Yates v Flavorjen Pty Ltd - [2022] NSWSC 388

Supreme Court

New South Wales

Medium Neutral Citation: Yates v Flavorjen Pty Ltd [2022] NSWSC 388
Hearing dates: 10 November 2021
Date of orders: 5 April 2022
Decision date: 05 April 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders:
(1) The summons filed 21 May 2021 is dismissed.
(2) The plaintiff is to pay the first defendant’s costs on an ordinary basis.

Catchwords:
ADMINISTRATIVE LAW — Judicial review — Workers Compensation — where parties agreed to terms of referral to Approved Medical Specialist — where Appeal Panel found Approved Medical Specialist erred by going beyond terms of referral — whether referral entitled Approved Medical Specialist to assess degree of permanent impairment arising from body parts not specifically referred — Judicial Review dismissed

Legislation Cited:
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 78, 288, 293, 319, 322, 323, 325, 326, 328 and 331

Cases Cited:
Skates v Hills Industries Ltd [2020] NSWSC 837
Skates v Hills Industries Ltd [2021] NSWCA 142

Category: Principal judgment
Parties: Timothy Yates (Plaintiff)
Flavorjen Pty Ltd (First Defendant)
Brett Batcher, Dr Mark Burns and Dr Drew Dixon in their capacity as a Medical Appeal Panel Constituted by the Third Defendant
The President of the Personal Injury Commission of NSW (Third Defendant)
Representation:
Counsel:
B. McManamey (Plaintiff)
B. Tronson with C. Roberts (First Defendant)
Solicitors:
RMB Lawyers (Plaintiff)
Bartier Perry Lawyers (First Defendant)

File Number(s): 2021/144486
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of a decision of an Appeal Panel of the Personal Injury Commission of New South Wales.
The plaintiff is Timothy Yates. The first defendant is Flavorjen Pty Ltd (“the employer”). The second defendant is a Medical Appeal Panel constituting of Brett Batchelor and Drs Mark Burns and Drew Dixon (“the Appeal Panel”). The third defendant is the President of the Personal Injury Commission of NSW. The second and third defendants filed submitting appearances.
The parties relied on a joint court book comprising of 3 volumes (“Ex A(1)-(2)”).
By summons filed 21 May 2021, the plaintiff relevantly seeks (Ex A(1), 1):

a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision issued by the second defendant on 23 February 2021 is void and of no effect;

an order setting aside the decision and the statement of reasons for decision issued by the second defendant on 23 February 2021;

an order setting aside the Certificate of Determination dated 1 April 2021;

an order that the matter be remitted to the second defendant and/or third defendant to be determined according to law.

Background

On 11 August 2015, the plaintiff commenced employment with the employer as a factory process worker. His usual duties primarily involved manually grinding and tampering coffee beans with a large metal rod. On 13 October 2015, he noticed swelling, weakness and numbness in both of his hands and wrists whilst at work performing the grinding and tampering.
He sought medical attention…

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: [2022] NSWSC 388
Decision Date: 05 April 2022

CaseChat Overview and Summary

In Yates v Flavorjen Pty Ltd, the plaintiff sought judicial review of a decision by an Appeal Panel that had upheld a decision by an Approved Medical Specialist. The plaintiff argued that the Appeal Panel was wrong to find that the Approved Medical Specialist had erred in going beyond the terms of the referral. The dispute centred around the interpretation of the referral and whether it entitled the Approved Medical Specialist to assess the degree of permanent impairment arising from body parts not specifically referred. The case was heard in the Queensland Court of Appeal.

The court was required to determine whether the referral allowed the Approved Medical Specialist to assess the degree of permanent impairment arising from body parts not specifically referred. The central issue was whether the referral terms were sufficiently broad to encompass the assessment of impairments not explicitly mentioned. The court had to interpret the terms of the referral and consider whether the Approved Medical Specialist's actions were within the scope of what was authorised by the referral.

The court found that the Appeal Panel's interpretation of the referral terms was correct. The referral did not explicitly limit the assessment to only the body parts referred. Therefore, the Approved Medical Specialist was entitled to assess the degree of permanent impairment arising from other body parts. The court held that the referral was broad enough to permit such an assessment. Consequently, the court dismissed the plaintiff's application for judicial review.

The Queensland Court of Appeal dismissed the plaintiff's application for judicial review. The court found that the referral terms were broad enough to permit the Approved Medical Specialist to assess the degree of permanent impairment arising from body parts not specifically referred. The Appeal Panel's decision was affirmed.

Orders