Supreme Court
New South Wales
Medium Neutral Citation: Cottom v Scone Racing Club Ltd [2023] NSWSC 779 Hearing dates: 16 June 2023 Date of orders: 6 July 2023 Decision date: 06 July 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Mr Cottom is given leave, nunc pro tunc, to file his summons out of time.
2. I declare that the appeal panel’s 31 March 2022 decision, including the reasons given, are affected by error of law on the face of the record and by jurisdictional error.
3. I now order that:
a. The appeal panel’s 31 March 2022 decision is quashed; and
b. Mr Cottom’s application to rely on further evidence and appeal be remitted to be dealt with according to law by a differently constituted appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
Catchwords: WORKERS COMPENSATION — Medical assessment certificate — judicial review of decision of appeal panel dismissing appeal from medical assessment certificate — appeal panel failed to address application to consider further documents and documents themselves — documents claimed to evidence plaintiff’s further deterioration and development of consequential injury post-assessment — operation of Workplace Injury Management andWorkers Compensation Act 1998 (NSW), s 328 — decision of appeal panel quashed — application and appeal remitted to a differently constituted appeal panel
CIVIL PROCEDURE — Judicial review — application for judicial review brought outside three-month time period — Uniform Civil Procedure Rules 2005 (NSW), r 59.10 — interests of justice — leave granted to bring application
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10
Workplace Injury Management and Workers Compensation Act1998 (NSW), ss 321, 322, 322A, 327, 328, 378
Cases Cited: Category: Principal judgment Parties: Gregory Cottom (Plaintiff)
Scone Race Club Ltd (First Defendant)
Paul Sweeney, Drew Dixon and Michael Davies as a Medical Appeal Panel Constituted Under Section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Second Defendants)
The President of the Personal Injury Commission (Third Defendant)Representation: Counsel:
Solicitors:
Mr C Hart (Plaintiff)
Mr C Jackson (First Defendant)
Bale Boshev Lawyers (Plaintiff)
HWL Ebsworth (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)
File Number(s): 2022/309723
JUDGMENT
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Mr Cottom injured his knee in 2008 when he slipped and fell while employed by Scone Race Club Ltd. He seeks judicial review of a March 2022 decision of a medical appeal panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act1998 (NSW), dismissing his appeal from an October 2020 medical assessment certificate which had been issued by a medical assessor, Dr Burns.
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Both the Personal Injury Commission and the appeal panel have filed submitting appearances.
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Mr Cottom brought these proceedings out of time, after he unsuccessfully pursued an application to have the appeal panel’s decision reconsidered. That application was refused in September 2022.
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Mr Cottom pursued that application being concerned about an apparent failure of the Personal Injury Commission to provide…
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- Case
- [2023] NSWSC 779
- Decision Date
CaseChat Overview and Summary
The court held that the appeal panel's failure to address the application to consider the additional documents and the documents themselves constituted a reviewable error. The operation of section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) required the panel to consider all relevant evidence. The court quashed the decision of the appeal panel and remitted the application and appeal to a differently constituted appeal panel. The court also granted leave for the application for judicial review to be brought outside the three-month time period, pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), considering the interests of justice.
Orders
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Background
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Evidence
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Decision
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