Markovic v Rydges Hotels Ltd - [2009] NSWCA 181

New South Wales

Court of Appeal

CITATION: MARKOVIC v RYDGES HOTELS LIMITED and Anor [2009] NSWCA 181
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12/03/09

JUDGMENT DATE:
7 July 2009

JUDGMENT OF: Allsop P at 1; Handley AJA at 2; Hoeben J at 37

DECISION: (1) Appeal allowed with costs.
(2) Set aside the decision of the Associate Justice Harrison of 6 March 2007.
(3) In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed.
(4) Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005 be heard and determined by a fresh Appeal Panel according to law.
(5) Order the respondent to pay the appellant's costs of the Summons in the Common Law Division.
(6) The respondent to have a certificate under the Suitors Funds Act if qualified.

CATCHWORDS: WORKERS' COMPENSATION – binding medical assessment – appeal to Appeal Panel – appeal by way of review – panel not confined to grounds of appeal – panel proposing to consider other questions bound to give parties opportunity to be heard on new issues - ADMINISTRATIVE LAW – administrative body determining rights – procedural fairness – deciding case on basis not argued by parties – body bound to give parties opportunity to be heard on new issues.

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Workers Compensation Legislation Amendment Act (Act No. 61 of 2001)
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Summerfield v Registrar of the Workers Compensation Commissioner [2006] NSWSC 515

PARTIES: Nadezda Markovic - Appellant
Rydges Hotels Limited - First Respondent
An Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Second Respondent

FILE NUMBER(S): CA 40187/07

COUNSEL: Ms Nadezda Markovic in person - Appellant
Mr G Parker - Respondent

SOLICITORS: Appellant - N/A
Turks Legal - First Respondent
I V Knight, Crown Solicitor - Second Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 30135/06

LOWER COURT JUDICIAL OFFICER: Associate Justice Harrison

LOWER COURT DATE OF DECISION: 06/03/07

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 157

CA40187/07

ALLSOP P
HANDLEY AJA
HOEBEN J
7 July 2009

MARKOVIC v RYDGES HOTELS LIMITED T/as RYDGES PARRAMATTA & ANOR

CATCHWORDS

WORKERS COMPENSATION – binding medical assessment – appeal to Appeal Panel – appeal by way of review – panel not confined to grounds of appeal – panel proposing to consider other questions bound to give parties opportunity to be heard on new issues

HEADNOTE

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: [2009] NSWCA 181
Decision Date: 7 July 2009

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal by Markovic (the appellant) against Rydges Hotels Ltd (the respondent). The dispute concerned a binding medical assessment made by an Appeal Panel under the *Workers Compensation Act 1987* (NSW). Markovic sought to quash the Appeal Panel's decision and have the matter remitted for a fresh hearing.

The primary legal issue before the Court of Appeal was whether the Appeal Panel had denied Markovic procedural fairness by considering and deciding the matter on grounds that had not been raised by the parties. Specifically, the court had to determine if the Appeal Panel was confined to the grounds of appeal presented by the employer or if it could, in the exercise of its review function, consider other questions without affording the parties an opportunity to be heard on those new issues.

The Court of Appeal found that the Appeal Panel had failed to provide procedural fairness. It reasoned that while an Appeal Panel conducting a review is not strictly confined to the grounds of appeal, it is bound to give the parties an opportunity to be heard on any new issues it proposes to consider. By deciding the case on a basis not argued by the parties, the Appeal Panel acted unfairly. Consequently, the Court of Appeal allowed the appeal, quashed the decision of the Appeal Panel, and ordered that the employer's appeal from the original medical assessment certificate be heard and determined by a fresh Appeal Panel.

Orders

Orders of the court

(1) Appeal allowed with costs. (2) Set aside the decision of the Associate Justice Harrison of 6 March 2007. (3) In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed. (4) Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005 be heard and determined by a fresh Appeal Panel according to law. (5) Order the respondent to pay the appellant's costs of the Summons in the Common Law Division. (6) The respondent to have a certificate under the Suitors Funds Act if qualified.

09/07/2009 - No appearance for the Appellant - Paragraph(s) cover sheet.

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

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CITATION:	MARKOVIC v RYDGES HOTELS LIMITED and Anor [2009] NSWCA 181 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12/03/09
JUDGMENT DATE:	7 July 2009
JUDGMENT OF:	Allsop P at 1; Handley AJA at 2; Hoeben J at 37
DECISION:	(1) Appeal allowed with costs. (2) Set aside the decision of the Associate Justice Harrison of 6 March 2007. (3) In lieu thereof order that the Medical Assessment Certificate of the Appeal Panel dated 23 June 2006 be quashed. (4) Order that the appeal by the employer from the Medical Assessment Certificate of 29 August 2005 be heard and determined by a fresh Appeal Panel according to law. (5) Order the respondent to pay the appellant's costs of the Summons in the Common Law Division. (6) The respondent to have a certificate under the Suitors Funds Act if qualified.
CATCHWORDS:	WORKERS' COMPENSATION – binding medical assessment – appeal to Appeal Panel – appeal by way of review – panel not confined to grounds of appeal – panel proposing to consider other questions bound to give parties opportunity to be heard on new issues - ADMINISTRATIVE LAW – administrative body determining rights – procedural fairness – deciding case on basis not argued by parties – body bound to give parties opportunity to be heard on new issues.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Legislation Amendment Act (Act No. 61 of 2001) Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 Summerfield v Registrar of the Workers Compensation Commissioner [2006] NSWSC 515
PARTIES:	Nadezda Markovic - Appellant Rydges Hotels Limited - First Respondent An Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - Second Respondent
FILE NUMBER(S):	CA 40187/07
COUNSEL:	Ms Nadezda Markovic in person - Appellant Mr G Parker - Respondent
SOLICITORS:	Appellant - N/A Turks Legal - First Respondent I V Knight, Crown Solicitor - Second Respondent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 30135/06
LOWER COURT JUDICIAL OFFICER:	Associate Justice Harrison
LOWER COURT DATE OF DECISION:	06/03/07
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWSC 157