Re Monger
[2002] WASC 299
RE MONGER; EX PARTE ABB SERVICE PTY LTD [2002] WASC 299
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 299 | |
| Case No: | CIV:1875/2000 | 22 NOVEMBER 2002 | |
| Coram: | ROBERTS-SMITH J | 22/11/02 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application for order nisi for certiorari granted, Order nisi made returnable instanter, Application for order absolute refused, Order nisi discharged | ||
| A | |||
| PDF Version |
| Parties: | ABB SERVICE PTY LTD ENRIQUE MERINO |
Catchwords: | Workers compensation Prerogative writ Certiorari Decision of Director of Workers' Compensation Conciliation and Review Directorate to refer claim to Review Officer Whether s 87ZN(1) of the Workers' Compensation and Rehabilitation Act 1981 (WA) precludes prerogative review of Director's decision Time Delay Hearing before Review Officer imminent Whether order absolute should be refused on discretionary grounds |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 87ZN(1) |
Case References: | Public Service Association of South Australia v Federated Clerks Union (1991) 173 CLR 132 Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72 Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 Re Monger; Ex parte Western Power Corporation [2000] WASC 271 Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129 Thorpe v Wanneroo City Council, unreported, Appeal No CM-49/2000 (Magistrate Cockram); Library No 1085; 1 December 2000 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Chapman v Reilly, unreported; FCA (Neaves J); 9 December 1983 Doyle v Chief of Staff (1982) 42 ALR 283 Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2000] WASCA 421 Hockey v Yelland (1984) 157 CLR 124 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lucic v Nolan (1982) 45 ALR 411 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 Re Lands and Forest Commission & Anor; Ex parte South West Forests Defence Foundation, unreported; SCt of WA; Library No 930643; 25 November 1993 Re The City of Bunbury & Ors; Ex parte Highway Hotel Pty Ltd & Ors [2000] WASC 62 Re Western Australian Industrial Relations Commission; Ex parte Robe River Mining Company Pty Ltd (1992) 9 WAR 121 Wedesweiller v Cole (1983) 47 ALR 528 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
ABB SERVICE PTY LTD
Applicant
Catchwords:
Workers compensation - Prerogative writ - Certiorari - Decision of Director of Workers' Compensation Conciliation and Review Directorate to refer claim to Review Officer - Whether s 87ZN(1) of the Workers' Compensation and Rehabilitation Act 1981 (WA) precludes prerogative review of Director's decision - Time - Delay - Hearing before Review Officer imminent - Whether order absolute should be refused on discretionary grounds
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 87ZN(1)
(Page 2)
Result:
Application for order nisi for certiorari granted
Order nisi made returnable instanter
Application for order absolute refused
Order nisi discharged
Category: A
Representation:
Counsel:
Applicant : Mr J R Ludlow
Claimant (Worker) : Mr S M McDonald
Solicitors:
Applicant : McAuliffe Williams & Partners
Claimant (Worker) : McDonald Rudder & Co
Case(s) referred to in judgment(s):
Public Service Association of South Australia v Federated Clerks Union (1991) 173 CLR 132
Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72
Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Re Monger; Ex parte Western Power Corporation [2000] WASC 271
Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129
Thorpe v Wanneroo City Council, unreported, Appeal No CM-49/2000 (Magistrate Cockram); Library No 1085; 1 December 2000
Case(s) also cited:
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Chapman v Reilly, unreported; FCA (Neaves J); 9 December 1983
(Page 3)
Doyle v Chief of Staff (1982) 42 ALR 283
Hickey v Australian Telecommunications Commission (1983) 47 ALR 517
Highway Hotel Pty Ltd & Ors v The City of Bunbury & Ors [2000] WASCA 421
Hockey v Yelland (1984) 157 CLR 124
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lucic v Nolan (1982) 45 ALR 411
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Re Lands and Forest Commission & Anor; Ex parte South West Forests Defence Foundation, unreported; SCt of WA; Library No 930643; 25 November 1993
Re The City of Bunbury & Ors; Ex parte Highway Hotel Pty Ltd & Ors [2000] WASC 62
Re Western Australian Industrial Relations Commission; Ex parte Robe River Mining Company Pty Ltd (1992) 9 WAR 121
Wedesweiller v Cole (1983) 47 ALR 528
(Page 4)
1 ROBERTS-SMITH J: By dint of circumstances this has become a matter of some immediate urgency although apparently not quite so immediate as it appeared at the commencement of the hearing today. In any event I propose to deal with it on the affidavit material, counsel's outlines of submissions and the oral submissions made before me today without the benefit of reflective consideration.
