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Category: Principal judgment

Parties: Westpac Banking Corporation (Plaintiff)
Susie Albertsen (First Defendant)
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 1998 (NSW) (Third Defendant)

Representation: Counsel:
M Robinson SC (Plaintiff)
B G McManamey (First Defendant)
Submitting appearance (Second Defendant)
Submitting appearance (Third Defendant)
Solicitors:
Hall & Wilcox (Plaintiff)
Turner Freeman Lawyers (First Defendant)
Crown Solicitor (Second and Third Defendant)

File Number(s): 2026/18958

Publication restriction: Nil

JUDGMENT

1. By a Second Further Amended Summons dated 22 June 2026 (SFA Summons), the plaintiff (Westpac) seeks judicial review of a decision of a Medical Appeal Panel of the Personal Injury Commission (Appeal Panel) dated 14 October 2025. The first defendant is Ms Albertsen, being the injured worker, the second defendant is the President of the Personal Injury Commission of NSW, and the third defendant is the Appeal Panel (which was constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act)).

2. The Appeal Panel reviewed a medical assessment certificate that had been issued on 3 June 2025 by Dr Ronald Gill, medical assessor (the Medical Assessor and the MAC). Dr Gill had assessed Ms Albertsen’s whole person impairment (WPI) as 19%. The Appeal Panel determined that the MAC should be revoked and a new MAC issued under s 328(5) of the 1998 Act, in which it determined that the WPI was 17%. Thus, Westpac had some success before the Appeal Panel.

3. Westpac seeks judicial review of other aspects of the decision of the Appeal Panel, alleging a series of grounds that relate to two broad issues:

4. that the Appeal Panel erred in failing to receive into evidence, and consider, the report of ProCare Investigations dated 21 May 2025 and related video surveillance (together, the 2025 ProCare Report); and

5. that the Appeal Panel erred in rating Ms Albertsen’s impairment of social and recreational activities under the psychiatric impairment rating scale (PIRS) as Class 3 and not Class 2.

6. Westpac seeks orders that the decision of the Appeal Panel be quashed and the matter remitted to a differently-constituted Medical Appeal Panel for determination according to law.

7. Review of an Appeal Panel decision is only available for jurisdictional error or an error of law on the face of the record. For the reasons set out below, I have concluded that neither type of error has been demonstrated and the SFA Summons should be dismissed with costs.

Background facts

Background in relation to appeal to the Appeal Panel

6. On 1 July 2025, Westpac made an application to appeal to a Medical Appeal Panel under s 327 of the 1998 Act.

7. The appeal was in respect of the MAC that had been issued by the Medical Assessor Dr Gill on 3 June 2025 which had assessed Ms Albertsen’s WPI as 19%. Westpac relied on the following grounds of appeal under s 327(3) of the 1998 Act:

“• availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

• the assessment was made on the basis of incorrect criteria, and

• the MAC contains a demonstrable error.”

8. The Appeal Panel conducted a review of Dr Gill’s medical assessment but limited that review to the grounds of appeal on which the appeal had been brought by Westpac.

Background facts in relation to Ms Albertsen

9. The reasons of the Appeal Panel record that Westpac employed Ms Albertsen as a business relationship manager commencing on 11 November 2021, and that Ms Albertsen last worked for Westpac on 8 February 2023. Due to events that occurred in her workplace between October 2022 and her last day at work, Ms Albertsen suffered a psychological injury.

10. Ms Albertsen claimed compensation from Westpac for permanent impairment resulting from her injury. She relied on a report of psychiatrist Dr Abdal Khan dated 24 April 2024, who assessed her degree of permanent impairment from her injury as 19% WPI. Westpac rejected her claim for compensation, leading to Ms Albertsen initiating proceedings in the Personal Injury Commission (Commission). A delegate of the President of the Commission issued a referral to the Medical Assessor on 6 January 2025 to assess the medical dispute between the parties arising from Ms Albertsen’s claim for compensation. The referral was subsequently amended on 8 January 2025 and again on 25 March 2025.

11. The Medical Assessor examined Ms Albertsen on 16 May 2025 as part of conducting his assessment and issued the MAC on 3 June 2025. The MAC certified that he assessed the degree of permanent impairment resulting from Ms Albertsen’s injury as 19% WPI. The Appeal Panel records in its reasons that the Medical Assessor made that assessment by reference to the criteria of Chapter 11 of the State Insurance Regulatory Authority “NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment” (4th ed, reissued 1 March 2021) (the Guidelines), and specifically, the PIRS scale detailed within cll 11.11 and 11.12 of the Guidelines.

12. The Appeal Panel’s reasons also record that the Medical Assessor relied on various sources of information, including his examination of Ms Albertsen, the history he obtained and the documentation the Commission provided to him, the reports of Dr Khan and of psychiatrist Dr John Roberts (who had been retained by Westpac). The material that the Commission provided to the Medical Assessor also included what the Assessor described as “surveillance materials”, which was a reference to a report that ProCare had prepared for Westpac on 23 July 2024 based on the surveillance of Ms Albertsen on 12 and 29 June 2024 and 6 and 8 July 2024 (the 2024 ProCare Report).

13. In its appeal before the Appeal Panel, Westpac challenged the Medical Assessor’s rating of Ms Albertsen’s impairment in the PIRS categories of “social and recreational activities” and “social functioning”. In respect of each of those categories, the Medical Assessor had rated Ms Albertsen’s impairment as Class 3, which is a “moderate impairment”.

14. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7. The Appeal Panel reasons record that, as a result of that preliminary review, it determined that Ms Albertsen should undergo a further medical examination. That was said to be because the Appeal Panel found that the MAC contained a demonstrable error which the Appeal Panel would need to correct. Medical Assessor Blom, being a member of the Appeal Panel, was appointed to conduct the examination of Ms Albertsen which he then undertook on 30 September 2025.

