Bojko v ICM Property Service Pty Ltd

Link copied
Case Copied 12 min read

NEW SOUTH WALES COURT OF APPEAL

CITATION:
BOJKO v ICM PROPERTY SERVICE PTY LTD & ORS [2009] NSWCA 175

FILE NUMBER(S):
40430/08

HEARING DATE(S):
23/06/2009

JUDGMENT DATE:
2 July 2009

PARTIES:
Nikola Bojko  - Appellant
ICM Property Service Pty Limited- First Respondent
Registrar of the Workers Compensation Commission - Second Respondent
An Appeal Panel constituted under s.328 of the Workplace Injury Management Act 1998 (NSW) - Third Respondent

JUDGMENT OF:
Allsop P Giles JA Handley AJA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 30142/07

LOWER COURT JUDICIAL OFFICER:
Malpass As/J

LOWER COURT DATE OF DECISION:
11/09/2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWSC 907

COUNSEL:
C Jackson - Appellant
L P McFee - First Respondent
Submitting appearance filed for 2nd and 3rd Respondents

SOLICITORS:
Martin Bell & Co - Appellant
Ellson Tillyard Callanan - First Respondent
I V Knight, Crown Solicitor - 2nd and 3rd Respondents

CATCHWORDS:
WORKERS COMPENSATION – binding medical assessment – Appeal Panel – conduct of review – despite worker’s request Panel did not conduct further medical examination - whether grounds for judicial review.
JUDICIAL REVIEW – workers compensation – binding medical assessment – reasons of Appeal Panel – whether Panel treated relevant consideration as irrelevant – proper approach to reasons of Panel.

LEGISLATION CITED:
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY:
Principal judgment

CASES CITED:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
W389/01A v Minister for Immigration and Multicultural Affairs [2002] FCA FC 432

TEXTS CITED:

DECISION:
(1) Leave to appeal granted.
(2) Dispense with the filing of a notice of appeal or further compliance with the rules.
(3) Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40430/08

ALLSOP P
GILES JA
HANDLEY AJA

2 July 2009

NIKOLA BOJKO  v  ICM PROPERTY SERVICE PTY LTD & ORS

CATCHWORDS

WORKERS COMPENSATION – binding medical assessment – Appeal Panel – conduct of review – despite worker’s request Panel did not conduct further medical examination – whether grounds for judicial review.

JUDICIAL REVIEW – workers compensation – binding medical assessment – reasons of Appeal Panel – whether Panel treated relevant consideration as irrelevant – proper approach to reasons of Panel.

HEADNOTE

An Appeal Panel constituted under Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 as amended allowed in part the worker’s appeal from a binding medical assessment certificate. Despite the worker’s request they did not have a further medical examination. The worker’s challenge to the Appeal Panel’s certificate in judicial review proceedings was dismissed and he sought leave to appeal. HELD: granting leave but dismissing the appeal (1) the Panel’s reasons adequately explained why they had decided that a further medical examination was not necessary; (2) their reasons were not to be construed with an eye attuned to the perception of error; (3) their reasons, properly construed, did not demonstrate that they had failed to consider the worker’s request, or had treated it as an irrelevant…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Bojko v ICM Property Service Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2009] NSWCA 175
Decision Date

CaseChat Overview and Summary

Bojko (the worker) appealed to the Court of Appeal of New South Wales against a decision of the Appeal Panel of the Workers Compensation Commission. The dispute concerned the Appeal Panel's conduct of a review of a binding medical assessment of the worker's condition. The worker had requested a further medical examination by the Appeal Panel, which was not undertaken.

The primary legal issues before the Court of Appeal were whether the Appeal Panel's refusal to conduct a further medical examination constituted grounds for judicial review, and whether the Appeal Panel had treated a relevant consideration as irrelevant in its reasons for decision, and what the proper approach to the reasons of the Appeal Panel should be.

The Court of Appeal held that the Appeal Panel was not obliged to conduct a further medical examination. It reasoned that the Appeal Panel's role was to review the existing medical evidence and the decision of the original medical assessor, not to conduct a de novo assessment. The Court found that the Appeal Panel had adequately considered the worker's submissions and the relevant evidence, and that its reasons for decision were sufficient. The Court applied the principles of judicial review, emphasizing that the Appeal Panel's decision would only be set aside if it had made an error of law, such as failing to consider a relevant matter or considering an irrelevant matter.

Leave to appeal was granted, and the appeal was dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted. (2) Dispense with the filing of a notice of appeal or further compliance with the rules. (3) Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.