Perry v George Weston Foods Limited [2021] NSWSC 359

Perry v George Weston Foods Limited [2021] NSWSC 359

The Assessor's use of the plaintiff's enjoyment of following English soccer online in the PIRS category of social and recreational activities was an error. On the material before the Court, that solitary online activity could not correctly be treated as a positive social and recreational activity; if relevant at all, it was relevant as a possible indication of withdrawal. The Assessor therefore took into account an irrelevant consideration and misconstrued or misapplied the PIRS Guidelines, or alternatively failed to disclose the reasoning path for the use made of that matter. The error was remediable on judicial review. The Delegate's refusal to refer the matter to an Appeal Panel was...

Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Judicial Review / Principal Judgment on Amended Summons Challenging Decisions of an Approved Medical Specialist and a Delegate of the Registrar of the Workers Compensation Commission
Outcome
Judicial review granted; time extended; the Assessor's certificate and decision set aside and declared void; the Delegate's decision declared void; matter remitted for referral to a different approved medical specialist; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['judicial Review Under S 69 of the Supreme Court Act 1970 (nsw)' 'medical Assessment Certificate' 'psychiatric Impairment Rating Scale (pirs)' 'whole Person Impairment' 'jurisdictional Error' 'error of Law on the Face of the Record' 'irrelevant Consideration' 'arguability of Appeal Grounds Under S 327 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)']
['administrative Law' 'workers Compensation'] ['judicial Review Under S 69 of the Supreme Court Act 1970 (nsw)' 'medical Assessment Certificate' 'psychiatric Impairment Rating Scale (pirs)' 'whole Person Impairment' 'jurisdictional Error' 'error of Law on the Face of the Record' 'irrelevant Consideration' 'arguability of Appeal Grounds Under S 327 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)']

Case Brief

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Procedural Posture

Judicial Review / Principal Judgment on Amended Summons Challenging Decisions of an Approved Medical Specialist and a Delegate of the Registrar of the Workers Compensation Commission

Legal Issues

  1. 1 ["Whether the Approved Medical Specialist erred by using the plaintiff's enjoyment of following English soccer online as a factor in the PIRS category of social and recreational activities." 'Whether the Approved Medical Specialist took into account an irrelevant consideration or misconstrued and misapplied the PIRS Guidelines.' 'Whether the Approved Medical Specialist failed adequately to disclose the reasoning path by which the online soccer matter was used in assessing whole person impairment.' 'Whether the Delegate of the Registrar applied the correct gatekeeper test under s 327(4) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).' "Whether time should be extended to challenge the Approved Medical Specialist's decision."]

Ratio Decidendi

The Assessor's use of the plaintiff's enjoyment of following English soccer online in the PIRS category of social and recreational activities was an error. On the material before the Court, that solitary online activity could not correctly be treated as a positive social and recreational activity; if relevant at all, it was relevant as a possible indication of withdrawal. The Assessor therefore took into account an irrelevant consideration and misconstrued or misapplied the PIRS Guidelines, or alternatively failed to disclose the reasoning path for the use made of that matter. The error was remediable on judicial review. The Delegate's refusal to refer the matter to an Appeal Panel was...

Court Disposition

Judicial review granted; time extended; the Assessor's certificate and decision set aside and declared void; the Delegate's decision declared void; matter remitted for referral to a different approved medical specialist; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['time to commence proceedings against the third defendant is extended to allow for the filing of the Amended Summons for judicial review filed and agitated in these proceedings' 'a declaration that, pursuant to s 69 of the Supreme Court Act 1970 (NSW), the certificate and decision of the third defendant, dated 9...