Sydney Trains v Batshon [2021] NSWCA 143

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sydney Trains v Batshon [2021] NSWCA 143 Hearing dates: 16 April 2021, written submissions 6 May, 20 May, 3 June, 1 July 2021. Decision date: 16 July 2021 Before: Leeming JA at [1]; White JA at [74]; McCallum JA at [75]. Decision: 1. Grant leave to appeal, in terms of grounds 4-9 of the draft notice of appeal. 2. Direct Sydney Trains to file a notice of appeal in accordance with the grant of leave, and dispense with the requirements of service. 3. Appeal allowed. 4. Set aside orders 2, 3 and 4 made on 17 September 2020 and in lieu thereof, order that Mr Batshon's summons be dismissed. Catchwords: ADMINISTRATIVE LAW - workers compensation - examination by approved medical specialist - request for re-examination by appeal panel refused - primary judge held that request not considered by appeal panel - appeal panel in fact considered request - adequacy of reasons of appeal panel - whether denial of procedural fairness by primary judge - whether any denial could be material in light of the right of appeal by way of rehearing - whether other judicially reviewable errors in appeal panel's decision - consideration of differences in assessment regimes under workers compensation and motor accident legislation - appeal allowed and decision of appeal panel reinstated COSTS - whether reason to depart from rule that costs should follow event - inclusion by appellant of voluminous irrelevant pages in appeal materials - where error by primary judge could have been corrected without need for appeal Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Motor Accidents Compensation Act 1999 (NSW), s 63 Motor Accident Injuries Act 2017 (NSW), s 7.26 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules, rr 36.16, 51.12, 51.53 Workers Compensation Act 1987 (NSW), ss 65A, 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 327, 328 Cases Cited: Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328 Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 Batshon v Sydney Trains [2020] NSWSC 831 Batshon v Sydney Trains [2020] NSWSC 1266 Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83; 379 ALR 248 Kitanoski v JB Metropolitan Distributors Pty Ltd [2019] NSWSC 1802 Lancaster v Foxtel Management Pty Ltd [2021] NSWSC 745 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91; [2020] NSWCA 232 Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 Re Knezevic; Ex Parte Carter [2005] WASCA 139 Rutland Allianz Australia Insurance [2014] NSWSC 1583 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition, 1 April 2016, cll 11.3, 11.4, 11.6 Category: Principal judgment Parties: Sydney Trains (Applicant) Samir Batshon (First Respondent) Medical Appeal Panel of the Personal Injury Commission constituted by Arbitrator Paul Sweeney, Dr Julian Parmegiani and Dr Douglas Andrews (Second Respondent) President of the Personal Injury Commission (Third Respondent) Representation: Counsel: J W Dodd (Applicant) D Hooke SC, S Tzouganatos (First Respondent)