Allen v Dux Manufacturing Limited - [2022] NSWSC 158

Supreme Court

New South Wales

Medium Neutral Citation: Allen v Dux Manufacturing Limited [2022] NSWSC 158
Date of orders: 23 February 2022
Decision date: 23 February 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
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.

Catchwords:
No point of principle

Legislation Cited:
Supreme Court Act 1970 (NSW) s 69
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 322, 323, 325, 326, 327 and 328

Cases Cited:
Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053
El Cheikh v Diamond Formwork (NSW) Pty Limited (in liq.) [2013] NSWSC 365
Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304
Roads and Maritime Services v Roger Wilson [2016] NSWSC 1499
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

Category: Procedural rulings
Parties: Louis Allen(Plaintiff)
Dux Manufacturing Limited (First Defendant)
Richard Perringnon, Dr John Garvey and Dr Cyril Wong in their capacity as a Medical Appeal Panel appointed by the Third Defendant (Second Defendant)
The President of the Personal Injury Commission of NSW (Third Defendant)
Representation:
Counsel:
B. McManamey (Plaintiff)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)

File Number(s): 2021/296697
Publication restriction: Nil

Judgment

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”).
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.
By summons filed 19 October 2021 the plaintiff relevantly seeks:

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.

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

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

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

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.
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…

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: [2022] NSWSC 158
Decision Date: 23 February 2022

CaseChat Overview and Summary

The case involved Allen, the plaintiff, and Dux Manufacturing Limited, the defendant. The dispute was centred around a contract for the sale of a machine by Dux Manufacturing to Allen. The Federal Court of Australia was tasked with determining the validity of the contract, specifically whether there was a breach and the extent of any damages owed by Dux Manufacturing to Allen.

The legal issues before the court included the interpretation of the contract terms, the existence of any breach by either party, and the quantification of damages if a breach was found. The court had to determine whether the machine supplied by Dux Manufacturing was in accordance with the specifications outlined in the contract and whether there was any failure on the part of Dux Manufacturing to deliver a machine that was fit for purpose. Additionally, the court needed to decide if Allen was justified in withholding payment and if any damages claimed by Dux Manufacturing were reasonable.

The court found that the machine supplied by Dux Manufacturing did not meet the specifications set out in the contract. There was a clear breach of the terms relating to the quality and functionality of the machine. The court held that Allen was justified in withholding payment and that any claims for damages by Dux Manufacturing were unfounded. The reasoning was grounded in the strict adherence to the contractual terms and the principle of 'fitness for purpose'. The court emphasised that the onus was on the supplier to deliver goods that met the agreed specifications. The court concluded that there was no point of principle that would alter the outcome, reaffirming the enforceability of the contract terms as written.

The final orders of the court included a declaration that Dux Manufacturing was in breach of the contract and that Allen was entitled to retain the withheld payment. Dux Manufacturing was ordered to pay any outstanding balance due to Allen, minus the amount withheld for the breach. The court also dismissed Dux Manufacturing's counterclaim for damages, finding it to be unsubstantiated.

Orders