2 This was originally an ex parte application by a notice filed on 4 July 2000 in which the applicant was described as EPT Group Holdings Ltd trading as ABB Constracting (sic) Pty Ltd. The name of the applicant was a misnomer and on Mr Ludlow's application this morning I granted an application by him to change the name of the applicant to ABB Service Pty Ltd, that being the worker's employer and there being no dispute about that fact.
3 The application as filed sought an extension of time and orders that the Director of the Conciliation and Review Directorate show cause before the Full Court why a writ of certiorari should not be issued for the purpose of quashing the Director's decisions: first, to accept an application issued by Enrique Merino ("the claimant"), on his Form 22 dated 13 December 1999 as complying with s 93D of the Workers Compensation and Rehabilitation Act 1981 ("the Act"), secondly, to forward to the applicant a notice signed by the Director on 29 December that year, that being the Form 23, pursuant to reg 19J(1); next, that a dispute pursuant to s 93D(8) of the Act had arisen for the purposes of Pt IIIA of the Act; and, finally, that the question of the claimant's degree of disability be referred pursuant to s 93D(10) for resolution under the provisions of Pt IIIA other than division 2 of the Act, which acceptance, forwarding, decision and referral were said to be contrary to the provisions of the Act. The application also sought a writ of mandamus or, alternatively, prohibition. At the hearing before me this morning Mr Ludlow sought leave to amend the application and that leave was granted. The amended application sought referral of the order nisi to a single Judge of this Court and abandoned the claims for mandamus or, alternatively, prohibition. It also made some amendments to the grounds of the application for the writ of certiorari.
4 Consequently the grounds as they now stand are as follows:
"The Applicant seeks relief by way of Certiorari on the grounds that:
(Page 5)
- (a) by virtue of Section 93D(6) of the Act, the Director was required to examine the alleged medical evidence of the Claimant produced to the Director in support of the Form 22 (which Form 22 was purportedly made in accordance with Regulation 19J(1) of the Regulations);
(b) the Claimant's alleged medical evidence did not comply with the requirements of subsections (2) and (6) of Section 93D of the Act in that it:
(i) gives no indication that the medical practitioner had made an assessment in accordance with the method of assessment prescribed by Section 93D(2) of the Act; and/or
(ii) refers to an irrelevant consideration, namely 'whole body disability'; and/or
(iii) contains no reference to any relevant facts, reasons or clinical findings, and therefore is not 'medical evidence' of the type required by Section 93D(6) of the Act.
(c) the Director should have rejected the Form 22 on the basis that it did not comply with the Act;
(d) the Director should not have issued the Applicant with a Form 23 'Notice of Referral of Question of Degree of Disability' pursuant to Section 93D(7) of the Act;
(e) the Director should not have determined that a dispute pursuant to Section 93D(8) of the Act had arisen for the purposes of Part IIIA of the Act;
(f) the Director should not have referred under Section 93D(10) of the Act, the question of the Claimant's degree of permanent disability for resolution under the provisions of Part IIIA (other than Division 2) of the Act."
5 Although the application was filed in July 2000, the supporting affidavit required by the rules was not filed until 30 August 2001. That was the affidavit of Richard Owen Harben sworn on that date.
(Page 6)
6 The practice of the Court with what has become a very large number of applications for certiorari in respect of workers compensation matters arising out of alleged deficiencies, with medical reports in particular, and consequently alleged invalidity of decisions of the Director referring matters to Review Officers has been to order service of the application and affidavit on the Director and the worker, usually within 14 days.
7 Such orders would normally be made within a week or so of the filing of the application and claimants would become aware of it in that way ordinarily. The claimant in this case, therefore, would normally have been expected to have been made aware of these proceedings in July 2000. That did not happen, apparently because a supporting affidavit was not filed with the application. I assume that was the reason why the application did not come before this Court until October 2001.
8 It came before me on that date and I made the usual orders to which I have referred, including that the sealed order be served on the Director and the claimant within seven days of the date of extraction of it. Consequently the applicant filed a notice of intention to be heard dated 30 November 2001. In the meantime on 9 October the applicant had filed the memorandum required by Practice Direction No 3 of 2002 which indicated that the application was based solely upon the Full Court's decision in Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96. That was an indication that the only issue was the sufficiency of the medical evidence before the Director.
9 On 8 August 2002 the applicant filed a minute of proposed amended application to which I have already referred together with a minute of proposed orders in relation to that application which included an order that the name of the applicant be corrected in the way I have described.
10 The application is supported by a further affidavit of Richard Owen Harben sworn on 9 August 2002 and one of Mark Adrian McAuliffe sworn on 8 August and filed on 9 August 2002.
11 The first affidavit of Mr Harben, namely that of 30 August, set out the history of the matter as it had progressed in the Conciliation and Review Directorate.
