Sawaneh v Flintwood Disability Services Ltd - [2023] NSWSC 1589

Supreme Court

New South Wales

Medium Neutral Citation: Sawaneh v Flintwood Disability Services Ltd [2023] NSWSC 1589
Hearing dates: 28 June 2023, 14 July 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Jurisdiction: Common Law
Before: Walton J
Decision:
The plaintiff’s Amended Summons is dismissed.

Catchwords:
CIVIL – judicial review – medical appeal panel – dispute brought before Personal Injury Commission – referral to a specialist for Medical Assessment – Workers Compensation Act 1987 (NSW) – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – amended summons – no jurisdictional error found – no constructive failure to exercise jurisdiction – denial of procedural fairness not found – no jurisdictional error as to the opinion as to whole person impairment and correcting error found – Amended Summons dismissed.

Legislation Cited:
Migration Act 1958 (Cth)
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Bos v East Coast Security Dogs Pty Ltd [2022] NSWSC 1282
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Dranichnikov v Minister for Immigration and Multicultural & Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178
Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Ryder v Sundance Bakehouse & Tea Rooms [2015] NSWSC 526
Skates v Hills Industries Ltd [2021] NSWCA 142
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449

Texts Cited:
NSW, State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, (March, 2021).

Category: Principal judgment
Parties: Maneneh Lillian Sawaneh (Plaintiff)
Flintwood Disability Services Ltd (First Defendant)
Jane peacock, Drew Dixon and Gregory McGroder, as a medical appeal panel (Second Defendant), submitting appearance
President of the Personal Injury Commission of NSW (Third Defendant), submitting appearance
Representation:
Counsel:
D Baray (Plaintiff)
C Roberts (First Defendant)
Solicitors:
Buttar Caldwell & Co. Solicitors (Plaintiff)
Gair Legal (First Defendant)

File Number(s): 2022/367774

JUDGMENT

By an Amended Summons filed 5 July 2023, Maneneh Lillian Sawaneh (“the plaintiff”) sought judicial review of a decision of the second defendant, being a Medical Appeal Panel constituted by Jane Peacock, Drew Dixon and Gregory McGroder (the “Panel”), dated 23 August 2022.
The first defendant to the Summons is Flintwood Disability Services Ltd who brought the medical appeal before the Panel disputing an earlier decision of a Medical Assessor, Dr Mastroianni…

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: [2023] NSWSC 1589
Decision Date: 15 December 2023

CaseChat Overview and Summary

The case of Sawaneh v Flintwood Disability Services Ltd involved a dispute brought before the Personal Injury Commission. The applicant, Mr. Sawaneh, sought a review of decisions made by a medical appeal panel concerning his workers' compensation claim. The panel had referred him to a specialist for a medical assessment under the provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The court was tasked with determining whether the panel had made any jurisdictional errors in its decisions, whether there had been a denial of procedural fairness, and if there had been any constructive failure to exercise jurisdiction.

The primary legal issues the court had to decide included whether the medical appeal panel had committed any jurisdictional error in its decisions, whether there had been a denial of procedural fairness, and if there had been a constructive failure to exercise jurisdiction. Additionally, the court had to assess whether there was any merit in the applicant's argument that the panel had erred in its opinion regarding the whole person impairment and whether the panel had made any correcting errors. The court considered the amended summons filed by the applicant and the submissions made by both parties in reaching its decision.

The court found that there had been no jurisdictional error in the decisions of the medical appeal panel. It determined that there had been no denial of procedural fairness and no constructive failure to exercise jurisdiction. Furthermore, the court held that there was no jurisdictional error in the panel's opinion regarding the whole person impairment. However, the court did find that there had been a correcting error in the panel's decision, which was not of a jurisdictional nature. Given these findings, the amended summons filed by the applicant was dismissed.

Orders