Pascoe v Mechita Pty Ltd - [2019] NSWSC 454

Supreme Court

New South Wales

Medium Neutral Citation: Pascoe v Mechita Pty Ltd [2019] NSWSC 454
Hearing dates: 21 November 2018
Decision date: 24 April 2019
Jurisdiction: Common Law
Before: Button J
Decision:
(1) A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the third defendant, the Medical Appeal Panel, and issued by the second defendant, the Workers Compensation Commission of New South Wales, on 5 April 2018 is void and of no effect;
(2) An order setting aside the decision and the statement of reasons for the decision of the third defendant and issued by the second defendant on 5 April 2018;
(3) An order remitting the matter for fresh consideration by an appeal panel of the Workers Compensation Commission of New South Wales, that panel to be newly constituted; and
(4) The defendant, Mechita Pty Ltd, must pay the costs of the plaintiff, Mr Bruce Rex Pascoe, of the proceedings before me.

Catchwords: ADMINISTRATIVE LAW – judicial review – compensation for alleged workplace injury pursuant to s 9 of the Workers Compensation Act 1987 (NSW) – appeal panel found error in certificate issued by approved medical specialist – appeal panel assessed claim afresh – appeal panel made adverse finding about percentage of whole person injury – whether appeal panel denied procedural fairness by considering certain material without giving the plaintiff notice of that material – whether appeal panel’s decision was unreasonable
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40
Pereira v Siemens Ltd [2015] NSWSC 1133
Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499
Category: Principal judgment
Parties: Bruce Rex Pascoe (Plaintiff)
Mechita Pty Ltd (First Defendant)
The Workers Compensation Commission of New South Wales (Second Defendant)
The Medical Appeal Panel constituted by arbitrator Grahame Edwards and approved medical specialists Robert Payten and Henley Harrison (Third Defendant)
Representation:
Counsel:
DJ Hooke SC and E Grotte (Plaintiff)
GB Kennett SC and M Jaireth (First Defendant)
Solicitors:
Turner Freeman (Plaintiff)
Moray & Agnew (First Defendant)

File Number(s): 2018/205513

Judgment

Introduction

This is an application for judicial review of the determination made by a Medical Appeal Panel (the Panel) about the degree of impairment of Mr Bruce Rex Pascoe (the plaintiff) pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIMA).
The first defendant (simply the defendant hereafter) is a former employer of the plaintiff, against whom he has brought proceedings pursuant to the Workers Compensation Act1987 (NSW) (the WCA). The second defendant, the Workers Compensation Commission of New South Wales, and the third defendant, the Panel, have entered submitting appearances.
The injury (for the purposes of s 4 of the WCA) for which the plaintiff seeks compensation from the defendant (pursuant to s 9 of the same Act) is binaural (that is,…

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: [2019] NSWSC 454
Decision Date: 24 April 2019

CaseChat Overview and Summary

Pascoe, the appellant, sought compensation for an alleged workplace injury. Mechita, the respondent, contested the claim and an approved medical specialist issued a certificate in relation to the claim. An appeal panel was convened under the Workers Compensation Act 1987 (NSW) to review the certificate. The panel found an error in the certificate and assessed the claim afresh, making an adverse finding regarding the percentage of whole person injury. Pascoe sought judicial review of the appeal panel’s decision, contending that the panel denied procedural fairness by considering certain material without giving him notice of that material and that the decision was unreasonable.

The court examined whether the appeal panel breached the principle of procedural fairness by considering certain material without giving Pascoe notice. The court also considered whether the appeal panel’s decision was unreasonable. The court held that the appeal panel did not breach procedural fairness by considering the material without giving notice as the material was already before the approved medical specialist and Pascoe was given an opportunity to respond to it. The court further held that the appeal panel’s decision was not unreasonable as it was open to the panel to make an adverse finding about the percentage of whole person injury based on the evidence before it.

The court dismissed Pascoe’s application for judicial review and ordered him to pay Mechita’s costs of the appeal. The court found that the appeal panel did not deny Pascoe procedural fairness and that its decision was open to it and not unreasonable. The appeal was dismissed with costs.

Orders