Wilkinson v C and M Leussink Pty Ltd - [2015] NSWSC 69

Supreme Court

New South Wales

Medium Neutral Citation: Wilkinson v C & M Leussink Pty Ltd [2015] NSWSC 69
Hearing dates: 26 June 2014
Date of orders: 17 February 2015
Decision date: 17 February 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court declares that:
(1) The decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 is vitiated by jurisdictional errors.
The Court makes an order
(2) In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number M1-004470/12 made on 3 July 2013 and quashing that decision.
(3) In the nature of certiorari removing into the Court the Reconsideration of the Appeal Panel in matter number M1-004470/12 made on 14 October 2013 and quashing that decision.
The Court furthers orders that:
(4) Matter number M1-00447-/12 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.
(5) The first defendant is to pay the plaintiff’s costs as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW - judicial review - error of law - decision maker acted beyond jurisdiction - WORKERS COMPENSATION - Workers Compensation Commission - permanent impairment - limited referral from Registrar to Approved Medical Specialist - Approved Medical Specialist decision appealed to Medical Appeal Panel - re-examination by Approved Medical Specialist - reconsideration by Medical Appeal Panel
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
WorkCover Medical Assessment Guidelines
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2010 (NSW)
Workers Compensation Legislation Amendment Bill 2010 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Abou-Haider v Consolidated Wire Pty Limited [2010] NSWWCCPD 128
Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66
Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175
CSR Limited v Gonzales [2010] NSWWCCPD 118
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365
Inghams Enterprises Pty Ltd v Lakovska [2013] NSWSC 1489
Markovic v Rydges Hotels Ltd [2009] NSWCA 181
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
O’Donel v The Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744
Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13
Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231
Rail Services Australia v Dimovski [2004] NSWCA 267
Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Category: Principal judgment
Parties: George Sutherland Wilkinson (Plaintiff)
C&M Leussink Pty Ltd (First Defendant)
Marshall Douglas, Dr Robert Breit And Dr Peter Burke as Members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Second Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Third Defendant)
Representation:
Counsel:
M Allars SC with L Morgan & A Giurtalis (Plaintiff)
S Blount (First Defendant)
Solicitors:

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: [2015] NSWSC 69
Decision Date: 17 February 2015

CaseChat Overview and Summary

The matter of Wilkinson v C and M Leussink Pty Ltd concerned the decision of a Workers Compensation Commission to assess the applicant's claim for permanent impairment benefits. The applicant, Mr Wilkinson, argued that the Commission had erred in law by not allowing him to have a re-examination by an Approved Medical Specialist (AMS) before the Medical Appeal Panel (MAP) reconsidered his case. The dispute was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the Commission had acted beyond its jurisdiction by not allowing Mr Wilkinson to be re-examined by the AMS before the MAP reconsidered his case. This issue hinged on the interpretation of the Workers Compensation Regulation 2003 and the extent to which the Commission could limit referrals to AMSs. The court was also required to consider whether the Commission's decision constituted an error of law and whether the decision-making process was procedurally unfair.

The Court of Appeal held that the Commission had acted beyond its jurisdiction by not allowing Mr Wilkinson to be re-examined by the AMS before the MAP reconsidered his case. The court found that the Regulation did not permit the Commission to limit referrals to AMSs in the manner it had done. The court further held that this error of law was significant enough to vitiate the Commission's decision, as it had the potential to affect the outcome of the case. The court also found that the process was procedurally unfair, as Mr Wilkinson was not given an opportunity to be re-examined by the AMS before his case was reconsidered. As a result, the Court of Appeal quashed the Commission's decision and remitted the matter back to the Commission for re-determination.

The final orders of the court were that the decision of the Workers Compensation Commission be quashed and the matter be remitted back to the Commission for re-determination in accordance with the court's reasons. The court did not make any orders as to costs.

Orders