Zanardo v Tolevski

Case [2013] NSWCA 449

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449
Hearing dates:17/09/2013
Decision date: 17 December 2013
Before: Beazley P at [1];
Leeming JA at [2];
Tobias AJA at [39]
Decision:

(1) Leave to appeal granted.

(2) The draft notice of appeal stand as the notice of appeal in the proceedings.

(3) The appellant pay the applicable filing fee in respect of the notice of appeal within seven days, but all further requirements of the rules with respect to its filing and service be dispensed with.

(4) 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: WORKERS COMPENSATION - dispute over proposed treatment - whether referral to AMS mandatory before dispute determined - construction of Workers Compensation Act 1987, s 60(5) - no
basis for departing from ordinary grammatical meaning
Legislation Cited: Interpretation Act 1987
Workers Compensation Act 1987
Workers Compensation Legislation Amendment Act 2010
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984)
Commission of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588
Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009
Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Haroun v Rail Corporation New South Wales [2008] NSWCA 192; (2008) 7 DDCR 139
Inghams Enterprises Pty Ltd v Stanhope [2012] NSWWCCPD 32
Moon v Conmah Pty Ltd [2009] NSWWCCPD 134
MRS Environmental Services Ltd v Marsh [1997] 1 All ER 92
New South Wales Sugar Milling Co-operative v Manning (1998) 44 NSWLR 442
Rail Corporation New South Wales v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318
Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179
Spicer Axle Australia Pty Ltd v Merza [2007] NSWWCCPD 148
Telicki v Tennyson Textiles Pty Ltd (1960) 77 WN (NSW) 731
Waters Trading Company v Eade [1950] WCR 140
Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85
Texts Cited: Glass H, McHugh M and Douglas F, The Liability of Employers, 2nd ed (1979)
Category:Principal judgment
Parties: Zanardo & Rodriguez Sales & Services Pty Ltd (applicant)
Steve Tolevski (respondent)
Representation: Counsel:
L King SC; H Halligan (applicant)
B Carney…

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AGLC
Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449
Case
[2013] NSWCA 449
Decision Date

CaseChat Overview and Summary

In *Zanardo v Tolevski*, the dispute concerned whether a referral to an Approved Medical Specialist (AMS) was mandatory before a dispute regarding proposed treatment could be determined under the *Workers Compensation Act 1987* (NSW). The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court was the proper construction of section 60(5) of the *Workers Compensation Act 1987*. This provision dictates the process for resolving disputes concerning proposed treatment, and the central question was whether it mandated a referral to an AMS in all such circumstances, or if such a referral was only required in specific situations.

The Court determined that there was no basis to depart from the ordinary grammatical meaning of section 60(5). The Court reasoned that the language of the provision did not compel a referral to an AMS in every dispute over proposed treatment. Consequently, the appeal was dismissed.

Leave to appeal was granted, and the draft notice of appeal was permitted to stand as the formal notice. The appellant was ordered to pay the filing fee within seven days, with all further requirements for filing and service dispensed with. The appeal itself was dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) The draft notice of appeal stand as the notice of appeal in the proceedings.

(3) The appellant pay the applicable filing fee in respect of the notice of appeal within seven days, but all further requirements of the rules with respect to its filing and service be dispensed with.

(4) 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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