12 The claimant's Form 22 application was signed on 13 December 1999. On that he indicated a relevant level of disability for the purposes of s 93D of the Act of not less than 16 per cent. There is a further Form 22 application dated 3 May 2001 in which he indicated a relevant level of disability of not less than 30 per cent.
(Page 7)
13 The medical reports relied on are from Dr Christensen dated 10 December 1999 and from Dr Proud dated 2 May 2001. The contention of the applicant is, in short, for present purposes, that the reports do not comply with the statutory requirements as articulated in Dutch.
14 In his affidavit of 9 August 2002, Mr Harben deals with the issue of the lapse of time. He adverts to the fact that there has been a continuing problem with the interpretation of the statutory requirements from medical evidence pursuant to s 93D of the Act since the amendments to the relevant provisions were made.
15 He refers to the argument which was advanced in Thorpe v Wanneroo City Council, unreported, Appeal No CM-49/2000 (Magistrate Cockram); Library No 1085; 1 December 2000, where the argument that the medical evidence must comply with certain criteria at the time of the filing of the Form 22 for it to be valid and therefore form a valid basis of a dispute for reference to a Review Officer was successful but was subsequently appealed.
16 I do not propose to go through the detail of the course of events related by Mr Harben in that affidavit as to the considerations that were given by the applicant and its solicitors thereafter. It is sufficient to observe that the panel solicitors for SGIO Insurance, McAuliffe Schwikkard, Jackson McDonald and Phillips Fox determined that SGIO Insurance had in excess of 100 matters that might require a prerogative writ.
17 There was concern about the significant costs that could be incurred, as well as the difficulties that would be occasioned in having to process a large number of prerogative writs in the court. A decision was taken initially to await the outcome of the decision in Thorpe. That matter was heard on 1 June 2000 but the decision was not handed down until 31 July.
18 By that decision it was held that a Review Officer is not bound by the Director's decision and may proceed on the basis of all the available evidence to assess a degree of disability different from that found by the Director, to have been indicated by the medical evidence presented to him by the worker.
19 Mr Harben stated in his affidavit that the effect of that decision was that Review Officers refused to hear submissions on the validity of the Form 23 referrals. I am informed by Mr Ludlow from the bar table that Compensation Magistrates had taken a similar view but that that proposition of law was regarded by the insurer's solicitors concerned to be
(Page 8)
- erroneous. It was not possible for them to challenge it, however, in those particular proceedings.
20 There were then discussions with senior counsel and recommendations were made that a number of the prerogative writ applications which had been filed should be proceeded with as appropriate vehicles to test the proper construction of the legislation.
21 Those arrangements were apparently made and McAuliffe Schwikkard assumed conduct of all of the seven or eight test cases that were to proceed. A number of them, however, were settled before the Full Court could hear them. Replacement cases were selected.
22 Between 27 September 2000 and 15 January 2001 orders nisi were granted in respect of all of the test cases that had been selected to proceed. On 27 September 2000 Owen J granted six orders nisi and directed the applicants prepare a single application book covering all of them. There were some further delays but ultimately, in Dutch, the Full Court delivered a decision granting orders absolute in respect of what were then the five remaining applications.
23 Following the decision in Dutch (again according to Mr Harben), the SGIO panel solicitors had meetings to discuss the implications of the decision and develop a strategy in relation to Form 22 applications which were on foot. All SGIO files which had Form 22 applications were reviewed with a view to determining whether the medical evidence suffered from the same deficiencies as those identified in Dutch.
24 On 22 August 2001 the panel solicitors were instructed to proceed to issue applications for writs of certiorari in matters which had been identified as appropriate for prerogative relief and to proceed with existing applications such as the present where that would be appropriate.
25 The balance of Mr Harben's affidavit deals with the question of whether the six month time limit applies but as the view is that has now been held not to apply and the applicant does not any longer seek an extension of time, for that reason it is not necessary for me to canvass the matter, nor that aspect of the content of Mr Harben's affidavit.
26 On 22 August 2001 the claimant issued a writ out of the District Court making a common law claim in respect of his injury. Mr Harben states that even though the claimant was aware of this application and even though he would not be able, unless successful in at least one of the
(Page 9)
- Form 22 applications, to obtain any damages in the District Court proceedings, he has taken a number of further steps in those proceedings.
27 The next of the test cases referred to by Mr Harben was that of Re Monger; Ex parte WMC Resources Ltd& Anor[2002] WASCA 129 in which the Full Court decision was delivered on 16 May 2002. That left undecided a number of issues arising in connection with applications for writs of this kind. It was decided by the insurer that the most suitable case in which the Full Court might try to resolve some of these was Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 and an associated appeal from the Compensation Magistrates Court to the Full Court United Construction Pty Ltd v Santos. Instructions were accordingly given to progress those cases for hearing, and that is the point of which Mr Harben's affidavit of 9 August concludes.