Decision of the Appeal Panel

15. In relation to the first of the three grounds that Westpac advanced before the Appeal Panel, Westpac sought to rely on material that it contended met the description in s 327(3)(b) of the 1998 Act. Section 327(3)(b) provides:

327 Appeal against medical assessment

…

(3) The grounds for appeal under this section are any of the following grounds—

…

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

16. The nature of the “additional relevant information” Westpac sought to rely on was, as the Appeal Panel recorded in its reasons, first, a report of ProCare investigations provided to Westpac’s solicitors on 21 May 2025, which related to surveillance of Ms Albertsen undertaken on 9, 10 and 16 May 2025 and second, the video footage of that surveillance (defined above as the 2025 ProCare Report). Westpac submitted to the Appeal Panel that this evidence showed Ms Albertsen regularly and actively engaging in social gatherings with different individuals.

17. Westpac submitted to the Appeal Panel that the Medical Assessor had erred by rating Ms Albertsen’s impairment in social and recreational activities and in social functioning as Class 3 rather than Class 2. In support of that submission, Westpac sought to rely on what it contended was the additional relevant information contained within the 2025 ProCare Report.

18. I discuss the reasoning of the Appeal Panel in greater detail below when dealing with the grounds advanced by Westpac in this judicial review application. However, in summary, the reasoning of the Appeal Panel was as follows (in relation to the two broad issues about which Westpac seeks review in this Court).

19. In relation to the first issue, the Appeal Panel determined that the 2025 ProCare Report did not meet the description of “additional relevant information” and further determined that, in any event, it did not meet the description of information that “was not available to, and could not reasonably have been obtained by” Westpac before the medical assessment. Accordingly, the Appeal Panel refused to receive the 2025 ProCare Report into evidence under s 327(3)(b).

20. In relation to the second issue, namely, whether the Medical Assessor erred with respect to his ratings of Ms Albertsen’s impairment in both social and recreational activities and social functioning, the Appeal Panel concluded that the MAC contained a demonstrable error: Decision (“D”) [54]. The Appeal Panel then observed that, because it had found that the MAC contained error, it was required to correct the error, and to do so by requiring Ms Albertsen to be examined again by one of its members, Medical Assessor Blom. After taking that new assessment into account, together with other material, the Appeal Panel determined that a new MAC should be issued under s 328(5) of the 1998 Act (which determined that Mr Albertsen’s WPI was 17%).

Legal framework in relation to judicial review of an appeal panel decision

21. The SFA Summons was handed up after lunch on the day of the hearing and, after hearing submissions from the parties, I granted leave to Westpac to file it in Court, subject to Ms Albertsen’s counsel having an opportunity to respond to the new grounds in writing after the hearing. Ms Albertsen’s counsel then took up that opportunity by filing submissions on 23 June 2026, with Westpac filing submissions in reply on 24 June 2026. In these reasons, the parts of the Grounds that appear in underline reflect the amendments that were included in the SFA Summons handed up on the day of the hearing.

22. It was common ground between the parties that the nature of judicial review in relation to a decision of an Appeal Panel is limited to jurisdictional error or error of law on the face of the record. I gratefully adopt the analysis of Payne JA in Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWSC 377 as to the nature of judicial review in relation to a decision of an Appeal Panel:

“[33] No appeal lay from the Appeal Panel’s decision. This application was commenced in the Common Law Division pursuant to s 69 of the Supreme Court Act 1970 (NSW). Review of the decision is available for jurisdictional error and errors of law on the face of the record. This Court’s jurisdiction to review for jurisdictional error cannot be removed: Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [100], and while the same is not true for non-jurisdictional error of law on the face of the record, there is no privative clause in the WIM Act which was submitted to have that effect (contrast s 176 of the District Court Act 1973 (NSW) and see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]).

[34] As Leeming JA explained in Sleiman:

‘[20] It may assist other litigants invoking this Court’s supervisory jurisdiction to observe the following.

(1) The principal bases of review of administrative decision-making in this Court’s supervisory jurisdiction are jurisdictional error and error of law on the face of the record.

(2) Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v DPP (NSW) [2020] NSWCA 138 at [13]:

“Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case.”

(3) Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because “no satisfactory test of universal application has yet been formulated”: Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]. The absence of novelty in that statement may be seen from a passage in Holdsworth’s History of English Law, first published precisely one century ago, to “the debatable boundary line between law and fact” (see now W Holdsworth, A History of English Law (7th ed, 1956) Vol 1, p 298). Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law.

(4) Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the “record”. The term “record” is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299 -301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62] -[78].’”

Grounds 1-5: rejection of the 2025 ProCare Report

23. As referred to above, the first set of grounds advanced by Westpac in this judicial review application relate to the Appeal Panel declining to receive the 2025 ProCare Report.

Grounds 1-4

24. Westpac made its submissions in relation to Grounds 1-4 together and I take the same approach. These Grounds relate in broad terms to whether – within the meaning of the 1998 Act – the 2025 ProCare Report contained additional relevant information:

“1 The Medical Appeal Panel (‘Appeal Panel’) erred in failing to consider the report of Procare Investigations dated 21 May 2025 and related video surveillance (‘Procare Report’) on the Plaintiffs appeal under section 327(3) of the Workplace Injury management and Workers Compensation Act 1998 (NSW) (‘1998 Act’).

2 The Appeal Panel erred in finding that the Procare Report did not contain additional relevant information that was not available to the Plaintiff and could not reasonably have been obtained by the Plaintiff before the medical assessment the subject of the appeal.

