Tran v J Robins & Sons Pty Ltd - [2006] NSWSC 1013

CITATION: Tran v J Robins & Sons Pty Ltd [2006] NSWSC 1013

HEARING DATE(S): 25/09/06

JUDGMENT DATE :
29 September 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Set side the decision of Jeremy Lum, delegate of the Registrar, made 15 February 2006 refusing to allow the plaintiff’s appeal to proceed under s 327 of the Workplace Injury Management and Workers Compensation Act 1998; 2. The matter is remitted to the second defendant for determination under s 327(4) of the 1998 Act in accordance with the law; 3. The first defendant is to pay the plaintiff’s costs of the proceedings.

CATCHWORDS: Workers compensation - judicial review of Registrar's determination not to refer medical assessment for appeal

LEGISLATION CITED: Supreme Court Act 1970
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: Campbelltown City Council v Vegan [2004] NSWSC 1129
R v Maclay (1990) 19 NSWLR 112
Summerfield v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 515
Zuanic v Gypro-Tech (Australia) Pty Limited (in liquidation) [2006] NSWSC 739

PARTIES: Tieu Muoi Tran (Plaintiff)
J. Robins & Sons Pty Ltd (First Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Second Defendant)

FILE NUMBER(S): SC 2006/30035

COUNSEL: P.J Menary (Plaintiff)
T. Wardell (First Defendant)

SOLICITORS: W.G. McNally & Co Solicitors (Plaintiff)
Edwards Michael Moroney Lawyers (First Defendant)
I V Knight (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW LIST
COMMON LAW DIVISION

BELL J

Friday 29 September 2006

2006/30035 Tieu Muoi Tran v J. Robins & Sons Pty Limited & Anor
JUDGMENT

1 BELL J: The plaintiff was employed by the first defendant, a shoe manufacturer, as a process worker from 22 June 1999. Her duties included carrying out a number of repetitive tasks involving the trimming, spray painting and roughening of the soles of shoes. On 1 October 2004 the plaintiff instructed her solicitor, David Trainor, to act for her in relation to a workers’ compensation claim arising out of her employment. She complained that in March 2002 she had developed pain in her right arm, shoulder and neck and that by mid-2002 she was experiencing pain in her left arm and shoulder. She had various periods of time off work and was on light duties and had received workers’ compensation payments from the first defendant’s insurer.

2 Two applications were filed on the plaintiff’s behalf: the first, filed on 14 June 2005, was an application for lump sum compensation of $8,750.00 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on an assessment that she had suffered 7% whole person impairment. The second application, filed on 22 August 2005, was for reinstatement of weekly payments of compensation and medical expenses as from 27 September 2005.

3 On 23 August 2005 Mr Virtue, arbitrator, made directions at a teleconference on the claim for lump sum compensation. He referred the matter to an approved medical specialist for an assessment of the degree…

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: [2006] NSWSC 1013
Decision Date: 29 September 2006

CaseChat Overview and Summary

In Tran v J Robins & Sons Pty Ltd, the plaintiff, Tran, sought judicial review of a decision by the Registrar of the Workers Compensation Commission not to refer a medical assessment for appeal. The defendant, J Robins & Sons Pty Ltd, was Tran's former employer and insurer in the matter before the Workers Compensation Commission. The dispute centred on the validity of the Registrar's decision not to refer a medical assessment to the Chief Medical Assessor for review. This decision was pivotal as it precluded Tran from appealing the medical assessment that had determined his entitlement to compensation.

The court was required to determine whether the Registrar had exercised her discretion correctly under the relevant statutory provisions. Specifically, the court needed to consider whether the Registrar had provided adequate reasons for declining to refer the medical assessment for review, and whether her decision was based on an error of law or an unreasonable exercise of discretion. The central legal issue was the scope of judicial review in such matters and whether the Registrar's decision was reviewable on the grounds of procedural fairness or correctness.

In delivering the judgment, the court held that the Registrar's decision was reviewable and that she had failed to provide sufficient reasons for her decision. The court found that the Registrar's decision to decline the referral was unreasonable because it did not adequately address the concerns raised by Tran regarding the medical assessment. The court further held that the Registrar had not properly considered the principles of procedural fairness, particularly the right to a fair hearing. Consequently, the court quashed the Registrar's decision and remitted the matter back to the Registrar for reconsideration, ensuring that all relevant factors were properly considered and justified in the decision-making process.

Orders