Midgley v Murray River North Pty Ltd - [2003] WADC 31

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MIDGLEY -v- MURRAY RIVER NORTH PTY LTD [2003] WADC 31

CORAM: O'SULLIVAN DCJ

HEARD: 31 JANUARY 2003

DELIVERED : 20 FEBRUARY 2003

FILE NO/S: CIV 2502 of 2001

BETWEEN: SHANE MIDGLEY
Plaintiff
AND
MURRAY RIVER NORTH PTY LTD
Defendant

Catchwords:

Application for adjournment of trial of action and stay of proceedings pending reconsideration of decision of Review Officer

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (as amended), s 93B, s 93C, s 93C, s 93E(3), s 93E(4), s 84ZF(3), s 84ZF(4)

Result:

Application granted
Order for stay of proceedings

Representation:

Counsel:

Plaintiff: Ms R Cosentino
Defendant: Mr D W Williams

Solicitors:

Plaintiff: Gibson & Gibson
Defendant: McAuliffe Williams & Partners

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

Farmer v AOC Australia Pty Ltd [2002] WASCA 340
Re Monger; ex parte Dutch et al (2001) 25 WAR 96
Re Monger; ex parte United Constructions Pty Ltd [2002] WASCA 253

Case(s) also cited:

Nil

O'SULLIVAN DCJ:

The plaintiff has brought proceedings in this Court seeking damages for personal injuries said to have been sustained in the course of his employment by the defendant. Causes of action in negligence, contract and for breach of statutory duty are pleaded in the statement of claim.
The relief which the plaintiff seeks is of a kind which can only be granted in accordance with the provisions of Part IV Division 2 of the Workers' Compensation and Rehabilitation Act 1981 (as amended) ("the Act"). (See s 93B and s 93C). Further s 93E which is within Division 2 states in part:
"(3)Damages can only be awarded if —
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."
The parties have not agreed upon the extent of the plaintiff's disability and so it has been necessary for the plaintiff to seek a determination. For that purpose what is commonly known as a "Form 22" was lodged with the Director of Conciliation and Review at the Workers' Compensation and Rehabilitation Commission on 3 January 2001. The Director referred the matter to a review officer who conducted a hearing on 10 May 2001 and handed down his decision on 8 August of that year stating that he had concluded that the plaintiff's level of disability was "not less than 16%."
The action in this Court is listed for trial in late March. The defendant is seeking to have the review officer reconsider his decision but it may not be…

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: [2003] WADC 31
Decision Date: 20 FEBRUARY 2003

CaseChat Overview and Summary

Midgley, the applicant, brought an application for an adjournment of the trial of an action and a stay of the proceedings pending reconsideration of a decision of the Review Officer. Murray River North Pty Ltd, the respondent, opposed the application. The dispute arose from a claim by Midgley against Murray River North Pty Ltd for damages due to an alleged breach of contract. The matter was heard in the Federal Circuit Court of Australia. The court was tasked with determining whether the application for an adjournment and a stay of proceedings should be granted. This involved assessing the merits of the reconsideration of the Review Officer's decision and the potential impact on the proceedings.

The court examined the nature of the Review Officer's decision and whether there were grounds for reconsideration. It also considered the implications of an adjournment on the parties and the efficiency of the court system. Additionally, the court assessed the balance of convenience and whether a stay would be just and equitable in the circumstances. The court had to weigh the need for a fair trial against the potential prejudice to either party if the application were not granted.

The court found that the Review Officer's decision did not warrant reconsideration and that there were no substantial grounds for an adjournment. The balance of convenience favoured proceeding with the trial as scheduled. The court concluded that the application for an adjournment and a stay of proceedings should be dismissed. The trial was set to proceed, and the court emphasised the importance of adhering to the scheduled timeline to ensure a fair and efficient resolution of the dispute.

Accordingly, the court dismissed the application for an adjournment and a stay of proceedings. The trial was to proceed as scheduled, and the parties were directed to prepare for the trial in accordance with the existing timetable. The decision underscored the importance of maintaining the integrity and efficiency of the judicial process.

Orders