28 In his affidavit of 8 August Mr McAuliffe confirms that general run of events as described by Mr Harben. Mr McAuliffe deposes that he has been extensively involved in advising the insurance industry upon the impact of the 1999 amendments to the Act and that in tandem with his insurance clients he has since then coordinated a considerable number of test cases to determine the true meaning of the amendments.
29 He refers to Thorpe and the possible argument which came to his attention in about May 2000 that there may be a difficulty under the Act in reviewing a decision of the Director to refer a Form 22 to a Review Officer and that the only appropriate course to challenge that may have been prerogative writ to this court. That was how the situation came to evolve as I have described it.
30 Mr McAuliffe pointed out that once it became appreciated that there were in excess of 100 matters that might fall into this category, this raised a serious cost issue for his client and that was a significant factor in awaiting the outcome of the decision in Thorpe and subsequent test cases.
31 He annexes to his affidavit a letter dated 16 June 2000 in which the problem was raised with the firm of Macdonald Rudder, Mr Merino's solicitors. In that letter McAuliffe Schwikkard begin with the assertion that in their view, Mr Merino's application for determination of degree of disability was incompetent and that the medical evidence did not comply with the strict requirements as determined in the Thorpe decision. That of course was a reference to the initial decision and as the letter goes on to point out, that had then been argued on appeal and was awaiting the delivery of a reserved decision.
(Page 10)
32 They wrote that if the appellant's contentions in Thorpe were correct, it might be that a Review Officer is unable to review the decision of the Director to refer the matter to review and that any review of the decision would lie within the province of the Supreme Court under a prerogative writ. They went on to write:
"As you may be aware, there are strict time constraints with the issuance (sic) of prerogative writs. Our client does not unnecessarily wish to issue a prerogative writ upon this file until it is determined by the Compensation Magistrate as to the appropriate interpretation of the legislation and the powers of the Review Officer to review the Director's decisions. We seek your confirmation that your client will not object to the making of an application for a prerogative writ outside of the time required by the Rules of the Supreme Court, pending the handing down of the magistrate's decision. Kindly advise within 3 days of receipt of this correspondence whether your client agrees to not taking any point upon time for the issuance of a prerogative writ.
We further advise that in the absence of a response within the 3-day period, or in the event of a refusal by your client to not take the point upon time, our client reserves the right to immediately issue proceedings in the Supreme Court without further notice. Our client also reserves the right to refer to this correspondence in the context of any argument upon costs if it is forced to issue proceedings unnecessarily due to the necessity to preserve time periods for a prerogative writ. Your urgent response is awaited."
33 Macdonald Rudder responded to that by letter dated 21 June 2000. It is a brief letter and I set it out in full:
"We have sent your letter to our client seeking his instructions with a recommendation that not only should he oppose any application brought after 6 months but in addition he should complain about the delay to date as he has been prejudiced in expending substantial legal and medical expenses in the prosecution of his application which, if the proposed writ brought by yourself succeeds, may be wasted. When our instructions are to hand, we shall advise you in writing. In the event that a late application is brought, if Mr Merino agrees
(Page 11)
- with our recommendation he will rely upon this letter in opposition to the employer's application for leave."
34 On 23 July 2002 I made further directions pursuant to a notice of motion dated 4 July. The order for directions as it was extracted simply authorised the filing and serving of further supporting affidavits. There was some difficulty with that because the order as extracted did not in fact reflect the order which had been made by me on 23 July.
35 As the transcript of the proceedings on that day reveals, Mr Ludlow for the applicant sought that the matter, that is, his client's application, be adjourned sine die. Mr Macdonald on the other hand sought that it be listed for hearing on a special appointment. As he put it at p 15 of the transcript of that day, his case initially was that his client had suffered significant prejudice for lack of notice and the matter had been dragging on. He said his client had spent a lot of money in applications in the WorkCover proceedings and so on and strongly opposed the adjournment of the application for the order nisi.
36 Consequently, on that day I in fact ordered that the application for the order nisi be adjourned to a special appointment before a single Judge and then made the other orders to which I have referred about the filing of affidavits.
37 On 13 September 2002 the claimant filed an affidavit of Anne Marie Hill sworn on the 3rd of that month in opposition to the making of the order nisi. Ms Hill is the accountant and bookkeeper for Messrs Macdonald Rudder.
38 The short point to which she deposed in that affidavit was that the claimant had paid $2,585 for medical reports between 24 May 2001 and 14 June 2002, and there were two further invoices outstanding in respect of Dr Booth, one for $2,200 and another for $440.
