Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd [2022] NSWSC 1010

Supreme Court New South Wales

Medium Neutral Citation: Mifsud v Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd [2022] NSWSC 1010 Hearing dates: 25 November 2021 Date of orders: 29 July 2022 Decision date: 29 July 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) Proceedings for judicial review is dismissed. (2) The plaintiff is to pay the first defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – jurisdictional error – workers compensation – medical assessment – appeal to medical panel – judicial review of decision of appeal panel – where appeal panel confirmed medical assessment certificate determining worker's whole person impairment at 13% – whether the appeal panel asked itself the wrong question by confining itself to the precise grammatical meaning of the terms of the referral Legislation Cited: Personal Injury Commission Act 2020 (NSW) Workers Compensation Act 1987 (NSW), ss 4, 39, 65, 66, 66A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 293, 319, 325, 327, 328 Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Skates v Hills Industries Ltd [2020] NSWSC 837 Skates v Hills Industries Ltd [2021] NSWCA 142 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: 'Guides to the Evaluation of Permanent Impairment' (5th edition), American Medical Association 'New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment' (Fourth Edition), State Insurance Regulatory Authority Category: Principal judgment Parties: Joseph Mifsud (Plaintiff) Pitador Excavations Pty Limited t/as JD Concrete Pty Ltd (First Defendant) Appeal Panel convened under s 323 Workplace Injury Management and Workers Compensation Act 1998 (Second Defendant) President of the Personal Injury Commission (Third Defendant) Representation: Counsel: Mr B McManamey (Plaintiff) Ms B Tronson with Ms C Roberts (First Defendant)