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Haroun 29 WCMS

Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192. Handley AJA, McColl JA & McDougall J agreeing.18.08.08.

Consent orders under an arbitrator's hand for AMS referral bore addendum: "The effects of those injuries continue to contribute to any impairment suffered by the applicant".

AMS Dr Schutz assessed 1% WPI, confirmed by a medical appeal panel, which noted the arbitrator's addendum was without authority.

Harrison AsJ refused judicial review: [2008] NSWSC 160.

Handley JA held the panel was obliged to ignore the addendum finding "if they independently came to a different conclusion." His Honour noted scheme incidents.

"If there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an arbitrator has no jurisdiction to decide it, but may refer it for assessment by an AMS: s 321(1).

"That section confers a power which an arbitrator is bound to exercise in a proper case in aid of the private rights of the parties: Julius v Lord Bishop of Oxford (1885) App Cas 214, 235, 243, 244," his Honour said [20].

"Since the arbitrator had no jurisdiction to decide the medical dispute he referred, he had no jurisdiction to make findings which were binding on the AMS or the appeal panel.

"The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive."

Then, "A MAC which is conclusively presumed to be correct under s 326(1) trumps any inconsistent findings by an arbitrator and such findings are neither final nor binding on the parties."

Appeal dismissed with costs.

A: S W Gibb SC, S G Moffet, inst Walker Legal. R: J W Dodd, inst Dibbs Abbott Stillman.


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