Galanis v The Registrar of the Workers Compensation Commission of New South Wales & Ors
[2007] NSWSC 648
•28 June 2007
CITATION: Galanis v The Registrar of the Workers Compensation Commission of New South Wales & Ors [2007] NSWSC 648 HEARING DATE(S): 22/06/2007
JUDGMENT DATE :
28 June 2007JUDGMENT OF: Associate Justice Malpass DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons. CATCHWORDS: Alleged error on the part of the Registrar - Delegate and Appeal Panel - onus of proof not discharged - discretionary relief LEGISLATION CITED: Supreme Court Act 1970 (NSW) PARTIES: Anne Galanis
The Registrar of the Workers Compensation Commission of New South Wales
ANZ Banking Group Limited
An Appeal Panel constituted pursuant to section 328 of the Workplace Injury Management and Workers Compensation Act, 1998
FILE NUMBER(S): SC 30147/06 COUNSEL: Mr B. McManamey (Pl)
Mr J. W. Dodd (2nd Def)SOLICITORS: Turner Freeman (Pl)
Hunt & Hunt (2nd Def)LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): 20160/05 LOWER COURT DATE OF DECISION: 07/07/2006
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE MALPASS
28 JUNE 2007
JUDGMENT30147/06 Anne Galanis v The Registrar of the Workers Compensation Commission & 2 Ors
1 HIS HONOUR: On 28 March 2002, the plaintiff was a bank manager employed by the second defendant. On that day, she claims to have suffered both physical and psychological injury.
2 On 25 November 2005, she made an application for assessment by an Approved Medical Specialist (the AMS) to resolve a threshold dispute for work injury damages. The second defendant did not lodge a reply. Instead, it sent documents under cover of a letter to the Workers Compensation Commission (the Commission) with the request that they be forwarded to the AMS.
3 On 6 February 2006, the Deputy Registrar extended the date for the lodgement of documents and ordered that they be referred for the consideration of the AMS.
4 Two Medical Assessment Certificates were issued, one by Dr Cameron, the other by Dr Teoh. Dr Cameron dealt with the alleged physical injury (an assessment of whole person impairment of 6%). Dr Teoh dealt with the psychological injury (an assessment of whole person impairment of 19%).
5 An application to appeal was brought by the second defendant against the decision of Dr Teoh. It was brought on the grounds that the assessment was made on the basis of incorrect criteria and contained demonstrable error.
6 On 6 July 2006, a delegate of the Registrar was satisfied that it appeared that grounds for appeal existed and referred the matter to an Appeal Panel. The Appeal Panel carried out a review (the plaintiff was examined on 19 October 2006). On 11 November 2006, it decided that the original Certificate should be revoked and that a new Medical Assessment Certificate should be issued (it reduced the whole person impairment to 14%).
7 The plaintiff has filed a Summons in this Court (on 6 November 2006). She now proceeds on the Amended Summons filed on 9 March 2007. The Summons seeks judicial review pursuant to S69 of the Supreme Court Act 1970 (NSW). Relief is sought in respect of decisions of the Registrar and Delegate and of the Appeal Panel.
8 The application for judicial review was heard on 22 June 2007. The plaintiff and the second defendant were represented by Counsel. Both relied on written submissions, supplemented by oral argument.
9 Before proceeding further, I should mention that the relief sought by the plaintiff is discretionary in nature. Any jurisdictional error or error of law on the face of the record must be material to the decision that is under challenge and must justify a disturbance of that decision. In the exercise of the discretion, the Court will have regard to other relevant considerations (including the utility of granting the relief that is sought).
10 A number of matters were raised concerning the Registrar (by way of irregularity or otherwise) which took place prior to the decision of Dr Teoh. Ultimately, none of these were pressed. For completeness, it may be added that it seems to me that these have no materiality. The plaintiff did not seek to disturb his decision. It was the second defendant that made application to appeal.
11 The plaintiff also alleges error on the part of the Delegate. The decision of the Delegate contained the following:-
- “Pursuant to section 327(4) of the Act, it appears to the Registrar that grounds for appeal exist under section 327(3)(d) of the Act.”
This material reveals that it was the appearance of demonstrable error that led the Delegate to her decision. The decision does not provide any indication as to how she came to reach that result.
12 In contending that she reached that result by error, the plaintiff bears the onus of demonstrating that this was the case. In my view, a discharge of the onus in the circumstances of this case is a near impossible task.
13 The Court was taken to the Certificate of Dr Teoh and to the appellant’s further submissions on appeal. The submissions advance a number of matters as demonstrating error. It was common ground that one of them (whether or not all material submitted by both parties was before Dr Teoh) had ceased to be of significance, as it had come to be established that Dr Teoh did have all of the material. Four other matters are raised in the submissions. The plaintiff has endeavoured to persuade the Court that none of these matters could have given rise to demonstrable error. In my view, the plaintiff has failed in that task.
14 The plaintiff does not suggest that the Registrar was required to give reasons. In my view, the plaintiff has failed to discharge the onus of demonstrating that the delegate fell into error. Whilst this finding operates to dispose of the proceedings, I will briefly address one other matter.
15 No step was taken to challenge the decision of the Delegate until 6 November 2006 (when the Summons was filed in this Court). Not only did the plaintiff stand by and allow the appeal to proceed, she participated in the conduct of the appeal (she attended for examination). The commencement of proceedings did not see any action to restrain the appeal process. The Appeal Panel continued with its review until 11 November 2006, when it issued its Certificate. The plaintiff does not allege any error by the Appeal Panel. The basis for the challenge to its decision was solely the allegation of error by the Delegate. If it is necessary to further address this matter, it is my view that I have not been persuaded that the discretionary remedy sought by the plaintiff should be granted.
16 Consequently, I consider that these proceedings are misconceived and should be dismissed.
17 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.
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