Agricultural and Development Holdings v Parker - [2019] NSWSC 1338

Supreme Court

New South Wales

Medium Neutral Citation: Agricultural and Development Holdings v Parker [2019] NSWSC 1338
Hearing dates: On the papers
Decision date: 20 May 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [8]

Catchwords: ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – proceedings resolved between parties following decision in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 on meaning of permanent impairment within ss 65 and 66 of the Workers Compensation Act 1987 (NSW) – consent orders made
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65 and 66
Cases Cited: Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178
Category: Principal judgment
Parties: Agricultural and Development Holdings Pty Limited (Plaintiff)
Marian Renay Parker (as executrix of the estate of the late Matthew Luke John Nowlan) (First Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
Appeal Panel constituted by Grahame Edwards (Arbitrator), Dr Gregory Kaufman (Approved Medical Specialist) and Dr Philippa Harvey-Sutton (Approved Medical Specialist) (Third Defendant)
Representation:
Counsel:
Perry Herzfeld (Plaintiff)
Solicitors:
Hicksons Lawyers (Plaintiff)
Carroll & O’Dea Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2017/368011

Judgment

By amended summons filed on 5 February 2019, Agricultural and Development Holdings Pty Limited (the plaintiff) invokes this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). It seeks to have the decision made on 5 September 2017 by the Appeal Panel of the Workers Compensation Commission (the third defendant) to confirm the Medical Assessment Certificate of Dr Sophie Lahz issued on 16 May 2017 set aside.
On 10 October 2017, on the basis of the third defendant’s decision, the Registrar of the Workers Compensation Commission (the second defendant) issued a Certificate of Determination ordering payment of $220,000 for 100% whole person impairment (WPI) in relation to an injury sustained by the late Matthew Nowlan (the deceased) on 27 July 2013. Marian Parker (the first defendant) is the executrix of the deceased’s estate. The plaintiff also seeks to have this certificate quashed.
It is common ground that the deceased died on 28 July 2013 from injuries sustained on 27 July 2013 when he was run over by an all-terrain vehicle while he was lambing in the course of employment. Dr Lahz assessed the deceased’s WPI as 100%. As referred to above, the third defendant confirmed this assessment which resulted in the certificate issued by the second defendant.
The plaintiff commenced the present proceedings by summons filed on 5 December 2017. The basis of the plaintiff’s claim was that the deceased was not entitled to a lump sum payment for “permanent impairment” as the injuries he sustained were so serious that he had died within a short time.
On 16 August 2018 the Court of Appeal in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 (Mexon) held that the expression “permanent impairment”, as used in ss 65 and 66 of the Workers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1338
Decision Date: 20 May 2019

CaseChat Overview and Summary

In the case of Agricultural and Development Holdings v Parker, the primary dispute arose from a workers' compensation claim brought by the applicant, Agricultural and Development Holdings, against the respondent, Mr Parker, concerning a permanent impairment claim under the Workers Compensation Act 1987 (NSW). The case was heard by the Supreme Court of New South Wales. The applicant sought a declaration regarding the interpretation of the term "permanent impairment" as defined by sections 65 and 66 of the Act. This was in the context of a resolution following the decision in Hunter Quarries Pty Limited v Mexon, which clarified the scope of permanent impairment.

The legal issues that the court needed to address centred around the interpretation of the statutory provisions related to workers' compensation and the applicability of these provisions in light of the Hunter Quarries decision. The court was required to determine whether the lower court had correctly applied the statutory definitions and if the interpretation of "permanent impairment" in the Hunter Quarries case should be adopted in the current proceedings. The central concern was whether the resolution reached by the parties was consistent with the statutory framework and the relevant case law.

The court examined the statutory language and the Hunter Quarries decision, ultimately finding that the resolution agreed upon by the parties was in line with the legislative intent and the judicial interpretation provided in Hunter Quarries. The court confirmed that the resolution was consistent with the statutory requirements and did not require further judicial intervention. The resolution between the parties, which was based on the interpretation of "permanent impairment" as clarified in Hunter Quarries, was deemed appropriate and binding. The court's decision affirmed that the resolution was valid and that no further judicial review was necessary.

Orders