Dening v Oltoy Pty Ltd trading as Noble Toyota [2014] NSWSC 1224

Dening v Oltoy Pty Ltd trading as Noble Toyota [2014] NSWSC 1224

The decision of the Appeal Panel is vitiated by error of law because it failed to recognise the significance of Noble Toyota’s concession as last noisy employer under s 17, and engaged in an assessment under s 323 beyond what was lawfully referred by the Registrar; both decisions are quashed and the matter remitted for determination according to law.

Parties
Plaintiff: Frank Dening; First Defendant: Oltoy Pty Ltd t/as Noble Toyota; Second Defendant: Medical Appeal Panel of the Workers Compensation Commission of New South Wales (John Wynyard, Dr Joseph Scoppa, Dr Sylvester Fernandes); Third Defendant: Registrar of the Workers Compensation Commission of New South Wales
Jurisdiction
Australia
Judgment Date
05 September 2014
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Application for judicial review successful; decisions quashed and proceedings remitted.
Legal Topics
Judicial Review, Error of Law, Jurisdiction, Workers Compensation, Industrial Deafness, Hearing Loss, Medical Appeal Panel, Approved Medical Specialist
Administrative Law Workers Compensation Law Judicial Review Error of Law Jurisdiction Workers Compensation Industrial Deafness Hearing Loss +2 more

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Parties

Frank Dening

Plaintiff

Oltoy Pty Ltd t/as Noble Toyota

First Defendant

Medical Appeal Panel of the Workers Compensation Commission of New South Wales (John Wynyard, Dr Joseph Scoppa, Dr Sylvester Fernandes)

Second Defendant

Registrar of the Workers Compensation Commission of New South Wales

Third Defendant

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Did the Appeal Panel err in law and act without jurisdiction in relation to the last noisy employer?
  2. 2 Did the Appeal Panel err in law and act without jurisdiction in considering s 323 of the Act?
  3. 3 Did the Appeal Panel err in determining that the plaintiff was not exposed to noisy employment?

Ratio Decidendi

The decision of the Appeal Panel is vitiated by error of law because it failed to recognise the significance of Noble Toyota’s concession as last noisy employer under s 17, and engaged in an assessment under s 323 beyond what was lawfully referred by the Registrar; both decisions are quashed and the matter remitted for determination according to law.

Court Disposition

Application for judicial review successful; decisions quashed and proceedings remitted.

Orders

  • The decision of the Medical Appeal Panel issued on 20 February 2014 is vitiated by error of law.
  • The decision by the Registrar issued on 4 April 2014 is vitiated by error of law.