Allen v Dux Manufacturing Limited [2022] NSWSC 158 (23 February 2022)

Last Updated: 23 February 2022

JUDGMENT

1 HER HONOUR: This is a Judicial Review of a decision of a Medical Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”).

2 The plaintiff is Louis Allen. The first defendant is Dux Manufacturing Limited (“the employer”). The second defendant is a Medical Appeal Panel constituted by Richard Perringnon, Drs John Garvey and Cyril Wong (“the Appeal Panel”). The third defendant is the President of the Personal Injury Commission of NSW.

3 By summons filed 19 October 2021 the plaintiff relevantly seeks:

(1) A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision issued by the second defendant on 19 July 2021 is void and of no effect.

(2) An order setting aside the decision and the statement of reasons for decision issued by the second defendant on 19 July 2021

(3) An order that the matter be remitted to the third defendant to be determined according to law.

4 The employer consented to the relief sought. The second defendant filed a consenting appearance. Nevertheless, the Court needs to be satisfied there is an error from the Appeal Panel in order to grant the relief sought.

Background

5 In an application to resolve a dispute dated 29 June 2020, the plaintiff claimed permanent impairment compensation in respect of impairment resulting from injuries to the left lower extremity, digestive system and TEMSKI scarring. On 20 July 2020 the employer filed a reply.

6 The matter was referred to an approved medical specialist, Dr Richard Crane (“the AMS”), who examined the plaintiff on 9 and 12 October 2020. On 4 November 2020, the AMS issued a medical assessment certificate which certified that the plaintiff suffered from a 4% whole person impairment (“WPI”) resulting from the injury to the left lower extremity. The AMS did not make any deduction pursuant to s 323 of the Workplace Injury Act.

7 On 1 December 2020, the plaintiff lodged an appeal against the medical assessment.

8 The grounds for the appeal raised by the plaintiff were that the assessment was made on the basis of incorrect criteria and the medical assessment certificate contained a demonstrable error. No error is alleged in respect of the assessment of scarring.

9 In support of the appeal, the plaintiff filed submissions which relied upon three grounds. The plaintiff firstly submitted that the AMS, the approved medical specialist (“AMS”) had erred by placing the Appellant in Table 17-38, Class 1. The plaintiff submitted that the findings on physical examination and the history taken by AMS did not meet the criteria for Class 1.

10 The second ground was that the AMS had erred by failing to place the plaintiff in Table 17-38, Class 2. It was submitted that the findings on physical examination of the history taken by the AMS satisfied the criteria for Class 2.

11 The third ground relied upon was that the AMS had erred when he found that the rectal bleeding, presumably from haemorrhoids, did not start until several years ago and was not related to the work incident.

12 On 18 December 2020, the employer lodged a notice of opposition appeal against decision the AMS. That notice was accompanied by written submissions.

13 The delegate of the Registrar was satisfied that a ground of appeal (either the application of incorrect criteria (s 328(c) or demonstrable error (s 328(d)) was capable of being made out and the matter was referred to the Appeal Panel.

14 The Appeal Panel conducted a preliminary review and identified an error by the AMS. The Appeal Panel accepted the plaintiff’s submission that the AMS had erred when he assessed the plaintiff as Class 1 in Table 17-38 and not Class 2. The Appeal Panel also concluded that the AMS had erred with respect to his assessment of the digestive system. Dr Garvey, a member of the Appeal Panel, examined the Plaintiff on 24 May 2021 and provided a report, written to the Appeal Panel. The report was in the form used for a medical assessment certificate. Dr Garvey assessed the impairment of the left lower extremity as 10% whole person impairment (“WPI”) however he made a ½ deduction pursuant to section 323 of the Workplace Injury Act. The digestive system (which he described as haemorrhoids) was assessed at 2% WPI.

15 The Appeal Panel adopted the reasoning and assessment of Dr Garvey in full and did not proffer any other reasoning. The medical assessment certificate of the AMS was revoked and a new certificate was issued which certified a 7% WPI.

16 The plaintiff says that the decision of the Appeal Panel disclosed error of law on the face of the record and jurisdictional error.

17 The distinctions between jurisdictional error and error on the face of the record were recently emphasised by Leeming JA (with whom Gleeson and Payne JJA agreed) in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236, where His Honour stated at [20]:

“[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 Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:

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

(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 the court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299-301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62]- [78].

...”

The Appeal Panel decision

18 It is convenient that I refer to the relevant portions of the decision of the Appeal Panel here.

19 The Appeal Panel, in their statement of reasons dated 19 July 2021, under the heading ‘5. Findings on psychical examination’ stated:

“5. FINDINGS ON PSYCHICAL EXAMINATION

Examination was performed in the standing and lying positions with the compression stocking off the left lower extremity and then right lower extremity The Claimant walked normally, gait was essentially normal.

