JOHN HOLLAND CONSTRUCTION & ENGINEERING -v- ESKIC [2003] WASCA 48

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 48
Court:	FULL COURT	Published:	19/03/2003
Case No:	CIV:2719/2002	Heard:	20 FEBRUARY 2003
Coram:	MURRAY J MILLER J	Delivered:	20/02/03
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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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

HEARD : 20 FEBRUARY 2003 DELIVERED : 20 FEBRUARY 2003 PUBLISHED : 19 MARCH 2003 FILE NO/S : CIV 2719 of 2002 BETWEEN : JOHN HOLLAND CONSTRUCTION & ENGINEERING

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…

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.

Continue reading John Holland Construction & Engineering v Eskic

Details

AGLC: John Holland Construction & Engineering v Eskic [2003] WASCA 48
Case: [2003] WASCA 48
Decision Date: 19 MARCH 2003

CaseChat Overview and Summary

In the case of John Holland Construction & Engineering v Eskic, the court was called upon to decide an application for leave to appeal from a compensation magistrate. The applicant sought an extension of time to amend the grounds of appeal, which had been refused by the magistrate. The court's task was to determine whether the application for leave to appeal was competent and whether the words "decision" were correctly applied in this context.

The legal issues at hand revolved around the competency of the application for leave to appeal, particularly in relation to the magistrate's refusal to grant an extension of time to amend the grounds of appeal. The applicant argued that the magistrate had erred in not allowing the amendment, but the court had to ascertain whether such an application was valid and whether the magistrate's decision was indeed a "decision" for the purposes of appeal.

The court concluded that the application for leave to appeal was incompetent because the applicant did not have the right to appeal from the magistrate's refusal to extend time to amend the grounds of appeal. The court held that the magistrate's decision was not a "decision" that could be the subject of an appeal. The court's reasoning was grounded in the interpretation of the relevant statutory provisions and the procedural rules applicable to appeals from compensation magistrates. The court found that the application did not meet the criteria for leave to appeal and dismissed it accordingly.

The final orders of the court were that the application for leave to appeal was dismissed, and no further appeal could be taken from the magistrate's decision regarding the extension of time to amend the grounds of appeal.

Orders

Orders of the court

Application 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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