Favetti Bricklaying Pty Limited v Benedek and Anor [2017] NSWSC 417

Supreme Court New South Wales

Medium Neutral Citation: Favetti Bricklaying Pty Limited v Benedek and Anor [2017] NSWSC 417 Hearing dates: 22 July 2016 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Common Law Before: Bellew J Decision: 1. The decision of the second defendant to refer the assessment of permanent impairment of the first defendant to Approved Medical Specialist is set aside.

2. The second defendant, and its officers, servants and agents, are restrained from acting upon, or taking any further step, to refer the assessment of the first defendant's whole person impairment to an Approved Medical Specialist until such time as liability in respect of the first defendant's claimed injury to the thoracic spine has been determined by the Workers Compensation Commission of New South Wales.

3. The parties are to provide any written submissions as to costs within seven (7) days, such submissions not to exceed two pages in length. Catchwords: STATUTORY INTERPRETATION – Workers Compensation Legislation – Where first defendant alleged that he had sustained an injury at work – Where liability was denied by the insurer – Where Deputy Registrar of the Workers Compensation Commission referred the matter to an Approved Medical Specialist in circumstances where liability remained in issue – Where insurer asserted that the matter should be referred to the Commission for determination of liability – Necessity to construe relevant provisions of Workers Compensation legislation – Application of principles of statutory interpretation – Necessity to consider the text of the provision pursuant to which the determination was made – Meaning of text plain on its face – Where alternative construction would lead to consequences which were clearly unintended by the legislature - Error established Legislation Cited: Workers Compensation Act 1987 (NSW) Workers Compensation Regulation 2010 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 Jonson v R [2016] NSWCCA 286 Junsay v Uncle Toby's Company Limited [2009] NSWWCCPD K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 Michael v State of New South Wales [2011] NSWSC 231 Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627; [2009] HCA 37 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Favetti Bricklaying Pty Limited – Plaintiff Milan Benedek – First Defendant Registrar of the Workers Compensation Commission of New South Wales – Second Defendant Representation: Counsel: