RE MONGER; EX PARTE URQUHART [2004] WASC 48

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 48
Case No:	CIV:2640/2002	Heard:	22 MARCH 2004
Coram:	ROBERTS-SMITH J	Delivered:	25/03/04
No of pages:	12	Judgment Part:	1 of 1
Result:	Order nisi for mandamus made absolute
Category:	B
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Parties:	COLIN SCOTT URQUHART
Catchwords:	Workers' compensation Disability Degree of permanent disability said to be 22 per cent at time of assessment Condition still unstabilised Should be further review to enable full evaluation of disability Whether "unequivocal" statement that disability permanent Director rejecting referral Correct test Medical report to indicate degree of permanent disability
Legislation:	Workers' Compensation & Rehabilitation Act 1981 (WA), s 93D(6)
Case References:	Clough Engineering v Thomas [2004] WASCA 36 Girrawheen Tavern v Joseph [2003] WASCA 244 Kinsella v Seton Catholic College, unreported; CM (WA); 112/00; 22 February 2001 Re Alexeef; Ex parte Paul [2002] WASC 291 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Monger; Ex parte Dutch [2001] WASCA 220 Edwards v Westaff (Australia) Pty Ltd & Anor, unreported; CM(WA); 179/03; 9 March 2004

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RE MONGER; EX PARTE URQUHART [2004] WASC 48 CORAM : ROBERTS-SMITH J HEARD : 22 MARCH 2004 DELIVERED : 25 MARCH 2004 FILE NO/S : CIV 2640 of 2002 MATTER : Application for a Writ of Mandamus against ROSS MONGER, Director of Workcover WA EX PARTE

COLIN SCOTT URQUHART

Applicant

Catchwords:

Workers' compensation - Disability - Degree of permanent disability said to be 22 per cent at time of assessment - Condition still unstabilised - Should be further review to enable full evaluation of disability - Whether "unequivocal" statement that disability permanent - Director rejecting referral - Correct test - Medical report to indicate degree of permanent disability

Legislation:

Workers' Compensation & Rehabilitation Act 1981 (WA), s 93D(6)

Result:

Order nisi for mandamus made absolute

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr B L Nugawela

Solicitors:

Applicant : Evangel Taylor

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

Clough Engineering v Thomas [2004] WASCA 36
Girrawheen Tavern v Joseph [2003] WASCA 244
Kinsella v Seton Catholic College, unreported; CM (WA); 112/00; 22 February 2001
Re Alexeef; Ex parte Paul [2002] WASC 291
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Monger; Ex parte Dutch [2001] WASCA 220

Case(s) also cited:

Edwards v Westaff (Australia) Pty Ltd & Anor, unreported; CM(WA); 179/03; 9 March 2004

(Page 3)

1 ROBERTS-SMITH J: This matter first came before me for hearing as a special appointment on Friday 19 March 2004. The potential contradictor (the respondent) had filed a notice that he would abide the court's decision and did not intend to appear. However, there was no appearance for the applicant. As a result, I ordered the application be struck out for want of prosecution.

2 Later that day, the applicant's solicitors advised that counsel had not appeared as a result of a domestic medical emergency, which they explained. They…

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 48
Case: [2004] WASC 48
Decision Date

CaseChat Overview and Summary

Colin Scott Urquhart applied for a writ of mandamus against Ross Monger, the Director of Workcover WA, seeking a direction that the Director accept the referral of a question about the degree of Urquhart's disability. The referral was made by Urquhart's solicitors on 5 June 2002 and accompanied by a medical report from Dr David Kennedy dated 4 June 2002. The Director rejected the referral on the basis that the report did not unequivocally state that Urquhart's disability was permanent. Urquhart's application was heard by Roberts-Smith J in the Supreme Court of Western Australia. The central issue before the court was whether the Director had correctly interpreted the statutory requirement for a medical report to indicate a permanent degree of disability, and whether the Director's rejection of the referral was lawful.

The court considered the relevant statutory provision, s 93D(6) of the Workers' Compensation and Rehabilitation Act 1981 (WA), which mandates that the Director accept a referral if the medical report indicates the degree of disability is not less than the relevant level. The court examined previous case law, including Girrawheen Tavern v Joseph and Clough Engineering v Thomas, which highlighted the need for a non-technical and generous approach in interpreting the statutory requirements. The court also noted the distinction between an "indication" and an "unequivocal statement" of a permanent disability. The Director's insistence on an unequivocal statement was deemed contrary to the legislative intent and an inappropriate gloss on the statutory language. The court concluded that the Director had misstated the applicable law and that the report, while noting the condition was unstabilised, did indicate that the degree of disability was at least 22 per cent and could be more once the condition stabilised.

Roberts-Smith J held that the Director had erred in law by requiring an unequivocal statement of permanence and by rejecting the referral on that basis. The court found that the medical report did comply with s 93D(6) as it indicated the degree of disability was not less than the relevant level. The order nisi for mandamus made on 24 February 2003 was made absolute, directing the Director to accept the referral of the question regarding Urquhart's degree of disability.

Orders