Kapp v St Joseph’s Village Limited [2023] NSWSC 414

Supreme Court New South Wales

Medium Neutral Citation: Kapp v St Joseph's Village Limited [2023] NSWSC 414 Hearing dates: 20 April 2023 Date of orders: 20 April 2023 Decision date: 20 April 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: Orders made as per Consent Orders dated 20 April 2023 Catchwords: WORKERS COMPENSATION – Consent Orders – whether failure to order reconsideration of application in Workers Compensation Commission amounted to jurisdictional error – Consent Orders made Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 Category: Procedural rulings Parties: Griselda Kapp (Plaintiff) St Joseph's Village Limited (First Defendant) Parnel McAdam as delegate for the President of the Personal Injury Commission (Second Defendant) Personal Injury Commission (Third Defendant) Representation: Counsel: Mr McManamey (Plaintiff) Mr Jackson (First Defendant) No Appearance (Second Defendant) No Appearance (Third Defendant)

Solicitors: Turner Freeman Lawyers (Plaintiff) Integroe Partners (First Defendant) Crown Solicitor's Office (Second Defendant) Crown Solicitor's Office (Third Defendant) File Number(s): 2022/328419 Publication restriction: Nil

EX TEMPORE JUDGMENT 1. This matter, at least in this court, was commenced by a summons filed on 2 November 2022. The summons primarily sought an order that the decision of the second defendant, the Personal Injury Commission, should be set aside because it was "void and of no effect". 2. The summons, in its Grounds, sets out a list of legal errors allegedly made by the second defendant. In broad summary they allege jurisdictional error on the part of this defendant. 3. The first defendant agrees with the plaintiff and supports the making of the Consent Orders which have been provided to the Court. The second and third defendants have indicated that they submit to the orders of the Court. 4. Notwithstanding the agreement of the plaintiff and the first defendant, it is still necessary for this Court to, if not approve of the resolution, state its agreement with the proposed orders and to make the orders. 5. The principles applicable in this circumstance were set out by Leeming JA in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [20]. 6. The jurisdictional error asserted in the present case is as follows: on 3 September 2019, the plaintiff made an application in the Workers Compensation Commission which was rejected by the commission. 7. On 23 August 2022, the second defendant decided that the matter could not be reconsidered and in particular that it could not be sent to an appeal panel for reconsideration. 8. The plaintiff and first defendant agree that the second defendant did in fact have the power, pursuant to s 378 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (as in force on 3 September 2019) to refer the matter to an appeal panel. This failure to recognise the presence of the power, and in fact to reject its existence, is the jurisdictional error primarily relied upon by the plaintiff. 9. Taking into account as a persuasive factor that the first defendant agrees with the plaintiff, I am also of the view that jurisdictional error as just described has occurred. 10. Accordingly, I think it appropriate to make the Consent Orders. I make the orders in the document entitled Consent Orders signed by the plaintiff and the first defendant dated today. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 April 2023