Vannini v Worldwide Demolitions Pty Ltd - [2018] NSWSC 572

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Vannini v Worldwide Demolitions Pty Ltd [2018] NSWSC 572
Hearing dates: 24 April 2018
Date of orders: 03 May 2018
Decision date: 03 May 2018
Jurisdiction: Common Law
Before: Fagan J
Decision:
1. The summons is dismissed.
2. The plaintiff is to pay the first defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – Medical Appeal Panel of the Workers Compensation Commission of New South Wales – appeal against medical assessment – Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Act”), ss 323, 327, 328 – where impugned medical assessment had no deduction of degree of impairment for previous injury or pre-existing condition – where appeal upheld by Panel and deduction assessed at 50% – grounds of appeal under s 327(3) of the Act – whether assessment made on basis of “incorrect criteria” per s 327(3)(c) of the Act – whether assessment contained “demonstrable error” per s 327(3)(d) of the Act – whether appellate decision unreasonable – whether lack of “evident and intelligible justification” – whether procedural fairness denied – whether failure to provide sufficient reasons – summons dismissed
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 63
Supreme Court Act 1970 (NSW), ss 69, 75A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 323, 325, 327, 328
Cases Cited: 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
Collector of Customs v Pozzolanic (1993) FCR 280; [1993] FCA 456
Ferguson v State of New South Wales [2017] NSWSC 887
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Frost v Kourouche [2014] NSWCA 39
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259; [1996] HCA 6
Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Versace v Australia’s Best Tyres & Auto Pty Ltd [2016] NSWSC 1540
Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254
Texts Cited: New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, 18 April 2016
Category: Principal judgment
Parties: Aaron Vannini (plaintiff)
Worldwide Demolitions Pty Ltd (first defendant)
Workers Compensation Commission of New South Wales (second defendant)
The Medial Appeal Panel of the Workers Compensation Commission of New South Wales constituted by Arbitrator Deborah Moore, Dr Drew Dixon and Dr Gregory McGroder (third defendant)
Representation:
Counsel:
Mr David Hooke SC/Mr Nicholas Read (plaintiff)
Mr Perry Herzfeld (first defendant)
Submitting appearances (second and third defendants)
Solicitors:
Kells Lawyers (plaintiff)
Gillis Delaney Lawyers (first defendant)

File Number(s): 2017/293733

Judgment

By his amended summons filed on 25 October 2017 the plaintiff seeks judicial review…

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.

Keep reading for free

Create a free CaseChat account to read Vannini v Worldwide Demolitions Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 572
Decision Date: 03 May 2018

CaseChat Overview and Summary

Vannini sought judicial review of a decision by the Medical Appeal Panel of the Workers Compensation Commission of New South Wales. The panel had allowed an appeal against a medical assessment carried out under the Workers Injury Management and Workers Compensation Act 1998 (NSW) (the Act). The initial assessment had not deducted for a previous injury or a pre-existing condition. On appeal, the panel determined that a 50% deduction was appropriate and allowed the appeal. Vannini sought to have the panel’s decision reviewed on the basis that it was unreasonable, did not have an evident and intelligible justification, was not procedurally fair, and did not provide sufficient reasons.

The court needed to determine whether the assessment was made on the basis of incorrect criteria, whether it contained a demonstrable error, and whether the panel’s decision was unreasonable. It also needed to determine whether the panel’s decision was procedurally unfair and whether it failed to provide sufficient reasons. The court considered the evidence before the panel and whether the panel was correct to conclude that the original assessment did not take into account the previous injury and pre-existing condition.

The court found that the panel’s decision was not unreasonable and that there was sufficient evident and intelligible justification for its decision. The panel had correctly identified that the original assessment did not take into account the previous injury and pre-existing condition and that this was a demonstrable error. The panel had also correctly concluded that a 50% deduction was appropriate. The court found that the panel’s decision was procedurally fair and that it provided sufficient reasons for its decision.

The court dismissed Vannini’s summons for judicial review.

Orders