9 September 2021; written submissions 13 and 16 September 2021
Decision date:
30 September 2021
Before:
Gleeson JA at [1]; Leeming JA at [2]; Payne JA at [99].
Decision:
1. To the extent necessary, grant leave to appeal in accordance with grounds 2 and 4 of the draft amended Notice of Appeal served on 13 September 2021.
2. Dispense with the need to file and serve the notice of appeal.
3. Appeal allowed.
4. Set aside the orders made on 15 February 2021, and in lieu thereof, set aside the decision of the Registrar’s Delegate on 18 September 2019 and remit Mr Sleiman’s application to the Commission for determination in accordance with law.
Catchwords:
WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed
APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court 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
AGLC
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Case
[2021] NSWCA 236
Decision Date
CaseChat Overview and Summary
The dispute in *Sleiman v Gadalla Pty Ltd* concerned an appeal from a medical assessment by an approved medical specialist. The applicant, Mr Sleiman, sought to appeal to the Appeal Panel, and the central question was whether a second appeal to the Appeal Panel was permissible on the ground of deterioration, or whether his application for further appeal should have been treated as an application for reconsideration, or if notice should have been given to him before dismissal. The matter was heard by Gleeson, Leeming and Payne JJA in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine the nature of appeals from an approved medical specialist to the Appeal Panel, and to consider the nature of appeals from an Associate Judge to the Court of Appeal. Specifically, the court had to ascertain whether the legislative framework permitted a further appeal to the Appeal Panel on the ground of deterioration, and if not, what the appropriate procedural course should have been for Mr Sleiman's application.
The Court of Appeal reasoned that the legislative provisions governing appeals from approved medical specialists to the Appeal Panel did not permit a second appeal on the ground of deterioration. However, the court found that Mr Sleiman's application, though framed as an appeal, could have been treated as an application for reconsideration. The court concluded that the Registrar's Delegate erred in dismissing the application without giving Mr Sleiman notice and an opportunity to be heard. Consequently, the Court of Appeal allowed the appeal, set aside the previous orders, and remitted Mr Sleiman's application to the Commission for determination according to law.
Orders
Orders of the court
1. To the extent necessary, grant leave to appeal in accordance with grounds 2 and 4 of the draft amended Notice of Appeal served on 13 September 2021.
2. Dispense with the need to file and serve the notice of appeal.
3. Appeal allowed.
4. Set aside the orders made on 15 February 2021, and in lieu thereof, set aside the decision of the Registrar’s Delegate on 18 September 2019 and remit Mr Sleiman’s application to the Commission for determination in accordance with law.