Legal Research
Cases
Re Monger

Re Monger

Case [2002] WASC 299 22 November 2002

No judgment structure available for this case.

Type to search within this case.

RE MONGER; EX PARTE ABB SERVICE PTY LTD [2002] WASC 299

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 299
Case No:	CIV:1875/2000	Heard:	22 NOVEMBER 2002
Coram:	ROBERTS-SMITH J	Delivered:	22/11/02
No of pages:	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
Category:	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

CITATION : RE MONGER; EX PARTE ABB SERVICE PTY LTD [2002] WASC 299 CORAM : ROBERTS-SMITH J HEARD : 22 NOVEMBER 2002 DELIVERED : 22 NOVEMBER 2002 FILE NO/S : CIV 1875 of 2000 MATTER : Application for a Writ of Certiorari against ROSS MONGER, DIRECTOR OF THE CONCILIATION AND REVIEW DIRECTORATE constituted under the Workers' Compensation Act 1981 EX PARTE

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…

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 [2002] WASC 299
Case: [2002] WASC 299
Decision Date

CaseChat Overview and Summary

ABB Service Pty Ltd sought a writ of certiorari to challenge the decision of the Director of the Workers' Compensation Conciliation and Review Directorate to accept an application for a determination of degree of disability and refer the matter to a Review Officer for resolution. The Director's decision was made in respect of Enrique Merino, who was employed by ABB Service Pty Ltd and had sustained an injury to his right shoulder in May 1997. The Director had accepted a Form 22 application and referred the matter to a Review Officer, but ABB Service Pty Ltd claimed that the medical evidence submitted by Mr Merino did not comply with statutory requirements and that the Director's decision was therefore invalid. The application for certiorari was filed in July 2000 but was not supported by affidavit until August 2001, and the matter did not come before the court until October 2001. The court was required to decide whether the Director's decision could be challenged by prerogative writ, and if so, whether the application was time-barred and whether an order absolute should be granted. The court held that the Director's decision was not immune from prerogative review and that the application was not time-barred. However, the court refused to grant an order absolute on the basis of the undue delay and the fact that the issue could be resolved by the Review Officer. The court granted an order nisi and discharged it, returning the matter to the Review Officer for determination of the validity of the Director's referral.

Orders