Smith v Liquip Services Pty Limited and Ors (No 2)

[2007] NSWSC 755

CITATION:	Smith v Liquip Services Pty Limited and Ors (No 2) [2007] NSWSC 755
HEARING DATE(S):	09.07.2007
JUDGMENT DATE :	13 July 2007
JUDGMENT OF:	Hoeben J at 1
DECISION:	I quash that part of the decision of the Appeal Panel revoking the medical assessment certificate of Dr Taylor and issuing a new medical assessment certificate in its place; I remit to the Registrar for referral to an Appeal Panel constituted under s 328 of the Act the medical assessment certificate of Dr Taylor for determination according to law; The summons is otherwise dismissed.; The plaintiff is to pay the costs of the proceedings up to and including the handing down of reasons in the primary judgment on 4 July 2007; The first defendant is to pay the costs of the proceedings thereafter.
CATCHWORDS:	Workers Compensation - judicial review - failure of Appeal Panel to give reasons - error on the face of the record.
LEGISLATION CITED:	Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Campbelltown City Council v Vegan & Ors [2006] NSWCA 284
PARTIES:	Robert Garry Smith - Plaintiff Liquip Services Pty Limited - First Defendant Registrar, Workers Compensation Court - Second Defendant Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 - Third Defendant
FILE NUMBER(S):	SC 30103/2006
COUNSEL:	Mr C Jackson - Plaintiff Mr RM Hamwood - (Solicitor) - First Defendant Submitting Appearance - Second and Third Defendants
SOLICITORS:	PK Simpson & Co - Plaintiff Cutler Hughes & Harris - First Defendant IV Knight, Crown Solicitor - Second and Third Defendants
LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	19707-2003
LOWER COURT JUDICIAL OFFICER :	Workers Compensation Commission of NSW
LOWER COURT DATE OF DECISION:	07/07/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 13 July 2007

30103/06 – Robert Garry SMITH v LIQUIP SERVICES PTY LIMITED and Ors (No 2)

JUDGMENT – Costs and Orders

1 HIS HONOUR:

Reasons were handed down in this matter on 4 July 2007. I declined to make orders at the time since one of the matters included in the medical assessment certificate issued by the Appeal Panel had not been the subject of any submission by the parties. I wished to give the parties the opportunity to make submissions in relation to that issue before I made orders.

2 As indicated in the primary judgment [24] – [26] the Registrar allowed appeals to proceed from each of the medical assessment certificates issued by Doctors Blake and Taylor. The Appeal Panel gave comprehensive reasons for revoking the certificate of Dr Blake and issuing a new certificate. It gave no reasons for revoking the certificate of Dr Taylor and issuing a new certificate.

3 Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 made it clear that an Appeal Panel revoking a certificate and issuing a new certificate has an obligation to give proper reasons. Insofar as the medical assessment certificate of Dr Taylor is concerned, no reasons were given. In that regard error of law on the face of the certificate pursuant to s 69 of the Supreme Court Act 1970 has occurred.

4 As Basten JA pointed out in Vegan at [130] whether that circumstance “also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside”.

5 It was submitted, on behalf of the plaintiff, that because the Appeal Panel chose to issue a single new certificate this error meant that the whole certificate should be set aside and the matter remitted to the Registrar for referral to an Appeal Panel. In other words that part of the certificate concerned with the assessment of Dr Blake would also be set aside and once again subject to review by an Appeal Panel pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act).

6 I am not persuaded that the error concerning the certificate of Dr Taylor has that effect.

7 Two separate certificates were referred to the Appeal Panel for review. A full review with reasons took place in relation to that of Dr Blake. No such review took place in respect of the certificate issued by Dr Taylor. For reasons which are unknown the Appeal Panel having determined to revoke both certificates issued a single new certificate. One can only surmise that this decision was made because it was thought to be more administratively convenient.

8 Because the Appeal Panel was dealing with two separate medical assessment certificates on two separate issues (see [16] and [20] of the primary judgment) it does not follow that error in relation to the review of one of those certificates should have the effect of setting aside the Appeal Panel’s review (correctly carried out) of the other certificate.

9 I accept the submissions of the first defendant that each medical assessment certificate carries the conclusive presumption in relation to matters set out in s 326 and it is only matters to which s 326 attaches that can be the subject of an appeal (s 327(2)). It follows that the appeal was in respect of each medical assessment and related to two “medical disputes”.

10 If I am wrong in that conclusion as a matter of discretion I would decline to set aside that part of the new certificate issued by the Appeal Panel which related to the assessment certificate of Dr Blake. Not only were full submissions on that certificate made by the parties to the Appeal Panel but full submissions, both written and oral, were made to me in relation to that part of the new certificate issued by the Appeal Panel. Moreover that part of the new certificate dealing with “sexual organs” is readily severable.

11 It follows that I do not propose to set aside the whole of the new certificate issued by the Appeal Panel but only that part which relates to the revocation of the certificate issued by Dr Taylor and the issuing of a new certificate in its place.

Costs

12 The orders sought in the summons, the grounds of appeal and the submissions before me both oral and written related to the Appeal Panel’s approach to the medical assessment certificate of Dr Blake. The plaintiff failed on that issue. Accordingly, the plaintiff should pay the costs of the proceedings up to and including the handing down of my reasons in the primary judgment on 4 July 2007.

13 In relation to the Appeal Panel’s approach to the certificate of Dr Taylor, that was a matter specifically raised by me with the parties when I handed down my reasons. The plaintiff has substantially succeeded on that issue and should have the costs associated with it. Such costs would seem to be those relating to the preparation of the further written submissions provided to me on that issue.

Orders

14 I make the following orders:

(i) I quash that part of the decision of the Appeal Panel revoking the medical assessment certificate of Dr Taylor and issuing a new medical assessment certificate in its place.

(ii) I remit to the Registrar for referral to an Appeal Panel constituted under s 328 of the Act the medical assessment certificate of Dr Taylor for determination according to law.

(iii) The summons is otherwise dismissed.

(iv) The plaintiff is to pay the costs of the proceedings up to and including the handing down of reasons in the primary judgment on 4 July 2007. The first defendant is to pay the costs of the proceedings thereafter.

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