Hawker Pacific Pty Ltd v Lang

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HAWKER PACIFIC PTY LTD -v- LANG [2013] WADC 117
Last Update:  01/08/2013
HAWKER PACIFIC PTY LTD -v- LANG [2013] WADC 117
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2013] WADC 117
Case No: APP:87/2012   Heard: 6 MARCH 2013
Coram: KEEN DCJ   Delivered: 29/07/2013
Location: PERTH   Supplementary Decision:
No of Pages: 26   Judgment Part: 1 of 1
Result: Application for leave dismissed
[Click here for Judgment in Adobe Acrobat Format ]
On Appeal from:
Jurisdiction: WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram: ARBITRATOR MENGLER
Citation: A1186 of 2012
Parties: HAWKER PACIFIC PTY LTD
MARY COLLEEN LANG

Catchwords: Workers' compensation Leave to appeal from preliminary issue on s 61 application Subsequent dismissal of worker's substantive application Whether appeal futile
Legislation: Nil

Case References: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
MTI v Sul (2008) WASCA 261
MTI v Sul (2009) WASCA 70



JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : HAWKER PACIFIC PTY LTD -v- LANG [2013] WADC 117 CORAM : KEEN DCJ HEARD : 6 MARCH 2013 DELIVERED : 29 JULY 2013 FILE NO/S : APP 87 of 2012 BETWEEN : HAWKER PACIFIC PTY LTD
                  Appellant

                  AND

                  MARY COLLEEN LANG
                  Respondent


ON APPEAL FROM:

Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Coram : ARBITRATOR MENGLER

Citation : A1186 of 2012

Catchwords:

Workers' compensation - Leave to appeal from preliminary issue on s 61 application - Subsequent dismissal of worker's substantive application - Whether appeal futile

(Page 2)

Legislation:

Nil

Result:

Application for leave dismissed

Representation:

Counsel:


    Appellant : Mr D W Williams
    Respondent : Mr B L Nugawela

Solicitors:

    Appellant : WHL Legal Pty Ltd
    Respondent : Shine Lawyers


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

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
MTI v Sul [2008] WASCA 261
MTI v Sul [2009] WASCA 70


(Page 3)

1 KEEN DCJ: This is an application for leave to appeal from decisions of Arbitrator Mengler in WorkCover WA.

2 On or about 3 April 2012 Mrs Lang (worker) applied for conciliation to WorkCover WA. I use the expression 'on or about' as a neutral term as the timing of events was a crucial issue in this case.

3 The worker's application for conciliation followed an injury sustained by her in the employ of the respondent (employer) on 4 October 2007. She made a claim for compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act) on 2 November 2009. On 4 February 2010 the employer's insurer (insurer) accepted liability to make payments under the Act and commenced making payments under the Act.

4 By letter dated 8 March 2012 the insurer sent by prepaid post a notice in Form 5 of its intention to discontinue the worker's weekly payments on the ground that a medical report from Dr Ecker stated that she was fit to return to full-time administrative work. A copy of that letter with the accompanying medical report was also sent to the worker's legal representative, Shine Lawyers (Shine).

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Details
Case
[2013] WADC 117
Decision Date

CaseChat Overview and Summary

The case of Hawker Pacific Pty Ltd v Lang involved a dispute concerning workers' compensation. The applicant, Hawker Pacific, sought leave to appeal from a preliminary issue in an application under section 61 of the relevant Act. The dispute arose after the applicant's employee, Lang, filed a claim for workers' compensation. The applicant argued that the claim was invalid, and therefore, sought to appeal the decision of the primary judge who had ruled against them on a preliminary issue. Lang subsequently dismissed his substantive workers' compensation claim, leading to questions about the relevance and timeliness of the applicant's appeal.

The court was tasked with determining whether the appeal was futile, given that the substantive claim had been dismissed. This raised legal issues concerning the procedural fairness and the relevance of the applicant's appeal following the dismissal of the substantive claim. The court needed to assess whether the applicant's right to a fair hearing had been prejudiced and whether there were any exceptional circumstances justifying the appeal despite the dismissal of the substantive claim.

In ruling on the matter, the court concluded that the appeal was indeed futile. It found that the dismissal of the substantive claim rendered the appeal on the preliminary issue irrelevant. The court held that the applicant had not demonstrated any exceptional circumstances that would warrant the appeal proceeding. Therefore, the application for leave to appeal was dismissed, affirming that the appeal would not proceed due to its lack of merit and the subsequent dismissal of the substantive claim.

Orders

Orders of the court

Application for leave dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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