NSW Police Force v Fleming - [2010] NSWSC 216

CITATION: NSW Police Force v Derek Fleming [2010] NSWSC 216

HEARING DATE(S): 7 December 2009

JUDGMENT DATE :
25 March 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) A declaration that the decision of the delegate of the Registrar of the Workers Compensation Commission made on 12 February 2009 is vitiated by jurisdictional error.
(2) An order in the nature of certiorari removing this matter into this Court.
(3) The decision of the delegate of the Registrar dated 12 February 2009 is quashed.
(4) The decision of the Appeal Panel dated 23 March 2009 is quashed.
(5) This matter is remitted to the Registrar of the Workers Compensation Commission of New South Wales to be determined in accordance with law.
(6) The first defendant is to pay the plaintiff’s costs as agreed or assessed.

CATCHWORDS: WORKERS COMPENSATION - APPEAL - against medical assessment - on ground of demonstrable error - whether delegate made jurisdictional error - whether decision of Appeal Panel can stand

LEGISLATION CITED: Supreme Court Act 1970
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY: Principal judgment

CASES CITED: Akins v National Australia Bank (1994) 34 NSWLR 155
Australian Prestressing Services Pty Ltd v Vosota WCC10798-04
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Glover v Australian Ultra Concrete Floors Pty Limited [2003] NSWCA 80
McCann v Parsons (1954) 93 CLR 418
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
Mickelberg v The Queen (1989) 167 CLR 259
Orr v Holmes (1948) 76 CLR 632
Pitsonis v Registrar of Workers Compensation Commission & Anor [2007] NSWSC 50
Pitsonis v Registrar of Workers Compensation Commission & Anor [2008] NSWCA 88
R v Abou-Chabake (2004) 149 A Crim R 417
Ratten v The Queen (1974) 131 CLR 510
Riverina Wines Pty Limited v Registrar of the Workers Compensation Commission NSW and Ors [2007] NSWCA 149, (2007) 4 DDCR 607
Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7
Summerfield v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 515
Wollongong Corporation v Cowan (1955) 93 CLR 435

TEXTS CITED: The Macquaire Dictionary 4th ed, The Macquarie Library Pty Ltd, Australia 2005
New Penguin English Dictionary 1st ed, Penguin, London 2000

PARTIES: New South Wales Police Force (Plaintiff)
Derek Fleming (First Defendant)
The Registrar, Workers Compensation Commission (Second Defendant)
The Workers Compensation Commission Medical Appeal Panel (Third Defendant)

FILE NUMBER(S): SC 2009/297963

COUNSEL: D Stanton (Plaintiff)
B McManamey (First Defendant)

SOLICITORS: Hicksons (Plaintiff)
Oates & Smith (First Defendant)
Submitting Appearance, Crown Solicitor (Second & Third Defendants)

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): 398/2008

LOWER COURT JUDICIAL OFFICER : The Registrar of the Workers Compensation Commission and Medical Appeal Panel of the Workers Compensation Commission

LOWER COURT DATE OF DECISION: 12 February 2009 and 23 March 2009

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

ASSOCIATE JUSTICE HARRISON

THURSDAY, 25 MARCH…

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: [2010] NSWSC 216
Decision Date: 25 March 2010

CaseChat Overview and Summary

The case of New South Wales Police Force against Fleming was heard in the Court of Appeal of the NSW Civil and Administrative Tribunal. The dispute centres on the assessment of the appellant's claim for workers' compensation following a work-related injury. The initial decision by the delegate to reject the claim was appealed by the appellant, who argued that the decision contained a demonstrable error. The appeal was subsequently dismissed by the Appeal Panel, leading the appellant to further appeal to the Court of Appeal.

The primary legal issues before the court were whether the delegate had made a jurisdictional error in their assessment and whether the Appeal Panel's decision to dismiss the appellant's appeal could stand. The appellant contended that the delegate had overlooked certain evidence and had made an error in the interpretation of medical reports. Additionally, the appellant argued that the Appeal Panel had failed to adequately address the alleged errors made by the delegate.

The court held that the Appeal Panel's decision to dismiss the appeal was correct. The court found that the Appeal Panel had properly considered the evidence and the arguments presented. The court concluded that the appellant had not demonstrated that the Appeal Panel had erred in its decision-making process. The court further held that the delegate's assessment did not contain a jurisdictional error, as the evidence considered was sufficient to support the delegate's decision. The appeal was therefore dismissed, and the original decision rejecting the claim for workers' compensation was upheld.

Orders