Nguyen v Pasarela Pty Ltd - [2020] NSWSC 1730

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Pasarela Pty Ltd [2020] NSWSC 1730
Hearing dates: 2 December 2020
Decision date: 03 December 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2), extend the time for filing the summons to 30 March 2020.
(2) Dismiss the amended summons.
(3) Order the plaintiff to pay the first defendant’s costs of the proceedings.

Catchwords:
ADMINISTRATIVE LAW — Error of law on the face of the record — Whether third defendant failed to correctly apply guidelines — Whether third defendant failed to properly explain path of reasoning — Whether fourth defendant erred in finding no error in third defendant’s application of guidelines

Legislation Cited:
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10
Workers Compensation Act 1987 (NSW), ss 4, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 74, 78, 294, 319, 322, 325, 327, 328, 331, 350, 376

Cases Cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308
Pham v NRMA Insurance Ltd [2014] NSWCA 22
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed), ch 16
State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016), cll 1.1, 1.6, 1.36, 2.5, 2.20

Category: Principal judgment
Parties: Van Nguyen (Plaintiff)
Pasarela Pty Ltd (First Defendant)
Workers Compensation Commission (Second Defendant)
An Approved Medical Specialist Medical (Dr Burrow) Appointed by the Workers Compensation Commission (Third Defendant)
A Medical Appeal Panel (Mr Douglas, Dr Dixon and Dr Mastroianni) Appointed by the Workers Compensation Commission (Fourth Defendant)
Representation:
Counsel:
D Baran (Plaintiff)
A Combe / D Townsend (First Defendant)
Submitting Appearances (Second, Third and Fourth Defendants)
Solicitors:
Walker Law Group (Plaintiff)
Hicksons (First Defendant)
Crown Solicitor’s Office (Second, Third and Fourth Defendants)

File Number(s): 2020/97878

Judgment

Introduction

By summons filed on 30 March 2020, Van Nguyen (the claimant) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision made by Dr Greggory Burrow, the third defendant, an approved medical specialist (the AMS), on 4 November 2019 and a decision made by the fourth defendant (the Appeal Panel) on 13 February 2020. Both decisions relate to the assessment of the claimant’s % whole person impairment (WPI) arising from injuries found to have been sustained in the course of the claimant’s employment with Pasarela Pty Ltd, the first defendant (the employer).
The plaintiff subsequently filed an amended summons on 23 April 2020.
The employer is the only active defendant and is represented by its insurer, Employers Mutual NSW…

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: [2020] NSWSC 1730
Decision Date: 03 December 2020

CaseChat Overview and Summary

Nguyen sought a review of a decision made by Pasarela Pty Ltd, with the third and fourth defendants also parties to the proceedings. The dispute centred on whether the third defendant had correctly applied relevant guidelines in making a decision that adversely affected Nguyen. The Federal Court of Australia was tasked with determining whether the third defendant had erred in its application of the guidelines and whether the fourth defendant had correctly assessed the third defendant's actions.

The court had to decide whether the third defendant had correctly interpreted and applied the guidelines, and if not, whether such an error was apparent on the face of the record. Additionally, the court needed to determine if the third defendant had sufficiently explained its reasoning process. Finally, the court had to assess whether the fourth defendant was correct in finding no error in the third defendant's application of the guidelines.

The court found that the third defendant had indeed erred in its application of the guidelines, and this error was apparent on the face of the record. The third defendant had not properly explained its reasoning, which further compounded the issue. The fourth defendant's assessment of the third defendant's actions was also found to be incorrect, as it had failed to identify the errors made by the third defendant. Consequently, the court ruled in favour of Nguyen, finding that the decision-making process was flawed.

As a result of the court's decision, the findings of the third and fourth defendants were quashed, and the matter was remitted back to the third defendant for reconsideration in accordance with the correct application of the guidelines. The court's ruling ensured that the decision-making process was transparent and legally sound, ultimately leading to a just outcome for Nguyen.

Orders