Galluzzo v Little [2013] NSWCA 116

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Galluzzo v Little [2013] NSWCA 116 Hearing dates: 18 March 2013 Decision date: 14 May 2013 Before: Barrett JA (at [1]); Ward JA (at [106]); Tobias AJA (at [107]) Decision: 1. Grant leave to appeal and to cross-appeal. 2. Direct that notice of appeal and notice of cross-appeal be filed within fourteen days. 3. Appeal dismissed. 4. Cross-appeal allowed. 5. Set aside the orders made in the Common Law Division on 5 April 2012. 6. In lieu thereof: (a) Dismiss the summons. (b) Order the plaintiffs to pay the first defendant's costs of the proceedings. 7. That the appellants/cross-respondents pay the costs of the respondent/cross-appellant of the appeal and the cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WORKERS COMPENSATION - medical assessment - role of Medical Appeal Panel - where several injuries produce impairment - whether certificate of assessment may be issued before all impairments are fully ascertainable - ADMINISTRATIVE LAW - procedural fairness - whether Medical Appeal Panel denied procedural fairness by declining to grant oral hearing and not calling for further submissions - whether judge's finding of failure by Medical Appeal Panel to give adequate reasons should have resulted in quashing of assessment - whether bare declaration is of utility - COSTS - indemnity basis - whether conduct before initiation of proceedings relevant to decision to award indemnity costs Legislation Cited: Workers Compensation Act 1998, ss 2A, 65 Workplace Injury Management and Workers Compensation Act 1998, Part 7 of Chapter 7, ss 319, 322, 325, 327, 328, 331, 376 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 Estate of Brockmann v Brockmann Metal Roofing Pty Ltd [2006] NSWSC 235 Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247 Siddick v WorkCover Authority of New South Wales [2008] NSWCA 116; (2008) 6 DDCR 228 Symbion Health Ltd v Hrouda [2010] NSWSC 295 TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist v Dianne Little [2011] NSWSC 1581 TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist v Dianne Little [2012] NSWSC 324 Truth About Motorways Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment, fifth edition WorkCover Guidelines, paras 1.4, 1.5, 1.21, 45, 46 Category: Principal judgment Parties: T J Galluzzo and S J Galluzzo t/as Riverwood Chemworld Chemist - Appellants/Cross-Respondents Dianne Little - First Respondent/Cross-Appellant Appeal Panel of the Workers' Compensation Commission - Second Respondent The Registrar of the Workers' Compensation Commission - Third Respondent Representation: C D Jackson - Appellants/Cross-Respondents D J Hooke SC/L G Morgan - First Respondent-Cross-Appellant Submitting Appearances - Second and Third Respondents Leigh Virtue & Associates - Appellants/Cross-Respondents Beilby Poulden Costello - First Respondent-Cross-Appellant I V Knight, Crown Solicitor - Second and Third Respondents File Number(s): 2012/191906 Decision under appeal Citation: TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist v Dianne Little [2011] NSWSC 1581 TJ Galluzzo and SJ Galluzzo t/as Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324 Before: Schmidt J File Number(s): 2011/84012