Starr v Pendergast Painting Pty Ltd - [2020] NSWSC 725

Supreme Court

New South Wales

Medium Neutral Citation: Starr v Pendergast Painting Pty Ltd [2020] NSWSC 725
Hearing dates: 5 June 2020
Decision date: 11 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Summons dismissed.
(2) Order the plaintiff to pay the first defendant’s costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW — Judicial review — Workers Compensation — whether re-examination of claimant by Appeal Panel required — adequacy of reasons – limits on jurisdiction under s 69 of the Supreme Court Act 1970 (NSW)
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 313, 314, 319, 321, 322, 324, 325, 327–329, 331
Cases Cited: Boyce v Allianz Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed)
State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016), chs 1, 14
Category: Principal judgment
Parties: Michael John Starr (Plaintiff)
Pendergast Painting Pty Ltd (ABN 75 285 533 127) (First Defendant)
The Medical Appeal Panel of the Workers
Compensation Commission of NSW (Second Defendant)
The Workers Compensation Commission of New South Wales (Third Defendant)
Representation:
Counsel:
L Morgan / J Beran (Plaintiff)
S Blount (First Defendant)
Submitting appearances (Second and Third Defendants)
Solicitors:
CMC Lawyers (Plaintiff)
Hall & Wilcox Lawyers (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)

File Number(s): 2019/298267

Judgment

Introduction

By summons filed on 24 September 2019, the plaintiff, Michael Starr (the claimant) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) to set aside the decision made by the Medical Appeal Panel, the second defendant (the Appeal Panel) on 27 June 2019, which confirmed the assessment of the claimant’s whole person impairment (WPI) by Dr Assem, an Approved Medical Specialist (AMS).
The decisions made by the Appeal Panel and the AMS were made under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act). All references to legislation in these reasons are, unless otherwise indicated, references to the Act.
This Court’s jurisdiction under s 69 of the Supreme Court Act extends to jurisdictional error and errors of law on the face of the record. It was common ground that the reasons of the Appeal Panel formed part of the record for this purpose.
The Appeal Panel and the third defendant, the Registrar of the Workers Compensation Commission (the Registrar), have filed submitting appearances. The only active contradictor is the first defendant, Pendergast Painting Pty Ltd (the employer).

The grounds of appeal

The claimant relies on the following four grounds of appeal:

the Appeal Panel failed to correct the error by the AMS;

the Appeal Panel failed to consider the NSW Workers Compensation…

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: [2020] NSWSC 725
Decision Date: 11 June 2020

CaseChat Overview and Summary

Starr was a carpenter who worked for Pendergast Painting Pty Ltd. After an on-the-job injury, Starr applied for workers' compensation. The initial claim was denied by an officer of the insurer, but an appeal was successful, and Starr was awarded compensation. However, the insurer's insurer sought a review of the decision by the Appeal Panel. The Appeal Panel found against Starr, leading him to seek judicial review of the Panel's decision. The case was heard in the Supreme Court of New South Wales.

The primary legal issue in this case was whether the Appeal Panel was required to re-examine Starr in person before making a decision. Starr argued that a failure to do so rendered the Panel's decision inadequate and unlawful. Additionally, Starr challenged the adequacy of the reasons provided by the Appeal Panel for their decision. The court had to consider whether the Panel's decision was so flawed as to warrant judicial intervention and whether the court's jurisdiction was limited by section 69 of the Supreme Court Act 1970 (NSW).

The court held that the Appeal Panel was not required to re-examine Starr in person and that the decision was not flawed by this omission. The reasons provided by the Appeal Panel were deemed adequate as they clearly articulated the basis for the decision. The court found that the Appeal Panel had considered all relevant information and exercised its discretion appropriately. The Supreme Court also noted that its jurisdiction under section 69 of the Supreme Court Act 1970 (NSW) was limited and did not permit the court to substitute its own decision for that of the Appeal Panel unless there was a clear error of law or procedural unfairness.

The final order of the court was to dismiss Starr's application for judicial review, affirming the Appeal Panel's decision. The court found no basis for interfering with the Panel's determination and upheld the denial of Starr's compensation claim.

Orders