HOUSING INDUSTRY ASSOCIATION LIMITED -v- MURTEN [2004] WASCA 139

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 139
Court:	THE FULL COURT (WA)	Published:	25/06/2004
Case No:	FUL:180/2002	Heard:	13 APRIL 2004
Coram:	STEYTLER J EM HEENAN J LE MIERE J	Delivered:	13/04/04
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	HOUSING INDUSTRY ASSOCIATION LIMITED (004 631 752) ALLEN MURTEN
Catchwords:	Appeal Error of law Workers' compensation Statutory interpretation Workers Compensation and Rehabilitation Act 1981 Meaning of "discipline" Meaning of "unreasonable and harsh" Whether Magistrate considered discipline of respondent as a whole and in context rather than as individual features in isolation Inadequate reasons Finding open on the evidence
Legislation:	Workers Compensation and Rehabilitation Act 1981, s 5, s 18, s 84ZI
Case References:	Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Ansett Australia v Burgess, unreported; Compensation Magistrate (CM29/99); 1 July 1999 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Brutus v Cozens [1973] AC 854 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 Central Metropolitan College of TAFE v Heaton, unreported; Compensation Magistrate (CM91/01); 20 November 2001 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Comcare v Chenhall (1992) 37 FCR 280 Fleming v The Queen (1998) 197 CLR 250 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Hope v Bathurst City Council (1980) 144 CLR 1 Jackson v Work Directions Australia Pty Ltd t/as Work Directions Australia (1998) NSWCCR 70 Jenkins v Western Australian Department of Training [1999] WASCA 199 Krakouer v The Queen (1998) 194 CLR 202 Kushwaha v Queanbeyan City Council [2002] NSWCC 25 Lloyd v Faraone [1989] WAR 154 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Summit Homes v Lucev (1996) 16 WAR 556 Tran v Claydon [2003] WASCA 318 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 Woolfe v State of Tasmania (2001) 10 Tas R 205

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HOUSING INDUSTRY ASSOCIATION LIMITED -v- MURTEN [2004] WASCA 139 CORAM : STEYTLER J

EM HEENAN J

LE MIERE J

HEARD : 13 APRIL 2004 DELIVERED : 13 APRIL 2004 PUBLISHED : 25 JUNE 2004 FILE NO/S : FUL 180 of 2002 BETWEEN : HOUSING INDUSTRY ASSOCIATION LIMITED (004 631 752)

Appellant

AND

ALLEN MURTEN

Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : COMPENSATION MAGISTRATE J R PACKINGTON

File Number : CM 231 of 2001

(Page 2)

Catchwords:

Appeal - Error of law - Workers' compensation - Statutory interpretation - Workers Compensation and Rehabilitation Act 1981 - Meaning of "discipline" - Meaning of "unreasonable and harsh" -…

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.

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Details

Case: [2004] WASCA 139
Decision Date: 25 JUNE 2004

CaseChat Overview and Summary

The Housing Industry Association Limited appealed against a decision of a Magistrate who had found that the association had unjustifiably dismissed an employee, Murten, in circumstances which amounted to an unlawful act under the Workers Compensation and Rehabilitation Act 1981. The association argued that the Magistrate erred in law in his interpretation of the relevant statutory provisions. The dispute centred on whether the employee's dismissal was "discipline" under the Act, and whether it was "unreasonable and harsh" such that it amounted to an unlawful act. The appeal was heard by the Supreme Court of Queensland.

The legal issues for the court to determine were whether the Magistrate correctly interpreted the relevant statutory provisions and whether he applied an appropriate legal test in assessing whether the employee's dismissal was "discipline" and "unreasonable and harsh". The association submitted that the Magistrate failed to consider the employee's disciplinary history as a whole and in context, but rather assessed individual features in isolation. The employee argued that the Magistrate had correctly applied the law and that his decision was open to him on the evidence before him.

The court held that the Magistrate's interpretation of the statutory provisions was correct and that he had applied an appropriate legal test. The court found that the Magistrate had considered the employee's disciplinary history as a whole and in context, and had not erred in finding that the dismissal was "discipline" and "unreasonable and harsh". The court also held that the Magistrate's reasons were adequate and that his finding was open to him on the evidence before him. The association's appeal was therefore dismissed.

No further orders were made by the court.

Orders

Orders of the court

Appeal 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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