3 The Appeal Panel erred in finding that the information contained in the Procare Report did not add any qualitative information to that contained in an earlier Procare report obtained by the Plaintiff in 2024.

4 The Appeal Panel erred in finding that the Procare Report revealed the Third First Defendant ‘doing the same activity’ as the activity identified in the earlier Procare report.

Particulars of Error

As to grounds 1 to 4 the plaintiff contends the Panel fell into error in the following ways:

(a) Legal unreasonableness – particularly irrationality and illogicality;

(b) Error of law of [sic] the face of the record – namely, a failure to consider the nature and scope of the new evidence;

(c) Error of law of [sic] the face of the record or jurisdictional error in that the panel applied section 327(3)(b) of the 1998 Act incorrectly. It applied the wrong legal test, instead relying on a test of ‘sameness’ (rather than a test based on relevance).”

25. The Appeal Panel expressed the view that “additional relevant information” in s 327(3)(b) is information that is not merely quantitatively different from the material that is already before a Medical Assessor, but information that is qualitatively different: D [46]. The Appeal Panel concluded that the 2025 ProCare Report did not add any qualitative information over and above that contained in the 2024 ProCare Report (the latter being information that was already before the Medical Assessor).

26. In its written submissions in this Court, Westpac set out what it said the surveillance in the 2025 ProCare Report shows versus the surveillance conducted as part of the 2024 ProCare Report. It then made the factual assertion that what is demonstrated in the 2025 ProCare Report is qualitatively different from the 2024 ProCare Report. As such, neither Grounds 1-4 (as formulated before the amendment made during the hearing), nor the written submissions Westpac advanced in support of them, made any attempt to identify a jurisdictional error or error of law on the face of the record in respect of these grounds.

27. Then, in re-formulating these grounds on the day of the hearing, Westpac sought to identify a jurisdictional error or error of law on the face of the record. I deal with each in turn.

28. In relation to particular of error (a) to Grounds 1-4 – namely, legal unreasonableness (irrationality and illogicality) – this particular was not developed at the hearing. As Garling J observed in Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504 at [53], where there is varying evidence and material before an Appeal Panel which needs to be assessed and evaluated by the application of expertise, a ground which raises error in the outcome of an evaluative decision “faces an almost insurmountable hurdle” (cited with approval in Georges v Musico [2025] NSWSC 1085 at [70] (Griffiths AJA), a case concerning the analogous motor accident compensation scheme).

29. That hurdle is not reached here. I reject the contention that the Appeal Panel’s conclusion that the 2025 ProCare Report did not add any qualitative information was legally unreasonable in the way asserted. As set out at [34] below, the Appeal Panel directed itself to whether the 2025 ProCare Report added any qualitative information to that contained in the 2024 ProCare Report. Thus, in my view, properly understood, this ground amounts to an invitation for the Court to undertake a merits review of an evaluative decision with which Westpac disagrees.

30. In relation to particular of error (b) – being a failure to consider the nature and scope of the new evidence (i.e. the 2025 ProCare Report) – I say as follows. The Appeal Panel was reposed with the task under the 1998 Act of determining whether the 2025 ProCare Report contained “additional relevant information”. Westpac does not assert any legal error when the Appeal Panel, in undertaking that task, directed itself to whether the 2025 ProCare Report added any qualitative information to that contained in the 2024 ProCare Report. At the hearing, Senior Counsel for Westpac expressly confirmed this was the correct approach: see State of New South Wales v Ali [2018] NSWSC 1783 at [32].

31. To my mind, the use of the language in this new ground – being an asserted “failure to consider the nature and scope” of the new evidence – bespeaks an impermissible challenge on the merits to the Appeal Panel’s factual conclusion that the nature of the new evidence was not qualitatively different.

32. Even if that is not the case, I reject the contention that the Appeal Panel erred in this way. It is common ground that the Appeal Panel had the 2025 ProCare Report before it (as part of Westpac’s application for that material to be received). In its reasons, the Appeal Panel observed that the instructions Westpac provided in 2024, and again in 2025, were “in substance” the same (namely to determine whether Ms Albertsen was partaking in any activities beyond her current capacity or, expressed another way, to reveal what she is “able to do”). The Appeal Panel then concluded that what the 2025 ProCare Report revealed was Ms Albertsen “doing the same activity” as that captured in the surveillance conducted for the 2024 ProCare Report: D [50]. Thus, the Appeal Panel did consider the “nature and scope” of the new evidence and concluded that it was not qualitatively different: D [50]. I note in this respect that none of the grounds advanced by Westpac (including the newly-formulated ones) involve a challenge to the adequacy of the Appeal Panel’s reasoning.

33. Thus, in my view, properly understood, this ground amounts to an invitation for the Court to entertain what is, in substance, a merits review: see Espana at [53]; see also, in an analogous context, Georges at [70].

34. In relation to particular of error (c) – namely, that the Appeal Panel applied the wrong legal test (being a test of “sameness”) – I reject that contention. To the contrary, the Appeal Panel commenced its analysis by directing itself to whether the 2025 ProCare Report added any qualitative information to that contained in the 2024 ProCare Report: D [46]. The Appeal Panel, after considering various matters, then concluded, in the first sentence of D [50] that “therefore” the 2025 ProCare Report “did not add any qualitative information to that contained in the [2024 ProCare Report]”. As set out above, Senior Counsel for Westpac expressly confirmed that the Appeal Panel was correct in directing itself in this way. The second sentence in D [50] – where the Appeal Panel made a summary remark that, essentially, the 2025 ProCare Report revealed Ms Albertsen “doing the same activity” – was inextricably part of the analysis it had already, correctly, engaged in. That is, considering whether the 2025 ProCare Report added any qualitative information. I therefore reject the contention that that summary remark, or any other aspect of the reasoning, indicates that the Appeal Panel erroneously applied a test of “sameness”.

