Tasevski v Westpac Banking Corporation - [2024] NSWSC 401

Supreme Court

New South Wales

Medium Neutral Citation: Tasevski v Westpac Banking Corporation [2024] NSWSC 401
Hearing dates: 26 March 2024
Date of orders: 18 April 2024
Decision date: 18 April 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   The Appeal Panel’s decision is set aside;
(2)   The matter is remitted to a differently constituted appeal panel to be considered according to law; and
(3)   Unless the parties approach to be heard within 14 days with short written submissions, the Court’s order will be that Westpac bear Ms Tasevski’s costs of the proceedings, as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where medical assessor’s assessment upheld by appeal panel – where appeal panel erred by misunderstanding the applicable legal test – whether panel failed to exercise its statutory functions according to law – whether same conclusion would have been arrived at regardless of error – matter remitted for reconsideration by different Appeal Panel

Legislation Cited:
Workers Compensation Act1987 (NSW), s 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 327, 328

Cases Cited:
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Ferguson v State of New South Wales [2017] NSWSC 887
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324

Texts Cited:
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Guidelines 11.11 and 11.12

Category: Principal judgment
Parties: Mirjana Tasevski (Plaintiff)
Westpac Banking Corporation (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
A Medical Appeal Panel Constituted by Member Carolyn Rimmer, Dr Douglas Andrews and Professor Nicholas Glozier (Third Defendant)
Representation:
Counsel:
E G Romaniuk SC (Plaintiff)
F Doak (First Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)

File Number(s): 2023/254642
Publication restriction: Nil

JUDGMENT

Ms Tasevski was employed for many years by Westpac, most recently as a head teller, when she suffered a psychiatric injury at work which resulted in her seeking lump sum compensation under s 66 of the Workers Compensation Act1987 (NSW). Her claim that she had suffered 20% whole person impairment was disputed. That medical dispute arose to be assessed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW): s 319.
The medical assessor, Dr Hong, found that Ms Tasevski had suffered both PTSD and a major depressive disorder from which she had not recovered and which were now chronic, but that her whole person impairment was only 10%. That was below the relevant statutory thresholds for compensation. She appealed from that decision under s 327 on grounds of application of incorrect criteria and demonstrable error, but in May 2023, an Appeal Panel dismissed her appeal.
There was no…

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: [2024] NSWSC 401
Decision Date: 18 April 2024

CaseChat Overview and Summary

In the matter of Tasevski v Westpac Banking Corporation, the appellant challenged a decision of a medical appeal panel which upheld the assessment of a medical assessor. The dispute involved a medical assessment under the provisions of the Workplace Injury Management and Workers Compensation Act 1998, with the appellant arguing that the panel's decision was flawed due to an error in the application of the legal test. The case was brought before the court for judicial review to determine whether the panel's error invalidated their decision, and whether the outcome would have been the same even without the error.

The court identified that the primary legal issue was whether the medical appeal panel had failed to exercise its statutory functions according to the law by misunderstanding the applicable legal test. A secondary issue was whether, if such an error had occurred, the result would have been the same had the correct legal test been applied. The court needed to consider whether the error was material and, if so, whether the decision should be quashed and the matter remitted for reconsideration.

In examining the legal issues, the court found that the medical appeal panel had indeed misunderstood the applicable legal test, which was a material error. However, the court also concluded that even if the correct legal test had been applied, the panel would have reached the same conclusion. The error, though significant, did not alter the outcome of the appeal. Consequently, the court determined that the panel had failed to exercise its statutory functions according to the law, and the matter should be remitted for reconsideration by a different Appeal Panel.

The court's final order was that the decision of the medical appeal panel be quashed and the matter be remitted to a different Appeal Panel for reconsideration in accordance with the law. This ensures that the panel's decision is made in strict compliance with the statutory requirements, thereby upholding the integrity of the statutory process.

Orders