Tam v Worksafe Victoria [2023] NSWSC 173

Tam v Worksafe Victoria [2023] NSWSC 173

The summons was dismissed because none of the pleaded grounds of judicial review was made out. The Authority asked the correct statutory question under s 337(2)(b), was entitled not to be satisfied that the failure to comply with s 333 was not due to fault or omission of the plaintiff or his legal representatives, took into account relevant matters, was not required to treat its earlier pleading as excusing non-compliance, and gave adequate and intelligible reasons. The plaintiff's pre-certificate joinder of the Authority did not create a valid damages proceeding, and the later serious injury certificate did not retrospectively validate that joinder.

Jurisdiction
Australia
Judgment Date
02 March 2023
Procedural Posture
Judicial Review of Administrative Decision / Principal Judgment on Summons
Outcome
Summons dismissed.
Legal Topics
['victorian Work Cover Authority Refusal of Consent to Commence Damages Proceedings Out of Time' 'workplace Injury Rehabilitation and Compensation Act 2013 (vic) Ss 333, 335 and 337' 'serious Injury Certificate' 'fault or Omission of Worker or Legal Representative' 'cross Vesting Jurisdiction' 'legal Unreasonableness' 'bias and Procedural Fairness']
['administrative Law' 'workers Compensation' 'judicial Review'] ['victorian Work Cover Authority Refusal of Consent to Commence Damages Proceedings Out of Time' 'workplace Injury Rehabilitation and Compensation Act 2013 (vic) Ss 333, 335 and 337' 'serious Injury Certificate' 'fault or Omission of Worker or Legal Representative' 'cross Vesting Jurisdiction' 'legal Unreasonableness' 'bias and Procedural Fairness']

Case Brief

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Procedural Posture

Judicial Review of Administrative Decision / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales had jurisdiction to undertake judicial review of a decision of the Victorian WorkCover Authority.' "Whether the Authority misconstrued or misapplied the requirement in s 337(2)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) that failure to comply with s 333 was not due to any fault or omission of the worker or the worker's legal representative." 'Whether the Authority took into account irrelevant considerations or failed to consider relevant matters, including its pleading that the Victorian Act did not apply.' "Whether the Authority's decision was affected by bias, failure to exercise independent judgment, legal unreasonableness, failure to follow Felsctynski v Victorian WorkCover Authority, or inadequate reasons." 'Whether proceedings commenced against the Authority before the issue of a serious injury certificate could be retrospectively validated.']

Ratio Decidendi

The summons was dismissed because none of the pleaded grounds of judicial review was made out. The Authority asked the correct statutory question under s 337(2)(b), was entitled not to be satisfied that the failure to comply with s 333 was not due to fault or omission of the plaintiff or his legal representatives, took into account relevant matters, was not required to treat its earlier pleading as excusing non-compliance, and gave adequate and intelligible reasons. The plaintiff's pre-certificate joinder of the Authority did not create a valid damages proceeding, and the later serious injury certificate did not retrospectively validate that joinder.

Court Disposition

Summons dismissed.

Orders

  • ['The summons is dismissed.' "The plaintiff is to pay the second defendant's costs."]