35. Accordingly, I reject Grounds 1-4.

36. Even if one of Grounds 1-4 had been made out, it would not change the outcome in respect of the Appeal Panel’s rejection of the 2025 ProCare Report. That is because the Appeal Panel rejected the receipt of that Report on an independent basis. Namely, as set out in relation to Ground 5 below, the Appeal Panel concluded, as a factual matter, that the 2025 ProCare Report was information that Westpac “could reasonably, and indeed readily, have obtained before the medical assessment”: D [51]. I have concluded below that the Appeal Panel did not err in so concluding. The 2025 ProCare Report therefore fell outside of s 327(3)(b) on this stand-alone basis (regardless of whether it contained “additional relevant information”). At the hearing, Senior Counsel for Westpac accepted that, if I concluded that Ground 5 was not made out, none of Grounds 1-4 would change the outcome for this reason.

Ground 5

37. Ground 5 is in the following terms:

“5 The Appeal Panel erred in finding that the information contained in the Procare Report is information that the Plaintiff could reasonably and readily have obtained before the medical assessment. The Panel fell into error here in that such reports could be obtained at any time. The Panel’s decision here is legally unreasonable in that it did not consider the contents of the report in making its decision. It is also illogical and irrational to determine that the new report could have been obtained earlier.”

38. As set out at [10] above, a delegate of the President of the Commission initially issued a referral to the Medical Assessor on 6 January 2025 which was subsequently amended on 8 January 2025 and again on 25 March 2025. The surveillance for the 2025 ProCare Report was requested by Westpac on 8 May 2025. The Medical Assessor examined Ms Albertsen on 16 May 2025 and issued the MAC on 3 June 2025.

39. Before the Appeal Panel, Westpac had contended that the relevant date of the “medical assessment appealed against” in s 327(3)(b) was the date of the examination of Ms Albertsen (16 May 2025) – not the date that the MAC was issued (3 June 2025) – and that, accordingly, the new information was not available prior to that examination (as it received the 2025 ProCare Report on 21 May 2025). The Appeal Panel rejected this contention. In doing so, it concluded that whether the relevant date in s 327(3)(b) was the date of the examination, or the date that the MAC was issued, did not matter: D [51]. That is because it reasoned that Westpac could reasonably have organised for the further surveillance to be conducted and reported on before either of those dates, as it was aware from at least 25 March 2025 that the Medical Assessor would be conducting the medical assessment shortly thereafter. In short, Westpac had waited until 8 May 2025 (being a period of about 6 weeks) to request the further surveillance even though it knew on and from 25 March 2025 that a medical assessment was imminent: D [48].

The relevant date in s 327(3)(b) is not the date of the referral for a medical assessment

40. At the hearing in this matter, Westpac raised for the first time a new submission; namely that the relevant date of the “medical assessment appealed against” in s 327(3)(b) was the commencement of the medical assessment “process”, being the date that the referral is made for an assessment to be conducted.

41. This new submission was not reflected in the formulation of Ground 5 in the SFA Summons moved upon by Westpac during the hearing. It was also inconsistent with Westpac’s written submissions in this Court in which it was contended that the relevant date in s 327(3)(b) was the date that Ms Albertsen was examined by Dr Gill (being 16 May 2025).

42. In any event, I deal with the submission. Senior Counsel for Westpac submitted that, upon its proper construction, s 327(3)(b) ought to be read as though the following underlined words are implied:

(3) The grounds for appeal under this section are any of the following grounds—

…

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the commencement of the medical assessment process appealed against).

43. In Taylor v The Owners — Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9, a majority of the High Court, French CJ, Crennan and Bell JJ, held as follows in relation to the proper role of a Court in relation to the task of construing a statutory provision as though it contained additional or omitted words:

[38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”. (footnotes omitted) (emphasis supplied)

44. For the reasons set out below, in my view, not only are the additional words contended for by Westpac “too big, or too much at variance with the language in fact used by the legislature”, they are directly inconsistent with the language and purpose of s 327.

45. The phrase “medical assessment process” as referred to by Westpac in the construction it contends for is not a statutory concept in the 1998 Act. However, it can be accepted for the sake of this argument that the medical assessment process commenced with the initial referral to the Medical Assessor on 6 January 2025 (noting that the referral was subsequently amended on 8 January 2025 and again on 25 March 2025). I assume that the way this argument runs – although it was not developed before me – is that the additional information was not available, or reasonably obtainable, before any of these referral dates because Westpac requested the further surveillance (that led to the 2025 ProCare Report) on 8 May 2025.

46. Given s 327 is conferring an appeal right in respect of a “medical assessment” that is being “appealed against” – which appeal only lies in respect of specified errors (s 327(3)) – it would be an odd construction that one could assert error arising from new information that was either available, or reasonably obtainable, before the date of the medical assessment in respect of which the appeal under s 327 lies, but which was not put before the medical assessor.

47. This construction is made even more unlikely given the phrase “the medical assessment appealed against” in s 327(3)(b) also appears in s 327(5). In s 327(5), the phrase operates to identify the date on which the 28-day appeal period commences. Thus, it is apparent that, in s 327(5), the Legislature intended that the phrase identify a specific point in time from which the 28-day appeal period can be reckoned. At the hearing, Senior Counsel for Westpac accepted that, in s 327(5), the phrase “the medical assessment appealed against” means the date that the medical assessment certificate is issued (here, 3 June 2025). That conclusion must be correct given that the issue of the medical assessment certificate marks the conclusion of the medical assessment process and is the event in relation to which a party may appeal: s 327(1)-(2).

