Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWSC 1430

Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWSC 1430

The Appeal Panel erred by incorrectly applying the presumption of regularity to the Medical Assessor’s failure to address the plaintiff’s updated statement regarding her condition, including her ability to read and concentrate, which amounted to error of law on the face of the record and jurisdictional error. The Panel’s reasons did not demonstrate engagement with material or submissions that might reasonably have led to a different assessment outcome.

Parties
Plaintiff: Ms Keelan; First Defendant: Pearl Beach Real Estate Pty Ltd; Second Defendant: The President of the Personal Injury Commission of New South Wales; Third Defendants: Member Marshal Douglas, Dr Ash Takyar and Dr Graham Blom as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998
Jurisdiction
Australia
Judgment Date
11 November 2024
Procedural Posture
Judicial Review / First Instance
Outcome
Orders made in favour of the plaintiff.
Legal Topics
Judicial Review, Presumption of Regularity, Error of Law on the Face of the Record, Jurisdictional Error, Procedural Fairness, Medical Assessment in Workers Compensation, Psychiatric Impairment Rating, Interpretation of Reasons
Administrative Law Workers Compensation Personal Injury Judicial Review Presumption of Regularity Error of Law on the Face of the Record Jurisdictional Error Procedural Fairness +3 more

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Parties

Ms Keelan

Plaintiff

Pearl Beach Real Estate Pty Ltd

First Defendant

The President of the Personal Injury Commission of New South Wales

Second Defendant

Member Marshal Douglas, Dr Ash Takyar and Dr Graham Blom as an Appeal Panel constituted under section 328 of the Workplace Injury Management and Workers Compensation Act 1998

Third Defendants

Procedural Posture

Judicial Review / First Instance

Legal Issues

  1. 1 Whether the Appeal Panel erred by incorrectly applying the presumption of regularity to the Medical Assessor's failure to comment on the plaintiff's updated statement
  2. 2 Whether the Appeal Panel failed to give sufficient reasons for rejecting the plaintiff's submissions concerning her reading and concentration abilities
  3. 3 Whether the Medical Assessor and Appeal Panel failed to consider relevant material leading to error of law on the face of the record and jurisdictional error

Ratio Decidendi

The Appeal Panel erred by incorrectly applying the presumption of regularity to the Medical Assessor’s failure to address the plaintiff’s updated statement regarding her condition, including her ability to read and concentrate, which amounted to error of law on the face of the record and jurisdictional error. The Panel’s reasons did not demonstrate engagement with material or submissions that might reasonably have led to a different assessment outcome.

Court Disposition

Orders made in favour of the plaintiff.

Orders

  • An order under s 69 of the Supreme Court Act 1970 (NSW), setting aside the certificate and reasons dated 13 March 2024 given by an Appeal Panel appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
  • An order in the nature of Mandamus remitting the matter to the Second Defendant for redetermination according to law.