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 106Texts 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…
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- Case
- [2011] NSWCA 42
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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