Legal Research
Cases
Lukacevic v Coates Hire Operations Pty Limited

Lukacevic v Coates Hire Operations Pty Limited

Link copied

Case Copied 6 May 2011 61 min read

Contents

On this page

Court of Appeal

New South Wales

Case Title: Lukacevic v Coates Hire Operations Pty Limited

Medium Neutral Citation: [2011] NSWCA 112

Hearing Date(s): 21 February 2011

Decision Date: 06 May 2011

Jurisdiction:

Before:
Giles JA at [1]; Hodgson JA at [73]; Handley AJA at [82];

Decision:
(1) Leave to appeal granted.
(2) Dispense with the filing and service of a notice of appeal and further compliance with the Rules.
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
WORKERS' COMPENSATION - Medical assessment by approved medical specialist - Appeal to appeal panel - Worker's statement disputes history recorded by approved medical specialist - Statement rejected by appeal panel - Appeal panel confirms assessment of approved medical specialist - Worker seeks judicial review of appeal panel decision - Whether appeal panel erred in rejecting affidavit - Whether decision of appeal panel was Wednesbury unreasonable.

Legislation Cited:
Administrative Decisions (Judicial Review) Act 1977 (C'th) s 5(2)(g)
Civil Liability Act 2002 s 43A
Workplace Injury Management and Workers Compensation Act 1998 Pt 7 of ch 7; ss 324, 325, 327, 328, 354

Cases Cited:
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) 57 MVR 80
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Attorney-General of New South Wales v Quin (1990) 170 CLR 1
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 327
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153
Hennessy v Broken Hill Pty Ltd [1926] HCA 32, 38 CLR 342
The King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
Kruger v The Commonwealth (1997) 190 CLR 1
Lukacevic v Coates Hire Operations [2010] NSWSC 551
Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1976) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30

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 Lukacevic v Coates Hire Operations Pty Limited 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: [2011] NSWCA 112
Decision Date: 06 May 2011

CaseChat Overview and Summary

The applicant, Lukacevic, sought judicial review of a decision made by an appeal panel concerning a workers' compensation matter. The dispute arose from an assessment by an approved medical specialist, which the applicant's statement disputed regarding the recorded history. The appeal panel had rejected the applicant's statement and upheld the specialist's assessment. The proceedings were before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appeal panel erred in rejecting the applicant's affidavit and whether the appeal panel's decision was so unreasonable that it could be described as Wednesbury unreasonable.

The Court of Appeal considered the nature of the appeal to the appeal panel and the evidence that could be considered. It was held that the appeal panel was entitled to reject the applicant's affidavit if it did not contain evidence that was relevant to the grounds of appeal. The court found that the applicant had not demonstrated that the appeal panel's decision was unreasonable in the Wednesbury sense, as there was no evidence to suggest that the panel had acted irrationally or illogically in reaching its conclusion.

Leave to appeal was granted, and the appeal was dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Dispense with the filing and service of a notice of appeal and further compliance with the Rules.

(3) Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Lukacevic v Coates Hire Operations Pty Limited
Medium Neutral Citation:	[2011] NSWCA 112
Hearing Date(s):	21 February 2011
Decision Date:	06 May 2011
Jurisdiction:
Before:	Giles JA at [1]; Hodgson JA at [73]; Handley AJA at [82];
Decision:	(1) Leave to appeal granted. (2) Dispense with the filing and service of a notice of appeal and further compliance with the Rules. (3) Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	WORKERS' COMPENSATION - Medical assessment by approved medical specialist - Appeal to appeal panel - Worker's statement disputes history recorded by approved medical specialist - Statement rejected by appeal panel - Appeal panel confirms assessment of approved medical specialist - Worker seeks judicial review of appeal panel decision - Whether appeal panel erred in rejecting affidavit - Whether decision of appeal panel was Wednesbury unreasonable.
Legislation Cited:	Administrative Decisions (Judicial Review) Act 1977 (C'th) s 5(2)(g) Civil Liability Act 2002 s 43A Workplace Injury Management and Workers Compensation Act 1998 Pt 7 of ch 7; ss 324, 325, 327, 328, 354
Cases Cited:	Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Allianz Australia Insurance Ltd v Roads and Traffic Authority of New South Wales [2010] NSWCA 328; (2010) 57 MVR 80 Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Attorney-General of New South Wales v Quin (1990) 170 CLR 1 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 327 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 Hennessy v Broken Hill Pty Ltd [1926] HCA 32, 38 CLR 342 The King v Connell; ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Kruger v The Commonwealth (1997) 190 CLR 1 Lukacevic v Coates Hire Operations [2010] NSWSC 551 Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1976) 162 CLR 24 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30