John Holland Construction & Engineering v Eskic
[2003] WASCA 48
•19 MARCH 2003
JOHN HOLLAND CONSTRUCTION & ENGINEERING -v- ESKIC [2003] WASCA 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 48 | |
| FULL COURT | 19/03/2003 | ||
| Case No: | CIV:2719/2002 | 20 FEBRUARY 2003 | |
| Coram: | MURRAY J MILLER J | 20/02/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | JOHN HOLLAND CONSTRUCTION & ENGINEERING NOVICA ESKIC |
Catchwords: | Practice and procedure Application for leave to appeal from compensation magistrate Application in respect of ruling refusing extension of time to amend grounds of appeal Application incompetent Words and phrases "Decision" |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA) s 84ZN, s 84ZP, s 84ZW |
Case References: | Re Monger; ex parte Dutch & Ors (2001) 25 WAR 96 Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 Farmer v AOC Australia Pty Ltd [2002] WASCA 340 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 Wilson v Metaxas [1989] WAR 285 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : FULL COURT CITATION : JOHN HOLLAND CONSTRUCTION & ENGINEERING -v- ESKIC [2003] WASCA 48 CORAM : MURRAY J
- MILLER J
- Applicant
AND
NOVICA ESKIC
Respondent
Catchwords:
Practice and procedure - Application for leave to appeal from compensation magistrate - Application in respect of ruling refusing extension of time to amend grounds of appeal - Application incompetent
Words and phrases - "Decision"
(Page 2)
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZN, s 84ZP, s 84ZW
Result:
Application dismissed
Category: A
Representation:
Counsel:
Applicant : Ms R L Pope
Respondent : No appearance
Solicitors:
Applicant : Phillips Fox
Respondent : Paul O'Halloran & Associates
Case(s) referred to in judgment(s):
Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Case(s) also cited:
Australian Coal & Shale Employees' Federation v Commonwealth (1953) 94 CLR 621
Clisdell v Commissioner of Police (1993) 31 NSWLR 555
Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808
Farmer v AOC Australia Pty Ltd [2002] WASCA 340
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117
(Page 3)
Wilson v Metaxas [1989] WAR 285
(Page 4)
1 JUDGMENT OF THE COURT: This is an application for leave to appeal to this Court from a Compensation Magistrate pursuant to the provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZW which provides that a party to proceedings before a compensation magistrate's court, "may, by leave of the Supreme Court, appeal to the Supreme Court against a decision of the compensation magistrate's court on a question of law." By s 84ZX such an appeal is to be heard and determined by the Full Court.
2 On the hearing of the application for leave the Court concluded that it ought to be dismissed. These are our reasons for that determination.
3 The matter at issue arises, as many such cases do, originally out of the purported reference by a worker of a dispute with his employer over the degree of disability suffered in respect of burn injuries to both legs and his right arm, psychiatric illness and tinnitus in both ears. The injuries so described were said to have occurred on 15 February 1999. The worker's Form 22, by which the dispute was referred to the Director of Conciliation and Review pursuant to s 93D(5), was supported, in purported compliance with the requirement of s 93D(6), by a medical report dated 22 November 1999 from the respondent's general medical practitioner, Dr Sam.
4 The processes of the Act were then followed upon the basis that all was in order within the framework of the statutory scheme and ultimately the matter came before a review officer under the relevant provisions of the Act to determine questions relating to the cause of the respondent's alleged psychiatric condition and the ringing in his ears and therefore determine the relevant degree of disability.
5 The review officer ultimately conducted the review on 30 October 2001 and his determination that the worker's degree of disability was 31.5 per cent and therefore was not less than 30 per cent was eventually made on 26 March 2002. The reasons for the delay in that process are not relevant for present purposes, but it is obviously undesirable that the statutory procedures leading to that final determination should take so long.
6 From that decision the applicant appealed, on the basis that questions of law were involved, to a compensation magistrate's court pursuant so s 84ZN(2). The substantive questions raised are not material for present purposes, but they were concerned with the legalities of the process of determining percentage disabilities in relation to the respondent's psychiatric condition and tinnitus. An attack was made on the adequacy
(Page 5)
- of the review officer's reasons for decision and the processes he adopted to reach his conclusions.
