Cottom v Scone Racing Club Ltd - [2023] NSWSC 779

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:
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

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:
Mr C Hart (Plaintiff)
Mr C Jackson (First Defendant)
Solicitors:
Bale Boshev Lawyers (Plaintiff)
HWL Ebsworth (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2022/309723

JUDGMENT

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.
Both the Personal Injury Commission and the appeal panel have filed submitting appearances.
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.
Mr Cottom pursued that application being concerned about an apparent failure of the Personal Injury Commission to provide…

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.

Keep reading for free

Create a free CaseChat account to read Cottom v Scone Racing Club 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: [2023] NSWSC 779
Decision Date: 06 July 2023

CaseChat Overview and Summary

The case before the court involved a dispute between Mr. Cottom and Scone Racing Club Ltd concerning a workers' compensation claim. Mr. Cottom sought judicial review of a decision by an appeal panel that dismissed his appeal against a medical assessment certificate. The panel had not considered additional documents that Mr. Cottom claimed demonstrated his further deterioration and development of a consequential injury after the assessment. The court was required to determine whether the appeal panel had erred in failing to address the application to consider the additional documents and whether the panel's failure to do so was a reviewable error.

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