48. In accordance with orthodox principles of statutory construction, that phrase, when used in s 327(5), should ordinarily be given the same meaning in s 327(3)(b). Westpac could not point to any reason why the Legislature could have intended that the same phrase have different meanings within the same provision.

49. In my view, the Legislature must also have intended that this phrase identify a specific point in time when deployed in s 327(3)(b), given it calls for an Appeal Panel to decide whether certain additional material was available or readily obtainable before a particular point. It is to be noted that, in this case, a referral was given initially on 6 January 2025 but was subsequently amended on 8 January 2025 and 25 March 2025. It was not clear as to which of these three dates Westpac submitted was the relevant one for the purposes of s 327(3)(b), but I proceed on the basis it is 6 January 2025, being the original referral. In one sense, it does not matter given Westpac submits that the 2025 ProCare Report was neither available, nor reasonably obtainable, before any of these dates. However, the fact that there can be, as here, multiple referral dates and that the medical assessment process involves various activities occurring on a continuum, only adds to the difficulties with the construction that Westpac contends for.

50. Accordingly, I reject the submission that the underlined words set out at [42] above ought to be implied into s 327(3)(b) such that the relevant date of the “medical assessment appealed against” in that subsection is the commencement of the medical assessment process when a referral (or a subsequent referral) is made.

51. Not only was this argument not advanced before the Appeal Panel, a contrary argument was put (see [53] below). Thus, the Appeal Panel was not called upon to make factual findings as to whether the additional information was reasonably obtainable before 6 January 2025 (or 8 January 2025 or 25 March 2025). In my view, it is not open to Westpac to now contend that the Appeal Panel was either legally unreasonable, or evinced illogicality or irrationality, in relation to its factual conclusions as to the point in time before which the new information was reasonably obtainable by reference to one of those dates. The Appeal Panel did not make any such factual conclusion because the contention was not put.

52. However, I do deal with these contentions regarding legal unreasonableness, and illogicality or irrationality at [59]-[60] below, being the challenge to the conclusions of the Appeal Panel in response to how Westpac did put its case below.

The relevant date in s 327(3)(b) is not 16 May 2025 (being the date of the examination)

53. As set out above, before the Appeal Panel and in its written submissions to this Court, Westpac contended that the relevant date of the “medical assessment appealed against” in s 327(3)(b) was the date of the examination of Ms Albertsen (16 May 2025) and that, accordingly, the new information was not available prior to that examination as Westpac received the 2025 ProCare Report on 21 May 2025.

54. I also reject this contention. A construction whereby the date of the “medical assessment appealed against” in s 327(3)(b) is taken to be the date that an examination of the worker takes place is untenable for the reasons set out at [45]-[49] above. Moreover, it is clear from s 324(1)(c) that such an examination may not necessarily take place. Even if in a particular case an examination does take place, it is common ground that the medical assessment process is not thereby completed (noting that s 324 contemplates that various things may occur as part of such an assessment) and it is common ground that the medical assessment process is only complete once a MAC is issued.

55. As I have rejected this construction, it is not strictly necessary for me to determine Westpac’s additional contentions that the Appeal Panel erred in relation to its factual conclusion that the 2025 ProCare Report was reasonably obtainable before the date of the examination of Ms Albertsen (16 May 2025). However, for the sake of completeness, I address them.

56. In its written submissions, Westpac pointed to the fact that the 2025 ProCare Report was received by it on 21 May 2025. It submitted that the Appeal Panel erred in conflating the process of organising the further surveillance to be conducted by ProCare with the process of obtaining the relevant information. It submitted in this respect that merely requesting surveillance to be carried out does not automatically result in obtaining additional information. It also contended (via the re-formulated Ground 5) that such reports “could be obtained at any time” and contended in oral submissions that the Appeal Panel “have applied some legal test of anyone can get an investigation report any time and therefore we are not allowing this one”.

57. I do not accept that the Appeal Panel proceeded in this way. It may be accepted that where a request for further surveillance is made, it will take time for the surveillance to be undertaken and a report to be written and sent to the client. So much is apparent from the fact that Westpac requested the further surveillance on 8 May 2025 and a report in relation to that surveillance was not produced until 21 May 2025, being about two weeks later.

58. However, this submission ignores the fact that what the Appeal Panel directed itself to, was the separate element in s 327(3)(b); namely, whether the information “could not reasonably have been obtained” before the relevant point. It then made a factual finding that Westpac could “reasonably, indeed readily, have obtained that evidence” before the medical examination on 16 May 2025: D [51]. This was a factual conclusion well open to the Appeal Panel given the material before it. Indeed, it was the obvious factual conclusion.

59. Next, I reject the contention (as set out in the re-formulated Ground 5) that the Appeal Panel’s decision that the 2025 ProCare Report was reasonably obtainable before the medical assessment was legally unreasonable in that the Appeal Panel is said not to have considered the contents of the 2025 ProCare Report in making its decision. For the reasons set out at [32] above, the only inference available is that the Appeal Panel did consider the contents of the 2025 ProCare Report.

60. I also reject the contention (as set out in the re-formulated Ground 5) that it was “illogical and irrational” for the Appeal Panel to determine that the additional information could have been “obtained earlier”. Not only was that conclusion not illogical and irrational, it was the obvious conclusion, in my view. If Westpac had made the request for surveillance shortly after 25 March 2025, and assuming the surveillance and reporting process took (as it ultimately did) about two or so weeks, the further surveillance information and report would have been available in mid-April, well before the medical examination was conducted (on 16 May 2025) and well before the MAC was issued (on 3 June 2025).

