e-bulletin No. 86 August 2019

Correct naming of parties in appeals against Presidential decisions and judicial review of administrative decisions

Practitioners are reminded of the importance to correctly name parties in appellate proceedings in the Court of Appeal and in judicial review proceedings in the Common Law Division of the Supreme Court of New South Wales.

Appeals against Presidential decisions

For appeals against determinations of Presidential Members of the Commission (pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998) (the 1998 Act) in the Court of Appeal, the “Workers Compensation Commission” or “the Registrar of the Workers Compensation Commission” should not be named as a party.  Rule 51.4(2) of the Uniform Civil Procedure Rules 2005 (the UCPR) provides that the “decision-maker is not required to be joined as a respondent in appeal proceedings”.  The parties in the appeal proceedings are the same as the parties named in the proceedings before the Commission.

Judicial review proceedings

Rule 59.3(4) of the UCPR provides that in judicial review proceedings, “the body or person responsible for a decision to be reviewed must be joined as a defendant, but not as the first defendant unless there is no other defendant.”  Rule 59.3(3) of the UCPR provides that “if the proceedings seek to prohibit, injunct or mandate a step that has not been taken, each body or person who may be directly affected by the relief sought must be joined as a defendant.”

Judicial review proceedings from the decision of an Appeal Panel

For judicial review proceedings in the Common Law Division (commenced pursuant to s 69 of the Supreme Court Act 1970), where a party seeks judicial review of a decision of an Appeal Panel, both the Appeal Panel and the Registrar should be joined as defendants in the proceedings before the Court.  This is by virtue of
Rule 59.3 of the UCPR as outlined above, and s 328(1) of the 1998 Act, which provides “an appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar”.

The correct identification of those two parties is as follows:

• “Appeal Panel constituted by [the names of the members of the Appeal Panel should then be listed]”, and
• “Registrar of the Workers Compensation Commission of New South Wales”.

Judicial review proceedings from a decision of the Registrar

For judicial review proceedings in the Common Law Division (commenced pursuant to s 69 of the Supreme Court Act 1970), where a party seeks judicial review of a decision made by the Registrar, or a delegate of the Registrar, “Registrar of the Workers Compensation Commission of New South Wales” should be a joined as a defendant, in addition to the parties in the proceedings before the Commission.

Correct naming of government departments and agencies in proceedings before the Commission

Parties must ensure that where a government department or agency is the employer, the respondent is correctly named in proceedings before the Commission.

If the employer is a government department that is listed in Part 1 of Schedule 1 of the Government Sector Employment Act 2013, section 26(1) of that Act provides that the Secretary of the relevant government department exercises on behalf of the Government of New South Wales the employer functions of the Government.

The government departments listed in Schedule 1 are:

• Department of Premier and Cabinet,
• The Treasury,
• Department of Customer Service,
• Department of Planning, Industry and Environment,
• Department of Transport,
• Ministry of Health,
• Department of Education, and
• Department of Communities and Justice.

Part 2 of Schedule 1 lists the government agencies related to the above departments.

Accordingly, in proceedings against the listed government departments and related agencies, the correct legal identity of the respondent is:

• “Secretary, [Name of Department]”

The appropriate legal identity is “State of New South Wales” in proceedings that involve:

• Ambulance Service of New South Wales,
• New South Wales Hospitals, and
• Local Area Health Services.

The naming of the Ambulance Service of New South Wales, New South Wales Hospitals and Local Area Health Services as “State of New South Wales” has practical difficulties for those respondents to correctly identify the appropriate government entity that the claim is made against.

To assist in the timely response to dispute applications, the Commission will accept applications where the respondent is named as “State of New South Wales” followed by the name of the relevant government entity inserted in parentheses.

For example, where the relevant entity is Ambulance Service of New South Wales, the respondent may be named:

• “State of New South Wales (Ambulance Service of New South Wales)”.

Online lodgment portal

From 2020, the Commission will no longer accept hard copy or email lodgment for forms and other documents.  Lodgments will be limited to the online portal, except for matters lodged by self-represented parties.  Users of the Commission’s services are encouraged to register now to use the online portal.  User guides and helpdesk support is available.

Follow the links on the Commission’s website to use the portal.

Judge Gerard Phillips

President