Qantas Flight Catering v Joncevski - [2004] WASCA 121

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: QANTAS FLIGHT CATERING -v- JONCEVSKI [2004] WASCA 121

CORAM: MURRAY J
ROBERTS-SMITH J
MCLURE J

HEARD: 20 MAY 2004

DELIVERED : 11 JUNE 2004

FILE NO/S: FUL 120 of 2003

BETWEEN: QANTAS FLIGHT CATERING
Appellant
AND
BLAGOJCE JONCEVSKI
Respondent

Catchwords:

Workers compensation - Unlawful discontinuance of weekly payments - Application by worker to reinstate payments - Whether worker obliged to establish entitlement to weekly payments

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 57A, s 57B, s 60, s 61, s 62, s 71

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr P E Jarman
Respondent: Mr M D Cuerden

Solicitors:

Appellant: Jarman McKenna
Respondent: Slater & Gordon

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

Department of Education v Kenworthy (1990) 3 WAR 1
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Vurlow v Leighton Nursing Home [1978] WAR 15
Zarkovic v J Gadsden Pty Ltd, unreported; SCt of WA; Library No 5369; 23 May 1983

Case(s) also cited:

Anchor Donaldson Ltd v Crossland [1929] AC 297
Blair & Anor v Curran (1939) 62 CLR 464
Colour Craft Painting Service v Nightingale [1999] WASCA 167
Mayne Nickless Ltd trading as Wards Express v Mayne, unreported; SCt of WA; Library No 960736
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Ocean Coal Co Ltd v Davies [1927] AC 271
Re Alcan Australia Ltd; Ex parte FIMEE (1994) 181 CLR 96
Re Croser; Ex parte Rutherford & Anor (2001) 25 WAR 170
Sadler v Fenfield Pty Ltd trading as Ultra Care Drycleaners, unreported; SCt of WA; Library No 9047; 11 September 1991
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Summit Homes v Lucev, unreported; SCt of WA; Library No 960182; 3 April 1996

MURRAY J: The respondent is employed as a driver and loader of aircraft by the appellant. On 18 May 2001 he suffered a disability within the meaning of the Workers Compensation and Rehabilitation Act 1981 (WA), an injury to his right groin and foot. He was in receipt of weekly payments of workers' compensation. Ultimately he commenced new employment with the appellant on a trial basis, but it is accepted that that did not constitute a formal return to work within the meaning of the Act.
On 24 April 2002, pursuant to the statutory procedures, the worker notified the Conciliation and Review Directorate that there was a dispute with his employer in respect of vocational rehabilitation assistance. Conciliation conferences were held, but the matter was not resolved. On 18 September 2002, the worker, by his solicitors, sought leave to amend his application to include an application for orders under s 61 of the Act on the ground that the employer had unlawfully discontinued weekly payments of compensation as from 12 June 2001. The application was amended accordingly by an order of the Review…

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 121
Decision Date: 11 JUNE 2004

CaseChat Overview and Summary

The matter of Qantas Flight Catering v Joncevski involved an employee of the airline who had been awarded workers compensation payments but later faced their discontinuance. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the employee had the onus of proving their entitlement to the weekly compensation payments in light of their unlawful discontinuance by the employer.

The court needed to determine whether the worker, upon the employer's unlawful discontinuance of weekly payments, was required to establish their entitlement to those payments to secure their reinstatement. The central legal question was whether the worker bore the burden of proving their entitlement to weekly payments in such circumstances. The court considered the relevant statutory provisions and case law to address this issue.

The court held that the worker did not bear the onus of proving their entitlement to the weekly payments once the employer had unlawfully discontinued them. The court reasoned that the statutory scheme provided a rebuttable presumption of entitlement to compensation, which shifted the onus onto the employer to demonstrate that the worker's injury did not meet the criteria for compensation. The court found that this presumption applied equally to the situation where payments had been unlawfully discontinued. Consequently, the court ordered the employer to reinstate the worker's weekly payments and compensate the worker for the period during which the payments were unlawfully withheld.

Orders