Kapp v St Josephs Village Ltd - [2024] NSWPIC 406

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kapp v St Josephs Village Ltd [2024] NSWPIC 406
APPLICANT:	Griselda Kapp
RESPONDENT:	St Joseph’s Village Ltd
MEMBER:	Catherine McDonald
DATE OF DECISION:	29 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Application for reconsideration of Certificate of Determination to permit application for reconsideration of Medical Appeal Panel decision; Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd and Secretary, Department of Communities and Justice v Cannell; Held – application for reconsideration of Certificate of Determination declined.
DETERMINATIONS MADE:	The Commission determines: 1. The application for reconsideration of the Certificate of Determination dated 27 July 2016 is declined.

STATEMENT OF REASONS

BACKGROUND

Ms Kapp was employed by St Joseph’s Village Limited (St Joseph’s) as a personal carer when she suffered a psychological injury on 25 October 2013. She commenced proceedings in the former Workers Compensation Commission on 9 September 2015 claiming weekly compensation, treatment expenses and permanent impairment compensation.
The former Workers Compensation Commission which was abolished in 2021 and replaced by the Personal Injury Commission. I have used the titles of the decision makers relevant at the time the various decisions considered below were made. I have used Commission to apply to the relevant body when events occurred.
At a conciliation conference on 14 December 2015 Ms Kapp and St Joseph’s entered into consent orders which provided for the payment of some weekly compensation and treatment expenses and remitted the matter for referral to an Approved Medical Specialist (AMS).
Dr Samuels, an AMS, issued a Medical Assessment Certificate (MAC) on 18 March 2016 stating that Ms Kapp suffered 6% whole person impairment (WPI).
Ms Kapp appealed and on 22 June 2016 a Medical Appeal Panel (MAP) revoked the MAC and issued a new MAC certifying that she suffered 7% WPI. The Commission issued a Certificate of Determination (COD) on 27 July 2016 consistent with that decision, stating that Ms Kapp had no entitlement to permanent impairment compensation.
In September 2019 Ms Kapp filed a further medical appeal, relying on the grounds of deterioration of her condition and the availability of further evidence. The further evidence included reports by Dr Westmore, psychiatrist, dated 12 March 2018 and Dr Conrad, general surgeon, dated 23 April 2018. Ms Kapp did not pursue that appeal.
On 31 May 2022 Ms Kapp filed an application in the Personal Injury Commission asking that the MAP reconsider its decision under s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). In a decision dated 23 August 2022, the President’s delegate declined the application for reconsideration because the power to reconsider had been repealed, and there were no pending “pre-establishment proceedings”.
Ms Kapp commenced proceedings in the Supreme Court in November 2022, seeking judicial review of the delegate’s decision. The parties entered into consent orders and on 23 April 2023, Elkaim AJ gave an oral decision in which he determined that the orders sought should be made because Ms Kapp and St Joseph’s agreed…

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 Kapp v St Josephs Village Ltd 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: [2024] NSWPIC 406
Decision Date: 29 July 2024

CaseChat Overview and Summary

In the case of Kapp v St Josephs Village Ltd, the applicant, Ms Kapp, sought reconsideration of a Certificate of Determination (COD) to permit an application for reconsideration of a Medical Appeal Panel (MAP) decision. This case was heard in the NSW Civil and Administrative Tribunal, where the primary legal issues centred around the principles guiding the reconsideration of a COD and the circumstances under which such reconsideration may be granted. The court had to determine whether the application for reconsideration was fair and just to both parties, particularly considering the prolonged nature of the proceedings and the potential for excessive litigation.

The reasoning of the court was grounded in the principle that while the court retains the power to review decisions to ensure justice is served, it must also be mindful of the public interest in preventing interminable litigation. The court referenced several precedents, including Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Pty Ltd, and Secretary, Department of Communities and Justice v Cannell, to highlight that the court should exercise its discretion judiciously. The applicant's submissions and the material attached to the reconsideration application were closely examined, particularly the delays in filing the reconsideration application and the lack of new evidence to support the appeal. The court found that the principles in Samuel were applicable, and given the protracted nature of the proceedings and the lack of new evidence, the application for reconsideration of the COD was declined.

Ultimately, the court determined that the application for reconsideration of the COD was not warranted, as it would not serve the interests of justice or fairness to both parties. The court emphasized the importance of finality in legal proceedings and the need to prevent repeated litigation over the same issues. The decision underscores the tribunal's role in balancing the rights of the parties with the broader public interest in efficient and fair judicial processes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The passage from the decision of Street CJ in Hilliger v Hilliger[17] (Hilliger) to which Roche DP referred in Samuel reads:“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.”[17] (1952) 52 SR (NSW) 105, 108. The emphasis in the latter quote was added by Roche DP and he formulated the last of the factors in his list by reference to that passage and to the former s 354(3) of the 1998 Act, now s 43(3) of the 2020 Act, which provides:“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” In Cannell, Nomchong ADP considered proceedings with a long history. The appeal was from a decision granting a reconsideration application which set aside a COD issued in 2019 to permit a further medical appeal as to the extent of permanent impairment, following a deterioration, for a threshold dispute. Nomchong ADP agreed that the principles in Samuel were applicable. She set aside the decision under appeal and re-determined the matter, finding that the relevant COD should not be set aside. The question of fairness must be considered in respect of both parties. These proceedings have been protracted and inevitably considerable costs have been incurred. Turning to the question of delay, I consider that the following matters disclosed in the file are important. Ms Kapp suffered injury on 25 October 2013. The COD was issued in 2016 after examination by an AMS and a medical appeal. Ms Kapp sought to file a further medical appeal relying on the ground of deterioration by a document dated 3 September 2019 and accompanied by unsigned submissions. The application relied on the report of Dr Westmore dated 12 March 2018 and a report of Dr Conrad dated 23 April 2018. She relied on reports from her treating doctors in the period since the COD was issued. The submissions accompanying the appeal said that there was no need to reconsider the COD because the appeal was made for a threshold dispute only, referring to the decision of then Arbitrator Harris in Lizdenis v Centrel Pty Ltd.[18][18] [2016] NSWWCC 21. The material attached to the reconsideration application filed in 2022 included emails dated 10 September and 26 September 2019 from Mark Norman, Team Leader Registry Services, pointing out that the appeal had purported to be from one of the medical members of the MAP and rejecting its filing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.