Supreme Court New South Wales Medium Neutral Citation: Agricultural and Development Holdings v Parker [2019] NSWSC 1338 Hearing dates: On the papers Decision date: 20 May 2019 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph [8] Catchwords: ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – proceedings resolved between parties following decision in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 on meaning of permanent impairment within ss 65 and 66 of the Workers Compensation Act 1987 (NSW) – consent orders made Legislation Cited: Supreme Court Act 1970 (NSW), s 69 Workers Compensation Act 1987 (NSW), ss 65 and 66 Cases Cited: Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 Category: Principal judgment Parties: Agricultural and Development Holdings Pty Limited (Plaintiff) Marian Renay Parker (as executrix of the estate of the late Matthew Luke John Nowlan) (First Defendant) Registrar of the Workers Compensation Commission of New South Wales (Second Defendant) Appeal Panel constituted by Grahame Edwards (Arbitrator), Dr Gregory Kaufman (Approved Medical Specialist) and Dr Philippa Harvey-Sutton (Approved Medical Specialist) (Third Defendant) Representation: Counsel: Perry Herzfeld (Plaintiff) Solicitors: Hicksons Lawyers (Plaintiff) Carroll & O'Dea Lawyers (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2017/368011 Judgment 1. By amended summons filed on 5 February 2019, Agricultural and Development Holdings Pty Limited (the plaintiff) invokes this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). It seeks to have the decision made on 5 September 2017 by the Appeal Panel of the Workers Compensation Commission (the third defendant) to confirm the Medical Assessment Certificate of Dr Sophie Lahz issued on 16 May 2017 set aside. 2. On 10 October 2017, on the basis of the third defendant's decision, the Registrar of the Workers Compensation Commission (the second defendant) issued a Certificate of Determination ordering payment of $220,000 for 100% whole person impairment (WPI) in relation to an injury sustained by the late Matthew Nowlan (the deceased) on 27 July 2013. Marian Parker (the first defendant) is the executrix of the deceased's estate. The plaintiff also seeks to have this certificate quashed. 3. It is common ground that the deceased died on 28 July 2013 from injuries sustained on 27 July 2013 when he was run over by an all-terrain vehicle while he was lambing in the course of employment. Dr Lahz assessed the deceased's WPI as 100%. As referred to above, the third defendant confirmed this assessment which resulted in the certificate issued by the second defendant. 4. The plaintiff commenced the present proceedings by summons filed on 5 December 2017. The basis of the plaintiff's claim was that the deceased was not entitled to a lump sum payment for "permanent impairment" as the injuries he sustained were so serious that he had died within a short time. 5. On 16 August 2018 the Court of Appeal in Hunter Quarries Pty Limited v Mexon [2018] NSWCA 178 (Mexon) held that the expression "permanent impairment", as used in ss 65 and 66 of the Workers Compensation Act 1987 (NSW), involved some lasting diminution in a worker's function and did not include an impairment resulting from a serious injury from which the worker died within a short time: [14] (Basten JA); [63], [80], [95] (Payne JA, Gleeson JA agreeing); [108] (Sackville JA) and [114] (Simpson AJA). 6. By email of 15 May 2019 to the plaintiff's solicitors, the solicitors for the first defendant accepted that Mexon required that the third defendant's decision of 5 September 2017 be quashed and that, in lieu thereof, the third defendant be directed to issue a Medical Assessment Certificate certifying that there is no permanent impairment resulting from injury; and that the Workers Compensation Commission be directed to issue a Certificate of Determination entering an award in favour of the respondent (the plaintiff in these proceedings). 7. The proceedings have been resolved on this basis. The parties have sought that I make consent orders in chambers and vacate the hearing date of 23 May 2019. I am satisfied that this is an appropriate course, having regard to Mexon and its application to the facts of the present case, which are not relevantly distinguishable from those in Mexon. Orders 1. For the reasons given above, I make the following orders by consent: 1. The decision of the Medical Appeal Panel dated 5 September 2017 is quashed. 2. In lieu thereof, direct the Medical Appeal Panel to issue a Medical Assessment Certificate certifying there is no permanent impairment resulting from injury. 3. Direct the Workers Compensation Commission to issue a Certificate of Determination entering an award in favour of the respondent (the plaintiff in these proceedings). 4. Each party to bear her or its own costs of the present proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2020