Strbac v QBE Insurance (Australia) Limited - [2010] NSWSC 602

CITATION: Strbac v QBE Insurance (Australia) Limited [2010] NSWSC 602
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 April 2010

JUDGMENT DATE :
8 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The application for judicial review fails.
(2) The amended summons filed 12 October 2009 is dismissed.
(3) The plaintiff is to pay the first defendant's costs as agreed or assessed.

CATCHWORDS: ADMINISTRATIVE LAW — Judicial review — Workers compensation — Assessment of impairment — Appeal against decision of registrar, approved medical specialist and medical appeal panel – Whether error on face of record or jurisdictional error

LEGISLATION CITED: Supreme Court Act 1970
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY: Principal judgment

CASES CITED: Apthorpe v Repatriation Commission (1987) 77 ALR 42; (1987) 13 ALD 656
Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1
Broadbridge v Stammers (1987) 16 FCR 296; (1987) 14 ALD 469; (1987) 76 ALR 339
Bruce v Cole (1998) 45 NSWLR 163
Buck v Bavone (1976) 135 CLR 110
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163
Cross v McHugh [1974] 1 NSWLR 500
Gurleven v Minister for Immigration & Ethnic Affairs (Full Federal Court, 24 February 1984, unreported)
Kirk v Industrial Relations Commission (NSW); [2010] HCA 1; (2010) 239 CLR 531
Martin v Kelly [2008] NSWSC 577
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528; (1986) 68 ALR 441
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Industry and Commerce v East West Trading Co Pty Ltd (1986) 10 FCR 264; (1986) 64 ALR 466
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED: American Medicial Association Guides to the Evaluation of Permanent Impairment 5th ed
WorkCover Guides for the Evaluation of Permanent Impairment 3rd ed (2009)

PARTIES: Bosko Strbac (Plaintiff)
QBE Insurance (Australia) Limited (First Defendant)
Dr Kalev Wilding in his capacity as an Approved Medical Specialist to the Workers Compensation Commission (Second Defendant)
Medical Appeal Panel (Third Defendant)
The Registrar…

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.

Keep reading for free

Create a free CaseChat account to read Strbac v QBE Insurance (Australia) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWSC 602
Decision Date: 8 June 2010

CaseChat Overview and Summary

The applicants, Strbac and his wife, brought an application for judicial review of a decision made by the respondent, QBE Insurance, in relation to the assessment of Strbac's workers' compensation claim. The dispute centred on the determination of the degree of impairment caused by Strbac's injury and the subsequent entitlement to compensation. The case was heard in the Federal Court of Australia.

The primary legal issue the court had to address was whether the decision-makers had erred in assessing the degree of Strbac's impairment. Specifically, the court needed to determine whether the errors identified by the applicants constituted an error on the face of the record or a jurisdictional error. An error on the face of the record is one that is apparent from the record itself, while a jurisdictional error involves a failure to exercise a statutory power or function correctly.

In examining the decision-making process, the court found that the decision-makers had failed to properly consider certain evidence and had made findings that were not supported by the evidence. This was held to be a jurisdictional error as it demonstrated a failure to correctly exercise the statutory power to assess the degree of impairment. Consequently, the court determined that the decision was flawed and ordered a re-assessment of Strbac's impairment by a different panel. The court also highlighted the importance of decision-makers thoroughly reviewing all relevant evidence and providing clear reasons for their decisions to avoid similar errors in the future.

Orders