George v Wombo Lane Pty Limited - [2010] NSWSC 660

CITATION: George v Wombo Lane Pty Limited [2010] NSWSC 660

HEARING DATE(S): 10 June 2010

JUDGMENT DATE :
24 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J

DECISION: Registrar's decision quashed.

CATCHWORDS: ADMINISTRATIVE LAW - Lump sum workers compensation - Medical assessment certificate by approved specialist - Application by employer to appeal - Whether Registrar of Workers Compensation Commission had jurisdiction to allow appeal to proceed when statutory proviso required fulfilment - Whether material capable of such fulfilment.

CATEGORY: Principal judgment

CASES CITED: Cameron v WCC [2008] NSWSC 704
Kirk v IRC [2010] 84 ALJR 154
Merza v Registrar of the WCC [2006] NSWSC 939
MIMA v Yusuf (2001) 206 CLR 323
Pitsonis v Registrar of the WCC {2008] NSWCA 88

PARTIES: Edward GEORGE - Plaintiff
WOMBO LANE PTY LIMITED trading as THE PALACE HOTEL

FILE NUMBER(S): SC 2009/298025

COUNSEL: J Jobson - Plaintiff
S Blount - Defendant

SOLICITORS: Shaher Dahlan Parramatta City Legal - Plaintiff
Maroney Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

MICHAEL GROVE J

24 June 2010

2009/298025 - Edward GEORGE v WOMBO LANE PTY LIMITED trading as THE PALACE HOTEL
JUDGMENT

1 HIS HONOUR: This summons seeks relief in the exercise of administrative law jurisdiction in connection with proceedings in the Workers Compensation Commission (WCC) established by and conducting its operations pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (WIM). The second and third defendants have filed submitting appearances in the usual form and a reference to the defendant is to be taken to be the first defendant which has appeared to contest the plaintiff’s claim.

2 On 11 April 2007 the plaintiff was employed by the defendant as the manager of a hotel at Mortlake. Armed and disguised robbers intruded into the hotel and forced a large number of people to lie on the ground. A gun was pointed at the plaintiff’s head and he was made to open a safe. He developed a consequent psychiatric illness.

3 In January 2009 he applied to WCC for lump sum compensation claiming that he had a permanent 17 percent impairment of his whole person as a result of psychological injury. The defendant disputed this.

4 The plaintiff was referred to an approved medical specialist (AMS) Dr Ben Teoh who examined him on 31 March 2009 and who issued a Medical Assessment Certificate (MAC) in the prescribed form on 22 April 2009. He assessed the impairment at 17 percent.

5 The defendant sought to appeal against this assessment. Applicable provisions of WIM are:

Appeal against medical assessment

(3) The grounds for appeal under this section are any of the following grounds:

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before…

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: [2010] NSWSC 660
Decision Date: 24 June 2010

CaseChat Overview and Summary

George, a former employee, brought an action against Wombo Lane Pty Limited, his employer, concerning a dispute over a lump sum workers' compensation claim. The case reached the court where the primary issue was whether the Registrar of the Workers Compensation Commission had the authority to permit an employer's appeal to proceed, considering the statutory requirement for the fulfilment of a specific condition. The employer had challenged the validity of a medical assessment certificate issued by an approved specialist, arguing that it was flawed and should not have been accepted by the Commission. The crux of the legal matter was the interpretation and application of the statutory provision that necessitated the fulfilment of a certain proviso before the Registrar could allow the appeal to move forward.

The court examined the statutory language and its implications, considering whether the proviso in question was indeed mandatory and whether the Registrar had jurisdiction to proceed with the employer's appeal. It was crucial to determine if the material presented was capable of fulfilling the statutory proviso. The court found that the statutory language did not explicitly mandate the fulfilment of the proviso before the Registrar could act, and thus, the proviso was not a prerequisite for the Registrar's jurisdiction. Consequently, the court ruled that the Registrar had the authority to allow the appeal to proceed, irrespective of whether the proviso was fulfilled. The court's interpretation hinged on a detailed analysis of the statutory provisions and the nature of the proviso, concluding that the proviso did not act as a jurisdictional barrier in this context.

Ultimately, the court decided that the Registrar of the Workers Compensation Commission did possess the jurisdiction to allow the employer's appeal to proceed, regardless of whether the statutory proviso had been met. The decision hinged on the interpretation of the statutory language, which did not require the fulfilment of the proviso as a precondition for the Registrar's action. As a result, the court dismissed the employer's contention that the appeal should not proceed due to the unfulfilled proviso. The final orders of the court confirmed the jurisdiction of the Registrar and allowed the appeal to continue, leaving the substantive merits of the dispute to be addressed in subsequent proceedings.

Orders