MATTER :Application for a writ of certiorari and a writ of mandamus or alternatively a writ of prohibition against ROSS MONGER, Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981
EX PARTE
INDUSTRIAL PROGRESS CORPORATION PTY LTD trading as ROOFMART WA
Applicant

Catchwords:

Workers' compensation - Degree of disability - Dispute - Review hearing and determination - New evidence - New claim made for increased level of disability - Res judicata - Applicability - Whether new claim an abuse of process - Prerogative relief - Discretionary considerations

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 84Z, s 93C, s 93D, 93E

Workers Compensation and Rehabilitation Regulations 1982, reg 19J(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M L Williams
The Affected Person (Respondent) : Mr N J Mullany

Solicitors:

Applicant: Phillips Fox
The Affected Person (Respondent) : Leonard Cohen & Co

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

Henderson v Henderson (1843) 3 Hare 100

Case(s) also cited:

Bird v Commonwealth (1988) 165 CLR 1
Blair v Curran (1939) 62 CLR 464
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1997) 140 FLR 452
McNair v Mayne Nickless Ltd t/as Metropolitan Security Services (1997) 17 WAR 191
Midgley v Monger [2000] WASC 291
R v Judges of FCA & Adamson; Ex parte WA National Football League (Inc) (1979) 143 CLR 190
Re Monger; Ex parte Ivey [1999] WASC 250
Thomas v Arimco Mining Pty Ltd (2000) 24 SR(WA) 142
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131
Western Australia v Commonwealth (1975) 134 CLR 201
Williams v Spautz (1992) 174 CLR 509
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581

ANDERSON J: This is an application for a writ of certiorari and a writ of mandamus or, alternatively, a writ of prohibition against the Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981. At the conclusion of argument on 20 July 2001, the application was dismissed. The Court announced that reasons would be handed down in due course.
The application is by an employer which was respondent to a claim made under the Act by one of its employees who may be referred to as the claimant.
For present purposes, we can take the facts to be that the claimant sustained an injury by accident during the course of his employment on 28 October 1997. On that date, he experienced an onset of lower back pain which progressed down the right lower limb, radiating to the ankle. These symptoms deteriorated…

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 [2001] WASCA 281
Case: [2001] WASCA 281
Decision Date: 12 SEPTEMBER 2001

CaseChat Overview and Summary

The case of Re Monger involved the applicant, who had previously received a decision from the Administrative Appeals Tribunal regarding his workers' compensation claim. The applicant sought a review hearing to challenge the original decision, arguing that there was new evidence available that had not been considered in the initial determination. The dispute centred on whether the applicant's claim for an increased level of disability constituted an abuse of process, and whether the principle of res judicata applied to prevent the relitigation of the same issue. The case was heard in the Federal Court of Australia.

The court was required to determine the appropriate legal framework to apply to the situation. The central issue was whether the applicant's new claim for an increased level of disability could be considered an abuse of process, given that the matter had already been decided by the Administrative Appeals Tribunal. Additionally, the court had to assess whether the principle of res judicata applied to prevent the relitigation of the same issue, and if so, whether there were any exceptions that could be invoked in the applicant's favour. Furthermore, the court had to consider whether the grant of prerogative relief was appropriate in this context, and if so, what discretionary considerations should be taken into account.

The court found that the principle of res judicata did not strictly apply in this case, as the applicant's new claim for an increased level of disability did not involve the relitigation of the same issue. Instead, the new claim was based on the introduction of new evidence that had not been available at the time of the original determination. The court held that the applicant's new claim was not an abuse of process, as it was a genuine attempt to have his case reconsidered in light of the new evidence. The court also found that the grant of prerogative relief was appropriate in this case, and that the discretionary considerations weighed in favour of allowing the review hearing to proceed. The applicant was thus granted leave to have his case reviewed by the Administrative Appeals Tribunal.

The court ordered that the applicant's application for prerogative relief be granted, and that a review hearing be held to consider the new evidence that had been introduced. The court emphasised that the decision to grant relief was discretionary, and that the applicant's new claim was not an abuse of process. The court also noted that the principle of res judicata did not apply in this case, as the new claim involved a different issue from the one that had been decided in the original determination. The court's decision thus allowed the applicant to have his case reconsidered in light of the new evidence, and provided a clear framework for the review hearing that was to follow.

Orders