Hanna v Delta Electrical and Security Pty Ltd - [2019] NSWSC 1127

Supreme Court

New South Wales

Medium Neutral Citation: Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127
Hearing dates: 27 June 2019
Date of orders: 05 September 2019
Decision date: 05 September 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The application for judicial review fails.

(2) The summons filed 27 June 2019 is dismissed.
(3) The plaintiff is to pay the first defendant’s costs on an ordinary basis.
Catchwords: ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Jurisdictional error – Review of a certificate of a Medical Appeal Panel – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Where the plaintiff suffered injury to the cervical spine
Legislation Cited: Accident Compensation Act 1985 (Vic)
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016)
Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 9, 9A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 325, 327, 328, 331
Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
Martin v Kelly [2008] NSWSC 577
Martin v Kelly [2009] NSWCA 105
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 1
Walsh v Parramatta City Council [2007] NSWLEC 255
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 303 ALR 64
Category: Principal judgment
Parties: Salim Hanna (Plaintiff)
Delta Electrical and Security Pty Ltd (First Defendant)
Medical Appeal Panel (Second Defendant)
Workers Compensation Commission NSW (Third Defendant)
Representation:
Counsel:
B McManamey (Plaintiff)
S Blount (First Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
Submitting Appearance (Second & Third Defendants)

File Number(s): 2019/63472
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review from a decision of a Medical Appeal Panel (“the Appeal Panel”) of the Workers Compensation Commission of NSW.
By amended summons filed 27 June 2019, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the statement of reasons for decision of the Medical Appeal Panel in relation to a medical dispute issued by the second defendant on 26 November 2018 is contrary to law, void and of no effect; secondly, an order setting aside the statement of reasons for decision of the Medical Appeal Panel issued by the second defendant on 26 November 2018; and thirdly, an order remitting the matter to the third defendant for determination by a different Medical Appeal Panel according to law.
The plaintiff is Salim Hanna. The first defendant is Delta Electrical and Security Pty Ltd (“Delta Electrical”). The second defendant is the Medical Appeal Panel. The third defendant is Workers Compensation Commission…

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: [2019] NSWSC 1127
Decision Date: 05 September 2019

CaseChat Overview and Summary

The plaintiff, Hanna, appealed against a decision made by Delta Electrical and Security Pty Ltd under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Hanna claimed that the defendant had failed to provide appropriate medical treatment and compensation following a workplace injury to her cervical spine. The defendant argued that the claim was not valid under the Act. The court was required to determine if the decision-maker had made a jurisdictional error and whether the plaintiff's arguments warranted a review of the Medical Appeal Panel's certificate.

The primary legal issue was whether the defendant's decision to deny the plaintiff's claim involved a jurisdictional error. The court had to consider whether the decision-maker failed to respond to substantial and clearly articulated arguments presented by the plaintiff and whether the reasons provided were lawful. The court also needed to assess if the decision-maker had considered all relevant factors and if the decision was rational and supported by the evidence.

The court found that the defendant had indeed made a jurisdictional error in its decision-making process. The decision-maker failed to respond to the substantial arguments presented by the plaintiff and did not provide lawful reasons for the decision. The court held that the decision-maker's failure to consider the relevant factors and provide adequate reasons constituted a jurisdictional error. Consequently, the court granted the plaintiff's application for judicial review and quashed the decision of the defendant.

The court ordered that the matter be remitted to the defendant for reconsideration in light of the court's findings. The defendant was directed to provide a response to the plaintiff's arguments and set out lawful reasons for its decision. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders