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Bunnings Group Ltd v Hicks

Bunnings Group Ltd v Hicks

Case [2008] NSWSC 874 5 September 2008

Judicial Review

Administrative Decision Making

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CITATION: BUNNINGS GROUP LIMITED v Peter Howard HICKS & Ors [2008] NSWSC 874

HEARING DATE(S): 5 August 2008

JUDGMENT DATE :
5 September 2008

JUDGMENT OF: Simpson J

DECISION: Summons dismissed with costs.

CATCHWORDS: AMINISTRATIVE LAW - Workers Compensation - judicial review - medical dispute - assessment of permanent impairment - Medical Assessment Certificate - proportion of permanent impairment attributable to previous injury - 100% deduction for previous injury - rights of appeal against assessment by approved medical specialist - demonstrable error - role of Registrar - Registrar satisfied that ground of appeal made out - meaning of "demonstrable error" - whether failure by delegate to give proper or adequate reasons - appeal to Appeal Panel - review of decision by the Appeal Panel - fresh Medical Assessment Certificate - 10% deduction for previous injury - test to permit appeal and role of Registrar under amended s 327(4) - no error on the face of the record - no jurisdictional error - summons dismissed

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998
Workers' Compensation Act 1987

CASES CITED: Campbelltown City Council v Vegan [2004] NSWSC 1129
Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
Zuanic v Gypro-tech (Australia) Pty Ltd (In Liq) [2006] NSWSC 739
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149
Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101
Siddik v WorkCover Authority of NSW [2008] NSWCA 116

TEXTS CITED: Guide for the Evaluation of Permanent Impairment, 2nd ed (2006) WorkCover NSW
Guides to the Evaluation of Permanent Impairment, 5th ed, (2002) American Medical Association

PARTIES: BUNNINGS GROUP LIMITED (Plaintiff)
Peter Howard HICKS (First Defendant)
The Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)
John Ireland, Dr J Brian Stephenson & Dr Robert Adler: members of the Medical Appeal Panel of the Workers Compensation Commission of New South Wales (Third Defendant)

FILE NUMBER(S): SC 2008/30066

COUNSEL: C Goodman (Plaintiff)
P J Kirby (First Defendant)

SOLICITORS: Lucas & Staggs Lawyers (Plaintiff)
Mason Lawyers (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SIMPSON J

Friday 5 September 2008

2008/30066 BUNNINGS GROUP LIMITED v Peter Howard HICKS & Ors
JUDGMENT

1 SIMPSON J: By summons filed on 18 March 2008 the plaintiff (Bunnings Group Limited, to which I will refer as “Bunnings”) claims, by way of judicial review, orders and declarations arising out of proceedings brought and decided in the Workers Compensation Commission under the Workplace Injury Management and Workers Compensation Act 1998 (“the WIM Act”). The WIM Act operates in tandem with the Workers Compensation Act 1987 (“the WC Act”). The parties to the summons are Bunnings as plaintiff, Peter Howard Hicks (as first defendant, to whom I will refer by name); the Registrar of the…

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 Bunnings Group Ltd v Hicks

Details

AGLC: Bunnings Group Limited v Peter Howard Hicks [2008] NSWSC 874
Case: [2008] NSWSC 874
Decision Date: 5 September 2008

CaseChat Overview and Summary

Bunnings Group Ltd sought judicial review of a decision regarding the assessment of permanent impairment of an employee, Hicks. The case was heard in the Federal Circuit Court of Australia. The primary dispute centred on the proportion of permanent impairment attributable to a previous injury, the correctness of a 100% deduction for the previous injury, and the rights of appeal against the assessment by an approved medical specialist. The case raised questions about the meaning of "demonstrable error" in the context of administrative law and the role of the Registrar in determining whether an appeal should proceed.

The court had to determine the correct interpretation of "demonstrable error" in the context of an appeal against an approved medical specialist's assessment. It also needed to consider whether the failure of the delegate to provide proper or adequate reasons constituted a demonstrable error. Additionally, the court examined the test to permit an appeal and the role of the Registrar under the amended section 327(4). The case turned on whether the failure to provide reasons amounted to a demonstrable error and whether there was any error on the face of the record or a jurisdictional error.

The court held that the failure by the delegate to provide proper or adequate reasons did not constitute a demonstrable error. The Registrar was satisfied that the ground of appeal was made out, but the court found no error on the face of the record or any jurisdictional error. The court dismissed the summons, holding that the Appeal Panel's decision to reduce the deduction for the previous injury to 10% was not flawed. The Appeal Panel's review of the decision was considered to be a fresh Medical Assessment Certificate, and there was no demonstrable error in the process.

The court ultimately dismissed the summons, finding that the Appeal Panel's decision was not flawed and there was no error on the face of the record or any jurisdictional error. The Registrar's role in determining whether an appeal should proceed was clarified, and the test to permit an appeal under the amended section 327(4) was applied. The court's decision affirmed the Appeal Panel's assessment and the reduction of the deduction for the previous injury to 10%.

Orders