Cheers v Mid Coast Council [2024] NSWSC 1553

Supreme Court New South Wales

Medium Neutral Citation: Cheers v Mid Coast Council [2024] NSWSC 1553 Hearing dates: 6 November 2024 Date of orders: 4 December 2024 Decision date: 04 December 2024 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Direct that the names of the persons constituting the Medical Appeal Panel be deleted as parties to the proceedings and the second defendant be identified as the "Medical Appeal Panel". (2) Set aside the Medical Assessment Certificate issued by the Medical Appeal Panel and dated 21 December 2023 and set aside the determination of the Medical Appeal Panel dated 15 January 2024. (3) Direct that, unless the parties resolve their medical dispute, the third defendant refer the first defendant's appeal to a medical appeal panel, differently constituted. Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – decision of medical appeal panel – psychological injuries – failure of appeal panel to examine worker before rejecting findings of medical assessor and making unfavourable findings as to the worker's veracity and credibility ADMINISTRATIVE LAW – judicial review – decision of medical appeal panel – failure to give proper, genuine and realistic consideration to worker's case – lengthy reasons of appeal panel made only one brief reference to worker's submissions WORKERS' COMPENSATION – determination of degree of whole person impairment – psychological injury – challenge by employer to findings of medical assessor – assessment of reliability and veracity of worker – proper function of medical appeal panel – varying assessment of psychological injury without examining the worker Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 15, 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 321, 322A, 324, 327, 328, 329 Cases Cited: Brown v Rezitis (1970) 127 CLR 157 Campbelltown City Council v Vegan [2006] NSWCA 284 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Ferguson v State of New South Wales [2017] NSWSC 887 Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465; [2000] HCA 66 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 ed) Category: Principal judgment Parties: Paul Cheers (Plaintiff) Mid Coast Council (First Defendant) Medical Appeal Panel (Second Defendant) President, Personal Injury Commission of NSW (Third Defendant) Representation: Counsel: D Hooke SC / L Morgan (Plaintiff) S Blount (First Defendant)