Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045

New South Wales Supreme Court

CITATION : Massie v Southern NSW Timber and Hardware Pty Limited [2006] NSWSC 1045

HEARING DATE(S) : 20 September 2006

JUDGMENT DATE : 6 October 2006

JUDGMENT OF : Sully J at 1

DECISION : Decision of Appeal Panel dated 30 January 2006 quashed; Appeal proceedings giving rise to that Decision remitted to Appeal Panel to be dealt with according to law; First Defendant to pay three-quarters of the plaintiff's costs

LEGISLATION CITED : Workplace Injury Management Act 1998 (NSW) Supreme Court Act 1970 (NSW)

CASES CITED : Zuanic v Gypro-Tech (Australia) Pty Limited (in Liquidation) & ors. [2006] NSWSC 739 Anderson v The Judges of the District Court of NSW (1992) 27 NSWLR 701

Darryl Peter Massie PARTIES : Southern NSW Timber and Hardware Pty Limited The Registrar, Workers Compensation of NSW Workers Compensation Commission Appeal Panel

FILE NUMBER(S) : SC 2006/30029

COUNSEL : R. Harrington - Plaintiff M. Batten - 1st Defendant

SOLICITORS : Carroll & O'Dea - Plaintiff QBE In-House Legal Dept. - 1st Defendant

- THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

SULLY J

6 October 2006

2006/30029 – DARRYL PETER MASSIE v SOUTHERN NSW TIMBER AND HARDWARE PTY LIMITED & ORS.

JUDGMENT

HIS HONOUR:

Introduction 1 By a Further Amended Summons filed by leave in Court on 20 September 2006 Darryl Peter Massie, ("the plaintiff"), sues Southern NSW Timber and Hardware Pty Limited, ("the first defendant"); The Registrar of the Workers Compensation Commission of NSW, ("the second defendant"); and the Workers Compensation Medical Appeal Panel, ("the third defendant"). The relief claimed by the plaintiff is: "1. A Declaration and Order that the decision of the Second Defendant before the Workers Compensation Commission of New South Wales in the matter of Darryl Peter Massie v Southern New South Wales Timber & Hardware Pty Limited , dated 24 November 2005 involved: (a) Jurisdictional error and was beyond power; (b) An error on the face of the record; and 2. A Declaration and Order that the Decision of the Third Defendant in matter number WCC6095 of 2005 before the Workers Compensation Commission of New South Wales in the matter of Darryl Peter Massie v Southern New South Wales Timber & Hardware Pty Limited , dated 31 January 2006 involved: (a) Jurisdictional error and was beyond power; (b) An error on the face of the record, and 3. An Order that the decision referred to in numbers 1 and 2 above be quashed. 4. An Order that the Second and Third Defendants carry out their functions in accordance with sections 327, 328 and 329 of the Workplace Injury Management and Workers Compensation Act 1998 and otherwise in accordance with law. 5. An order that the Defendants pay the Plaintiff's costs of the Application." 2 A Summons having the same parties was originally filed on 17 March 2006. An Amended Summons was filed on 19 April 2006. The relief claimed in those two pleadings is differently framed from the relief claimed in the Further Amended Summons in that no relief is there claimed against the Decision of the third defendant. 3 The second and the third defendants submitted appearances in the usual form. The first defendant appeared before this Court by learned Counsel and contested all of the plaintiff's claims to relief. 4 An affidavit in support of the plaintiff's case was sworn on 17 March 2006 by Mr. T. J. Concannon, the plaintiff's Solicitor. That affidavit, and the various documents annexed to it, constitute the whole of the evidence that was placed before this Court.