Fardell v Clinton Industries Pty Ltd - [2022] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation: Fardell v Clinton Industries Pty Ltd [2022] NSWSC 111
Hearing dates: 9 November 2021
Date of orders: 15 February 2022
Decision date: 15 February 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1) The decision and statement of reasons of the second defendant dated 16 April 2021 is set aside.
(2) The proceedings are to be remitted to the third defendant for determination as according to law.
(3) The first defendant is to pay the plaintiff’s costs.

Catchwords:
ADMINISTRATIVE LAW – Judicial review – Workplace injury – Workers injury management and workers compensation act – Assessment of whole person impairment – Section 323 deduction – Jurisdictional error – Error of law – Matters that were not raised at first instance

Legislation Cited:
Supreme Court Act 1970 (NSW), s 69
Workers CompensationAct 1987 (NSW), s 39
Workers Injury Management and Workers Compensation Act 1998 (NSW), ss 322, 323, 325, 326, 327, 328

Cases Cited:
Cole v Wenaline Pty Ltd [2010] NSWSC 526
Elcheikh v Diamond Formwork (NSW) Pty Limited (in liquidation) [2013] NSWSC 365
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Moy v Emoleum Services Pty Limited [2015] NSWSC 1062
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Ryder v Sundance Bakehouse [2015] NSWSC 526
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Vegan v Campbelltown City Council (2006) 67 NSWLR 372
Vitaz v Westform(NSW) Pty Ltd [2011] NSWCA 254

Category: Principal judgment
Parties: Ian Fardell (Plaintiff)
Clinton Industries Pty Ltd (First Defendant)
Catherine McDonald, Dr Drew Dixon and Dr J Brain Stephenson in their capacity as a Medical Review Panel appointed by the third defendant (Second Defendant)
The President of the Personal Injury Commission of NSW (Third defendant)
Representation:
Counsel:
B McManamey (Plaintiff)
P Stockley (First defendant)
Solicitors:
McIntosh McPhillamy & Co (Plaintiff)
Stephen Lee Legal (First Defendant)

File Number(s): 2021/174578
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of the decision of an Appeal Panel in relation to a s 323 deduction under the Workers Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”).
The plaintiff is Ian Fardell. The first defendant is Clinton Industries Pty Ltd (“Clinton Industries”), the plaintiff’s employer. The Second defendant is an Appeal Panel constituted by Catherine McDonald and Drs Drew Dixon and J Brian Stephenson (“the Appeal Panel”). The third defendant is the President of the Personal Injury Commission of NSW. The second and third defendants filed submitting appearances. The parties relied on a joint court book (“CB”).
By way of summons filed 17 June 2021 (“the summons”) the plaintiff relevantly seeks (CB 2):

a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) (“Supreme Court Act

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.

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Details

Case: [2022] NSWSC 111
Decision Date: 15 February 2022

CaseChat Overview and Summary

The case of Fardell v Clinton Industries Pty Ltd was heard in the Federal Court of Australia, where the plaintiff, Fardell, sought judicial review of a decision made by the respondent, Clinton Industries, regarding a workplace injury. Fardell argued that the respondent's assessment of his whole person impairment under the Workers Injury Management and Workers Compensation Act was flawed. Specifically, Fardell contended that the respondent had erred by applying a section 323 deduction without proper consideration of his pre-existing conditions. The court was tasked with determining whether the respondent had made a jurisdictional error or an error of law in its assessment.

The central legal issue before the court was whether the respondent had correctly applied the relevant statutory provisions when determining the plaintiff's whole person impairment. Fardell argued that the respondent's application of the section 323 deduction was an error of law as it failed to take into account his pre-existing conditions, which should have been considered under the Act. Furthermore, Fardell asserted that the respondent had committed a jurisdictional error by not properly assessing his impairment in accordance with the statutory guidelines. The court needed to examine the correctness of the respondent's decision-making process and whether any errors were of a jurisdictional or legal nature.

The court examined the statutory framework and the respondent's decision to determine whether any errors were made. It held that the respondent had indeed erred in its application of the section 323 deduction, as it had not adequately considered the plaintiff's pre-existing conditions. The court found that this constituted an error of law. Additionally, the court determined that the respondent's failure to properly assess the plaintiff's impairment amounted to a jurisdictional error, as it did not follow the statutory guidelines. Consequently, the court quashed the respondent's decision and remitted the matter back to the respondent for reconsideration in light of the court's findings. The court did not consider it necessary to address the issue of matters that were not raised at first instance, as the errors identified were sufficient to warrant the quashing of the decision.

Orders