Bojko v ICM Property Service Pty Ltd

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…