16 April 2021, written submissions 6 May, 20 May, 3 June, 1 July 2021.
Decision date:
16 July 2021
Before:
Leeming JA at [1]; White JA at [74]; McCallum JA at [75].
Decision:
1. Grant leave to appeal, in terms of grounds 4-9 of the draft notice of appeal.
2. Direct Sydney Trains to file a notice of appeal in accordance with the grant of leave, and dispense with the requirements of service.
3. Appeal allowed.
4. Set aside orders 2, 3 and 4 made on 17 September 2020 and in lieu thereof, order that Mr Batshon’s summons be dismissed.
Catchwords:
ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel’s decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated
COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for 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
AGLC
Sydney Trains v Batshon [2021] NSWCA 143
Case
[2021] NSWCA 143
Decision Date
CaseChat Overview and Summary
Sydney Trains appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had found that an appeal panel had failed to consider Mr Batshon's request for a re-examination by an approved medical specialist. The primary judge had concluded that this failure constituted a denial of procedural fairness.
The Court of Appeal was required to determine whether the appeal panel had, in fact, considered Mr Batshon's request for a re-examination, and if so, whether the reasons provided by the appeal panel were adequate. Further, the court considered whether any denial of procedural fairness by the appeal panel was material, given the nature of the appeal by way of rehearing. The court also examined whether there were any other judicially reviewable errors in the appeal panel's decision, including a consideration of differences between assessment regimes under workers compensation and motor accident legislation.
The Court of Appeal found that the appeal panel had indeed considered Mr Batshon's request for a re-examination. The court held that the primary judge erred in concluding otherwise and that the appeal panel's reasons, while perhaps not as detailed as they could have been, were sufficient in the circumstances. The court determined that any perceived inadequacy in the appeal panel's reasons did not amount to a denial of procedural fairness that would warrant intervention, particularly in light of the right to appeal by way of rehearing. Consequently, the appeal was allowed, and the decision of the appeal panel was reinstated.
The Court of Appeal allowed the appeal, set aside the orders of the primary judge, and dismissed Mr Batshon's summons. The court also granted leave to appeal on specific grounds and directed Sydney Trains to file a notice of appeal. Regarding costs, the court noted that while costs usually follow the event, the inclusion of voluminous irrelevant material by Sydney Trains in its appeal documents was a factor that might warrant a departure from the usual rule.
Orders
Orders of the court
1. Grant leave to appeal, in terms of grounds 4-9 of the draft notice of appeal.
2. Direct Sydney Trains to file a notice of appeal in accordance with the grant of leave, and dispense with the requirements of service.
3. Appeal allowed.
4. Set aside orders 2, 3 and 4 made on 17 September 2020 and in lieu thereof, order that Mr Batshon’s summons be dismissed.