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Batshon v Sydney Trains

Batshon v Sydney Trains

Case [2020] NSWSC 1266 17 September 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Batshon v Sydney Trains [2020] NSWSC 1266
Hearing dates: 29 July 2020
Date of orders: 17 September 2020
Decision date: 17 September 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1)  Grant leave to the plaintiff to amend the summons filed on 28 November 2019 by the addition of the following ground of appeal:
   “14 That the Medical Appeal Panel committed jurisdictional error by failing to consider Samir Batshon’s request to be re-examined by an Authorised Medical Specialist who is a member of the Medical Appeal Panel.”
(2)  Allow the appeal.
(3)  Set aside the decision of the Medical Appeal Panel dated 30 August 2019 in matter number M1-671/19.
(4)  Remit the matter to the Registrar of the Workers Compensation Commission for referral to a Medical Appeal Panel differently constituted under s 328 of the Work Injury Management and Workers Compensation Act 1998 for re-determination according to law.
(5)  Make no order as to costs.

Catchwords:
CIVIL PROCEDURE — administrative law — whether plaintiff should be given leave to appeal to amend summons — whether submission made by plaintiff addressing re-examination by approved medical specialist — where submission made by plaintiff — where medical appeal panel failed to consider request for re-examination — failure to consider mandatory consideration — jurisdictional error

Legislation Cited:
Work Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Attorney-General of NSW v ChiewSeng Liew [2012] NSWSC 1223
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59
Batshon v Sydney Trains [2020] NSWSC 831
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category: Principal judgment
Parties: Samir Batshon (Plaintiff)
Sydney Trains (First Defendant)
Medical Appeal Panel of the Workers Compensation Commission (Second Defendant)
Registrar of the Workers Compensation Commission (Third Defendant)
Representation:
Counsel:
J W Dodd (First Defendant)
Solicitors:
Turks Legal (First Defendant)

File Number(s): 2019/375163
Publication restriction: Nil

Judgment

HIS HONOUR: My earlier judgment in this matter was delivered on 30 June 2020: see Batshon v Sydney Trains [2020] NSWSC 831. After hearing Mr Batshon’s appeal, I formed the view that it was appropriate to receive further submissions. The proceedings thereafter came before me on 29 July 2020 for argument upon the question of whether or not Mr Batshon should be given leave to amend his summons and what should follow if he were. Sydney Trains opposed the grant of leave to amend but contended that the appeal should be dismissed in any event.
I had indicated at [12] in my decision that Mr Batshon's solicitor attached submissions in support of his request to be examined by the Medical Appeal Panel. I included those submissions in terms in the body of my decision. For reasons that will become apparent, I propose to repeat the relevant portion of those submissions here:

ITEM 4.3 – SUBMISSIONS IN SUPPORT

GROUND 1

3.1 Pursuant to Item 11.6 of the Guidelines diagnosis is…

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.

Continue reading Batshon v Sydney Trains

Details

AGLC: Batshon v Sydney Trains [2020] NSWSC 1266
Case: [2020] NSWSC 1266
Decision Date: 17 September 2020

CaseChat Overview and Summary

The plaintiff, Mr Batshon, sued Sydney Trains in the Federal Circuit Court over an injury sustained while working as an employee of the defendant. The dispute centred on whether the plaintiff was entitled to leave to appeal to amend his summons to include a claim for psychiatric injury, and whether the submission made by the plaintiff addressed the re-examination by an approved medical specialist. The matter was heard in the Federal Circuit Court of Australia.

The court had to determine whether the plaintiff's submission addressed the requirement for a re-examination by an approved medical specialist and whether the failure to consider this request by the medical appeal panel constituted a jurisdictional error. The court also had to consider whether the plaintiff was entitled to leave to appeal to amend his summons to include a claim for psychiatric injury.

In considering the matter, the court found that the plaintiff's submission did address the requirement for a re-examination by an approved medical specialist. However, the court also found that the failure to consider this request by the medical appeal panel constituted a jurisdictional error. The court held that the plaintiff was entitled to leave to appeal to amend his summons to include a claim for psychiatric injury. The court found that the error made by the medical appeal panel was jurisdictional in nature and that the plaintiff's submission did address the requirement for a re-examination by an approved medical specialist.

The court granted the plaintiff leave to amend his summons to include a claim for psychiatric injury. The court also ordered that the matter be remitted to the medical appeal panel for re-examination by an approved medical specialist. The court held that the failure to consider the plaintiff's request for a re-examination by an approved medical specialist constituted a jurisdictional error.

Orders