//
austlii:nsw/NSWPICMP/2026/245
General information, not legal advice.
NSWPICMP
2026-04-07
Original judgment source is linked above.
[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, [40]-[42] (per Mason P).
[4] Vannini, [77]-[80] (per Gleeson JA); Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939, [39] (per Hoeben J); Pitsonis, [49] (per McColl and Bell JJA).
[5] [2021] NSWCA 143, [41]-[42].
[6] Sydney Trains v Batshon [2021] NSWCA 143, [43].
[7] [2021] NSWCA 304, [26] (per Basten JA).
[8] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [47] (per French CJ, Crennan, Bell, Gageler and Kene JJ); Tradieh v LM Hayter & Sons Pty Ltd [2025] NSWSC840, [33]-[42].
[9] Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259; [1996] HCA 6, [30] (per Brennan CJ, Toohey, McHugh and Gummow JJ); Marina Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88, [31] (per Mason P).
Salmi
Transform Formwork Contractors Pty Ltd [2026] NSWPICMP 245;
"The expression 'incorrect criteria' is undefined in the Act. In Campbelltown City Council v Vegan [ 2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister's Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the 'criteria' upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour said that this view drew support from the requirement in s322(1) that the assessment is to be made 'in accordance with the WorkCover Guidelines.'
The Chief Judge's decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be 'demonstrable errors' within s327(3)(d), they would not usually satisfy the 'incorrect criteria' ground. His Honour observed that the latter ground:
"There is discussion of 'demonstrable error' in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 at [76]- [87]. The term has given rise to a deal of authority, much of which is summarised in that passage. The error must be 'contained' in the certificate, which is to say 'the error must be apparent in the certificate of the approved medical specialist': Vannini at [78]. While it is sufficient that the error be 'readily apparent from an examination of the medical assessment certificate' (Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39]), that is not a necessary condition. While it is not defined, the error 'must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist': Vannini at [86]."[6]
(2006) 67 NSWLR 372
(1996) 185 CLR 259