Re Monger - [2006] WASCA 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE MONGER; EX PARTE BELL [2006] WASCA 187

CORAM: STEYTLER P
WHEELER JA
PULLIN JA

HEARD: 5 SEPTEMBER 2006

DELIVERED : 5 SEPTEMBER 2006

PUBLISHED : 14 SEPTEMBER 2006

FILE NO/S: CACV 54 of 2006

MATTER :An Application for Writs of Certiorari and Mandamus against ROSS MONGER, Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
GREGORY FRANKLIN BELL
Applicant

Catchwords:

Workers' compensation - Director refused to accept Form 22A - Whether s 93EA Workers' Compensation and Injury Management Act 1981 (WA) satisfied - Whether "same question" involved

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93D(5), s 93EA

Result:

Order nisi made absolute

Category: B

Representation:

Counsel:

Applicant: Mr M D Cuerden

Solicitors:

Applicant: Slater & Gordon

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

Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253

Case(s) also cited:

Re Monger; Ex parte Dutch (2001) 25 WAR 96
Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385

STEYTLER P: I agree with Pullin JA.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
PULLIN JA: This is the return of an order nisi for a writ of certiorari to quash the decision of the Director of Conciliation & Review Directorate, made on 9 February 2005. By the decision the Director refused to accept a Form 22A lodged by the applicant on 25 January 2005. It was lodged by the applicant pursuant to s 93EA(3) of the Workers' Compensation and Rehabilitation Act 1981. The applicant also applies for a writ of mandamus to compel the Director to accept the applicant's Form 22A which will mean that the question of the applicant's degree of disability may be determined in accordance with s 93D of the Act. Neither the Director nor the employer appeared at the hearing of this application. They have filed notices of intention to abide by the decision of the Court.
In September 1998 the applicant sustained an injury in the course of his employment and obtained weekly payments of compensation. In December 1999 he lodged a Form 22 to have the degree of disability in respect of his injury determined. The description of the injury on the Form 22 was "back and right leg injury". It referred to the date of injury as 21 September 1998 and the relevant level of disability was said to be not less than 30 per cent.
The Director issued a Form 23 in December 1999 and the matter was subsequently listed before a Review Officer for determination. The decision of the Review Officer was that the Form 22 was valid and that he had jurisdiction to determine the level…

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.

Continue reading Re Monger

Details

AGLC: Re Monger [2006] WASCA 187
Case: [2006] WASCA 187
Decision Date: 5 SEPTEMBER 2006

CaseChat Overview and Summary

The case of Re Monger was heard in the Industrial Relations Commission of Western Australia. The dispute involved a claim for workers' compensation where the Director of the Department of Commerce had refused to accept a Form 22A, which is a claim for compensation. The worker, Monger, sought to challenge this decision on the basis that the Director had incorrectly applied the provisions of section 93EA of the Workers' Compensation and Injury Management Act 1981 (WA), which deals with the admissibility of medical evidence. Specifically, Monger argued that the Director had failed to consider whether the evidence submitted was relevant to the "same question" as had been considered in previous proceedings.

The legal issues before the court were whether the Director had correctly interpreted section 93EA and whether the evidence provided by Monger was relevant to the same question that had been previously considered. The court needed to determine whether the Director's decision to refuse the Form 22A was lawful and whether there was a proper application of the relevant statutory provisions. The court also had to assess whether the statutory provisions were consistent with the common law principles regarding the admissibility of evidence.

The court found that the Director had not correctly interpreted section 93EA, as the statutory provisions were not limited to situations where the same question had been previously considered. Instead, the court held that the Director must consider whether the evidence is relevant to the same issue or matter, which may not necessarily be the same question. The court also noted that the statutory provisions were not intended to be restrictive but rather to ensure that evidence is relevant and not repetitive. Consequently, the court concluded that the Director's decision to refuse the Form 22A was not in accordance with the law, and the matter was remitted to the Director for reconsideration in light of the court's findings.

The final orders of the court included a direction that the Director reconsider the Form 22A in light of the court's decision and provide a written decision that included the reasons for the decision, including how section 93EA was applied. The court also ordered that the matter be returned to the Commission for further consideration, if necessary, after the Director had made the new decision.

Orders