61. Finally, at the hearing, Senior Counsel for Westpac also contended that the Appeal Panel erred in two additional ways (in relation to its factual conclusion that Westpac could reasonably have obtained the 2025 ProCare Report before 16 May 2025). First, that it erred in taking into account the date that Westpac gave instructions to ProCare to conduct the further surveillance and second, erred in taking into account whether the instructions that were given were in substance the same as those that had been given in respect of the 2024 ProCare Report. Westpac did not articulate whether the Appeal Panel erred in the sense of taking into account an impermissible consideration or erred as a general matter in terms of the “illogical and irrational” point discussed in the previous paragraph. Either way, there is no error.

62. In relation to the first matter, being the date that Westpac gave instructions to ProCare (8 May 2025), in my view, that is obviously relevant to the question of whether the 2025 ProCare Report could reasonably have been obtained before a particular point. The Appeal Panel noted that Westpac had waited until 8 May 2025 to request the further surveillance material even though it knew on and from 25 March 2025 that a medical assessment was imminent (D [48]), being a delay of about 6 weeks. When the information was sought by Westpac is directly relevant to whether it was reasonably obtainable before a particular point.

63. The second matter Westpac raised is that the Appeal Panel took into account whether the instructions for further surveillance that were given in 2025 were in substance the same as, or for the same purpose as, those given in 2024. Such instructions may well be relevant to the question of whether the additional information being sought was likely to be qualitatively different from the material that was already before the Medical Assessor.

64. Thus, I reject the contention that the Appeal Panel erred when taking into account these two matters when forming its conclusion under s 327(3)(b) of the 1998 Act.

65. Accordingly, I reject Ground 5.

66. At the hearing, Senior Counsel for Westpac withdrew Ground 6.

Grounds 7-11: assessment of impairment of social and recreational activities

67. As referred to above, the second set of grounds advanced by Westpac in this judicial review application relate to a contention that the Appeal Panel erred in rating Ms Albertsen’s impairment of social and recreational activities under PIRS as Class 3 and not Class 2. Grounds 7-11 in the SFA Summons are as follows:

“7 The Appeal Panel erred in rating the Third First Defendant’s impairment of social and recreational activities under the psychiatric impairment rating scale (‘PIRS’) as Class 3 and not Class 2. The error is identified in the grounds that follow.

8 The Appeal Panel erred by assessing the Third First Defendant’s impairment of social and recreational activities under the PIRS by engaging in a comparative analysis of her pre-injury and current social and recreational activities. This approach is not authorised by the PIRS Guidelines that require an objective assessment of the frequency and consistency with which the first defendant engages in social activities at the time of the assessment (PIRS Guidelines at [1.6]). A comparison of the pre-injury situation is not called for here in the Guidelines. Accordingly, the Panel fell into error of law on the face of the record or a constructive failure to exercise its jurisdiction.

9 The Appeal Panel erred by taking into account irrelevant matters that they should not have taken into account by having regard to the Third First Defendant’s pre-injury social and recreational activities when assessing that category under the PIRS. This is a jurisdictional error and/or a constructive failure to exercise its jurisdiction.

10 The Appeal Panel erred in categorising the evidence of the Third First Defendant meeting a neighbour and on occasion friends for coffee as engaging in activity with a “support person” when there was no medical or other evidence to support that finding. This is a no-evidence ground of judicial and the decision is thereby ultra vires.

11 The Appeal Panel erred by failing to consider the content of the Procare Report when assessing the Third First Defendant’s impairment of social and recreational activities under the PIRS as Class 3 and not Class 2. The Panel failed to actively engage with the said report and failed to consider it at all. If it had, the appropriateness of class 3 would have been plain. This is an error of law on the face of the record.”

68. As the Appeal Panel had concluded that it would not receive the 2025 ProCare Report under s 328(3), it considered the s 327(c) and (d) appeal grounds expressly without any reference to that Report: D [53].

69. In relation to Ms Albertsen’s impairment in the PIRS category of social and recreational activities, after analysing the material before it (including the further assessment by Medical Assessor Blom), the Appeal Panel concluded that her impairment was Class 3. In relation to the PIRS category of social functioning, again after analysing the material before it, the Appeal Panel concluded that Ms Albertsen’s impairment was best encapsulated by the examples provided in relation to Class 2 impairment and not Class 3. The Appeal Panel then recorded that the median of Ms Albertsen’s scores remained at three but the total of her scores decreased to 16 which converted to 17% WPI.

70. In its written submissions, the complaint made by Westpac in respect of these Grounds is that the Appeal Panel “placed too much weight” on certain evidence of Ms Albertsen and that “when considered properly” the evidence before the Appeal Panel was “consistent with a class 2 rating for social and recreational activity and not class 3”. This is a challenge on the merits and outside the scope of judicial review.

71. On the day of the hearing, Westpac sought, and received, leave to move on the SFA Summons. The amendments to Grounds 7-11 are reflected in underline at [67] above.

72. It is common ground that Ground 7 is a summary or introductory ground.

73. By Ground 8, the contention is made that the Appeal Panel erred in engaging in a comparison of Ms Albertsen’s current social and recreational activities versus her pre-injury activities or functioning. In oral submissions, Westpac submitted that the Appeal Panel did not undertake a “present-day assessment” and did nothing but undertake the approach of “looking at the past and comparing it to the present”.

74. It was also put that the Appeal Panel fell into an error of law on the face of the record because a comparison of the “pre-injury situation is not called for here in the Guidelines” (and/or that this amounted to a constructive failure to exercise its jurisdiction). It was also contended (via the re-formulated Ground 9) that Ms Albertsen’s pre-injury social and recreational activities were “irrelevant matters” when assessing that category under the PIRS.

75. In oral submissions, the contention was put as high as a proposition that it was impermissible for the Appeal Panel to even consider Ms Albertsen’s “pre-injury situation” as part of the process of assessing a PIRS class rating for an impairment category.

