Batshon v Sydney Trains [2020] NSWSC 1266

Supreme Court New South Wales

Medium Neutral Citation: Batshon v Sydney Trains [2020] NSWSC 1266 Hearing dates: 29 July 2020 Date of orders: 17 September 2020 Decision date: 17 September 2020 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the plaintiff to amend the summons filed on 28 November 2019 by the addition of the following ground of appeal: "14 That the Medical Appeal Panel committed jurisdictional error by failing to consider Samir Batshon's request to be re-examined by an Authorised Medical Specialist who is a member of the Medical Appeal Panel." (2) Allow the appeal. (3) Set aside the decision of the Medical Appeal Panel dated 30 August 2019 in matter number M1-671/19. (4) Remit the matter to the Registrar of the Workers Compensation Commission for referral to a Medical Appeal Panel differently constituted under s 328 of the Work Injury Management and Workers Compensation Act 1998 for re-determination according to law. (5) Make no order as to costs. Catchwords: CIVIL PROCEDURE — administrative law — whether plaintiff should be given leave to appeal to amend summons — whether submission made by plaintiff addressing re-examination by approved medical specialist — where submission made by plaintiff — where medical appeal panel failed to consider request for re-examination — failure to consider mandatory consideration — jurisdictional error Legislation Cited: Work Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Attorney-General of NSW v Chiew Seng Liew [2012] NSWSC 1223 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59 Batshon v Sydney Trains [2020] NSWSC 831 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Samir Batshon (Plaintiff) Sydney Trains (First Defendant) Medical Appeal Panel of the Workers Compensation Commission (Second Defendant) Registrar of the Workers Compensation Commission (Third Defendant) Representation: Counsel: J W Dodd (First Defendant)