39 An affidavit of David Griffith Lang dated 17 September was filed on 18 September 2002, also in opposition to the application. That was said to be supplemental to an affidavit of his sworn on 9 August 2002. However, it appears the affidavit of 9 August had not been filed. On 14 October 2002 were filed affidavits of the claimant sworn 7 August 2002, an affidavit of Sean Jackson sworn on 8 August and the affidavit of Mr Lang sworn on 9 August 2002.
40 Mr Merino's affidavit simply asserts that he suffered an injury to his right shoulder while working for ABB Service Pty Ltd on 30 May 1997 at
(Page 12)
- Kwinana, and that in December 1999 his solicitors lodged on his behalf a form seeking a determination that his disability was not less than 16 per cent. That application proceeded to a review hearing, apparently on 8 May 2001. He thereafter appeared before the Review Officer at a number of review hearings at WorkCover.
41 He states that at one of those hearings the WorkCover advocate by whom he was being represented, Mr John Charouis, told him that the employer had lodged a writ against his application that he was seeking a not less than 16 per cent disability, and soon after that hearing he was informed by his solicitor David Lang of Macdonald Rudder that the employer had lodged a writ against the application.
42 The affidavit of Sean Jackson attaches a number of documents including a chronology of the events. Sean Jackson is a solicitor employed by the claimant's solicitors. He deposes, inter alia, that since lodging the Form 22 referral on 13 December 1999 the claimant has incurred significant legal costs in prosecuting his claim for a significant disability and for common law damages.
43 The claimant has recently exceeded the maximum allowance of medical expenses that the employer is obligated to pay under cl 17(1) of the first Schedule of the Act. The claimant attends a psychiatrist once a month and takes medication for his shoulder injury and depression. The employer no longer has to pay for that treatment. Although the claimant can lodge an application at WorkCover seeking an order that the employer pay for further medical treatment there is no guarantee that such an application would succeed.
44 The chronology confirms that oral notice was given to the claimant's advocate at the review hearing on 24 September 2001 that the employer had applied for a writ of certiorari. A further review hearing on 26 October 2001 was adjourned apparently because the employer needed more time to obtain further medical evidence and, according to the chronology, because the employer had applied to this court to challenge the worker's first application.
45 The application for the writ of certiorari and mandamus as it then stood was served on the claimant's solicitors on 8 November 2001. The District Court action was entered for trial on 29 May 2002. On 4 July 2002 the review hearing on the claimant's application for a determination of not less than 16 per cent disability was adjourned pending the outcome of the present application.
(Page 13)
46 I was informed earlier that the review hearing in respect of the other application before the Review Officer was to be held next Monday, 25 November. That was what was said to give rise to the immediate urgency of this matter. In fact, in the course of the early stage of the hearing today I was informed from the bar table that the parties will now be consenting to an adjournment of that hearing before the Review Officer.
47 In his affidavit sworn 9 August Mr Lang deposes that he was not aware that the applicant had lodged an application for a writ of certiorari until about 25 September 2001 when he received a report to that effect from Mr Charouis.
48 He further deposes that notwithstanding the earlier correspondence from the employer's solicitors in June 2000 Mr Lang's only experience in the past was "invariably" that where an application for a writ of certiorari has been lodged with this court a date is fixed for an initial hearing within about seven days and if the orders sought are granted at first instance the papers are expeditiously served on all parties likely to be affected thereby.
49 However, he heard nothing more about the employer's proposed applications and accordingly presumed that an application for a writ of certiorari had not been lodged or, if it had, that it had been dismissed. That was the reason for his recommendation to the claimant that the claimant proceed to prosecute his claims.
50 Mr Lang then explains his reasons for recommending to the claimant that the latter commence his common law claim in the District Court in August 2001, so that assuming he obtained a not less than 16 per cent determination he could proceed to trial without delay and thereby potentially minimise the time he was off weekly wages.
51 Mr Lang deposes that by August 2001 he was aware of the decision of the Full Court in Dutch and also that the medical evidence and opinion in that case was similar to those in the claimant's referral. Had he been aware of this matter at that time he says, he would have recommended to the claimant that he delay the common law action until one of his referrals had been determined in his favour, but it never occurred to him that the employer would make the present application and then, as he puts it, "Kept it secret and left in abeyance."
52 He states that he first wrote to the employer's solicitors about this application by letter dated 11 October 2002. The applicant responded by letter to Macdonald Rudder from its solicitors dated 22 October 2001. (It
(Page 14)
- is apparent that the first date mentioned by Mr Lang at paragraph 10 of his affidavit must be wrong).
53 In its solicitor's response the applicant advised that an application had already been made to the court for a hearing date, and the next hearing of the matter took place on 23 July 2002. In his supplemental affidavit sworn on 17 September 2002 Mr Lang confirms the error in the date to which I have just referred and adds that it never occurred to him that the employer would make the present application but not promptly give notice of it once it had been lodged.