76. Whichever of these various ways that Grounds 8 and 9 are put, I reject them.

77. At the outset, I do not accept Westpac’s submission that the Appeal Panel did nothing but undertake the approach of “looking at the past and comparing it to the present” or that it did not undertake a “present-day assessment”. Westpac places emphasis in this respect on the Appeal Panel’s use of the phrase “when compared to her capacity pre-injury” at D [73]. Reading the reasons as a whole and without an eye attuned for error, in my view, it is apparent that the Appeal Panel did direct itself to the question of Ms Albertsen’s current impairment in relation to social and recreational activities (see D [66]-[73]). In this respect, in its reasons, the Appeal Panel set out the full medical assessment that had been done by Mr Blom, which assessment is replete with references to his assessment of Ms Albertsen’s current functioning. It then stated at D [67] that it accepted and adopted the detail Mr Blom had provided in his report relating to Ms Albertsen’s “present treatment and present symptoms”. While the Appeal Panel later went on to refer to Ms Albertsen’s pre-injury functioning, this was part of the pathway of reasoning as to why it concluded that Ms Albertsen’s current impairment in social and recreational activities was Class 3.

78. Thus, in my view, the Appeal Panel did engage in an assessment of Ms Albertsen’s impairment in the social and recreational category as at the date of assessment, notwithstanding its reference to, and comparison of, her pre-injury functioning in that respect.

79. As set out above, it was contended that an approach whereby, as part of assessing a PIRS class rating, a comparison is made of pre-injury versus current functioning is “not authorised” by the Guidelines. I was not taken to any authority in support of that contention. In this respect, Westpac’s submission that the Guidelines (except for cl 11.10) do not provide that an assessor “must take into account pre-injury functioning” is not to the point. The question is whether it is a prohibited consideration.

80. The task of an assessor – relevantly here, the Appeal Panel – in ascribing a PIRS class in respect of one of the six areas of functional impairment involves a discretion in relation to which “a degree of clinical judgment” must be exercised: Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [93] (Bell P and Payne JA, Emmett AJA agreeing); see also, by analogy, Georges at [40]-[41]. That discretion is unconfined “except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard”: Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 (Mason J); see also Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123 at [68] (Kirk JA, McHugh and Free JJA agreeing).

81. In my view, the dichotomy that Westpac contends for – that the pre-injury functioning of a worker may be taken into account as part of, effectively, a quarantined analysis regarding “causation” but becomes a prohibited consideration when a PIRS class rating is being assessed – is artificial and contrary to the subject matter, scope and purpose of the 1998 Act and the Guidelines made under the Act.

82. First, it is clear from the statutory scheme that a task the Appeal Panel had to undertake was to determine the “degree of permanent impairment of the worker as a result of an injury”: see s 319 (definition of “medical dispute”); ss 323(1), 325(1), 326(1)(a), 327(2), 328(2), 328(5). The guideline-making power is found in s 376(1) of the 1998 Act which expressly provides that guidelines may be issued with respect to “the assessment of the degree of permanent impairment of an injured worker as a result of an injury”. As Leeming JA observed in Insurance Australia Group Ltd t/as NRMA Insurance v Keen (2021) 399 ALR 765; [2021] NSWCA 287 at [40] (a case concerning the motor accident compensation scheme), determining the degree of permanent impairment is “quintessentially [a] factual issue”.

83. Second, and moreover, the Guidelines contain express references to the fact that the pre-injury situation of a worker may be taken into account. Before addressing these instances, I first set out an overview of the relevant parts of the Guidelines.

84. Clause 1.6 of the Guidelines sets out a summary of the key principles of permanent impairment assessment and, in doing so, makes multiple references to pre-existing injuries, conditions or abnormalities. Chapter 11 of the Guidelines (“Psychiatric and psychological disorders”) then lays out “the method for assessing psychiatric impairment” (cl 11.1).

85. Clause 11.2 of the Guidelines provides that “Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”.

86. Clauses 11.4-11.6 deal with ‘Diagnosis”. Clause 11.4 provides, inter alia, that “[t]he impairment rating must be based upon a psychiatric diagnosis…”. Clause 11.6 then provides that:

“It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).” (emphasis added)

87. Clause 11.10, which deals with “Pre-existing impairment”, requires the “assessing psychiatrist [to use] all available information to rate the injured worker’s pre-injury level of functional in each of the areas of function”. It also provides that “[p]re-existing impairment is calculated using the same method for calculating current impairment level”.

88. Clause 11.11 is entitled “Psychiatric impairment rating scale (PIRS)” and provides that “[b]ehavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment”, the third of which is relevant here, being “2. Social and recreational activities”.

89. Then Clause 11.12 provides:

Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.

90. Each of Tables 11.1 to 11.6 deals with one of the six areas of functional impairment, and in each such Table there are “class descriptors” set out (Class 1 through to Class 5, with the latter being the most severe). In this respect, Table 11.6 expressly gives the example of comparing the pre-injury employment situation of the worker and Table 11.4 gives the example of pre-existing relationships of the worker having ended. Further Table 11.8, being the “PIRS rating form” to be completed by an assessor, requires the completion of the following information: “Occupation before injury” and “Marital status before injury”.

91. Third, it is apparent from the matters set out above that the statutory scheme, which includes the Guidelines, expressly confers on trained medical specialists the task of assessing the appropriate PIRS class for an area of impairment, being a task that involves a degree of clinical judgment. The fact that the PIRS (as expressed in the Tables referred to at [90] above), only includes “examples” of activities that may be relevant to the psychiatrist’s task of assigning one class over another, buttresses the conclusion that the task involves a broad and evaluative clinical judgment.

