Pascoe v Mechita Pty Ltd [2019] NSWSC 454

Pascoe v Mechita Pty Ltd [2019] NSWSC 454

The Panel denied the plaintiff procedural fairness by taking into account the ISO tables adversely to him without notice. The ISO material was specific, detailed, not incorporated in the applicable Guidelines, not meaningfully raised before the parties, and not common knowledge. Agreeing to a determination on the papers did not waive the plaintiff's right to notice of important new disputable material. Because the adverse determination deprived the plaintiff of permanent impairment compensation at or below 10% WPI, procedural fairness required notice. The decision was therefore void, set aside and remitted to a newly constituted appeal panel.

Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Application for Judicial Review of a Medical Appeal Panel Determination About Degree of Impairment Under the Workplace Injury Management and Workers Compensation Act 1998 (nsw) / Principal Judgment After Hearing
Outcome
Application allowed; ground one upheld; Panel decision declared void and of no effect, set aside and remitted for fresh consideration; costs awarded to the plaintiff against Mechita Pty Ltd.
Legal Topics
['judicial Review' 'procedural Fairness' 'medical Appeal Panel' 'whole Person Impairment' 'workplace Hearing Loss' 'unreasonableness']
['administrative Law' 'workers Compensation'] ['judicial Review' 'procedural Fairness' 'medical Appeal Panel' 'whole Person Impairment' 'workplace Hearing Loss' 'unreasonableness']

Case Brief

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Procedural Posture

Application for Judicial Review of a Medical Appeal Panel Determination About Degree of Impairment Under the Workplace Injury Management and Workers Compensation Act 1998 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Medical Appeal Panel denied the plaintiff procedural fairness by taking into account ISO tables 1999 to 2013 without giving notice that it proposed to do so' 'Whether the plaintiff waived any right to procedural fairness by agreeing that the appeal could be determined on the papers' "Whether the Panel's reasoning and conclusion about non-work related hearing loss were unreasonable so as to constitute legal error" "Whether the Panel's decision and reasons should be declared void, set aside and remitted"]

Ratio Decidendi

The Panel denied the plaintiff procedural fairness by taking into account the ISO tables adversely to him without notice. The ISO material was specific, detailed, not incorporated in the applicable Guidelines, not meaningfully raised before the parties, and not common knowledge. Agreeing to a determination on the papers did not waive the plaintiff's right to notice of important new disputable material. Because the adverse determination deprived the plaintiff of permanent impairment compensation at or below 10% WPI, procedural fairness required notice. The decision was therefore void, set aside and remitted to a newly constituted appeal panel.

Court Disposition

Application allowed; ground one upheld; Panel decision declared void and of no effect, set aside and remitted for fresh consideration; costs awarded to the plaintiff against Mechita Pty Ltd.

Orders

  • ['A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the third defendant, the Medical Appeal Panel, and issued by the second defendant, the Workers Compensation Commission of New South Wales, on 5 April 2018 is void and of no effect' 'An...