Dening v Oltoy Pty Ltd trading as Noble Toyota [2014] NSWSC 1224

Supreme Court New South Wales

Medium Neutral Citation: Dening v Oltoy Pty Ltd trading as Noble Toyota [2014] NSWSC 1224 Hearing dates: 19 August 2014 Decision date: 05 September 2014 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: The Court declares that (1) The decision of the Medical Appeal Panel issued on 20 February 2014 is vitiated by error of law. (2) The decision by the Registrar issued on 4 April 2014 is vitiated by error of law. The Court makes an order: (3) In the nature of certiorari removing into the Court the decision of the Medical Appeal Panel issued on 4 April 2014 and quashing that decision. (4) In the nature of certiorari removing into the Court the decision of the Registrar issued on 4 April 2014 and quashing that decision. The Court further orders that: (5) The proceedings be remitted to the Registrar of the Workers Compensation Commission to be determined according to law. (6) The first defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - judicial review - error in law - decision maker acted beyond jurisdiction - matter remitted back to the Workers Compensation Commission of NSW

WORKERS COMPENSATION - Workers Compensation Commission - hearing loss - limited referral from Registrar to Approved Medical Specialist - Approved Medical Specialist decision appealed to Medical Appeal Panel - employer conceded that it was the last noisy employer - failure to account for concession Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 17, 65(1) & (3), 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 105, 319, 323, 322, 323,325, 326, 327, 328, 366 Cases Cited: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 Brandt v St George Motor Boat Club Ltd [2004] WCC No 161633 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 McGowan v Secretary, Department of Education and Communities [2014] NSWWCCPD 51 Siddick v Workcover Authority of NSW [2008] NSWCA 116 Smith v Mann [1932] HCA 30; (1932) 47 CLR 426 Category: Principal judgment Parties: Frank Dening (Plaintiff) Oltoy Pty Ltd t/as Noble Toyota (First Defendant) Medical Appeal Panel of the Workers Compensation Commission of New South Wales consisting of John Wynyard, Dr Joseph Scoppa and Dr Sylvester Fernandes (Second Defendant) Registrar of the Workers Compensation Commission of New South Wales (Third Defendant Representation: Counsel: C J Tanner (Plaintiff) J W Dodd (First Defendant) Solicitors: Villari Lawyers (Plaintiff) Bartier Perry (First Defendant) Submitting Appearance, Crown Solicitor (Second & Third Defendants) File Number(s): 2014/132527 Publication restriction: Nil Decision under appeal Before: Medical Appeal Panel of the Workers Compensation Commission of NSW; and Registrar of the Workers Compensation Commission of NSW File Number(s): 6452/2012