Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616

Supreme Court New South Wales

Medium Neutral Citation: Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 Hearing dates: 9 March 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Common Law Before: Simpson AJ Decision: Parties to bring in short minutes of order. Catchwords: ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – where approved medical specialist made assessment in accordance with guideline issued under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where appeal panel revoked initial assessment inferentially on basis that guideline inconsistent with requirements of s 323(1) of Act – whether guideline inconsistent with Act – effect of inconsistency with Act – whether appeal panel made error of law STATUTORY INTERPRETATION – subordinate legislation – scope of empowering provisions – where primary legislation provides for a deduction for any proportion of an impairment due to a previous injury or pre-existing condition or abnormality – where primary legislation provides that impairment is to be assessed in accordance with guidelines – where the application of guidelines would require nil deduction for pre-existing but asymptomatic psychiatric injury or condition – whether guidelines inconsistent with primary legislation – whether guidelines beyond power WORKERS COMPENSATION – medical assessment – assessment of degree of permanent impairment – deduction for pre-existing impairment – where claimant suffered previous psychiatric injury – where condition related to previous psychiatric injury asymptomatic at time of present injury – where asymptomatic condition contributed to impairment suffered as a result of present injury – whether any deduction should be made Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Cole v Wenaline Pty Ltd [2010] NSWSC 78 Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Government Cleaning Service v Ellul (1996) 13 NSWCCR 344 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480. Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34 McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Ryder v Sundance Bakehouse [2015] NSWSC 526 Category: Principal judgment Parties: David Marks (Plaintiff) Secretary, Department of Communities and Justice (First Defendant) Appeal Panel: John Wynyard, Dr Julian Parmegiani, Dr Michael Hong (Second Defendant) Registrar, Workers Compensation Commission of NSW (Third Defendant)) Representation: Counsel: B G McManamey (Plaintiff) L Morgan (First Defendant) Submitting appearance (Second and Third Defendants)