Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964

Supreme Court New South Wales

Medium Neutral Citation: Cobar Shire Council v Harpley-Oeser [2018] NSWSC 964 Hearing dates: 22 February 2018 Date of orders: 27 June 2018 Decision date: 27 June 2018 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: The Court declares that:

(1) The decision of the Appeal Panel in matter number MI-006135/16 made on 21 July 2017 is vitiated by jurisdictional error.

The Court makes an order:

(2) In the nature of certiorari removing into the Court the decision of the Appeal Panel in matter number MI-0006135/16 made on 21 July 2017 and quashing that decision.

The Court further orders that:

(3) Matter number MI-0006135/16 is remitted to the Workers Compensation Commission of New South Wales to be determined according to law.

(4) The first defendant is to pay the plaintiff's costs on an ordinary basis. Catchwords: ADMINSTRATIVE LAW – Judicial Review – Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the Medical Appeal Panel – whether the Appeal Panel failed to properly apply criteria in paragraphs 1.36 and 2.5 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – whether the Appeal Panel's assessment included chronic pain presentation – whether Appeal Panel erred by not measuring or commenting upon whether there was any muscle wasting – procedural fairness – whether Appeal Panel failed to give party an opportunity to be heard Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 9, 9A 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 74, 319, 325, 327 328 and 331 Cases Cited: Applicant A169/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 BVT v Office of Children's Guardian [2017] NSWSC 1763 Campbelltown City Council v Vegan [2004] NSWSC 1129 Collins v Urban [2014] NSWCATAP 17 Craig v South Australia (1995) 184 CLR 163 Dranichnickov v Minister for Immigration and Multicultural Affairs (2003) ALJR 1088; [2003] HCA 26 Ferguson v State of New South Wales Ors [2017] NSWSC 887 Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 McGinn v Ashfield Council [2012] NSWCA 238 Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Swift v SAS Trustee Corporation [2010] NSWCA 182 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; (2013) 252 CLR 480 Texts Cited: NSW Legislative Assembly, Hansard, 19 June 2001, 14772 NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Fourth Edition, 1 April 2016) Category: Principal judgment Parties: Cobar Shire Council (Plaintiff) Gemma Harpley-Oeser (First Defendant) Registrar of the Workers Compensation Commission (Second Defendant) The Appeal Panel of the Workers Compensation Commission comprised of Jane Peacock, Dr Mark Burns and Dr Drew Dixon (Third Defendant) Representation: Counsel: S Blount (Plaintiff) T Hickey (First Defendant)