Re Monger

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.