Austal Ships Pty Ltd v Sen

[2004] WASCA 224

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   AUSTAL SHIPS PTY LTD -v- SEN [2004] WASCA 224

CORAM:   MURRAY J

STEYTLER J
TEMPLEMAN J

HEARD:   18 AUGUST 2004

DELIVERED          :   18 AUGUST 2004

FILE NO/S:   FUL 182 of 2003

BETWEEN:   AUSTAL SHIPS PTY LTD

Appellant

AND

CHAN SEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  COMPENSATION MAGISTRATES' COURT

Coram   :PACKINGTON SM

File Number             :  CM 126/02

Catchwords:

Workers compensation - Determination of level of disability - Question for review officer was whether disability not less than 30 per cent - Review officer decided disability not less than 16 per cent - Whether decision within jurisdiction

Legislation:

Workers Compensation and Rehabilitation Act, s 93D(5)

Workers Compensation and Rehabilitation Regulations, reg 19J

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr M W Schwikkard

Respondent:     No appearance

Solicitors:

Appellant:     Jackson McDonald

Respondent:     No appearance

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

Western Power Corporation v McMullen [2004] WASCA 3

Case(s) also cited:

Hewitt v Benale Pty Ltd & Anor [2002] WASCA 163

Re Monger; Ex parte Ivey [1999] WASC 250

1. MURRAY J:  I would ask Templeman J to give his Honour's reasons first.

2. TEMPLEMAN J:  This is an appeal against a decision of a Compensation Magistrate.  The appeal is by Austal Ships Pty Ltd.  The respondent, Chan Sen, was an employee of the appellant.  The respondent suffered a lower back injury in the course of his employment on 1 February 2000 and he subsequently brought two applications pursuant to s 93D(5) of the Workers Compensation and Rehabilitation Act.  In those applications he claimed a permanent disability to his lower back, to both legs, and a psychiatric disability.

3. In one application the respondent contended that his relevant level of disability was not less than 16 per cent, in the other that his relevant level of permanent disability was not less than 30 per cent.  The matter could not be resolved by agreement so the applications were referred for determination.  However, the respondent withdrew the first of his applications, that is, the application in which he contended that his level of disability was not less than 16 per cent.  That withdrawal was the subject of an order by the review officer who ordered that the referred questions be withdrawn.

4. That left one application, the 30 per cent application, as I will refer to it, which proceeded for a determination before the review officer on 28 February 2002.  However in that application, the review officer determined that the respondent's relevant level of permanent disability was not less than 16 per cent.  The appellant contended that it was not open to the review officer to reach that conclusion, having regard to the application before him which was a 30 per cent application.

5. The appellant then appealed to the Compensation Magistrate, who dismissed the appeal on a number of bases but principally in reliance on three decisions including Western Power Corporation v McMullen, an unreported decision of a Compensation Magistrate.  That decision has subsequently been reversed on appeal by the Full Court.

6. The present appeal was brought before the Full Court handed down its decision in McMullen and raises a number of grounds but the principal ground is:

   "The learned Compensation Magistrate erred in law in concluding that it was open to a review officer to determine the respondent's degree of disability as being not less than 16 per cent but less than 30 per cent and the level nominated in

the form 22 application before him was "not less than 30 per cent."

1. In my view that ground is made out having regard to the decision of this Court in Western Power Corporation v McMullen [2004] WASCA 3. In that case Wallwork AuJ with whom the Chief Justice agreed held:

   "The review officer erred in law in that he had no jurisdiction pursuant to s 93D(1) to consider the question of whether the respondent had sustained a degree of disability of not less than 16 per cent because the dispute between the appellant and the respondent and the 'question' referred pursuant to s 93D(5), (6), (7), (8) and (10) was whether the relevant degree of disability was not less than 30 per cent."

2. In other words, applying that to the present case, the withdrawal of the question relating to the 16 per cent disability meant that it was not open to the review officer to make a determination of any question other than whether the respondent had a permanent level of disability of not less than 30 per cent.  The issue whether the respondent had a level of disability of not less than 16 per cent was no longer before the review officer and he had no jurisdiction to deal with that question.  So for those reasons, in my view, the appeal should be allowed.

3. MURRAY J:  I agree.  It seems to be clear to me that the question is essentially one of jurisdictional power so far as the review officer is concerned.  The case of McMullen to which Templeman J has referred makes it abundantly clear that when the statute is properly construed in the context of the relevant statutory provisions and the provision of reg 19J as amended of the relevant regulations the power of the review officer to determine the matter is a power to determine a particular referred question.

4. In this case the power was to determine whether or not the relevant level of disability was not less than 30 per cent and nothing else was open.  It is of no moment of course to consider whether that is an appropriate or sensible form of statutory construction but it seems to me to be clear that it is appropriately dealt with and correctly dealt with in McMullen which of course this Court has not been invited to depart from.

5. STEYTLER J:  I agree with what has been said by each of Templeman and Murray JJ.