Mackaway v Kalgoorlie Consolidated Gold Mines Pty Ltd

[2007] WASCA 181

MACKAWAY -v- KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD [2007] WASCA 181

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 181
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:111/2004	Heard:	14 AUGUST 2007
Coram:	WHEELER JA PULLIN JA LE MIERE AJA	Delivered:	5/09/07
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	JOHN JAMES MACKAWAY KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD
Catchwords:	Turns on own facts
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZW
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MACKAWAY -v- KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD [2007] WASCA 181 CORAM : WHEELER JA

PULLIN JA
LE MIERE AJA

HEARD : 14 AUGUST 2007 DELIVERED : 5 SEPTEMBER 2007 FILE NO/S : FUL 111 of 2004 BETWEEN : JOHN JAMES MACKAWAY

Appellant

AND

KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATES COURT

Coram : MR J R PACKINGTON CM

File No : CM 50 of 2003

Catchwords:

Turns on own facts

(Page 2)

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZW

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela
Respondent : Mr M W Schwikkard

Solicitors:

Appellant : Les Sephton
Respondent : Jackson McDonald

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

Nil

(Page 3)

1 JUDGMENT OF THE COURT: This is an appeal pursuant to the former s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). That section provided that a party to proceedings before a Compensation Magistrate's Court could, by leave of the Supreme Court, appeal to the Supreme Court against a decision of the Compensation Magistrate on a question of law.

2 Grounds 2 and 3 of the appeal were abandoned by the appellant's counsel at the hearing.

3 During the course of argument, it appeared that ground 1 did not identify the alleged error of which the appellant wished to complain. As it was put in argument, it appeared that the error alleged was that the Magistrate erred in failing to find that the review officer had not applied the definition of "disability" as it appears in s 5 of the Act. The way in which that definition was said to have been misapplied was that, in considering whether the condition of the worker constituted a disability within the meaning of that section, the review officer had been concerned only with the question of whether the disease was contracted in the course of employment and was one to which the employment was a contributing factor and contributed to a significant degree, but that the review officer had failed to consider whether the condition was the aggravation of a pre-existing disease where the employment was a contributing factor to the aggravation and contributed to it to a significant degree.

4 The short, but complete, answer to this proposition is that given by the learned Magistrate in [19] of his reasons for decision. That paragraph reads:

In paragraph 74 of his reasons, the review officer twice used the blanket phrase 'contraction, recurrence, aggravation or acceleration', which indicates very clearly that the review officer was considering both paragraphs (c) [concerned with contraction of the disease] and (d) [concerned inter alia with aggravation of the disease] of the definition of 'disability' in s 5.

5 The learned Magistrate was, with respect, entirely correct. Indeed, if one considers the expression "contraction etc" which was used by the review officer in par 74 to be a shorthand for "contraction or recurrence or aggravation" (as, in my view, it plainly was), then the review officer had used or alluded to the expression "aggravation" on three occasions in that paragraph.

(Page 4)

6 The remaining matters referred to by counsel for the appellant during the course of argument were no more than factual matters which, in the appellant's submission, should have been determined differently from the way in which the review officer determined them. An appeal does not lie to this Court in relation to matters of fact. In careful, clear, detailed and persuasive reasons, the review officer appears to have canvassed all relevant issues arising in this case. In equally careful and clear reasons, the Compensation Magistrate explained why an appeal against the decision of the review officer could not succeed. The appellant's appeal in this case is, in truth, no more than a further attempt to reagitate issues of fact which have been determined against him. We would dismiss the appeal.