(1) The plaintiff’s application for judicial review fails.
(2) The summons filed 27 August 2020 is dismissed.
(3) The plaintiff is to pay the first defendant’s costs on an ordinary basis.
Catchwords:
ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of decision of Delegate of the Registrar – Whether Delegate exceeded “gatekeeper” role under s 327 by dismissing the appeal on the basis of jurisdiction – Whether an appeal lies from the medical assessment certificate of an Appeal Panel to another appeal panel under s 327 – Whether an appeal lies under s 327(3)(a) after the issue of a certificate of determination – Whether the appeal was a “threshold dispute” – Application dismissed
[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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AGLC
Sleiman v Gadalla Pty Ltd [2021] NSWSC 86
Case
[2021] NSWSC 86
Decision Date
CaseChat Overview and Summary
Sleiman, the appellant, sought judicial review of a decision by the Delegate of the Registrar, who dismissed an appeal under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The Delegate dismissed the appeal on the basis that the appellant had not satisfied the criteria to bring the appeal. The appeal related to the issuance of a medical assessment certificate by an Appeal Panel, which the appellant contested. The appellant argued that the Delegate had exceeded his role as a “gatekeeper” by dismissing the appeal on the basis of jurisdiction. The appellant also argued that an appeal from the medical assessment certificate of an Appeal Panel to another appeal panel was available under section 327 and that an appeal under section 327(3)(a) was possible after the issue of a certificate of determination.
The court considered whether the Delegate had exceeded his jurisdiction by dismissing the appeal on the basis of jurisdiction. The court found that the Delegate’s role was limited to ensuring that the appeal was properly brought before the court, and the Delegate was not required to determine the merits of the appeal. The court further held that an appeal from the medical assessment certificate of an Appeal Panel to another appeal panel was not available under section 327 and that an appeal under section 327(3)(a) was not available after the issue of a certificate of determination. The court concluded that the Delegate had not exceeded his jurisdiction in dismissing the appeal on the basis of jurisdiction and that the appeal did not constitute a “threshold dispute”.
The court dismissed the application for judicial review, holding that the Delegate had not exceeded his jurisdiction in dismissing the appeal on the basis of jurisdiction and that the appeal did not constitute a “threshold dispute”. The court found that the Delegate’s role was limited to ensuring that the appeal was properly brought before the court, and the Delegate was not required to determine the merits of the appeal. The court further held that an appeal from the medical assessment certificate of an Appeal Panel to another appeal panel was not available under section 327 and that an appeal under section 327(3)(a) was not available after the issue of a certificate of determination. The court dismissed the application, holding that the appellant had not established a ground for judicial review.