Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology v Aisha Naqi [2020] NSWSC 1791

Supreme Court New South Wales

Medium Neutral Citation: Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology v Aisha Naqi [2020] NSWSC 1791 Hearing dates: 2 December 2020 Date of orders: 11 December 2020 Decision date: 11 December 2020 Jurisdiction: Common Law Before: Schmidt AJ Decision: For the reasons given I order: 1. The summons is dismissed. 2. Unless the parties approach within 7 days Specialist Diagnostic Services is to bear Ms Naqi's costs as agreed or assessed. 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal or until any appeal has been determined. Catchwords: ADMINISTRATIVE LAW – Judicial review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – Review of decision of delegate of the Registrar – Whether delegate exceeded "gatekeeper" role under s 327 – Whether the delegate's decision revealed jurisdictional error- Whether delegate failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – No obligation for Registrar to provide reasons - Review of decision of Appeal Panel – Whether Appeal Panel failed to determine whether approved medical specialist had erred before determining to assess the appellant – Whether Appeal Panel failed to give reasons – Whether Appeal Panel fell into jurisdictional error – Whether Appeal Panel failed to respond to substantial and clearly articulated argument resulting in a constructive failure to exercise jurisdiction – Application dismissed Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 324(3), 327, 328 Supreme Court Act 1970 (NSW) Cases Cited: Ballas v Department of Education (State of NSW) [2020] NSWCA 86 Bojko v Icm Property Service Pty Ltd & Ors [2009] NSWCA 175 Bunnings Group Ltd v Hicks [2008] NSWSC 874 Campbelltown City Council v Vegan [2006] NSWCA 284 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) Inghams Enterprises v Iogha [2006] NSWSC 456 Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598; 187 ALR 117 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Riverina Wines Pty Ltd v Registrar Of The Workers Compensation Commission Of NSW & Ors [2007] NSWCA 149 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Category: Principal judgment Parties: Specialist Diagnostic Services Pty Ltd t/as Laverty Pathology (Plaintiff) Aisha Naqi (1st Defendant) Medical Appeal Panel of the Workers Compensation Commission of NSW (Jane Peacock, Prof Nicholas Glozier and Dr Michael Hong) (3rd Defendant) Registrar of the Workers Compensation Commission of NSW (4th Defendant) Representation: Counsel: Dr S Blount (Plaintiff) R de Meyrick (1st Defendant) Solicitors: Astridge and Murray Solicitors (Plaintiff) Grieve Watson Kelly Lawyers (1st Defendant) The Crown Solicitors (3rd and 4th Defendants) File Number(s): 2020/201450