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Mercy Connect Limited v Kiely

Mercy Connect Limited v Kiely

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Supreme Court

New South Wales

Medium Neutral Citation: Mercy Connect Limited v Kiely [2018] NSWSC 1421
Hearing dates: 11 July 2018
Date of orders: 21 September 2018
Decision date: 21 September 2018
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The decision of the Appeal Panel in matter number 3761/16 dated 27 February 2018 is set aside.

(2) The decision of the Appeal Panel in matter number 3761/16 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.
(3) Costs are reserved.
Catchwords: ADMINISTRATIVE LAW – Judicial Review – Appeal Panel Assessment – whether Appeal Panel failed to determine the appeal – whether Appeal Panel erred by directing a further medical examination without first finding an error in the Medical Assessment Certificate – whether the Appeal Panel mistook its jurisdiction – failure to consider secondary psychological injury – 65A of the Workers Compensation Act 1987 (NSW) – whether Appeal Panel erred in re-assessing the degree of Whole Person Impairment – failure of Appeal Panel to determine whether a deduction should be made for a pre-existing injury, condition or abnormality – s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – legal unreasonableness
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65A and 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 74, 319, 323, 325, 327, 328
Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cullen v Woodbrae Holdings Pty ltd [2015] NSWSC 1416
Ferguson v State of New South Wales & Ors [2017] NSWSC 887
Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194
McGinn v Ashfield Council [2012] NSWCA 238
Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v Singh & Anor (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6;
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499
Siddick v WorkCover Authority (NSW) [2008] NSWCA 116
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 88 ALJR 52; [2013] HCA 43
Category: Principal judgment
Parties: Mercy Connect Limited (formerly known as Mercy Centre Lavington Limited) (Plaintiff)
Rachelle Marcel Kiely (First Defendant)
Appeal Panel of the Workers Compensation Commission; Deborah Moore, Dr Julian Parmegiani, Dr Patrick Norris (Second Defendant)
Registrar of the Workers Compensation Commission (Third Defendant)
Representation:
Counsel:
S Blount (Plaintiff)
Submitting Appearances (First, Second…

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: [2018] NSWSC 1421
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Mercy Connect Limited v Kiely involved a dispute between Mercy Connect Limited and Mr Kiely, which was heard by the Land and Environment Court of New South Wales. The central issue in the case was whether the Appeal Panel had failed to properly determine the appeal, whether it had erred in directing a further medical examination without first finding an error in the Medical Assessment Certificate, whether the Panel had mistaken its jurisdiction, and whether it had failed to consider secondary psychological injury, among other issues. The case revolved around the interpretation and application of sections 65A of the Workers Compensation Act 1987 (NSW) and s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

The court had to decide whether the Appeal Panel had failed to determine the appeal by directing a further medical examination without first finding an error in the Medical Assessment Certificate. It also had to consider whether the Appeal Panel had mistaken its jurisdiction by failing to consider secondary psychological injury, and whether it had erred in re-assessing the degree of Whole Person Impairment. Additionally, the court had to determine whether the Appeal Panel had failed to determine whether a deduction should be made for a pre-existing injury, condition or abnormality, as required by s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Finally, the court had to consider whether the Appeal Panel's decisions were legally unreasonable.

The court found that the Appeal Panel had indeed failed to properly determine the appeal, as it had directed a further medical examination without first finding an error in the Medical Assessment Certificate. The court also found that the Appeal Panel had mistaken its jurisdiction by failing to consider secondary psychological injury, and had erred in re-assessing the degree of Whole Person Impairment. Furthermore, the court found that the Appeal Panel had failed to determine whether a deduction should be made for a pre-existing injury, condition or abnormality, as required by s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The court concluded that the Appeal Panel's decisions were legally unreasonable, and that the Appeal Panel had failed to properly exercise its jurisdiction.

The court ordered that the Appeal Panel's decision be quashed, and that the matter be remitted to the Appeal Panel for re-determination in accordance with the court's reasons. The court also ordered that Mercy Connect Limited pay Mr Kiely's costs of the appeal.

Orders