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Petrovic v BC Serv No 14 Pty Limited

Petrovic v BC Serv No 14 Pty Limited

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Case Copied 18 October 2007 21 min read

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CITATION: Petrovic v BC Serv No 14 Pty Limited & Ors [2007] NSWSC 1156

HEARING DATE(S): 15/10/2007

JUDGMENT DATE :
18 October 2007

JUDGMENT OF: Hoeben J at 1

CATCHWORDS: ADMINISTRATIVE LAW - Workers Compensation - what constitutes "additional relevant information" for the purposes of s327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 - role and function of Medical Appeal Panel under s328 - whether Panel failed to give sufficient reasons - costs.

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

CASES CITED: Campbelltown City Council v Vegan (2005-6) 67 NSWLR 372
Craig v South Australia (1995) 184 CLR 163 at 179
Crean v Burrangong Pet Food Pty Limited [2007] NSWSC 389
Summerfield v Registrar of Workers Compensation Commission of NSW & Anor [2006] NSWSC 515
Wikaira v Registrar of Workers Compensation Commission of NSW & Anor [2005] NSWSC 954
Wilkie v Motor Accidents Authority of NSW and Anor [2007] NSWSC 1086 at [41] – [48]
Zuanic v Gypro-tech (Australia) Pty Limited (2005-6) 66 NSWLR 206

PARTIES: Mila Petrovic - Plaintiff
BC SERV No 14 Pty Limited trading as Broadlex Cleaning Services - First Defendant
The Registrar of the Workers Compensation Commission of NSW - Second Defendant
The Medical Appeal Panel of the Workers Compensation Commission of NSW - Third Defendant

FILE NUMBER(S): SC 30051/2007

COUNSEL: Mr DE Baran - Plaintiff
Mr DG Saul - 1st, 2nd and 3rd Defendants

SOLICITORS: NSW Compensation Lawyers - Plaintiff
Hunt & Hunt - 1st Defendant
IV Knight, Crown Solicitor - 2nd and 3rd Defendants

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): 10390/2006

LOWER COURT DATE OF DECISION: 04/05/2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Thursday, 18 October 2007

30051/2007 – Mila PETROVIC v BC SERV No 14 PTY LIMITED trading as BROADLEX CLEANING SERVICES & Ors
JUDGMENT

1 HIS HONOUR:

Nature of proceeding
The plaintiff moves by way of Amended Summons filed 12 June 2007 for the following orders:

(1) A declaration and order that the decision of the third defendant in the matter of Mila Petrovic v BC Serv No 14 Pty Limited dated 23 April 2007 and 4 May 2007 in Matter No 10390 of 2006 involved:

(a) Jurisdictional error and was beyond power.
(b) An error on the face of the record; and

(2) A declaration and order that the Medical Assessment Certificate of the third defendant in the matter of Mila Petrovic v BC Serv No 14 Pty Limited dated 23 April 2007 and 4 May 2007 in Matter No 10390 of 2006 involved:

(a) Jurisdictional error and was beyond power.
(b) An error on the face of the record; and

(3) An Order that the decision referred to in No (1) above be set aside.

(4) An Order that the second defendant revoke the certificate referred to in No (2).

(5) An Order that the second and third defendants carry out their functions in accordance with sections 327, 328 and…

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 1156
Decision Date: 18 October 2007

CaseChat Overview and Summary

The Petrovic v BC Serv No 14 Pty Limited case involved a dispute between the worker, Petrovic, and the employer, BC Serv No 14 Pty Limited, concerning the interpretation of "additional relevant information" under section 327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998. The case was heard by the Supreme Court of New South Wales. Petrovic argued that the Medical Appeal Panel did not adequately consider new information submitted to them, which he believed affected his eligibility for certain benefits. The employer contended that the Panel had sufficiently considered all relevant information and that Petrovic's claims were without merit.

The court was required to determine the scope of "additional relevant information" as defined by the Act and whether the Panel's decision-making process complied with the statutory requirements. Specifically, the court had to assess whether the Panel's failure to adequately address new information provided by Petrovic constituted a procedural error and warranted the setting aside of the Panel's decision. Furthermore, the court considered whether the Panel's reasons for its decision were sufficient and whether Petrovic's failure to challenge the Panel's findings in a timely manner should result in costs being awarded against him.

The court held that "additional relevant information" included any new information that could affect the worker's entitlement to compensation. It found that the Panel had indeed failed to give sufficient reasons for its decision, as it did not address Petrovic's new submissions adequately. The court concluded that the Panel's failure to consider Petrovic's new information was a significant procedural error. Consequently, the decision was set aside, and the matter was remitted back to the Panel for reconsideration in light of the court's findings. The court also found that Petrovic was not entitled to costs due to his delay in challenging the Panel's decision.

The final orders of the court were that the decision of the Medical Appeal Panel be set aside and the matter be remitted back to the Panel for reconsideration. Petrovic was not awarded costs.

Orders