Read v Liverpool City Council

CITATION:	Read v Liverpool City Council & Anor [2007] NSWSC 320
HEARING DATE(S):	05/04/2007
JUDGMENT DATE :	12 April 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The Summons is dismissed. The plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Further refusal for medical assessment - function of s329 - jurisdiction of the Court - no basis for relief made out - demonstrable error.
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CASES CITED:	Dar v State Transit Authority of NSW [2007] NSWSC 260
PARTIES:	Mark Read Liverpool City Council & Anor Workers Compensation Commission of NSW
FILE NUMBER(S):	SC 30136/06
COUNSEL:	Mr D. Knaggs (Pl) (Solicitor) Ms M. Allars (1st Def)
SOLICITORS:	Cross Law (Pl) Abbott Tout (1st Def)

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OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

12 APRIL 2007

30136/06 Mark Read v Liverpool City Council & Anor

JUDGMENT

1 HIS HONOUR: In October 1993, the plaintiff sustained injury to his right leg during employment with the second defendant. He commenced proceedings in the Compensation Court. At the time of the commencement of the Workplace Injury Management and WorkersCompensation Act 1998 (NSW) (the Act) those proceedings remained unresolved.

2 He made an application to resolve a dispute pursuant to the Act. Certain documents accompanied the application (including medical reports). These may have been later supplemented by other documents. I shall refer generally to all of these documents as the plaintiff’s documents. The dispute then came before an Approved Medical Specialist (Dr Lennan). He examined the plaintiff. He was not given all of the plaintiff’s documents. He did have all of the reports relied on by the second defendant. A Medical Assessment Certificate was issued by Dr Lennan. It determined the permanent impairment and loss of efficient use of the leg at nil percent.

3 The plaintiff did not then seek a further referral for medical assessment from an arbitrator. Indeed, an application for leave to appeal against the assessment pursuant to s327 of the Act was made to the Registrar.

4 This application was supported by submissions which presented as a first preference that the plaintiff sought a further examination and the issue of a replacement Certificate (reference was made to s325 of the Act). The application was made on the grounds set forth in (a), (c) and (d) of subs(3) of s327 (even though it appeared to be founded only on certain of the plaintiff’s documents not being had by Dr Lennan). The Registrar came to the view that only ground (d) had been made out. The Registrar then referred the matter to an Appeal Panel. This decision has not been challenged by the plaintiff.

5 The Appeal Panel did not conduct a further examination of the plaintiff. However, it did have before it all of the plaintiff’s documents. Its Statement of Reasons expressed that these had been taken into account. It then confirmed what had been done by Dr Lennan.