Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306

Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306

The matter cannot be finally determined until the parties make further submissions on whether Guideline 11.10 is inconsistent with s 323(1) of the WIM Act and, if so, with what result. However, it is held that denying the plaintiff the opportunity to be heard on the removal of the 'treatment effect' increment was a denial of procedural fairness amounting to jurisdictional error, warranting the setting aside of that part of the Appeal Panel's decision.

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Judicial Review / Interlocutory Judgment Pending Further Submissions
Outcome
Matter stood over for further hearing pending submissions on the validity and operation of Guideline 11.10; declaration of denial of procedural fairness to the plaintiff regarding 'treatment effect'.
Legal Topics
['judicial Review' 'jurisdictional Error' 'error of Law on the Face of the Record' 'permanent Impairment Assessment' 'deduction for Pre Existing Condition' 'application of Statutory Guidelines' 'procedural Fairness']
['administrative Law' 'statutory Interpretation' 'workers Compensation'] ['judicial Review' 'jurisdictional Error' 'error of Law on the Face of the Record' 'permanent Impairment Assessment' 'deduction for Pre Existing Condition' 'application of Statutory Guidelines' 'procedural Fairness']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review / Interlocutory Judgment Pending Further Submissions

Legal Issues

  1. 1 ['Whether the Appeal Panel erred in law by not applying Guideline 11.10 when making a deduction for pre-existing impairment under s 323(1) of the WIM Act' 'Whether the Appeal Panel erred by applying a test inconsistent with the Guidelines and/or statute' "Whether the plaintiff was denied procedural fairness regarding allowance for 'treatment effect'"]

Ratio Decidendi

The matter cannot be finally determined until the parties make further submissions on whether Guideline 11.10 is inconsistent with s 323(1) of the WIM Act and, if so, with what result. However, it is held that denying the plaintiff the opportunity to be heard on the removal of the 'treatment effect' increment was a denial of procedural fairness amounting to jurisdictional error, warranting the setting aside of that part of the Appeal Panel's decision.

Court Disposition

Matter stood over for further hearing pending submissions on the validity and operation of Guideline 11.10; declaration of denial of procedural fairness to the plaintiff regarding 'treatment effect'.

Orders

  • ['The matter is stood over for further hearing on a date to be fixed.' 'Each party is directed to provide any submissions with respect to the questions stated in [65] on or before 16 April 2021, and any response on or before 30 April 2021.']