RE ANASTAS & ORS; EX PARTE WELSBY [2001] WASC 178

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 178
Case No:	CIV:1684/2001	Heard:	31 MAY 2001
Coram:	McLURE J	Delivered:	6/07/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Order nisi for a writ of certiorari granted
PDF Version

Parties:	JOHN WELSBY
Catchwords:	Prerogative writ Certiorari Workers' Compensation and Rehabilitation Act 1981 Degree of disability of worker Obligation of Medical Assessment Panel to give reasons Statutory entitlement to refer to AMA Guides
Legislation:	Justices Act 1902, s 187 Supreme Court Rules, O 20 r 19(1)(a) Workers' Compensation and Rehabilitation Act 1981 Workers' Compensation and Rehabilitation Regulations 1982
Case References:	Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262 Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998 Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996 Ex parte Rusich [2001] WASCA 111 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130 Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999 Re Capobianco; ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; ex parte MacKenzie [2000] WASC 147 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RE ANASTAS & ORS; EX PARTE WELSBY [2001] WASC 178 CORAM : McLURE J HEARD : 31 MAY 2001 DELIVERED : 6 JULY 2001 FILE NO/S : CIV 1684 of 2001 MATTER : IN THE MATTER of an application for a Writ of Certiorari against NICHOLAS C ANASTAS,
DR F NG and DR S BLACKWELL members of the Medical Assessment Panel under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE

JOHN WELSBY

Applicant

Catchwords:

Prerogative writ - Certiorari - Workers' Compensation and Rehabilitation Act 1981 - Degree of disability of worker - Obligation of Medical Assessment Panel to give reasons - Statutory entitlement to refer to AMA Guides

Legislation:

Justices Act1902, s 187

Supreme Court Rules, O 20 r 19(1)(a)
Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Regulations 1982

(Page 2)

Result:

Order nisi for a writ of certiorari granted

Representation:

Counsel:

Applicant : Mr B L Nugawela

Amicus Curiae

: Ms J C Pritchard

Solicitors:

Applicant : Leonard Cohen & Co

Amicus Curiae

: Attorney General for Western Australia

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

Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262
Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998
Ex parte Juras, unreported; FCt SCt of WA; Library No 960637; 11 October 1996
Ex parte Rusich [2001] WASCA 111
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130
Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999
Re Capobianco; ex parte Castelli, unreported;…

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: [2001] WASC 178
Decision Date

CaseChat Overview and Summary

In the case of Re Anastas; Ex parte Welsby, the applicant, John Welsby, sought a writ of certiorari against the Medical Assessment Panel, comprising Nicholas C Anastas, Dr F Ng, and Dr S Blackwell, challenging their determination of his degree of disability under the Workers' Compensation and Rehabilitation Act 1981. The applicant's primary contention was that the Panel's determination lacked adequate reasons and improperly referenced the Western Australian Australian Medical Association (AMA) Guide. The court had to decide whether the Panel's reasons were sufficient and whether the reference to the AMA Guide was appropriate.

The court found that the Panel's reasons did not adequately explain the basis of their determination, the medical evidence they relied upon, and the relevance of inconsistencies in the applicant's examination. The reasons also failed to address the nature and extent of relevant discussions between the Panel members. Furthermore, the court observed that while the Panel was not in error for referencing the AMA Guide, it was arguable that they should have primarily referred to Item 36A of the Second Schedule of the Act for assessing the degree of disability. The court granted an order nisi for a writ of certiorari on the basis that the Panel's reasons were inadequate and that there was an arguable case regarding the improper reference to the AMA Guide.

Orders