Espana v Architectural Projects Pty Ltd - [2023] NSWSC 1504

Supreme Court

New South Wales

Medium Neutral Citation: Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504
Hearing dates: 23 November 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
Summons filed 21 August 2023 dismissed.

Catchwords:
ADMINISTRATIVE LAW – judicial review – Medical Appeal Panel review of Medical Assessment Certificate by Authorised Medical Specialist – several jurisdictional errors asserted – whether the Appeal Panel took into account an irrelevant consideration – whether the Appeal Panel failed to engage with evidence – whether the Appeal Panel misapplied the Guidelines – no jurisdictional error established – Summons dismissed

Legislation Cited:
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:
Ballas v Department of Education (2020) 102 NSWLR 86; [2020] NSWCA 86
Insurance Australia Ltd v O’Shannessy [2015] NSWSC 1047
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed
SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021

Category: Principal judgment
Parties: Frank Espana (P)
Architectural Projects Pty Ltd (D1)
Representation:
Counsel:
R de Meyrick (P)
K Balendra (D1)
Submitting (D2)
Submitting (D3)
Solicitors:
GWK Lawyers (P)
Turks Legal (D1)
Crown Solicitor (D2)
Crown Solicitor (D3)

File Number(s): 2023/265646
Publication restriction: Not Applicable

JUDGMENT

On 21 August 2023, Frank Espana (“the plaintiff”) commenced proceedings against Architectural Projects Pty Ltd (“the Employer”), the President of the Personal Injury Commission NSW and the individuals constituting an Appeal Panel, seeking judicial review of a decision of the Appeal Panel dated 22 May 2023.
The President of the Personal Injury Commission and the members of the Appeal Panel filed submitting appearances and took no part in the proceedings.
The Employer opposed the relief sought in the Summons.

Factual Background

In or around February 2021, the Plaintiff sustained psychological injury in the course of his employment as an architect with the Employer. He has been certified as totally unfit for work and is in receipt of compensation by way of weekly benefits pursuant to the provisions of the Workers Compensation Act 1987 (NSW) (“the 1987 Act”).
On 23 February 2022, the Plaintiff made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act. He claimed that he had suffered a Whole Person Impairment (“WPI”) of 17%.
The Employer disputed the extent of the plaintiff’s WPI and contended that any adverse impact did not exceed the necessary threshold for an award of permanent impairment compensation. That threshold figure is 15% WPI.
In September 2022, the Plaintiff filed an application with the Personal Injury Commission for a resolution of the dispute about his claim for an award of permanent impairment compensation.
The plaintiff was examined by an approved Medical Assessor (“the Assessor”), Dr…

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 Espana v Architectural Projects Pty Ltd

Details

AGLC: Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504
Case: [2023] NSWSC 1504
Decision Date: 14 December 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between Espana and Architectural Projects Pty Ltd, concerning the review of a Medical Assessment Certificate by the Medical Appeal Panel. Espana sought judicial review of the Panel’s decision, alleging several jurisdictional errors. These included the Panel considering an irrelevant matter, failing to engage with relevant evidence, and misapplying the Guidelines. The Administrative Decisions (Judicial Review) Act 1977 provided the basis for the judicial review, with the court required to determine if the Panel had indeed made any such errors in its decision-making process.

The court examined whether the Panel had indeed taken into account irrelevant considerations or failed to engage with the evidence presented. The Panel's interpretation of the Guidelines was also scrutinized to ascertain if any misapplication had occurred. The court found that the Panel had carefully considered the relevant evidence and the Guidelines, and that the decision was not tainted by any jurisdictional error. The court held that the Panel's decision-making process was sound, and that no procedural unfairness or error of law had been committed.

Consequently, the court dismissed the summons, confirming that the Panel had not erred in its review of the Medical Assessment Certificate. The decision underscored the importance of adhering to proper procedural steps and ensuring that all relevant evidence is considered in administrative law matters. The court’s ruling upheld the Panel’s decision, affirming the correctness of its approach and findings.

Orders