Sleiman v Gadalla Pty Ltd

Case [2021] NSWCA 236


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Hearing dates: 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

Legislation Cited:

Evidence Act 1995 (NSW), s 56

Personal Injury Commission Act 2020 (NSW), Sch 1 cl 14B

Supreme Court Act 1970 (NSW), ss 48, 69, 101, 104, 118

Supreme Court Rules 1970 (NSW), Pt 60 rr 1A, 17, Sch D Pt 3 cl 4

Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.15, 36.16, 49.4

Workers Compensation Act 1987 (NSW), ss 39, 66, 66A, 151H

Workers Compensation Commission Rules 2011, r 4.1

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 313, 319, 321, 322, 322A, 323, 324, 325, 326, 327, 328, 329, 330, 331, 350, 354, 378

Cases Cited:

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19

AFD21 v Minister for Home Affairs [2021] FCAFC 167

Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300; [1993] HCA 6

Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138

CBX2 Pty Ltd v National Australia Bank Ltd [2016] NSWCA 79

Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89

Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58

Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155

Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13

El-Saeidy v NSW Land & Housing Corporation [2014] NSWCA 172

Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115

Gorczynski v W & FT Osmo Pty Ltd [2019] NSWCA 80

Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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