Maricic v The Registrar, Workers Compensation Commission - [2011] NSWCA 42

Court of Appeal

New South Wales

Case Title: Maricic v The Registrar, Workers Compensation Commission

Medium Neutral Citation: [2011] NSWCA 42

Hearing Date(s): 15 December 2010

Decision Date: 11 March 2011

Jurisdiction:

Before:
Beazley JA at 1; Hodgson JA at 2; Campbell JA at 43

Decision:
(1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days.
(2) 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 - Appeal against decision of approved medical specialist - Further medical examination by approved medical specialist on the appeal panel - Report of examination adverse to applicant provided to appeal panel - Report adverse in a respect previously put in issue - Report not shown to applicant prior to being acted on by appeal panel - Obligation of appeal panel to afford procedural fairness - In circumstances, no breach of obligation to afford procedural fairness.

Legislation Cited:
Workplace Injury Management and Workers Compensation Act 1998 s 3, s 293, s 324, s 327, s328

Cases Cited:
Estate of Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Maricic v Registrar, Workers Compensation Commission [2009] NSWSC 925
Plaintiff M61-2010E v Commonwealth of Australia [2010] HCA 41
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Skillen v MKT Removals Pty Ltd [2007] NSWSC 608
Twist v Randwick Municipal Council (1976) 136 CLR 106

Texts Cited:

Category: Principal judgment

Parties:
Biserka MARICIC (applicant)
THE REGISTRAR, WORKERS COMPENSATION COMMISSION (first respondent)
Janice CONNELLY, Dr Mark BURNS and Dr Albert BENCSIK together consulting the Medical Appeal Panel of the Workers Compensation Commission appointment pursuant to s 324(4) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (second respondent)
LYNCH MANUFACTURING NSW PTY LIMITED (third respondent)

Representation

- Counsel:
Counsel:
R P L LANCASTER SC/ B NOLAN (appellant)
Submitting appearances (first and second respondents)
P R STOCKLEY (third respondent)

- Solicitors:
Solicitors:
NSW Compensation Lawyers (appellant)
I V Knight - Crown Solicitors Office (first and second respondents)
Edwards Michael Lawyers (third respondent)

File number(s): CA 2009/298574

Decision Under Appeal

- Court / Tribunal:

- Before: Harrison AsJ

- Date of Decision: 08 September 2009

- Citation: Maricic V Registrar, Workers Compensation Commission [2009] NSWSC 925

- Court File Number(s) SC 30107/08

Publication Restriction:
None

Judgment

BEAZLEY JA: I agree with the reasons of Hodgson JA and the orders he proposes.

HODGSON JA: On 15 August 2008, the applicant Biserka Maricic commenced proceedings in the Common Law Division against the first respondent (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.

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Details

Case: [2011] NSWCA 42
Decision Date: 11 March 2011

CaseChat Overview and Summary

The applicant, Maricic, appealed to the Court of Appeal of New South Wales against a decision of the Registrar of the Workers Compensation Commission. The dispute concerned whether the appeal panel had afforded the applicant procedural fairness when it considered a further medical examination report that was adverse to the applicant's case.

The central legal issue before the Court of Appeal was whether the appeal panel had breached its obligation to afford procedural fairness to the applicant by failing to provide the applicant with a copy of a further medical examination report, which had been obtained by an approved medical specialist on the appeal panel, prior to the panel making its decision. This report addressed a matter previously in dispute.

The Court of Appeal held that there was no breach of the obligation to afford procedural fairness. Their Honours reasoned that the applicant had been aware of the issue that the further medical examination report addressed, and had had the opportunity to make submissions on that issue. The report itself did not introduce a new issue or a new line of reasoning that the applicant had not had an opportunity to address. Therefore, the failure to provide the report to the applicant before the panel considered it did not amount to a denial of procedural fairness in these circumstances. Leave to appeal was granted, but the appeal was ultimately dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days.

(2) 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:	Maricic v The Registrar, Workers Compensation Commission
Medium Neutral Citation:	[2011] NSWCA 42
Hearing Date(s):	15 December 2010
Decision Date:	11 March 2011
Jurisdiction:
Before:	Beazley JA at 1; Hodgson JA at 2; Campbell JA at 43
Decision:	(1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days. (2) 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 - Appeal against decision of approved medical specialist - Further medical examination by approved medical specialist on the appeal panel - Report of examination adverse to applicant provided to appeal panel - Report adverse in a respect previously put in issue - Report not shown to applicant prior to being acted on by appeal panel - Obligation of appeal panel to afford procedural fairness - In circumstances, no breach of obligation to afford procedural fairness.
Legislation Cited:	Workplace Injury Management and Workers Compensation Act 1998 s 3, s 293, s 324, s 327, s328
Cases Cited:	Estate of Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Maricic v Registrar, Workers Compensation Commission [2009] NSWSC 925 Plaintiff M61-2010E v Commonwealth of Australia [2010] HCA 41 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 Skillen v MKT Removals Pty Ltd [2007] NSWSC 608 Twist v Randwick Municipal Council (1976) 136 CLR 106
Texts Cited:
Category:	Principal judgment
Parties:	Biserka MARICIC (applicant) THE REGISTRAR, WORKERS COMPENSATION COMMISSION (first respondent) Janice CONNELLY, Dr Mark BURNS and Dr Albert BENCSIK together consulting the Medical Appeal Panel of the Workers Compensation Commission appointment pursuant to s 324(4) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (second respondent) LYNCH MANUFACTURING NSW PTY LIMITED (third respondent)
Representation
- Counsel:	Counsel: R P L LANCASTER SC/ B NOLAN (appellant) Submitting appearances (first and second respondents) P R STOCKLEY (third respondent)
- Solicitors:	Solicitors: NSW Compensation Lawyers (appellant) I V Knight - Crown Solicitors Office (first and second respondents) Edwards Michael Lawyers (third respondent)
File number(s):	CA 2009/298574
Decision Under Appeal
- Court / Tribunal:
- Before:	Harrison AsJ
- Date of Decision:	08 September 2009
- Citation:	Maricic V Registrar, Workers Compensation Commission [2009] NSWSC 925
- Court File Number(s)	SC 30107/08
Publication Restriction:	None