FITZGERALD -v- SMORGON STEEL PTY LTD [2004] WASCA 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 185
Court:	THE FULL COURT (WA)
Case No:	FUL:132/2003	Heard:	2 JUNE 2004
Coram:	MALCOLM CJ MURRAY J MCLURE J	Delivered:	18/08/04
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	RUSSAL ERNEST FITZGERALD SMORGON STEEL PTY LTD
Catchwords:	Workers' compensation Appeal from Compensation Magistrate Compensation Magistrate's decision on appeal from Review Officer Whether Compensation Magistrate erred in law Distinction between error of fact and error of law Nature of requirement to take various factors into account in relation to causation
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(5)
Case References:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (1997) 147 ALR 608 Health Department of Western Australia v Prosser [2004] WASCA 83 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Summit Homes v Lucev (1996) 16 WAR 566 The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Charleston v Smith [1999] WASCA 261 Fugen Holdings Pty Ltd v Brassington (1999) NSWCA 107 Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Politis v FCT (1988) 16 ALD 707 Pollock v Wellington (1996) 15 WAR 1 Ramsay v Watson (1961) 108 CLR 642 Solumezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FITZGERALD -v- SMORGON STEEL PTY LTD [2004] WASCA 185 CORAM : MALCOLM CJ

MURRAY J

MCLURE J

HEARD : 2 JUNE 2004 DELIVERED : 18 AUGUST 2004 FILE NO/S : FUL 132 of 2003 BETWEEN : RUSSAL ERNEST FITZGERALD

Appellant

AND

SMORGON STEEL PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : COMPENSATION MAGISTRATE I G BROWN

File Number : CM 78 of 2002

Catchwords:

Workers' compensation - Appeal from Compensation Magistrate - Compensation Magistrate's decision on appeal from Review Officer - Whether

(Page 2)

Compensation Magistrate erred in law - Distinction between error of fact and error of law - Nature of requirement to take various factors into account in relation to causation

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5(5)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela

Respondent : Mr G W Nutt

Solicitors:

Appellant : Alison C Hewson

Respondent : Jarman McKenna

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Friends of Hinchinbrook Society Inc v Minister for the Environment & Ors (1997) 147 ALR 608
Health Department of Western Australia v Prosser [2004] WASCA 83
Mitchell v Canal Rocks Beach Resort [2002]…

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.

Keep reading for free

Create a free CaseChat account to read Fitzgerald v Smorgon Steel Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WASCA 185
Decision Date: 18 AUGUST 2004

CaseChat Overview and Summary

Fitzgerald brought an appeal against a decision made by the Compensation Magistrate, which was an appeal from a Review Officer's decision. The appeal pertained to a workers' compensation claim. Fitzgerald argued that the Compensation Magistrate had made an error of law in their decision. The case was heard by the court, which was tasked with determining whether the Compensation Magistrate had indeed erred in law. Additionally, the court had to decide the distinction between an error of fact and an error of law and the nature of the requirement to take various factors into account in relation to causation.

The court examined the Compensation Magistrate's decision and the evidence presented in the case. The court considered whether the Compensation Magistrate had made an error of law or if the decision was based on an error of fact. The court also examined the requirement to take various factors into account in relation to causation and whether the Compensation Magistrate had adequately considered these factors. After considering the arguments presented by both parties, the court found that the Compensation Magistrate had not erred in law and that the decision was based on a proper consideration of the evidence and applicable law.

Consequently, the court dismissed the appeal brought by Fitzgerald against the Compensation Magistrate's decision. The Compensation Magistrate's decision was upheld, and Fitzgerald's appeal was dismissed. The court found that the Compensation Magistrate had not made an error of law and that the decision was based on a proper consideration of the evidence and applicable law. As such, the Compensation Magistrate's decision was affirmed, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.