Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Hearing dates: 8 November 2018 Decision date: 17 December 2018 Before: Macfarlan JA at [1]
Gleeson JA at [2]
Barrett AJA at [113]Decision: (1) Grant leave to appeal.
(2) Direct the appellant to file a notice of appeal in the form contained in the White Book within 7 days.
(3) Appeal dismissed.
(4) Appellant to pay the first respondent’s costs.Catchwords: ADMINISTRATIVE LAW – jurisdictional error – where appellant worker suffered lower back injury – dispute about degree of permanent impairment – where approved medical specialist (AMS) made no deduction for any proportion of impairment due to prior injury and pre-existing condition – appeal by employer on ground of demonstrable error – Appeal Panel revoked certificate and issued new certificate – where 50 percent deduction for proportion of impairment due to prior injury and pre-existing condition – appellant claimed Panel substituted decision of AMS without finding the certificate of assessment contained demonstrable error – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327(3)(d) – whether primary judge erred in finding that Panel identified demonstrable error contained in certificate of AMS – whether Panel needed to expressly say certificate contained demonstrable error – whether error found by Panel was “demonstrable error” Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r)
Workers Compensation Act 1987 (NSW), s 151H
Workers Compensation Legislation Amendment Bill 2001 (No 2) (NSW)
Workers Compensation Legislation Amendment Act 2010 (NSW), Sch 2 [14]
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 321, 322, 322A, 323, 324, 325, 326, 327, 328
Uniform Civil Procedure Rules 2005 (NSW), r 42.1Cases Cited: Aldi Foods Pty Ltd (ACN 086 210 139) v Morrocanoil Israel Ltd [2018] FCAFC 93; (2018) 358 ALR 683
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Bunnings Group Ltd v Hicks [2008] NSWSC 874
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101; (2008) 6 DDCR 61
Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Pitsonis v Registrar of the Workers Compensation Commission (2008) 73 NSWLR 366; [2008] NSWCA 88
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR…
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Details
- Case
- [2018] NSWCA 324
- Decision Date
CaseChat Overview and Summary
The appellant, a worker who suffered a lower back injury, brought proceedings against the first respondent, Worldwide Demolitions Pty Ltd, concerning the degree of his permanent impairment. The dispute arose after an approved medical specialist (AMS) assessed the appellant's impairment without deducting any proportion for prior injury or pre-existing conditions. The employer appealed this assessment, arguing there was demonstrable error. The Appeal Panel revoked the AMS's certificate and issued a new one, making a 50 percent deduction for the proportion of impairment attributable to prior injury and pre-existing conditions. The appellant contended that the Appeal Panel had substituted its own decision for that of the AMS without first finding that the AMS's certificate contained demonstrable error, as required by s 327(3)(d) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW).
The central legal issues before the court were whether the primary judge erred in finding that the Appeal Panel had identified a demonstrable error in the AMS's certificate, whether the Panel was required to expressly state that the certificate contained demonstrable error, and whether the error identified by the Panel constituted a "demonstrable error" within the meaning of the Act.
The court considered the requirements of s 327(3)(d) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which permits an Appeal Panel to revoke a certificate of assessment and issue a new one if it finds demonstrable error in the original certificate. The court reasoned that the Panel's decision to make a significant deduction for pre-existing conditions, which the AMS had not done, implicitly indicated that the Panel had found a demonstrable error in the AMS's assessment. The court held that it was not necessary for the Panel to use the precise phrase "demonstrable error" so long as its reasoning clearly demonstrated that it had identified such an error. The court concluded that the error identified by the Panel, namely the failure to account for the proportion of impairment due to prior injury and pre-existing conditions, was indeed a demonstrable error.
Leave to appeal was granted, and the appellant was directed to file a notice of appeal. However, the appeal was ultimately dismissed, and the appellant was ordered to pay the first respondent's costs.
The central legal issues before the court were whether the primary judge erred in finding that the Appeal Panel had identified a demonstrable error in the AMS's certificate, whether the Panel was required to expressly state that the certificate contained demonstrable error, and whether the error identified by the Panel constituted a "demonstrable error" within the meaning of the Act.
The court considered the requirements of s 327(3)(d) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which permits an Appeal Panel to revoke a certificate of assessment and issue a new one if it finds demonstrable error in the original certificate. The court reasoned that the Panel's decision to make a significant deduction for pre-existing conditions, which the AMS had not done, implicitly indicated that the Panel had found a demonstrable error in the AMS's assessment. The court held that it was not necessary for the Panel to use the precise phrase "demonstrable error" so long as its reasoning clearly demonstrated that it had identified such an error. The court concluded that the error identified by the Panel, namely the failure to account for the proportion of impairment due to prior injury and pre-existing conditions, was indeed a demonstrable error.
Leave to appeal was granted, and the appellant was directed to file a notice of appeal. However, the appeal was ultimately dismissed, and the appellant was ordered to pay the first respondent's costs.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Direct the appellant to file a notice of appeal in the form contained in the White Book within 7 days.
(3) Appeal dismissed.
(4) Appellant to pay the first respondent’s costs.
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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