Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Hearing dates: 4 April 2011 Decision date: 29 August 2011 Before: McColl JA at 1,
Basten JA at 2,
Handley AJA at 59Decision: (1) Leave to appeal granted.
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - challenge to decisions at two levels - existence of statutory appeal - following an appeal availability of judicial review proceedings in respect of the original decision - application of statutory scheme for appeals
ADMINISTRATIVE LAW - judicial review - whether Appeal Panel addressed issues raised - obligation to give reasons - adequacy of reasons - challenge to reasons of specialist - purpose of requiring reasons of specialistLegislation Cited: Justices Act 1902 (NSW), ss 112, 122
Migration Act 1958 (Cth), ss 414, 415
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 321, 323, 325, 326, 327, 328Cases Cited: Blacker v Parnell [1978] 1 NSWLR 616
Calvin v Carr [1980] AC 574
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Cole v Wenaline Pty Ltd [2010] NSWSC 78
D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep)
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240
Hill v Green [1999] NSWCA 477; 48 NSWLR 161
Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; 166 IR 192
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
NAJT v Minister for Immigration and Multicultural Affairs [2005] FCAFC 134; 147 FCR 51
NAMG v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 181
The Queen v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; 147 CLR 471
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57
Sherlock v Lloyd [2010] VSCA 122
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252
Wishart v Fraser [1941] HCA 8; 64 CLR 470Category: Principal judgment Parties: Djordje Vitaz - Appellant
Westform (NSW) Pty Ltd - First Respondent
Dr Peter Giblin - Second Respondent
Carole McCaskie, Dr Richard Crane and Dr Kenneth Hume - Third Respondent
The Workers Compensation Commission - Fourth RespondentRepresentation: Counsel:
Mr R Lancaster SC/Ms B Nolan - Appellant
NSW Compensation…
Mr I Todd - First Respondent
Submitting appearances - Second to Fourth Respondents
Solicitors:
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- Case
- [2011] NSWCA 254
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether judicial review was available in respect of the original decision, given that a statutory appeal had already been pursued, and whether the Appeal Panel had adequately addressed the issues raised before it, including its obligation to provide reasons.
The Court of Appeal reasoned that the statutory scheme for appeals, which had been utilised by the appellant, precluded further judicial review of the original decision. It was held that the appeal process was intended to be exhaustive, and once that process had run its course, the original decision was no longer amenable to judicial review. Furthermore, the Court found that the Appeal Panel had provided sufficient reasons for its decision, addressing the matters that were properly before it.
Leave to appeal was granted, but the appeal was ultimately dismissed with costs.
Orders
Orders of the court
(1) Leave to appeal granted.
(2) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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