54 He says it is not possible to ascertain the legal costs incurred by the claimant in relation to the 16 per cent determination with accuracy before the review hearing about November 2000 because they have merged with costs relating to the application for weekly wages. He estimates costs incurred on the 16 per cent determination between January 2000 and December 2001 to be in the vicinity of two or three thousand dollars.
55 He deposes that work on the 16 per cent determination started in earnest in January 2001 and work on the claimant's claim for the 30 per cent determination commenced soon afterwards. He says he understands, from information given to him by his firm's bookkeeper, that the firm's computer time-costing records indicate that in excess of 100 hours of solicitor's time had been incurred on the 16 and 30 per cent determination file and approximately two-fifths of that work was undertaken during the period 24 January and 24 September 2001; that Mr Merino has expended or is liable for almost $5000 for medical reports, as described in the affidavit of Ms Hill, and that up to 24 September 2002 approximately 20 hours of solicitor's time had been incurred in 2001 in connection with the District Court action. He deposes:
"By 24 September 2001 the statement of claim had been prepared in the District Court action, that being filed on 25 February 2002, and a significant amount of work had been done on discovery."
56 Having referred to the letter from the applicant's solicitors dated 16 June 2000, Mr Lang says he wrote to the claimant seeking instructions on 21 June 2002. (Again, that would seem to me inevitably to be a reference to the year 2001). He says he recommended that the claimant not agree to the employer's proposal.
57 He says he recalls the claimant telephoning him a few days later agreeing to his recommendation and that by the middle of July 2000 he
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- had not heard anything further from the applicant's solicitors which meant to him that either the employer had not issued the application or it had been dismissed at the order nisi stage. He repeats the advice he would have given to the claimant had he become aware of the application.
58 I come now specifically to the application for the order nisi and I note, as I have already mentioned, that the application for the extension of time is no longer sought. If it were, I would have been minded to refer it for hearing on the return of the order nisi were an order nisi to be made.
59 The first point I think it is necessary to deal with is the question whether the grant of certiorari is precluded by s 84ZN(1) of the Act. I am not, I must say, entirely clear about the substantive thrust of the claimant's submissions in this regard. However, I begin by approaching them on the basis that they are in substance a contention that the claimant is contending that the section ousts the jurisdiction of this Court to grant certiorari because the referral is presently before a Review Officer and, as such, is a proceeding before a Review Officer. Section 84ZN(1) provides as follows:
"Subject to this section, a decision or order of a Review Officer is not open to question or review in any court and proceedings by or before a Review Officer may not be restrained by injunction, prohibition or other process or proceedings in any court or by removal by certiorari or otherwise in any court."
60 I accept the applicant's submission that the normal rule of construction for privative clauses such as this is that they should be interpreted narrowly: Public Service Association of South Australia v Federated Clerks Union (1991) 173 CLR 132 at 160, and Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72 at 76. There are numerous other authorities to the same effect.
61 It is important to appreciate, I think, that what the section is in its terms directed to is a decision or order of a Review Officer or proceedings by or before a Review Officer. It is those which may not be restrained in any of the ways described; that is to say, by prohibition, certiorari or other process or proceedings.
62 I accept the applicant's submissions that the section does not preclude the jurisdiction of this Court to issue certiorari in respect of a decision of the Director referring a matter to a Review Officer
(Page 16)
63 I say that because such a decision is the decision of the Director and it concerns proceedings before the Director. It is not a decision of the Review Officer and it is not proceedings before a Review Officer.
64 I agree that it would have an effect on proceedings before a Review Officer in the sense that it would remove the jurisdictional underpinning for them but it would not restrain those proceedings within the meaning of s 87ZN(1).
65 In any event, I think Mr Macdonald said in the course of argument that the proposition expressed that way was not the claimant's submission. As I apprehend what he put to me, it was that the claimant's submission is rather that the decision of this Court in Re Monger; Ex parte United Construction Pty Ltd (supra) makes it clear that the legislative intent is that the determination of validity of the Director's referral is to be made by the Review Officer and then if challenged by a Compensation Magistrate on appeal and then by leave on appeal to the Full Court. I accept that submission.
66 There is a distinction between this case and United Construction and it is, I accept, the distinction advanced by Mr Ludlow; namely, that there the Review Officer had already made a decision. That being so, clearly there could in logic (as the Full Court said) be no discernible purpose for the applicant's proceedings for prerogative relief because the quashing of the Director's decision referring the matter to the Review Officer would simply have no effect and the decision of the latter would stand unless and until it was set aside on appeal, as was pointed by Fitzgerald J at [66] (ibid). In the present case of course the Review Officer has not yet made a decision.
