RE DIRECTOR CONCILIATION & REVIEW DIRECTORATE; EX PARTE NOWICKI [2000] WASC 280

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 280
Case No:	CIV:2101/2000	Heard:	25 OCTOBER 2000
Coram:	ANDERSON J	Delivered:	21/11/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Mandamus granted
PDF Version

Parties:	KAZIMIERZ NOWICKI
Catchwords:	Workers' compensation Election to retain right to common law damages Director refusing to register election Remedy Workers' compensation Weekly payments Commencement Definition of "termination day" Calculation of six months after the day on which weekly payments commenced Meaning of "commenced"
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 57A(3), s 84I(1)(b), s 93, s 93E(3), Sch 1
Case References:	The King v The War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott (1933) 50 CLR 228 Molopo Australia Ltd v Easter Gold NL [1989] WAR 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE DIRECTOR CONCILIATION & REVIEW DIRECTORATE; EX PARTE NOWICKI [2000] WASC 280 CORAM : ANDERSON J HEARD : 25 OCTOBER 2000 DELIVERED : 21 NOVEMBER 2000 FILE NO/S : CIV 2101 of 2000 MATTER : Application for a Writ of Mandamus against the Director Conciliation & Review Directorate

and

Part IIIA Div 3 of the

Workers Compensation and Rehabilitation Act 1981

EX PARTE

KAZIMIERZ NOWICKI

Applicant

Catchwords:

Workers' compensation - Election to retain right to common law damages - Director refusing to register election - Remedy

Workers' compensation - Weekly payments - Commencement - Definition of "termination day" - Calculation of six months after the day on which weekly payments commenced - Meaning of "commenced"

(Page 2)

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 57A(3), s 84I(1)(b), s 93, s 93E(3), Sch 1

Result:

Mandamus granted

Representation:

Counsel:

Applicant : Mr G Droppert

Attorney General : Ms J Pritchard

Employer : Mr P J Marsh

Solicitors:

Applicant : James McManus & Associates

Attorney General : State Crown Solicitor

Employer : PCH Group Ltd

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

The King v The War Pensions Entitlement Appeal Tribunal & Anor; Ex parte Bott (1933) 50 CLR 228

Case(s) also cited:

Molopo Australia Ltd v Easter Gold NL [1989] WAR 270

(Page 3)

1 ANDERSON J: This is an application for a writ of mandamus directed to Mr R E Monger, who holds office under the Workers' Compensation and Rehabilitation Act 1981 as the Director of Conciliation & Review. He has various functions under that legislation, one of them being to receive and decide whether to register elections by applicants for workers' compensation to retain their right to seek damages at common law. The applicant, Mr Nowicki, filed an election at the Registry of Conciliation & Review. Mr Monger refused to register that election and the applicant is aggrieved by that refusal.

2 The background to the matter is that on 12 June 1999, the applicant was employed as a scaffolder with the intervener, PCH Group Ltd. On that date, he claims to have sustained injury by…

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: [2000] WASC 280
Decision Date: 21 NOVEMBER 2000

CaseChat Overview and Summary

The case before the court involved the Director Conciliation and Review Directorate, who refused to register an election made by an injured worker to retain their right to pursue common law damages in addition to workers' compensation benefits. The dispute arose under the legislative framework governing workers' compensation claims in Australia. The court had to determine whether the Director's refusal to register the election was lawful and whether the statutory interpretation of when weekly payments commenced was correctly applied. Additionally, the court was tasked with examining the Director's authority and obligations in the context of the statutory provisions.

The primary legal issues before the court were the interpretation of statutory provisions concerning the election to retain rights to common law damages and the commencement date of weekly payments. Specifically, the court had to decide whether the Director had the discretion to refuse to register the election and if the statutory interpretation of the term "commenced" in relation to weekly payments was accurate. The court also needed to consider the legal authority of the Director in relation to these statutory obligations.

The court found that the Director did not have the discretion to refuse to register the election to retain rights to common law damages. It ruled that the statutory language was clear and mandatory, requiring the Director to register the election unless there was an explicit exception not present in this case. Regarding the interpretation of "commenced" in the context of weekly payments, the court held that the payments commenced from the day they were first provided, not from the day the statutory entitlement was determined. Consequently, the six-month period for certain actions should be calculated from the commencement of the weekly payments.

The court granted the mandamus, compelling the Director to register the election and to comply with the statutory provisions accurately. The court's decision provided clarity on the Director's obligations and the rights of injured workers in retaining their right to common law damages, ensuring that statutory processes were followed correctly.

Orders

Orders of the court

Mandamus granted

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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