Mercy Connect Limited v Kiely [2018] NSWSC 1421

Supreme Court New South Wales

Medium Neutral Citation: Mercy Connect Limited v Kiely [2018] NSWSC 1421 Hearing dates: 11 July 2018 Date of orders: 21 September 2018 Decision date: 21 September 2018 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: The Court orders that:

(1) The decision of the Appeal Panel in matter number 3761/16 dated 27 February 2018 is set aside.

(2) The decision of the Appeal Panel in matter number 3761/16 is remitted to the Workers Compensation Commission of New South Wales to be determined in accordance with law.

(3) Costs are reserved. Catchwords: ADMINISTRATIVE LAW – Judicial Review – Appeal Panel Assessment – whether Appeal Panel failed to determine the appeal – whether Appeal Panel erred by directing a further medical examination without first finding an error in the Medical Assessment Certificate – whether the Appeal Panel mistook its jurisdiction – failure to consider secondary psychological injury – 65A of the Workers Compensation Act 1987 (NSW) – whether Appeal Panel erred in re-assessing the degree of Whole Person Impairment – failure of Appeal Panel to determine whether a deduction should be made for a pre-existing injury, condition or abnormality – s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – legal unreasonableness Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 65A and 66 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 74, 319, 323, 325, 327, 328 Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Cullen v Woodbrae Holdings Pty ltd [2015] NSWSC 1416 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 Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v Singh & Anor (2014) 231 FCR 437 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Roads and Maritime Services v Rodger Wilson [2016] NSWSC 1499 Siddick v WorkCover Authority (NSW) [2008] NSWCA 116 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; (2013) 88 ALJR 52; [2013] HCA 43 Category: Principal judgment Parties: Mercy Connect Limited (formerly known as Mercy Centre Lavington Limited) (Plaintiff) Rachelle Marcel Kiely (First Defendant) Appeal Panel of the Workers Compensation Commission; Deborah Moore, Dr Julian Parmegiani, Dr Patrick Norris (Second Defendant) Registrar of the Workers Compensation Commission (Third Defendant) Representation: Counsel: S Blount (Plaintiff) Submitting Appearances (First, Second and Third Defendants)