Thorpe v Westpac Banking Corporation
[2025] NSWSC 767
•17 July 2025
Supreme Court
New South Wales
Medium Neutral Citation: Thorpe v Westpac Banking Corporation [2025] NSWSC 767 Hearing dates: 16 July 2025 Date of orders: 17 July 2025 Decision date: 17 July 2025 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) The Court sets aside the decision of the Medical Appeal Panel dated 17 October 2024 on the basis of an error of law on the face of the record.
(2) The Court notes that the error of law on the face of the record was that the Medical Appeal Panel had regard to inadmissible evidence, namely the material that was attached to the Defendant's application to admit late documents dated 26 July 2024. Those documents could not be adduced before the Medical Appeal Panel because the criteria in s 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 were not met and the documents were excluded by operation of section 73 of the Workplace Injury Management and Workers Compensation Act 1998.
(3) The Court remits the matter to the Second Defendant for determination by a new Medical Appeal Panel in accordance with law.
(4) The Court notes that the above consent judgment is without prejudice to the parties' ability to make submissions to the new Medical Appeal Panel about the admissibility of the reports of Dr Young.
(5) No order as to costs, with the intention that each party bear its own costs.
Catchwords: ADMINISTRATIVE LAW – consent orders – application to set aside decision of the Appeal Panel of the Personal Injury Commission – where Appeal Panel had regard to inadmissible material – where parties agreed there had been an error of law on the face of the record – consent orders made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Workplace Injury Management Workers Compensation Act 1998 (NSW)
Workers Compensation Regulations 2016 (NSW)
Category: Principal judgment Parties: Westpac Banking Corporation (First Defendant)
The President of the New South Wales Personal Injury Commission (Second Defendant)
An Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)Representation: Counsel:
Solicitors:
B G McManamey (Plaintiff)
L Sandars, solicitor (First Defendant)
HWL Ebsworth (First Defendant)
Crown Solicitors (Second and Third Defendants)
File Number(s): 2024/00473995 Publication restriction: Nil
JUDGMENT
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Ms Thorpe was formerly employed by Westpac. In 2019 she made a claim for permanent impairment compensation under the Workplace Injury Management Workers Compensation Act 1998 (NSW). Her claim was denied, there having been issues about her having reached maximum medical improvement and the impact of a pre-existing condition. Ms Thorpe was served with a number of notices under s 78 of the Act, the first in 2022. Further s 78 notices were served, the last in October 2023, which was accompanied by a May 2023 report of Dr Young.
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Ms Thorpe then brought proceedings in the Personal Injury Commission, relying on various medical records. The parties’ medical dispute was referred for assessment by a medical assessor who in May 2024 issued a certificate certifying that Ms Thorpe had suffered 15% whole person impairment.
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The insurer appealed, relying on Dr Young’s opinions to contend that there should have been a deduction for a pre-existing condition. After the appeal was referred to an Appeal Panel, the insurer filed an application to admit late documents. The appeal was opposed, the requirements of s 73 being relied on in the submissions advanced for Ms Thorpe.
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Section 73 requires insurers to provide specified reports to workers. They are also dealt with in regulation 41 of the Workers Compensation Regulations 2016 (NSW). If the insurer fails to do so, it cannot use them to dispute liability to pay or continue to pay compensation, or to reduce the amount of compensation. They are also not admissible in proceedings on a dispute before the Personal Injury Commission and may not be disclosed to a medical assessor or an Appeal Panel in connection with the assessment of a medical dispute: s 73(3).
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Having re-examined Ms Thorpe the Appeal Panel concluded that her overall impairment was 13%, which it reduced by a deduction of one tenth, it having taken into account the inadmissible records which had not been in evidence before the assessor. After deduction for the pre-existing condition, the Panel issued a new certificate certifying that Ms Thorpe’s whole person impairment was 12%.
