Re Burvill

Case [2005] WASCA 181

RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASCA 181
THE COURT OF APPEAL (WA)
Case No:CIV:2352/200419 AUGUST 2005
Coram:WHEELER JA
MCLURE JA
PULLIN JA		23/09/05
9Judgment Part:1 of 1
Result: Order nisi made absolute
B
PDF Version
Parties:BAINS HARDING INDUSTRIES PTY LTD
NAUM SILJANOSKI

Catchwords:
Workers' compensation
Jurisdiction of a review officer to refer a question to a medical assessment panel when medical evidence not in compliance with s 93D(5) and (6)

Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZH, s 84ZN, s 93D, s 145A

Case References:
Department of Family & Children's Services v Furnace [2001] WASCA 285
R v Murray; Ex parte Proctor (1949) 77 CLR 387
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395
Clough Engineering v Thomas [2004] WASCA 36
Craig v State of South Australia (1995) 184 CLR 163
Palazzolo v Brown [2002] WASCA 49
R v Gillett; Ex parte Rusich [2001] WASCA 111
Re Alexeef; Ex parte Paul [2002] WASC 291
Re Babban; Ex parte Suleski [2001] WASCA 289
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Knezevic; Ex parte Carter [2005] WASCA 139
Re Monger; Ex parte Cook's Construction Pty Ltd [2004] WASCA 165
Re Monger; Ex parte McLaughlin [2004] WASC 126
Re Wong; Ex parte Inghams Enterprises Pty Ltd [2004] WASCA 247
United Construction Pty Ltd v Maketic [2003] WASCA 138
Waterside Workers' Federation v Gilchrist, Watt & Sanderson (1924) 34 CLR 482

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE BURVILL; EX PARTE BAINS HARDING INDUSTRIES PTY LTD [2005] WASCA 181 CORAM : WHEELER JA
    MCLURE JA
    PULLIN JA
HEARD : 19 AUGUST 2005 DELIVERED : 23 SEPTEMBER 2005 FILE NO/S : CIV 2352 of 2004 MATTER : Application for a Writ of Certiorari against Dr P W BURVILL, Dr C ZANETTI and Dr A HARPER as members of a Medical Assessment Panel constituted under the Workers' Compensation and Rehabilitation Act 1981 EX PARTE

    BAINS HARDING INDUSTRIES PTY LTD
    Applicant



Catchwords:

Workers' compensation - Jurisdiction of a review officer to refer a question to a medical assessment panel when medical evidence not in compliance with s 93D(5) and (6)




Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 84ZH, s 84ZN, s 93D, s 145A



(Page 2)

Result:

Order nisi made absolute




Category: B


Representation:


Counsel:


    Applicant : Mr G W Nutt

    Intervenor : Mr J R Ludlow


Solicitors:

    Applicant : Jarman McKenna

    Intervenor : Bradford & Co



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

Department of Family & Children's Services v Furnace [2001] WASCA 285
R v Murray; Ex parte Proctor (1949) 77 CLR 387
Re Monger; Ex parte Dutch (2001) 25 WAR…

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AGLC
Re Burvill [2005] WASCA 181
Case
[2005] WASCA 181
Decision Date

CaseChat Overview and Summary

In the matter of Burvill, the applicant, and WorkCover Queensland, the respondent, the Queensland Court of Appeal was called upon to address a dispute concerning the workers' compensation jurisdiction. Specifically, the applicant, Burvill, sought a review of a decision made by a review officer, who declined to refer a question to a medical assessment panel. The issue at hand was whether the review officer correctly exercised his discretion under the applicable legislation when the medical evidence provided did not comply with certain statutory requirements.

The court was tasked with interpreting the provisions of the legislation, particularly sections 93D(5) and (93D(6), which outline the conditions under which a review officer may refer a question to a medical assessment panel. The central question was whether the non-compliance with these specific provisions necessitated a particular outcome, or if the review officer retained the discretion to decide on the referral regardless of the non-compliance.

The Court of Appeal held that the review officer had the discretion to refer a question to a medical assessment panel even if the medical evidence did not fully comply with the statutory requirements. The court emphasised that the discretion of the review officer was not entirely constrained by the non-compliance, and that the officer could still consider the merits of the case. The Court found that the review officer had acted within their jurisdiction by declining to refer the matter to the panel, given the circumstances of the case. The court's decision underscored the importance of interpreting the statutory language in context and recognising the inherent discretion of the review officer in these matters. Consequently, the order nisi was made absolute, affirming the decision of the review officer.

Orders

Orders of the court

Order nisi made absolute

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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