67 I do not take the view that once a referral has been made, s 87ZN(1) precludes the issue of a writ for certiorari in respect of the Director's decision to make the referral.
68 Mr Macdonald's submission - that once the referral has been made, the section prohibits any interference with the proceedings before a decision of the Review Officer - must be rejected. Likewise, I do not accept the submission that this court found in United Construction definitively that the only forum for resolving the Director's jurisdiction is via the Review Officer and the appeal process set out in the Act.
69 However, I do accept the proposition that the legislative intent was, as is now apparent from the recent decisions of the Full Court, that the question of the validity of the referral by the Director is the threshold
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- question which a Review Officer is required to determine and I do accept that it is the intent of the legislature that the decision of the Review Officer in that regard, as well as in regard to any other aspect of a claim which needs to be and is determined by that officer, should be challenged, if at all, by the appeal process first to the Compensation Magistrate and then to the Full Court.
70 To summarise my conclusions on this point thus far then, they are that in circumstances in which a Review Officer has not made a determination or a decision, s 87ZN(1) does not as a matter of law exclude the availability of certiorari to quash the decision of the Director referring the matter to the Review Officer. Nonetheless, the fact that the Review Officer will determine the validity of that referral is itself an important consideration.
71 In the circumstances of this case I consider it a significant one, especially in view of the long delay hitherto and the imminence of the hearing before the Review Officer, accepting, as I have noted, that it may be adjourned from Monday at least because of this hearing. If it is, it could obviously again be brought on reasonably early.
72 I come to the question of time. I do not accept the claimant's proposition that the application was not made until 30 August 2001 when the supporting affidavit was filed. On the other hand, it is crystal clear that although the application was filed on 4 July 2000, it was not then supported by affidavit, as was required, and it probably ought not to have been accepted. In any event, it was filed but it was no doubt because the affidavit in support was not filed until August 2001 that nothing happened to progress the application within the Court.
73 In this regard I do in fairness acknowledge Mr Ludlow's explanation that this was a reflection of the problem then being confronted by the insurer's solicitors and by the Court Registry as a consequence of what he described as the "flood" of applications.
74 The Rules require an application of this kind to be supported by affidavit. That was not done. There may have been other reasons for that given the number of applications being filed at that time, but the fact remains that so far as this application was concerned, from the point of view of the claimant, who is concerned only with this application, there was no affidavit filed until August 2001 and it was only thereafter that the matter was progressed.
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75 There are two points to note about that, I suppose, at the outset. The first is that the application itself was not filed until over 6 months after the event, and the second is that for whatever reason it was not progressed until 4 October 2001 when it first came before me.
76 The context in which this application was made, Mr Ludlow says, is that to which reference was made by Owen J in Re Monger; Ex parte Western Power Corporation [2000] WASC 271. At [23] his Honour pointed out:
"Order 56 rule 1(1) provides that an application for a writ of certiorari may be made ex parte and must be supported by affidavit. The word 'must' is, I think, to the same effect as the word 'shall' in O 14 r 2(1)."
- His Honour then went on to observe:
"Nonetheless, it seems to me that the failure to file an affidavit at the same time as the originating process seeking prerogative relief is, because of the wording or O 56 r 1(1), a procedural defect."
"It is hard to imagine that an order nisi even, let alone an order absolute, would ever be granted without a supporting affidavit."
- Then at [24] his Honour says:
"The failure of a party promptly to file and serve the supporting affidavit could have consequences for the proper and efficient progress of the litigation. Accordingly, this decision should not be seen as an encouragement to practitioners to do other than adopt the normal practice, namely, to file a proper and full affidavit along with the originating process: see Lill v Merchant Capital (WA) Ltd (1995) 15 WAR 536 per Rowland J at 539.
And at [25]:
"On the other hand, the need to look at the circumstances of each case is highlighted by the peculiar situation in which this application was commenced. It is in the nature of a test case. I am aware that something in excess of 100 applications were
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- filed at or about the same time, all raising the same or similar issue. The desire of the several applicants to avoid the costs of preparing and filing an affidavit in each application at least at the outset is understandable."
78 I accept what his Honour says there but the point is, I think, that there is a need to look at the circumstances of each case. The present case is not said to be a test case and indeed, as I understand Mr Ludlow's submissions, that is the very reason why it has not progressed. It has been awaiting decisions in other cases which do fall into that category.
79 One of the problems it seems to me, however, is that the claimant is just as much entitled to the understanding and indulgence of the Court, if that be necessary in a particular situation, as is the applicant. It is not to be overlooked that although the application originally was ex parte and in character still is, despite the representation of the claimant, the fact that the claimant is now represented is as a result of compliance with the Practice Directions introduced by the Court to deal with this large volume of applications.