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Ms Thorpe’s submission about s 73 was referred to in the Appeal Panel’s reasons, but its requirements were not dealt with, with the result that the Panel took into account the disputed records in arriving at its conclusions, which it is now agreed were inadmissible.
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Ms Thorpe then challenged the Panel’s certificate in these judicial review proceedings on various grounds, including the error in the Panel’s reliance on the inadmissible records.
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In compliance with the obligations imposed on them by s 56 of the Civil Procedure Act 2005 (NSW), the parties then sought to narrow what was in issue between them. The result was that they agreed that there had been an error of law on the face of the record, the Appeal Panel having had regard to inadmissible material, with the result that its certificate had to be set aside by the Court.
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The parties thus asked that consent orders remitting the matter to the Personal Injury Commission be made, so that the insurer’s appeal could be determined according to law.
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Having heard the parties I was satisfied that the orders had to be made.
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The reasons for that decision being that the Panel fell into the error which the insurer acknowledged, despite Ms Thorpe having drawn to its attention the applicable requirements of s 73, they making inadmissible the documents it had advanced by its application to admit late documents which the Panel had taken into account in arriving at its conclusions.
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It is apparent that if the insurer had accepted their inadmissibility at the time that Ms Thorpe advanced her submissions about s 73, the Panel would not have fallen into the error which it made.
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The insurer did not then accept that the effect of s 73 was to make the documents it belatedly sought to rely on inadmissible. The result was that it was not sufficient for the Panel to note the case Ms Thorpe had advanced in relation to those documents. It also had to consider the requirements of s 73 and resolve the issue of whether the documents were inadmissible, as Ms Thorpe contended.
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Its failure to do so involved error of a kind which made inescapable the conclusion that its certificate had to be set aside.
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Neither s 73 nor r 41 gave the Panel a discretion to admit the disputed documents which had long been in the insurer’s hands and which it had instructed Dr Young with, but which it had not served on Ms Thorpe as the legislative scheme required, if it was to be entitled to rely on them in any disputed assessment.
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That the Panel considered there would be no resulting prejudice to Ms Young from their admission on the appeal was irrelevant.
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Not having considered or explained the requirements of the applicable provisions, the Panel thus fell into error when it took the disputed records into account in resolving the parties’ medical dispute. The error was of such a kind that the parties’ agreement that the Court should exercise its discretion to set aside the Panel’s certificate had to be accepted.
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It should be noted that the Panel is likely to have avoided its error, had it addressed in its reasons the case advanced for Ms Thorpe about the disputed records, which did not raise prejudice. What it was obliged, but failed to do was to consider and explain its reasons for rejecting the case she actually advanced about the requirements of s 73, which clearly made the disputed records inadmissible.
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The Panel was not entitled to ignore the applicable requirements of the Act and Regulations. Nor could it ignore the case which she advanced about them. Had it considered their provisions, it would have recognised what the parties finally agreed in these proceedings, that they made the disputed documents inadmissible.
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The result of the identified errors was accordingly, that the orders the parties agreed had to be made.
Orders
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It was for these reasons that I made the following orders by consent:
The Court sets aside the decision of the Medical Appeal Panel dated 17 October 2024 on the basis of an error of law on the face of the record.
The Court notes that the error of law on the face of the record was that the Medical Appeal Panel had regard to inadmissible evidence, namely the material that was attached to the Defendant's application to admit late documents dated 26 July 2024. Those documents could not be adduced before the Medical Appeal Panel because the criteria in s 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 were not met and the documents were excluded by operation of section 73 of the Workplace Injury Management and Workers Compensation Act 1998.
The Court remits the matter to the Second Defendant for determination by a new Medical Appeal Panel in accordance with law.
The Court notes that the above consent judgment is without prejudice to the parties' ability to make submissions to the new Medical Appeal Panel about the admissibility of the reports of Dr Young.
No order as to costs, with the intention that each party bear its own costs.
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Decision last updated: 22 July 2025
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