-finding. Indeed, it is implicit in the Panel’s conclusion that the pre-existing condition “contributes to the impairment”, that the pre-existing condition made a difference to the degree of impairment. The defendant also points to the Panel’s inclusion of passages from Cole and Neader as evidencing their awareness and understanding of the correct test to be applied.

36. Applying the incorrect legal test would be a jurisdictional error (see Craig and Yusuf above). The issue is whether the Panel did in fact err in this way.

Did the Panel apply the correct legal test required by s 323?

37. It is helpful to begin this discussion by repeating the observations made by Chen J in Taane at [45]:

“It is, at this point, worth observing that whether the Appeal Panel committed errors of the kind alleged is determined as a matter of substance. Thus, the fact that a decision-maker correctly states the legal test to be applied does not, of course, mean that it was: it is well recognised that ‘formulaic recitation of a statutory test is neither sufficient nor decisive in determining whether the correct test has in fact been applied’: IAG Ltd t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 at [56] (‘Chahoud’). Further, the fact that a decision-maker fails to refer to the legal test to be applied does not necessarily invalidate the decision if functionally it is apparent that the decision-maker, in fact, applied that test. These statements reflect a broader principle – namely, in determining whether there has been a misapplication of a statutory test, the focus is upon the substance of the reasons, reading them fairly and as a whole: Chahoud at [61]-[63]. …”

38. The Panel’s reasons refer to Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, where the Court of Appeal held that the Panel is obliged to give reasons, but to “fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment” (at [122]). This likely explains why the reasons do not provide an in-depth exposition of the Panel’s process. However, as Schmidt J noted in Cole at [38], although “the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience … all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”

39. I accept, as the plaintiff submits, that “It is one thing to give a ‘beneficial construction’ to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law”: Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47].

40. Ultimately then, I think this application turns on the question of whether the Panel not only took the step of finding a contribution by the pre-existing condition, which it did, but also taking a further step that the contribution made the plaintiff’s WPI greater (or worse) than it otherwise would have been.

41. It is arguable that simply finding a contribution involves finding a worsening of the WPI. Put another way, if there is a contribution, how can it not have an effect. A beneficial effect is hard to contemplate.

42. Adapting Campbell J’s formulation in Ryder, the degree of impairment resulting from the injury must have been greater due to the pre-existing condition. The Panel’s findings are in paragraphs [51]-[54] inclusive. They have been quoted above. And again, I refer to Schmidt J’s decision in Neader at [27]:

“… If it did make a contribution to that impairment, an assessment had to be made as to the extent of its contribution, so that a deduction could be arrived at. If it did not there could be no deduction.”

43. In respect of DRE Category II, the plaintiff submitted:

“If the Medical Appeal Panel decided to exercise its jurisdiction to reach a deduction in the exercise of that jurisdiction, it had to go back to the DRE to make sure that a deduction was justified on the rating scale contained in DRE category [II].

DRE category [II] is an interesting category because it has three different methods of assessing whole person impairment. One method is to look at the degree of, effectively, a crush fracture. One method is to look at herniated discs and matters such as radicular findings. And the other method is to look at more generalised symptoms. So, to do the exercise properly by the Medical Appeal Panel, once they decided that they were going to go down that path, they had to address DRE category [II] to complete the task they were doing.”

44. Examining the plaintiff’s point about the DRE Category II assessment, if the plaintiff fell within Category II (which was accepted) then there needed to be another step to link one of the three parts of Category II to the basis for contribution found by the Panel. No attempt was done to do this and there is an apparent inconsistency between a Category II finding and the Panel’s basis for contribution, namely the degenerative changes at T 7/8.

45. Ultimately, in the Panel’s reasons there is a clear finding that the degenerative arthritis is a source of pain and restricted movement and therefore contributes to the impairment of the thoracic spine. However, there is no attempt to address the issue of whether the degenerative changes made a difference to the outcome of the WPI resulting from the work injury. I acknowledge that the Panel is constituted by a majority of medical experts who are entitled to rely on their expertise in reaching a professional judgment. However, the statutory exercise must still be undertaken. I do not think there is an implicit finding, or in fact any appropriate finding. The issue, as in this case, can be of enormous significance to a plaintiff and, I think, requires proper consideration and a specific statement (finding) of a greater WPI.

46. It follows that the Panel fell into jurisdictional error and the application should succeed. The kind of reasoning which I am criticising was described by Campbell J in Ryder, of course against a different factual background, as follows, at [47]-[48]

“Looking at the Panel’s reasons themselves, the question I have formulated was not expressly posed. I am not satisfied that it is implicit in the reasons given. The whole reasoning process seems to be that there was desiccation shown in an MRI scan, in all likelihood it predated the injury; that was the disc that prolapsed when the injury happened; and therefore it is part and parcel of everything that follows, including the impairment. There was no consideration of whether the physiological change by prolapse of the disc, which occurred on lifting the heavy box of pumpkins, might have occurred anyway in a healthy disc; nor is there any consideration of whether the resulting prolapse was worse because of the pre-existing abnormality; nor is there any express consideration of the means by which the pre-existing abnormality in the disc as found by the Panel contributed causally to the level of impairment, as opposed to the occurrence of the injury. There is a failure to even refer to the different opinion of the parties’ medical referees.

I am conscious that the Panel is by majority a panel of experts constituted to review the assessment of another expert and in doing so the medical practitioners who are members of the Panel are entitled, indeed expected, to draw upon their relevant expertise. However, it seems to me that the considerations to which I have referred demonstrate that the Panel have failed to ask, expressly or by implication, the question the statute poses. They have thereby fallen into jurisdictional error. I am satisfied that this ground of review is made out.”

47. The above conclusion means that the error I have identified is in the application of s 323(1) so that the assumption provided for by subsection (2) cannot be triggered.

48. It is also now not necessary to consider the plaintiff’s other grounds for judicial review. I will make the orders sought by the plaintiff.

Orders

1. A declaration is made pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the third defendant and issued by the second defendant are void and of no effect.
2. The decision of the third defendant given on 16 September 2025 is set aside.
3. The matter is remitted to the second defendant for determination according to law by a differently constituted Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
4. The first defendant is to pay the plaintiff's costs of the proceedings.
5. No order is made as to costs in respect of the second and third defendants.
6. Any variation of the costs orders should be sought within seven days.

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