Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802

Supreme Court New South Wales

Medium Neutral Citation: Kitanoski v JB Metropolitan Distributors Pty Limited [2019] NSWSC 1802 Hearing dates: 11 December 2019 Decision date: 16 December 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Summons dismissed.

(2) Order the plaintiff to pay the first defendant's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – whether open to Appeal Panel to refuse to re-examine the plaintiff in circumstances where Approved Medical Assessor noted disparities in history given and effort on examination – whether Appeal Panel obliged to receive additional reports served by plaintiff after decision under review

ADMINISTRATIVE LAW – alleged denial of procedural fairness to reject request for re-examination and additional reports sought to be relied on before Appeal Panel Legislation Cited: Accident Compensation Act 1985 (Vic) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Workers Compensation Act 1987 (NSW), s 151H Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4, 319, 321, 322, 324, 325, 326, 327, 328, 329, 331, 376 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Midson v Workers Compensation Commission [2016] NSWSC 1352 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189; (2018) 85 MVR 337 NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (30 November 2000) State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the evaluation of permanent impairment (4th ed, 1 April 2016), cll 4.1, 4.2, 4.18, 4.27, 4.28 Category: Principal judgment Parties: Mitko Kitanoski (Plaintiff) JB Metropolitan Distributors Pty Limited (First Defendant) Registrar of the Workers Compensation Commission of New South Wales (Second Defendant, Submitting Appearance) Debora Moore, Dr Neil Berry, Dr Robert Payten as members of the Appeal Panel of the Workers Compensation Commission of NSW (Third Defendant, Submitting Appearance) Representation: Counsel: J Turnbull SC (Plaintiff) J Emmett (First Defendant)