Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380 Hearing dates: 21 October 2024 Date of orders: 31 October 2024 Decision date: 31 October 2024 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Set aside the decision and medical assessment certificate issued by an appeal panel of the Personal Injury Commission on 12 March 2024. (2) Set aside the certificate of determination issued by the Personal Injury Commission, Workers Compensation Division, dated 16 April 2024. (3) Direct that the President of the Personal Injury Commission refer the Secretary's appeal to a differently constituted medical appeal panel. (4) Order that the first defendant pay the plaintiff's costs in this Court. Catchwords: ADMINISTRATIVE LAW – judicial review – error of law on face of record – jurisdictional error – review of medical assessment by appeal panel – whether medical assessor made appropriate deductions for the proportion of the impairment stemming from previous injuries and pre-existing conditions – adequacy of assessor's reasons – failure of appeal panel to address grounds and submissions on appeal ADMINISTRATIVE LAW – judicial review – review of medical assessment by appeal panel – obligation to give reasons – adequacy of reasons Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), s 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 321, 322, 323, 328 NSW Workers Compensation Guidelines, Table 3.3 Cases Cited: Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135; 222 LGERA 286 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Minister for Immigration v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Law Book Co) Category: Principal judgment Parties: Secretary, Department of Communities and Justice (Plaintiff) Paul Virtue (First Defendant) Ms Jane Peacock, Dr James Bodel and Dr Mark Burns (Medical Appeal Panel) (Second Defendant) President, Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: S McMahon (Plaintiff) S W Hickey (First Defendant)