7 After the appeal was instituted on 23 April 2002 and at a time when the appeal was listed to be heard by a compensation magistrate on 25 November 2002, the applicant sought leave to amend the notice of appeal to add a ground to make a complaint, relying on Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96, that the Form 22 did not comply with the requirements of the law insofar as it relied upon the report of Dr Sam which, it was asserted, failed to meet the requirements of s 93D(2) and (6). It was, therefore, desired to advance the proposition, relying on the case of Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253, that the Director acted without power in referring the dispute to the review officer who accordingly acted without jurisdiction in hearing and determining the dispute.
8 The application was made on 14 November 2002. It was heard by the Compensation Magistrate on 25 November 2002 and his Worship, for reasons which he gave ex tempore, concluded that the application, which his Worship treated as an application for an extension of time to appeal on the new ground, should be dismissed.
9 His Worship then went on to deal with the merits of the appeal, which he allowed on grounds dealing with the degree of the respondent's psychiatric disability. Again, the reasons for that decision do not need to be canvassed for present purposes, but it should be noted that it is not in respect of that decision, given on 18 February 2003, that the applicant now seeks leave to appeal.
10 The practice of the compensation magistrate's court appears to be to publish its reasons and make final orders without requiring attendance of the parties. In this case, the orders made, as conveyed in a letter dated 18 February 2003 by the Magistrate's clerk, were that the applicant's appeal be allowed with costs and, "The matter be remitted to the review officer for further consideration of the question of the respondent's degree of psychiatric disability."
11 As we have said, the present application is not made in respect of that decision. The application made on 16 December 2002, after the hearing before the Magistrate, seeks leave to appeal from what is described as the decision of the Compensation Magistrate delivered on 25 November 2002 that the applicant's application to amend the notice of appeal be dismissed. A number of grounds were advanced. We need not
(Page 6)
- discuss them because the conclusion to which we have come is that the application is not competent.
12 The powers of a compensation magistrate are provided in s 84ZP(1) which provides that on hearing an appeal made under s 84ZN the magistrate may:
"(a) affirm, vary or quash the decision or order appealed against, or substitute, and make in addition, any decision or order that should have been made in the first instance;
(b) make any further or other order, as to costs or otherwise, as it thinks fit."
13 It is clear we think, without argument, that the provision expresses the entirety of the court's powers.
14 In passing we note that there is nothing in this case to indicate that the learned Magistrate varied the decision of the review officer. His Worship did not modify or vary the determination of the review officer in any way. It must be the case then, we think, that by allowing the appeal the Magistrate quashed the decision of the review officer. In our opinion, that left the parties respectively at large and required the review officer to embark again upon the review process according to law. The parties would be at liberty to raise before the review officer in that newly undertaken process such arguments in relation to the question in dispute as they may see fit.
15 It seems to us that by specifically directing that further consideration be given to the question of the respondent's degree of psychiatric disability, the Compensation Magistrate could not limit the proceedings before the review officer. The direction to give further consideration to a particular aspect of the claimed disability could not limit the statutory obligation placed upon the review officer upon the referral by the Director of the question in dispute for the determination of the degree of disability. If it be the case that, in truth, the matter comes before the review officer in a way which ought to lead him to conclude that he has no jurisdiction to determine the question referred, then he would be obliged to so rule.
16 The short point is that in our opinion the statute gives the applicant no right of appeal by leave granted by this Court under s 84ZW from the decision of the learned Magistrate given on 25 November 2002 to refuse an extension of time and to refuse to allow the amendment sought to the grounds of appeal. That was a ruling made in the course of the hearing of
(Page 7)
- the appeal, but it is only from a "decision" of the compensation magistrate's court on a question of law that an appeal will lie by leave to this Court. On a proper reading of the Act such a decision is a final decision made by the compensation magistrate's court to determine an appeal to it, exercising a power conferred by s 84ZP, not a ruling as to whether time should be extended and leave granted to amend grounds of appeal.
17 Finally, in any event, this Court will only grant leave to appeal in the general run of cases where, not only is the decision below attended with sufficient doubt to justify the grant of leave, but that, in addition, substantial injustice would be done by leaving the decision unreversed. The law stated in that regard in respect of applications for leave to appeal from interlocutory orders or decisions pertaining to practice and procedure is, in our opinion, applicable to the grant or refusal of leave under s 84ZW. It is sufficient therefore to rely upon the law as stated at some length by Malcolm CJ in Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 at 54 - 57.
18 As we are of the opinion that on the resumption of the review process by the review officer, the parties will be at large as to the matters argued, the evidence adduced and the submissions to be made we are not satisfied that substantial injustice would be done by leaving the ruling of the Compensation Magistrate unreversed. It was for those reasons that leave to appeal was refused.
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