The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911

Supreme Court New South Wales

Medium Neutral Citation: The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911 Hearing dates: 3 March 2016 Date of orders: 01 July 2016 Decision date: 01 July 2016 Jurisdiction: Common Law Before: Davies J Decision: (1) An order in the nature of certiorari quashing the decision of the Second Defendant of 13 April 2015 referring the matter to an Appeal Panel.

(2) An order in the nature of certiorari quashing the Certificate of the Third Defendant dated 24 June 2015.

(3) An order in the nature of mandamus remitting the matter to the Second Defendant for the purpose of determining according to law whether, on the face of the application filed by the First Defendant and any submissions made in relation to it, whether any ground of appeal specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) has been made out and, if so, for the purpose of appointing a different panel to determine the First Defendant's Application to Appeal against the decision of the Approved Medical Specialist.

(4) The First Defendant should pay the costs of the Plaintiff.

(5) The First Defendant should have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise so entitled. Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional error - Workplace Injury Management and Workers Compensation Act 1998 – injured worker – assessment of whole person impairment – Registrar refers medical dispute to appeal panel - whether demonstrable error in the medical assessment certificate – error asserted to be the percentage whole person impairment assessed by medical assessor – no demonstrable error established - appeal panel identifies other errors in certificate of assessor – whether jurisdictional error in so doing - decisions of Registrar and appeal panel quashed Legislation Cited: Suitors Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: George v Wombo Lane Pty Limited [2010] NSWSC 660 Haroun v Rail Corporation NSW [2008] NSWSC 160 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 New South Wales Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88; (2008) 73 NSWLR 366 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Dickinson [2016] NSWSC 101 Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 Category: Principal judgment Parties: The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) (Plaintiff) Daniel Attard (First Defendant) The Registrar, Workers Compensation Commission of NSW (Second Defendant) John Wynyard, Dr Catherine Drummond, Dr Tommassino Mastroianni constituting the Medical Appeal Panel (Third Defendant) Representation: Counsel: M Allars SC (Plaintiff) R Stanton (First Defendant) Submitting appearances (Second & Third Defendants)