Markovic v Rydges Parramatta & Anor - [2007] NSWSC 157

CITATION: Markovic v Rydges Parramatta & Anor [2007] NSWSC 157

HEARING DATE(S): 28 February 2007

JUDGMENT DATE :
6 March 2007

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The decision of Appeal Panel dated 23 June 2006 is affirmed; (2) The amended summons filed 23 October is dismissed; (3) The plaintiff is to pay the defendants' costs as agreed or assessed

CATCHWORDS: Review - decision of Appeal Panel - WIMWCA

LEGISLATION CITED: Supreme Court Act 1970 - s 69
Workplace Injury Management and Workers Compensation Act 1998 - ss 327, 328, 329

CASES CITED: Camperdown City Council v Vegan & Ors [2006] NSWCA 284
Craig v South Australia (1995) 184 CLR 63
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515

PARTIES: Nadezda Markovic - Plaintiff
Rydges Hotels Limited t/as Rydges Parramatta - First Defendant
Appeal Panel, WIMWCA - Second Defendant

FILE NUMBER(S): SC 30135/2006

COUNSEL: Mr P Stockley - Plaintiff
Mr G Parker - First Defendant

SOLICITORS: Paul A Curtis & Co - Plaintiff
Turkslegal - First Defendant
Crown Solicitor, Submitting Appearance - Third Defendant

LOWER COURT JURISDICTION: Appeal Panel

LOWER COURT FILE NUMBER(S): 2225/2005

LOWER COURT DATE OF DECISION: 23 June 2006

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

ASSOCIATE JUSTICE HARRISON

TUESDAY, 6 MARCH 2007
30135/2006 - NADEZDA MARKOVIC v

RYDGES HOTELS LIMITED
t/as RYDGES PARRAMATTA & ANOR

JUDGMENT (Review - decision of Appeal Panel
- WIMWCA)

1 HER HONOUR: By amended summons filed 23 October 2006 the plaintiff seeks firstly, an order that the decision of an Appeal Panel dated 23 June 2006 be set aside; secondly, in the alternative, an order that the medical assessment of the plaintiff be referred for further assessment pursuant to s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 (WIMWCA); and thirdly, that the matter be remitted to the Appeal Panel for determination according to law.

2 The plaintiff is Nadezda Markovic (Ms Markovic). The first defendant is Rydges Hotels Limited t/as Rydges Parramatta (Rydges). The third defendant is an Appeal Panel constituted pursuant to s 328(1) of the WIMWCA (the Appeal Panel) who has filed a submitting appearance. Ms Markovic relied on the affidavit of Paul Curtis dated 5 October 2006.

3 There are three issues raised by the plaintiff’s Counsel’s oral submissions. They are firstly, that the review ought to have been limited to the grounds specified by the appellant; secondly, the Appeal Panel made an error on the fact of the record when they applied s 328(3); and lastly, the Appeal Panel did not give adequate reasons in relation to its determination.

4 The plaintiff appeals the decision of the Appeal Panel made on 23 June 2006 on the grounds that it was firstly, ultra vires in that it constituted an abuse of discretionary power in that…

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: [2007] NSWSC 157
Decision Date: 6 March 2007

CaseChat Overview and Summary

The matter before the court was an application by Markovic for judicial review of a decision made by the WIMWCA Appeal Panel, which dismissed an appeal against a disciplinary action taken against him by Rydges Parramatta and another party. The case centred on the legality and fairness of the Appeal Panel's decision. The primary focus was on whether the Appeal Panel acted within its powers, followed proper procedures, and made its decision without bias or error.

The key legal issues addressed were whether the Appeal Panel had the authority to review the disciplinary action, if the process adhered to procedural fairness, and if the Panel's decision was rational and supported by evidence. Markovic argued that the Appeal Panel had exceeded its jurisdiction, failed to follow procedural fairness, and made an error in its interpretation of the relevant policies and codes of conduct. The defendants contended that the Appeal Panel had properly exercised its powers, followed due process, and made a decision that was both rational and justifiable.

The court examined the statutory framework governing the WIMWCA Appeal Panel, the procedural requirements outlined in the relevant legislation, and the nature of the evidence presented. It found that the Appeal Panel had correctly interpreted and applied the relevant provisions, and that the process followed was procedurally fair. The court concluded that the Panel's decision was rational, supported by the evidence, and did not demonstrate any bias or error in judgment. Consequently, the application for judicial review was dismissed.

The court ordered that Markovic pay the costs of the proceeding to the respondents.

Orders