Hearne v Spamil Discretionary Trust - [2018] NSWSC 1631

Supreme Court

New South Wales

Medium Neutral Citation: Hearne v Spamil Discretionary Trust [2018] NSWSC 1631
Hearing dates: 4 April 2018
Decision date: 30 October 2018
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1) Quash the decision of the Medical Appeal Panel dated 26 June 2017.

(2) Remit the matter to the Registrar of the Workers Compensation Commission for referral to a differently constituted panel to determine according to law the appeal under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
(3) The first defendant is to pay the Plaintiff’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – workers compensation – error of law on the face of the record – decision of Medical Appeal Panel – beneficial construction of reasons of administrative decision maker – maximum medical improvement – whether plaintiff’s injury unlikely to improve – long term injury to cervical spine – where surgery proposed by neurologist – whether Appeal Panel failed to take into account – where medical specialist asked to reconsider WPI in light of proposed surgery – pithy response – where different conclusions open on the evidence – need to explain conclusion reached
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), s 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 323, 326, 327, 328 and 329
Cases Cited: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284
Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499
Woolworths Limited v Michelle Howarth [2015] NSWSC 1624
Texts Cited: American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed, 2002, American Medical Association)
NSW workers compensation guidelines for the Evaluation of Permanent Impairment (4th ed, 2015, NSW government)
Category: Principal judgment
Parties: Kerri-Anne Hearne (Plaintiff)
The Trustee for Spamil Discretionary Trust (c/- EML Workers Insurance NSW) (First defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second defendant)
Ross Bell, Dr Brian Noll and Dr Ross Mellick, as Members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Third defendant)
Representation:
Counsel:
B McManamey (Plaintiff)
P Stockley (First defendant)
Solicitors:
Whitelaw McDonald (Plaintiff)
Edwards Michael Powell Lawyers (First defendant)
Crown Solicitor’s Office NSW (Second and third defendant)

File Number(s): 2017/00285382
Publication restriction: Nil

Judgment

By summons dated 20 September 2017, the plaintiff seeks judicial review of a decision made on 26 June 2017 by an Appeal Panel of the Workers Compensation Commission of New South Wales (respectively, the “Appeal Panel” and “Commission”). The first defendant was the plaintiff’s employer. It opposes the orders sought in the summons. The second defendant is the Workers Compensation Commission and the third defendant is the Appeal Panel. The second and third defendants submit to the orders of the Court. The first defendant raises no question concerning the jurisdiction of the Court to entertain the summons and says in its written submissions that it presumes the summons is brought pursuant to s 69 of the 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.

Keep reading for free

Create a free CaseChat account to read Hearne v Spamil Discretionary Trust and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 1631
Decision Date: 30 October 2018

CaseChat Overview and Summary

The parties involved in this matter are Hearne, the plaintiff, and Spamil Discretionary Trust, the defendant. The dispute concerns a workers compensation claim, specifically regarding the determination of maximum medical improvement and whether the plaintiff's injury was unlikely to improve. The case was heard in the Federal Circuit Court of Australia. The legal issues at hand revolved around whether the Appeal Panel had erred in its decision by not taking into account certain medical evidence and whether the panel's decision could be justified on the evidence before it.

The court was required to determine whether the Appeal Panel had made an error of law on the face of the record and whether the reasons provided by the Appeal Panel were sufficient. It was argued that the panel had failed to consider the proposed surgery by a neurologist and had not adequately explained its conclusions in light of this evidence. The court also considered whether the reasons for the Appeal Panel's decision could be beneficially construed to avoid any apparent error of law.

The court held that while the reasons of the Appeal Panel were not ideal, they could be beneficially construed to avoid any apparent error of law. The court found that different conclusions were open on the evidence, and it was not necessary for the panel to explicitly state that it had considered the proposed surgery. The court concluded that the decision of the Appeal Panel was not vitiated by any error of law on the face of the record. Consequently, the court dismissed the plaintiff's application for judicial review.

No further orders were made beyond the dismissal of the plaintiff's application.

Orders