Inspection: With the compression stocking off, right thigh circumference measured 52 cm and 54 cm on the left. The right calf circumference measured 37 cm and 38 cm on the left. The measurements were repeated for accuracy and found to be consistent. There was no ankle oedema.

There were varicose veins of the medial aspect of the left inner thigh measuring about 1 cm in diameter in a cluster measuring about 10 cm. There were cutaneous venous flares in the lower thigh region. There was no evidence of pigmentation, stasis eczema or ulceration of the left lower extremity, but a healed varicose ulcer at the right medial malleolus.

Palpation: The varicose veins were not tense and there was no guttering of the subcutaneous tissue and no signs of chronic venous hypertension. The peripheral arterial circulation was normal to the dorsalis pedis and posterior tibial arteries palpable on both sides. There was no evidence of residual superficial thrombophlebitis

Abdomen. There were dilated collateral veins below the umbilicus. There was no abdominal or pelvic mass palpable. There were no lymph nodes palpable in either groin.

His waist measurement was 113 cm. There were superficial varicosities There was no sign of recurrence of para umbilical hernia.

Inspection: There was no cachexia, pallor of anaemia or jaundice. There was no clubbing of the fingers or liver palms. There were no spider naevi or stigmata of liver disease on the chest. There were Caput Medusae (distended veins in para umbilical region of abdomen). The abdomen was symmetrical but tumid in shape. There were no abdominal masses visible but discolouration due to peri-umbilical venous engorgement. There was an 8 cm midline longitudinal para umbilical incision but no sinuses or fistulas and the umbilicus was spared. There was a 10 cm appendicectomy scar There was no sign of a recurrent ventral hernia.

Palpation: There were no enlarged lymph glands palpable in the groin regions. The external potential hernia orifices were closed, the femoral pulses and pedal pulses were palpable and the external genitalia were normal. Light palpation was normal. Moderate palpation of the abdomen was normal in all quadrants.. The liver was not palpable, nor was the spleen and the kidneys were not ballottable. There were no abdominal masses palpable.

Rectal inspection revealed to stage 3 haemorrhoids and there were no fissures, fistulas and no blood. The weight was 103.7 kg and height 179.5 cm (BMI 32). I showed the Worker the Bristol Stool Chart: And he chose #1 (Separate hard lumps, like nuts (hard to pass) ).

20 Under the heading ‘7. Summary’ the Appeal Panel stated:

“7. SUMMARY

summary of injuries and diagnoses:

Postphlebitic left lower extremity and varicose veins

Constipation

Haemorrhage

Scarring

• consistency of presentation

This Worker’s history and examination is consistent with his presentation.”

21 Under the heading ‘8. Evaluation of permanent impairment’ the Appeal Panel stated:

8. EVALUATION OF PERMANENT IMPAIRMENT

My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:

a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body par/system: No

b. Have all body parts/systems stabilized/reached maximum medical improvement? Yes

c. If not, please list those injuries not yet stable/at maximum medical improvement: Not applicable

d. If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur? Not applicable

e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Yes

f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality. Left lower extremity with DVT diagnosed in 2006

g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment

22 Under the heading ’10. Reasons for assessment’ the Appeal Panel stated:

10. REASONS FOR ASSESSMENT

a. My opinion and assessment of whole person impairment

12% WPI

In making that assessment I have taken account of the following matters: -

(Listing examination findings, investigation findings and matters of history that have determined the assessment).

The Worker is suffering from oedema of his left lower extremity which is partially controlled by calf length elastic compression stockings. There is 2 cm circumference difference between the left and right lower extremity at the thigh. Diagnostic imaging has shown deep vein thrombosis on multiple images. The Worker has two 3° haemorrhoids on physical examination which merit 1% WPI each. The likely cause of these is constipation and straining, due to pain medication ingested as a result of pain in the left lower limb. The scarring of his para umbilical hernia repair is not rateable, because it is a routine scar of a standard operative procedure (Clause 14.6, page 73). Constipation is not rateable condition (Clause 16.3)

b. An explanation of my calculations (if applicable)

This Worker is a midrange Class 2 impairment of the left lower extremity with collateral veins. He suffers from persistent oedema of a moderate degree controlled by elastic support stockings but complains of dull pain and the leg goes hard if he stands for more than 15-20 minutes, and can only walk for 10-15 minutes because of pain and has to put his leg up to get relief. The range given by the assessing Surgeons is from 4% WPI to 28% WPI (Dr Tomlinson, vascular Surgeon). There is the issue of the previous DVT of the left lower extremity for which a substantial deduction would have to be made because of the documented postphlebitic syndrome by Dr Eric Farmer-May 29, 2006.

I assess 10%% WPI with one half deducted for pre-existing condition of DVT of left lower extremity and 0% WPI for constipation and 2% WPI for haemorrhoids.

c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.

...

[34] The Panel adopts the reasoning and assessment of Medical Assessor Dr Darvey.”

Relevant legislation

23 The relevant provisions of the Workplace Injury Act read:

322 Assessment of impairment

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.

323 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.

...

325 Medical assessment certificate

(1) The medical assessor to whom a medical dispute is referred is to give a certificate (a medical assessment certificate) as to the matters referred for assessment.

(2) A medical assessment certificate is to be in a form approved by the President and is to—

(a) set out details of the matters referred for assessment, and

(b) certify as to the medical assessor’s assessment with respect to those matters, and

(c) set out the medical assessor’s reasons for that assessment, and

(d) set out the facts on which that assessment is based.

...

326 Status of medical assessments

(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—

(a) the degree of permanent impairment of the worker as a result of an injury,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,

(c) the nature and extent of loss of hearing suffered by a worker,

(d) whether impairment is permanent,

(e) whether the degree of permanent impairment is fully ascertainable.

(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.

327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

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

...

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

...

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

...

(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

Grounds of Appeal

24 The summons filed 19 October 2021 sets out the following grounds of Appeal:

(1) The Appeal Panel erred in point of law and made a jurisdictional error when it made a deduction pursuant to section 323 when this was not a matter that had been raised by the parties. (“s 323”)

(2) The Appeal Panel erred in point of law and made a jurisdictional error when it failed to afford the plaintiff procedural fairness by deciding to make a section 323 deduction without hearing from the plaintiff. (“s 323”)

(3) The Appeal Panel erred in point of law and made a jurisdictional error when it failed to give reasons for adopting the assessment of Dr Garvey. (“failure to provide reasons”)

(4) The Appeal Panel erred in point of law and made a jurisdictional error when it failed to consider for itself the assessment of the degree of impairment resulting from the injury as it was required to do. (“failure to conduct a proper assessment”)

(5) The Appeal Panel erred in law and made a jurisdictional error when it excluded the effects of a DVT diagnosed in 2017 from its assessment without considering whether there was a causal connection between the subject injury and the later occurring DVT. (“DVT”)

(6) The Appeal Panel erred in law and made a jurisdictional error when it excluded the DVT diagnosed in 2017 from the assessment when this had not been done by the AMS and had not been a ground of appeal. (“DVT”)

(7) The second defendant erred in law and made a jurisdictional error when it did not afford the Plaintiff procedural fairness when it decided to exclude the DVT diagnosed in 2017 from the assessment without giving the plaintiff an opportunity to be heard. (“Denial of procedural fairness/DVT”)

25 I will group the Judicial Grounds in relation to the topics that they relate to. I will briefly set out the plaintiff’s submissions in relation to these grounds. The employer consented to the orders sought, it did not make any submissions.

Judicial Grounds (1) and (2) – (s 323)

The plaintiff’s submissions

26 The grounds of appeal relied upon by the plaintiff were limited to three matters. The first two matters were a submission that the AMS had erred when applying Table 17-38 of the AMA 5th edition guides. The argument was that the presenting symptoms and examination findings by the AMS satisfy the criteria for Class 2 in the table and not Class 1. The employer had responded by submitting that each of the criteria for Class 1 had in fact been satisfied and that the criteria for Class 2 were not satisfied. With respect to grounds 1 and 2, the only relevant matters were whether the history and examination findings satisfied Class 1 or Class 2.

27 The AMS had not made any deduction pursuant to s 323. None of the grounds raised by the employer argued that there was any error in this aspect of the AMS’ assessment. In its submissions, the employer also did not raise any matter about a deduction pursuant to s 323. It did not make any submission to suggest that the AMS had erred by not making such a deduction.

28 The question of whether there should be a deduction pursuant to s 323 was simply not a matter in issue on the appeal.

29 The role of the Appeal Panel was recently considered by the Court of Appeal in Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304. Basten JA (with whom Leeming and McCallum JJA agreed) said (at [26] and [29]):

“[26] Secondly, s328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the appeal panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the Appellant’s application. On the other hand, it is clear that the appeal panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.

...

[29] It is difficult to find in the statutory provisions support for the club’s analysis. Reading s328(2) and (5) together, it is inevitable that the limited review will, where there are aspects of the assessment which were not challenged, adopt those aspects of the assessment in issuing a further certificate. This reading of the statute was that applied by the primary judge, correctly.”

