Martinovic v Workers Compensation Commission of New South Wales & Ors [2019] NSWSC 1532

Supreme Court New South Wales

Medium Neutral Citation: Martinovic v Workers Compensation Commission of New South Wales & Ors [2019] NSWSC 1532 Hearing dates: 28 May 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Common Law Before: N Adams J Decision: (1) Quash the decision of the Arbitrator dated 30 May 2018. (2) Quash the decision of the Appeal Panel dated 7 April 2016. (3) Remit the matter to the second defendant for allocation to a review panel for determination according to law. (4) The fourth defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – workers compensation – decision of Approved Medical Specialist – decision of Medical Appeal Panel of the Workers Compensation Commission – decision of Arbitrator of the Workers Compensation Commission – where Arbitrator found error but did not set aside Panel decision – 15 grounds of review – procedural fairness – whether error of law on the face of the record – whether jurisdictional error – whether an extension of time should be granted Legislation Cited: District Court Act 1973 (NSW), s 44, s 127 Motor Accidents Compensation Act 1999 (NSW), s 63 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59 Workers Compensation Act 1987 (NSW), s 47, s 66, s 151H Workers Compensation Commission Rules 2011 (NSW) Workers Compensation Regulations 2016 (NSW) Workers Compensation Legislation Amendment Act 2012 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW), Part 7, s 321, s 322(1), s 323, s 325(2), s 327(3), s 328, s 350, ss 352-353, s 378 Cases Cited: Boyce v Allianz Australia Ltd (2018) 83 MVR 403 Campbelltown City Council v Vegan [2004] NSWSC 1129 Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58 DL v The Queen (2018) 358 ALR 666; [2018] HCA 32 (Dranichnikov v Minister for Immigration and Cultural Affairs 92003) 77 ALJR 1088) Dyason v Butterworth [2015] NSWCA 52 Gallo v Dawson (1990) 93 ALR 479 Jackson v Purton [2011] TASSC 28 Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lu v AAI Ltd t/as AAMI [2019] NSWSC 368 Mahal v State of New South Wales [2017] NSWWCCPD 41 Midson v Workers Compensation Commission & Ors [2016] NSWSC 1352 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 Nan v Country Road Freight Services Proprietary Limited [2006] NSW WCC PD 160 Rail Corp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, 495-49; [2000] HCA 67 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Samuel v Siebel Furniture Ltd [2006] NSWWCPD 141 Siddick v WorkCover Authority [2008] NSWCA 116 Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Tomislav Martinovic (Plaintiff) Workers Compensation Commission of New South Wales (First Defendant) The Appeal Panel, as appointed by the Registrar of the Workers Compensation Commission of New South Wales, and Constituted by Arbitrator Grahame Edwards and Approved Medical Specialist Roger Pillemer and Gregory McGroder (Second Defendant) Robert Adler in his capacity as an Approved Medical Specialist of the Workers Compensation Commission of New South Wales (Third Defendant) Corporate Projects Pty Limited (Fourth Defendant) Representation: Counsel: Mr M Robinson SC with Mr S Blount (Plaintiff) Ms B Tronson with Mr M Cobb-Clark (Fourth Defendant)