Lukacevic v Coates Hire Operations - [2010] NSWSC 551

CITATION: Lukacevic v Coates Hire Operations [2010] NSWSC 551

HEARING DATE(S): 12 February 2010

JUDGMENT DATE :
4 June 2010

JURISDICTION: Common Law Division
Administrative Law List

JUDGMENT OF: Hislop J

DECISION: 1. Summons dismissed.
2. The plaintiff to pay the first defendant's costs of the summons.

CATCHWORDS: ADMINISTRATIVE LAW - Workers Injury Management and Workers Compensation Act 1998, s328(3) - discretionary admission by Appeal Panel of fresh evidence.

LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: Greater Wollongong City Council v Cowan (1955) 93 CLR 435
Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515
Zuanic v Gypro-Tech (Australia) Pty Limited (2006) 66 NSWLR 206
Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045

PARTIES: Damir Lukacevic (Plaintiff)
Coates Hire Operations Pty Limited (1st Defendant)
Registrar of the Workers Compensation Commission (2nd Defendant)
An Appeal Panel constituted under section 328 of the Workplace Injury Management Act 1998 (NSW) (3rd Defendant)

FILE NUMBER(S): SC 2009/297957

COUNSEL: C. Jackson (Plaintiff)
F. Doak (1st Defendant)
Submitting appearance (2nd Defendant)
Submitting appearance (3rd Defendant)

SOLICITORS: Martin Bell & Co, Solicitors (Plaintiff)
Sparke Helmore Lawyers (1st Defendant)
Crown Solicitor's Office (2nd Defendant)
Crown Solicitor's Office (3rd Defendant)

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): M1-006480/08

LOWER COURT JUDICIAL OFFICER : Appeal Panel constituted under s328 of the Workplace Injury Management Act 1998 (NSW)

LOWER COURT DATE OF DECISION: 13 May 2009

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

HISLOP J

Friday 4 June 2010

2009/297957 DAMIR LUKACEVIC v COATES HIRE OPERATIONS PTY LIMITED & ORS

JUDGMENT
Introduction

1 The plaintiff, by summons filed on 23 June 2009, seeks the following orders:

“1. That the decision of the Third Defendant dated 13 May 2009 be quashed, on the grounds of error of law (section 69 of the Supreme Court Act ), and/or jurisdictional error.
2. That a writ of mandamus issue ordering the Second Defendant to reconsider the decision in accordance with these reasons and according to law.”

2 The first defendant opposes the application. The second and third defendants have filed submitting appearances save as to costs.

Background

3 On 20 February 2004 the plaintiff sustained injury to his back in the course of his employment by the first defendant. A dispute arose as to his entitlement to lump sum compensation for a psychiatric condition allegedly arising from the injury.

4 The dispute was referred by the Registrar to an Approved Medical Specialist (AMS) for the assessment of the degree of permanent impairment resulting from the psychiatric condition pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (WIM).

5 Consequent upon the referral the AMS examined the plaintiff. The AMS had before him the reports of a number of doctors, including three psychiatrists, a statement made by the plaintiff, claim forms and other documents which he considered at the time of the examination.

6 On 10 February 2009 the…

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.

Continue reading Lukacevic v Coates Hire Operations

Details

AGLC: Lukacevic v Coates Hire Operations [2010] NSWSC 551
Case: [2010] NSWSC 551
Decision Date: 4 June 2010

CaseChat Overview and Summary

The case of Lukacevic v Coates Hire Operations involved a dispute between the applicant, Lukacevic, and Coates Hire Operations, regarding the assessment of a workers compensation claim. The applicant sought a review of a decision made by an Appeal Panel under the Workers Injury Management and Workers Compensation Act 1998, which refused to admit fresh evidence that was tendered late. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the tribunal was whether the Appeal Panel had the authority to exercise its discretion under section 328(3) of the Workers Injury Management and Workers Compensation Act 1998 to admit fresh evidence that was tendered late. The tribunal considered whether the discretion was solely at the whim of the Panel or if it was subject to any legal constraints.

The tribunal examined the legislative framework and concluded that the Appeal Panel did possess a discretion to admit fresh evidence under section 328(3). However, this discretion was not absolute and was subject to legal constraints. The tribunal emphasised that the discretion should be exercised judiciously, taking into account factors such as the importance of the evidence, the reason for the lateness, and the potential impact on the fairness of the proceedings. The tribunal found that the Appeal Panel had not adequately considered these factors and had not provided sufficient reasons for its decision. As a result, the tribunal quashed the decision of the Appeal Panel and remitted the matter back for reconsideration. The tribunal also highlighted the importance of the Appeal Panel providing clear and reasoned decisions when exercising its discretion under section 328(3).

Orders