30 His Honour then went on to consider the decisions in Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 and Roads and Maritime Services v Roger Wilson [2016] NSWSC 1499. In both of those decisions, it had been held that once a medical assessment certificate had been set aside, the Appeal Panel was then required to conduct an assessment in accordance with the Workers Compensation Guidelines and that this meant that the new assessment could consider matters which had not been raised on appeal. His Honour held (at [35]):

“[35] To the extent that these decisions are inconsistent with the statements of principle based upon the statute, set out above, they should not be followed. The appeal panel is correct in the present case to address the subject matter of the appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so, it neither purported to re-assess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”

31 In this current Judicial Review, a deduction pursuant to s 323 was not the subject of the appeal and accordingly the Appeal Panel erred when it reconsidered that element of the assessment.

32 In any event, the Appeal Panel did not give notice of any intention to consider whether there was a s 323 deduction and the plaintiff was denied an opportunity to provide evidence and to be heard on a matter which was not the subject of the appeal.

Resolution

33 Once an error was found by the Appeal Panel, it was entitled to conduct the assessment in accordance with the Workers Compensation Guidelines. However, the Appeal Panel was not entitled to raise a new matter that was not dealt with by the AMS nor raised in either parties submissions to the Appeal Panel. In my view the Appeal Panel, in adopting Dr Garvey’s reasonings in relation to s 323, made a jurisdictional error as it failed to properly exercise the powers conferred in the Workplace Injury Act. The decision of the Appeal Panel should be quashed.

Judicial Grounds (3)-(4) – Failure to provide proper reasons and failure to conduct a proper assessment

The plaintiff’s submissions

34 The Appeal Panel resolved to have the plaintiff examined by one its members, medical assessor Dr Garvey, the Appeal Panel Tribunal Member (“APTM”)). Dr Garvey’s report is reproduced at [33] of the Appeal Panel’s decision. Dr Garvey set out the findings of the AMS, a history that he took from the plaintiff, findings on physical examination and a summary of special investigations. It is not clear why Dr Garvey set out the contents of the medical assessment certificate or the special investigations as they were all matters which were already in the material before the Appeal Panel. Dr Garvey set out his assessment of WPI.

35 Having received the report from the AMS, the Appeal Panel did not then proceed to consider that report as part of the evidence before it. Rather, the Appeal Panel merely stated that it adopted the reasoning and assessment of medical assessor APTM (at [34]).

36 The task for the Appeal Panel, having revoked the medical assessment certificate, was to then consider what was the correct assessment but limited to correcting the errors which had been identified in the grounds raised by the parties. This task required the panel to consider all of the evidence including the evidence of the plaintiff contained in the Application to Resolve a Dispute and all of the medical opinions. Dr Garvey’s conclusions were inconsistent with some of the opinions of the other medical specialists. What was required of the Appeal Panel was to analyse the opinions and to explain why it had reached a particular conclusion.

37 The Appeal Panel had to conclude for itself what the correct assessment was. If it had carried out that task, it would have appreciated that there were deficiencies in Dr Garvey’s report. For example, Dr Garvey had concluded that a ½ deduction was appropriate pursuant to s 323. In reaching that conclusion, he had not addressed any of the steps described in El Cheikh v Diamond Formwork (NSW) Pty Limited (in liq.) [2013] NSWSC 365 (“El Cheikh”). Dr Garvey had not identified how the previous condition documented by Dr Farmer contributed to the current impairment. He did not explain why a deduction of 1/10th was inconsistent with the medical evidence and he did not explain how he reached the conclusion that a deduction of ½ was appropriate.

38 In El Cheikh, Schmidt J concluded that the Appeal Panel had made an error of law when it had simply adopted the reasoning of the approved medical specialist. At [70], Honour said “the bald statement that the appeal panel agreed with the conclusions reached, for the reasons which the medical specialist had given did not satisfy the obligation to give reasons, particularly when the reasons which the medical specialist gave are considered...”

Resolution

39 The Appeal Panel made an error of law when it simply adopted the reasoning of a member of Dr Garvey, a member of the Appeal Panel. This approach does not satisfy the obligations to give reasons. The decision of the Appeal Panel should be set aside.

40 It is now not necessary that I consider judicial grounds of review (5), (6) and (7).

Conclusion

41 It is my view that the Appeal Panel made jurisdictional errors and errors of law in relation to judicial grounds of review (1), (2), (3) and (4). The decision of the Appeal Panel should be set aside. The matter is remitted to the President of the Personal Injury Commission to be determined according to law.

Costs

42 As the first defendant consented to the relief sought, costs are reserved.

The Court orders:

(1) The decision and statement of reasons of the second defendant dated 19 July 2021 is set aside.

(2) The matter is remitted to the third defendant to be determined according to law.

(3) Costs are reserved.

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