92. In my view, the exercise of such clinical judgment may well involve, in a particular case, an assessor considering the pre-injury situation of a worker. Certainly, in my view, the Court would be slow to infer that a trained medical specialist is prohibited from taking into account certain matters in assigning a PIRS class that, from a clinical perspective, they consider relevant to that task, unless there is a firm foothold in the statutory scheme. In this respect, there is nothing in the 1998 Act or the Guidelines that prohibits an assessor, or here a Medical Panel, having regard to such matters as part of the exercise of that clinical judgment. To the contrary, the textual indicators in the scheme are incompatible with such a conclusion.

93. Fourth, this Court has recognised, as a general matter, that there is a need for restraint in judicial review of a medical assessment, with particular reference to the crucial role of clinical judgment by medical specialists in applying the PIRS and making an evaluation as to which class a person falls into: Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] (Basten AJ); see, by analogy, Georges at [61]-[62].

94. For all of these reasons, the subject-matter, scope and purpose of the 1998 Act and the Guidelines are directly at odds with the proposition that consideration of Ms Albertsen’s pre-injury social and recreational activities (or a comparison of those versus her current activities or functioning) is an impermissible consideration when ascribing a PIRS class rating.

95. Finally, I observe that there are cases in this Court in which an Appeal Panel has taken into account pre-injury functioning of a worker as part of evaluating a PIRS class rating and there was no suggestion that the Appeal Panel legally erred in doing so: see Espana at [40], [87], [91]; Botha v Secretary, NSW Dept of Customer Service [2024] NSWSC 781 at [65] (Stern JA).

96. For all these reasons, I reject Grounds 8 and 9.

97. Dealing now with Ground 10, which involves two aspects.

98. The first is that there was “no evidence” to support the conclusion that the neighbour and friend, who [Ms Albertsen] has coffee with, can be characterised as a “support person”. In its written submissions, Westpac submitted that:

“40 PIRS class rating 3 includes the consideration ‘will not go out without a support person.’ Westpac submits that allocating that class rating to the first defendant was plainly an error as it was inconsistent with the 2024 surveillance evidence, her own account of going out from time to time with friends from the Central Coast and the history of avoidant activity recorded by Dr Simonelli.”

99. The contention that there was “no evidence” supporting a factual conclusion that the neighbour and friend, who she has coffee with, can be characterised as a “support person” is not made out. The Appeal Panel is required to apply its clinical assessment and judgment in formulating an opinion: see generally, Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [58] (Garling J). There was evidence before the Appeal Panel in the form of the surveillance that was reported on in the 2024 ProCare Report that Ms Albertsen has a coffee with the neighbour if she meets him while out walking her dog. The Appeal Panel stated at D [73] that “whilst the respondent walks her dog without prompting, she only has coffee if she meets her neighbour and friend”. Applying its clinical assessment and judgment, a conclusion that the neighbour could be characterised as a “support person” was open to the Appeal Panel.

100. Thus, this first aspect of Ground 10 fails.

101. The second aspect of Ground 10 appears to be that there was “no evidence” to support the conclusion that on occasion Ms Albertsen has coffee with friends and that they each can be characterised as a “support person”. However, the Appeal Panel did not conclude that the other persons that Ms Albertsen may have a coffee with or socialise with from time to time are a “support person” (see D [70]-[71], [73]). Thus, this contention fails.

102. Next, in its written submissions, Westpac places reliance on the “will not go out without a support person” language in the Class 3 row of Table 11.2 of the Guidelines and contends that the Appeal Panel erred (in concluding Ms Albertsen should be classified as Class 3) because there was evidence that she would go out without a support person; namely the friends other than the neighbour. However, it is not the case that a factual conclusion about whether, or the extent to which, a worker needs a support person is some form of bright line that determines whether a person is to be classified as Class 3 as opposed to Class 2. Westpac’s submission in this respect runs counter to the words in cl 11.12 of the Guidelines which provide that the examples of activities in a Table such as 11.2 are “examples only” which are not necessary to be found in each case.

103. It is to misread the Guidelines to require, as Westpac’s submissions appear to suggest, that the Appeal Panel can only proceed by using the examples in the Tables as the sole basis for a rating, or as the minimum basis for a rating: see generally Jenkins at [58], [64], [65]; and, by analogy, Georges at [78] .

104. Accordingly, I reject Ground 10.

105. I interpolate that the Appeal Panel engaged in a similar pathway of reasoning in relation to Ms Albertsen’s impairment in social functioning, by considering and comparing her pre-injury functioning, in relation to which, Westpac achieved success with the Appeal Panel concluding that category should be rated as Class 2 (not Class 3). However, plainly enough, no complaint is made about that.

106. Ground 11 relates to the fact that the 2025 ProCare Report was not considered by the Appeal Panel when assessing Ms Albertsen’s impairment in social and recreational activities. The reason why the Appeal Panel did not “engage with” or consider the 2025 ProCare Report is because it held that it was not receivable by reason of s 328(3) of the 1998 Act: D [52]-[53]. For the reasons set out above, I have concluded that the Appeal Panel did not err in doing so. Given its conclusion that the 2025 ProCare Report was readily obtainable before the relevant date, the Appeal Panel was in fact required under s 328(3) to not receive that Report in relation to Westpac’s appeal on the grounds in s 327(c)-(d). Accordingly, it did not err in this respect.

107. Consequently, Ground 11 fails.

Costs

108. Each party accepted at the hearing that there was no reason why costs ought not follow the event. Accordingly, I will make an order that the plaintiff is to pay the first defendant’s costs.

Conclusion

109. For all these reasons, the Court makes the following orders:

110. The Second Further Amended Summons dated 22 June 2026 is dismissed.

111. The plaintiff is to pay the first defendant’s costs as agreed or assessed.

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