Inghams Enterprises Pty Limited v Hanneghan
[2014] NSWSC 183
•04 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Inghams Enterprises Pty Limited v Hanneghan [2014] NSWSC 183 Hearing dates: 4 March 2014 Decision date: 04 March 2014 Jurisdiction: Common Law Before: Harrison AsJ Decision: By consent the Court orders that:
(1) The decision of the second defendant dated 19 August 2013 is quashed.
(2) The matter is remitted to the Registrar of the Workers Compensation Commission for consent orders to be filed.
(3) Each party is to pay its own costs.
The Court notes that:
(4) The parties are agreed that the second defendant failed to accord procedural fairness when it failed to hear the plaintiff with respect to the basis upon which the plaintiff alleged that members of the Medical Appeal Panel should disqualify themselves from sitting on the Medical Appeal Panel.
Catchwords: ADMINISTRATIVE LAW - declaration that the decision of the Medical Appeal Panel involved an error on the face of the record and jurisdictional error - denial of procedural fairness - decision of the Medical Appeal Panel quashed - consent orders - matter remitted to the Registrar of the Workers Compensation Commission for consent orders to be filed Category: Principal judgment Parties: Inghams Enterprises Pty Limited (Plaintiff)
Wayne Joseph Hanneghan (First Defendant)
An Appeal Panel of the Workers' Compensation Commission Constituted Pursuant To Section 328(1) Of The Workplace Injury Management & Workers' Compensation Act 1998 (Second Defendant)
The Registrar of the Workers' Compensation Commission (Third Defendant)Representation: Counsel:
C Jackson (Plaintiff)
Solicitors:
Leigh Virtue & Associates (Plaintiff)
Brazel Moore Lawyers (First Defendant)
Crown Solicitor's Office (Submitting Appearance - Second & Third Defendants)
File Number(s): 2013/299023 Publication restriction: Nil Decision under appeal
- Date of Decision:
- 2013-08-19 00:00:00
- Before:
- Medical Appeal Panel, Workers Compensation Commission
- File Number(s):
- WCC M1-3950/11
EX TEMPORE JUDGMENT
HER HONOUR: By summons filed 4 October 2013, the plaintiff, Inghams Enterprises Pty Limited, seeks a declaration that the decision of the Medical Appeal Panel dated 19 August 2013, involved an error on the face of the record and jurisdictional error and seeks an order that the decision of the Medical Appeal Panel be quashed.
The parties have now agreed upon consent orders. Because these proceedings in the Workers Compensation Commission have been settled, the matter is to be remitted to the Registrar of the Workers Compensation Commission for consent orders to be filed.
The circumstances that give rise to this appeal are that Mr McManamey acted for the injured workers against Inghams. Mr McManamey was the Arbitrator on the Medical Appeal Panel. The Medical Appeal Panel was constituted by him and two medical experts. Inghams, not surprisingly, wanted to raise an application that Mr McManamey, be disqualified from appearing on the basis of reasonable apprehension of bias.
The Inghams' complaint was that they were never given an opportunity to be heard on that application and the Medical Appeal Panel failed to accord procedural fairness in not allowing the application to be ventilated.
The Medical Appeal Panel in its reasons, at [32], stated:
"... The Appellant asserted once again that a hearing was required but as noted made no further submissions in support of that assertion. Otherwise the Appellant said that it was instructed to make an application that the Appeal Panel as presently constituted disqualify itself. The Appellant did not, in fact, make any application or provide any submissions to establish on what basis it was said that the Appeal Panel as presently constituted should disqualify itself. ..."
It seems to me, in circumstances where Mr McManamey had appeared in proceedings against Inghams, Inghams should have been afforded an opportunity to be heard on the apprehended bias application. Mr McManamey should have been aware of the basis upon which the application was to be made. Whether or not the application would have been successful is not to the point. Inghams was denied the opportunity to be heard and was denied procedural fairness.
I make the orders in accordance with paragraphs [1] to [3] of the consent orders as amended.
By consent the Court orders that:
(1) The decision of the second defendant dated 19 August 2013 is quashed.
(2) The matter is remitted to the Registrar of the Workers Compensation Commission for consent orders to be filed.
(3) Each party is to pay its own costs.
The Court notes that:
(4) The parties are agreed that the second defendant failed to accord procedural fairness when it failed to hear the plaintiff with respect to the basis upon which the plaintiff alleged that members of the Medical Appeal Panel should disqualify themselves from sitting on the Medical Appeal Panel.
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Decision last updated: 06 March 2014
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