Sawaneh v Flintwood Disability Services Ltd - [2024] NSWCA 178

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178
Hearing dates: 23 July 2024
Decision date: 30 July 2024
Before: Leeming JA at [1];
Adamson JA at [7];
Price AJA at [58]
Decision:
(1)   Grant leave to appeal.
(2)   Direct the applicant to file and serve a notice of appeal in the form annexed to the summons seeking leave to appeal filed on 14 March 2024 within 7 days hereof.
(3)   Dismiss the appeal.
(4)   Order the applicant to pay the first respondent’s costs of the appeal.

Catchwords:
ADMINISTRATIVE LAW — judicial review — decision of medical appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appeal panel revoked medical assessor’s assessment of whole person impairment —whether primary judge erred in finding no jurisdictional error in appeal panel’s decision — whether primary judge erred in finding no denial of procedural fairness in appeal panel’s decision
WORKERS COMPENSATION — injury — dispute as to assessment of whole person impairment — deduction for previous injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where medical assessor did not refer to evidence of previous injury — powers of medical appeal panel to revoke and issue new certificate of assessment

Legislation Cited:
Supreme Court Act 1970 (NSW), ss 69, 101
Workers Compensation Act 1987 (NSW), ss 16, 66, 151H
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 78, 319, 321A, 322, 323, 324, 325, 326, 327, 328

Cases Cited:
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; 399 ALR 765
Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Proietti v Proietti [2022] NSWCA 234
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)

Category: Principal judgment
Parties: Maneneh Lillian Sawaneh (Applicant)
Flintwood Disability Services Ltd (First Respondent)
Jane Peacock, Drew Dixon and Gregory McGroder as a Medical Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Second Respondent)
The President of the Personal Injury Commission of New South…

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: [2024] NSWCA 178
Decision Date: 30 July 2024

CaseChat Overview and Summary

The applicant, Mr Sawaneh, sought judicial review of a decision made by a medical appeal panel under the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). The dispute concerned the panel's revocation of a medical assessor's assessment of Mr Sawaneh's whole person impairment. The primary judge had found no jurisdictional error or denial of procedural fairness in the appeal panel's decision.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the medical appeal panel had not committed jurisdictional error, and whether the primary judge erred in finding that the panel had not denied Mr Sawaneh procedural fairness. Central to these issues was the panel's power to revoke a medical assessor's certificate and issue a new one, particularly in circumstances where the original assessment did not refer to evidence of a previous injury, and the panel's subsequent deduction for that previous injury pursuant to s 323 of the Act.

The Court of Appeal held that the medical appeal panel had the power to revoke the original assessment and issue a new certificate. It reasoned that the panel was not bound by the limitations of the original medical assessor and was entitled to consider all relevant evidence, including evidence of previous injuries, when making its own assessment of whole person impairment. The court found that the panel had acted within its jurisdictional powers and had afforded Mr Sawaneh procedural fairness by providing him with an opportunity to be heard and to make submissions.

Leave to appeal was granted, but the appeal itself was dismissed. Mr Sawaneh was ordered to pay the first respondent's costs of the appeal.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Direct the applicant to file and serve a notice of appeal in the form annexed to the summons seeking leave to appeal filed on 14 March 2024 within 7 days hereof.

(3) Dismiss the appeal.

(4) Order the applicant to pay the first respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178
Hearing dates:	23 July 2024
Decision date:	30 July 2024
Before:	Leeming JA at [1]; Adamson JA at [7]; Price AJA at [58]
Decision:	(1) Grant leave to appeal. (2) Direct the applicant to file and serve a notice of appeal in the form annexed to the summons seeking leave to appeal filed on 14 March 2024 within 7 days hereof. (3) Dismiss the appeal. (4) Order the applicant to pay the first respondent’s costs of the appeal.
Catchwords:	ADMINISTRATIVE LAW — judicial review — decision of medical appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appeal panel revoked medical assessor’s assessment of whole person impairment —whether primary judge erred in finding no jurisdictional error in appeal panel’s decision — whether primary judge erred in finding no denial of procedural fairness in appeal panel’s decision WORKERS COMPENSATION — injury — dispute as to assessment of whole person impairment — deduction for previous injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where medical assessor did not refer to evidence of previous injury — powers of medical appeal panel to revoke and issue new certificate of assessment
Legislation Cited:	Supreme Court Act 1970 (NSW), ss 69, 101 Workers Compensation Act 1987 (NSW), ss 16, 66, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 78, 319, 321A, 322, 323, 324, 325, 326, 327, 328
Cases Cited:	Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Cole v Wenaline Pty Ltd [2010] NSWSC 78 Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; 399 ALR 765 Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Proietti v Proietti [2022] NSWCA 234 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited:	M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)
Category:	Principal judgment
Parties:	Maneneh Lillian Sawaneh (Applicant) Flintwood Disability Services Ltd (First Respondent) Jane Peacock, Drew Dixon and Gregory McGroder as a Medical Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Second Respondent) The President of the Personal Injury Commission of New South…