Southwell v Qantas Airways Limited [2024] NSWSC 497

Supreme Court New South Wales

Medium Neutral Citation: Southwell v Qantas Airways Limited [2024] NSWSC 497 Hearing dates: 27 February 2024 Date of orders: 03 May 2024 Decision date: 03 May 2024 Jurisdiction: Common Law Before: Wright J Decision: (1) The Medical Assessment Certificate issued by the third defendants on 16 March 2023 is set aside. (2) The matter is remitted to the Personal Injury Commission to be heard and determined by a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in accordance with law. (3) The first defendant is to pay the plaintiff's costs. (4) Otherwise, the summons filed on 8 June 2023 is dismissed. Catchwords: ADMINISTRATIVE LAW – workers compensation – judicial review of Medical Appeal Panel decision – where Appeal Panel issued medical assessment certificate determining worker's whole person impairment at 14% after a 10% deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether failure to give adequate reasons – whether jurisdictional error or error of law on the face of the record in application of s 323 – relevant error established – Medical Assessment Certificate set aside Legislation Cited: Personal Injury Commission Act 2020 (NSW) Supreme Court Act 1970 (NSW), s 69, 69(3) Workers Compensation Act 1987 (NSW), ss 65(1), 66, 151, 151H, 151H(4) Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323(1)-(2), 328 Cases Cited: Aquilina v Transport for NSW [2022] NSWSC 1310 Cole v Wenaline Pty Ltd [2010] NSWSC 78 Department of Communities and Justice v Lewandowski [2023] NSWSC 334 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Ryder v Sundance Bakehouse [2015] NSWSC 526 Southwell v Qantas Airways Limited [2023] NSWSC 27 Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: John Southwell (Plaintiff) Qantas Airways Limited (First Defendant) President of the Personal Injury Commission of New South Wales (Second Defendant) Marshal Douglas, Tommasino Mastroianni, John Brian Stephenson as an appeal panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendants) Representation: Counsel: E Romaniuk SC with Ms E Grotte (Plaintiff) S Blount (First defendant)