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Amana Living v Soliven

Amana Living v Soliven

Case [2013] WADC 118 23 July 2013

Jurisdiction

Statutory Interpretation

Compensatory Damages

Appeal

Limitation Periods

Workers' Compensation Law

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AMANA LIVING -v- SOLIVEN [2013] WADC 118

Last Update: 25/07/2013

AMANA LIVING -v- SOLIVEN [2013] WADC 118
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 118
Case No:	APP:31/2013	Heard:	17 JULY 2013
Coram:	STAVRIANOU DCJ	Delivered:	23/07/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	22	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram: ARBITRATOR NUNN Citation: A 2652 of 2012
Parties:	AMANA LIVING KAREN JUNE SOLIVEN
Catchwords:	Workers' compensation Appeal from Workers' Compensation Arbitration Service Leave to appeal Substantial injustice
Legislation:	Interpretation Act 1984 s 18, s 43(1) Workers Compensation and Injury Management Act 1981 (WA) s 3, s 61, s 176, s 177, s 181, s 182E, s 182ZO, s 182ZT, s 182ZU, s 247 Workers Compensation and Injury Management Arbitration Rules 2011 r 23, r 24 Workers Compensation and Injury Management Regulations 1982 r 7
Case References:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 83 ALJR 1152 Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009 Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113 SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37 The State of Western Australia v Bond Corporation Holdings Pty Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : AMANA LIVING -v- SOLIVEN [2013] WADC 118 CORAM : STAVRIANOU DCJ HEARD : 17 JULY 2013 DELIVERED : 23 JULY 2013 FILE NO/S : APP 31 of 2013 BETWEEN : AMANA LIVING

Appellant

AND

KAREN JUNE SOLIVEN

Respondent

ON APPEAL FROM:

Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Coram : ARBITRATOR NUNN

Citation : A 2652 of 2012

Catchwords:

Workers' compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Substantial injustice

(Page 2)

Legislation:

Interpretation Act 1984 s 18, s 43(1)
Workers Compensation and Injury Management Act 1981 (WA) s 3, s 61, s 176, s 177, s 181, s 182E, s 182ZO, s 182ZT, s 182ZU, s 247
Workers Compensation and Injury Management Arbitration Rules 2011 r 23, r 24
Workers Compensation and Injury Management Regulations 1982 r 7

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant : Mr A Basile

Respondent : Mr D M Bruns

Solicitors:

Appellant : SRB Legal

Respondent : CLP Legal

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 83 ALJR 1152
Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amana Living v Soliven

Details

AGLC: Amana Living v Soliven [2013] WADC 118
Case: [2013] WADC 118
Decision Date

CaseChat Overview and Summary

The appeal was brought by Amana Living, the employer, against a decision of an arbitrator who had found that the employer could not reduce or discontinue weekly payments of compensation to an employee, Ms Soliven, without the consent of the employee or an order of an arbitrator. The employer had sought to reduce or discontinue the payments on the basis that the employee was no longer incapacitated by the injury she had suffered. Ms Soliven had applied for arbitration after the 21-day period prescribed by the Workers Compensation and Injury Management Act 1981 (WA) for making an application to an arbitrator. The employer contended that the application was out of time and no extension could be granted. The arbitrator concluded that the 21 days which a worker was granted under s 61 of the Act to apply for an order of an arbitrator was preserved once the dispute was accepted for conciliation and that Ms Soliven had applied for conciliation within 21 days of the employer's notice. In the result, the application for conciliation was an application for an order of an arbitrator and the application for arbitration was within time. The District Court was of the opinion that the arbitrator's construction of the time provision in s 61 of the Act was consistent with the language and purpose of all the provisions of the statute. The court found that the decision of the arbitrator was not wrong or attended with sufficient doubt to justify the grant of leave. The court was not satisfied that the interests of justice required a grant of leave. The appeal was dismissed.

Orders