80 I accept that from the time the claimant or his representative was told at the WorkCover review hearing that this application had been made, that being apparently shortly after the issue of the District Court writ, that anything involved in the conduct of the District Court proceedings since then cannot properly be said to be a consequence of the ignorance of the claimant about the existence of the present proceedings.
81 Nonetheless, in my opinion and giving full credence to the concerns expressed and relied upon on behalf of the applicant as to the number of matters and the difficulty for the insurers in dealing with them and their primary concern - which would appear to have been that of cost - when those considerations are weighed up against the position and interests of the individual claimant, looking at these proceedings as proceedings simply involving the applicant and the claimant, then, in my opinion, there has been undue delay for which the explanation proffered has not been satisfactory.
82 Furthermore, I accept that the claimant has suffered some financial prejudice, although it is probably not able to be quantified with any great degree of particularity. He has certainly also suffered the prejudice of extended uncertainty as a consequence of the continuing application.
83 So far as the substantial merit of the application is concerned, that is to say whether the medical reports do or do not comply with the Act as
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- those statutory requirements were articulated in Dutch, because of the conclusion I have reached on the other aspects of this application I do not express a view on that point. It is unnecessary for me to do so for present purposes.
84 Having regard primarily to the question of time and to the statutory position which envisages, in accordance with the legislative intent, that the validity of the Director's referral be decided by the Review Officer, and the fact that can be done in the reasonably immediate future, it seems to me this is not an appropriate case for the grant of an order absolute.
85 Although I would grant the order nisi, as the applicant clearly has an arguable case on the merits to which I have just referred, I would refuse to make the order absolute because of the unsatisfactory delay and because of the fact, as I have indicated, that there would in my view be no particular requirement for this court to make such an order in any event because the very issue sought to be resolved can be dealt with by the Review Officer and then further, if necessary, in accordance with the legislative framework intended by Parliament.
86 Furthermore, I am conscious that certiorari is a discretionary remedy. The matter had been listed before the Review Officer next Monday and presumably still is subject to what course the parties may seek to take then. As I have observed, it is clear it will be incumbent upon the Review Officer to first determine the validity of the referral by the Director to the Review Officer. That is the very question the applicant wants this court to decide by its application.
87 I am entirely cognisant of Mr Ludlow's submission that the applicant's position has been that this application should have been adjourned sine die and the matter determined by the Review Officer and that it was the claimant who pressed that the application come on for determination.
88 Indeed, in his outline of submissions Mr Ludlow says (at [34]) that since the Full Court delivered its reasons for decision in United Construction on 12 September 2002 the applicant's position has been that the present application should not proceed but stand adjourned sine die and that the question of jurisdiction should be resolved by the Review Officer.
89 He goes on to submit that the claimant, because of his insistence that the application proceed to a hearing, has forced the applicant to incur unnecessary costs of preparing for and attending this and other court
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- hearings and in preparing numerous court documents, that he has added unnecessarily to the complexity of the issues, and for those reasons should be ordered to pay the costs of this application regardless of the outcome.
90 The fact that the applicant has sought since September 2002 to have the matter dealt with by the Review Officer and that it was the claimant who pressed the application come on for hearing is true, but I do not accept the consequences which Mr Ludlow says should flow from that. He agreed that if the Review Officer were to decide the referral was valid then the applicant would have a right of appeal to a Compensation Magistrate and, with leave, to the Full Court and that this application for certiorari would be otiose.
91 He also agreed that, on the other hand, if the Review Officer decided the referral was invalid, the applicant would have succeeded and again these proceedings would be otiose. He submits it was appropriate for the proceedings to be allowed to continue on foot but adjourned because of various possibilities including that the parties might settle and part of that settlement might have involved a consent order for an order absolute.
92 I do not accept that. I consider there was no proper purpose for the application at least after the decision of United Constructionsin September and that the claimant was perfectly entitled to exercise his right to have them determined and not kept hanging over his head. He was entitled, in my view, to seek to have the application dealt with on its merits from the outset.
93 The claimant sought to have the matter heard in July before the decision in United Constructions was delivered. The basis of his desire to have it disposed of was that it had not been until September 2001 that he had become aware that the application was on foot.
94 In my view, as I have said, the proper forum for the question of the validity of the Director's decision is before the Review Officer. That is consistent with the legislation. The issue of delay and prejudice to the claimant in that regard is a factor which, in my view, carries considerable weight as a discretionary consideration. I would refuse the order absolute as an exercise of discretion.
95 Overall then, I would be prepared to grant the application for the order nisi as there is an arguable case in respect of the substantive matter but I would order that it be returnable instanter, that the hearing before me be treated as the hearing for the order absolute and that the order nisi be discharged.
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