NSW Caselaw
New South Wales Supreme Court
CITATION : SYMBION HEALTH LIMITED v HROUDA & ANOR [2010] NSWSC 295
HEARING DATE(S) : Tuesday 15 December 2009
JUDGMENT DATE : 21 April 2010
JURISDICTION : Common Law
JUDGMENT OF : Hall J at 1
(1) The summons is dismissed. DECISION : (2) Subject to (3) below, the plaintiff is to pay the first defendant's costs. (3) If the plaintiff wishes to argue that costs should not follow the event, liberty to apply within 10 days of judgment.
CATCHWORDS : STATUTORY INTERPRETATION – whether Guideline 45 of the Workcover Medical Assessment Guidelines which permits an Appeal Panel to conduct an "On the Papers" review is inconsistent with the provisions of s.328(1) of the Workplace Injury Management and Workers Compensation Act 1998 ("An appeal against a medical assessment is to be heard by an Appeal Panel ...") and therefore invalid – no inconsistency – issue determined by decision in Estate of Brockmann v Brockmann Metal Roofing Limited & Ors – reasons for judgment of Studdert J in that case followed and applied - ADMINISTRATIVE LAW – procedural fairness – claimed breach of the 'hearing rule' in circumstances where an Appeal Panel raised an issue of causation for further submissions – plaintiff employer in response sought a 'hearing' – request refused and final decision given by the Panel – no breach of procedural fairness requirements having regard to the statutory scheme and factual circumstances of the case
LEGISLATION CITED : Supreme Court Act 1970 Workplace Injury Management and Workers Compensation Act 1998
Dar v State Transit Authority of NSW [2007] NSWSC 260 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235 Kioa v West (1985) 159 CLR 550 Kooragang Cement Pty Limited v Bates (1994) 10 NSWCCR 796 Mobil Oil Australia Pty Limited v FCT (1963) 113 CLR 475 CASES CITED : Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 21 CLR 1 Re Refugee Revue Tribunal; ex parte Ala (2000) 204 CLR 82 Russell v Duke of Norfolk [1949] 1 All ER 109 Skillen v MKT Removals Pty Limited & Ors [2007] NSWSC 608 Smith v Liquip Services Pty Limited & Ors [2007] NSWSC 687 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Stead v State Government Insurance Commission (1986) 161 CLR 141
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