RE MONGER; EX PARTE McLAUGHLIN [2004] WASC 126

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 126
Case No:	CIV:1066/2003	Heard:	27 APRIL 2004
Coram:	SIMMONDS J	Delivered:	11/06/04
No of pages:	18	Judgment Part:	1 of 1
Result:	Order nisi discharged
Category:	B
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Parties:	WILLIAM ALBERT McLAUGHLIN AMCOR PACKAGING (AUSTRALIA) PTY LTD
Catchwords:	Workers' compensation Degree of disability Whether medical opinion supported by "medical evidence" Meaning of "medical evidence"
Legislation:	Rules of the Supreme Court 1971 (WA), O 56 r 7 Workers' Compensation and Rehabilitation Act 1981 (WA), s 25, s 93A, s 93D, s 93E(5), s 93F, s 93(2)(b) Workers' Compensation and Rehabilitation Regulations 1982 (WA), reg 19J(1)
Case References:	Clough Engineering v Thomas [2004] WASCA 36 Girrawheen Tavern v Joseph [2003] WASCA 244 Re Monger; Ex parte Dutch [2001] WASCA 220 Re Monger; Ex parte Morgan [2003] WASC 146 Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165 Re Monger; Ex parte Urquhart [2004] WASC 48 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RE MONGER; EX PARTE McLAUGHLIN [2004] WASC 126 CORAM : SIMMONDS J HEARD : 27 APRIL 2004 DELIVERED : 11 JUNE 2004 FILE NO/S : CIV 1066 of 2003 MATTER : Application for a Writ of Certiorari and a writ of Mandamus against Mr Ross Monger, Director, WorkCover Conciliation & Review EX PARTE

WILLIAM ALBERT McLAUGHLIN

Applicant

Catchwords:

Workers' compensation - Degree of disability - Whether medical opinion supported by "medical evidence" - Meaning of "medical evidence"

Legislation:

Rules of the Supreme Court 1971 (WA), O 56 r 7

Workers' Compensation and Rehabilitation Act 1981 (WA), s 25, s 93A, s 93D, s 93E(5), s 93F, s 93(2)(b)
Workers' Compensation and Rehabilitation Regulations 1982 (WA), reg 19J(1)

Result:

Order nisi discharged

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr S Melville

Amcor Packaging (Australia) Pty Ltd : Mr H M O'Sullivan

Solicitors:

Applicant : Chapmans

Amcor Packaging (Australia) Pty Ltd : Srdarov Richards Burton

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

Clough Engineering v Thomas [2004] WASCA 36
Girrawheen Tavern v Joseph [2003] WASCA 244
Re Monger; Ex parte Dutch [2001] WASCA 220
Re Monger; Ex parte Morgan [2003] WASC 146
Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165
Re Monger; Ex parte Urquhart [2004] WASC 48

Case(s) also cited:

Nil

(Page 3)

1 SIMMONDS J: This is the return of an order nisi for writs of certiorari and mandamus granted by Roberts-Smith J on 25 August 2003 and made returnable before a single Judge in chambers.

2 By way of background, the applicant had suffered two accidents, one on 17 February 2000 causing injury to his right knee then, the other on 18 November 2001 causing injury to his right hand then, both in the course of his employment at Amcor Packaging (Australia) Pty Ltd ("the employer"). Two applications were made to the Director of Conciliation & Review, WorkCover Western Australia, Mr Ross Monger ("the Director") in respect of…

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; [2004] WASC 126
Case: [2004] WASC 126
Decision Date

CaseChat Overview and Summary

In this case, William Albert McLaughlin sought judicial review of a decision by the Director of WorkCover Conciliation and Review, Ross Monger, to reject two applications made by McLaughlin under section 93D(5) of the Workers' Compensation and Rehabilitation Act 1981 (WA). McLaughlin, who had suffered injuries in two separate incidents while employed by Amcor Packaging (Australia) Pty Ltd, sought to have the Director determine the degree of his disability as a percentage. The Director rejected the applications on the basis that they did not contain "medical evidence" as required by section 93D(6) of the Act.

The court considered whether the medical reports submitted by McLaughlin were sufficient to meet the requirements of "medical evidence" under section 93D(6) of the Act. It found that neither of the two reports by Dr Halliday, nor the report by Dr Galton-Fenzi, were sufficient. The court concluded that the reports failed to provide any material or comment of a medical kind, which supported the opinion, or any reasons to support the assessment made. The report of Dr Shannon, while detailed, was also found to be insufficient because it did not indicate a percentage level of disability or provide a basis from which one could be reliably computed.

Ultimately, the court discharged the order nisi, finding that the Director's decision not to process the applications was not quashed. The court noted that it would hear from the parties as to the appropriate costs orders.

Orders