Sydney Trains v Batshon

Case [2021] NSWCA 143


Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Sydney Trains v Batshon [2021] NSWCA 143
Hearing dates: 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

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Motor Accidents Compensation Act 1999 (NSW), s 63

Motor Accident Injuries Act 2017 (NSW), s 7.26

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules, rr 36.16, 51.12, 51.53

Workers Compensation Act 1987 (NSW), ss 65A, 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 327, 328

Cases Cited:

Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328

Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86

Batshon v Sydney Trains [2020] NSWSC 831

Batshon v Sydney Trains [2020] NSWSC 1266

Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175

Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248

Kitanoski v JB Metropolitan Distributors Pty Ltd [2019] NSWSC 1802

Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745

Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232

Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127

Re Knezevic; Ex Parte Carter [2005] WASCA 139

Rutland Allianz Australia Insurance [2014] NSWSC 1583

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Vannini v Worldwide Demolitions…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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