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Re Monger; Ex parte Barminco Pty Ltd

Re Monger; Ex parte Barminco Pty Ltd

Case [2002] WASC 279 27 November 2002

Workers' Compensation

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RE MONGER; EX PARTE BARMINCO PTY LTD [2002] WASC 279

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 279
Case No:	CIV:2148/2001	Heard:	11 NOVEMBER 2002
Coram:	MCLURE J	Delivered:	27/11/02
No of pages:	14	Judgment Part:	1 of 1
Result:	Order nisi made absolute
Category:	B
PDF Version

Parties:	BARMINCO PTY LTD
Catchwords:	Workers' Compensation Prerogative writ Certiorari Decision of Conciliation Directorate under Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D of the Act Whether medical opinion supported by medical evidence Whether medical evidence sufficient Whether relief should be refused on discretionary grounds
Legislation:	Rules of the Supreme Court 1971 (WA), O 56 r 11 Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZN(1), s 84ZW s 93D(5)-(10), s 93E Workers' Compensation and Rehabilitation Regulations 1981 (WA), reg 19J
Case References:	Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (Receivers & Managers Appointed) (in liq) (1993) 43 FCR 510 Gudgeon v Black (1994) 14 WAR 158 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jackson v Goldsmith (1950) 81 CLR 446 R v Governor of Pentonville Prison; Ex parte Tarling [1979] 1 WLR 1417 R v Magistrates Court at Lilydale; Ex parte Ciccone [1973] VR 122 R v Secretary of State for the Home Department; Ex parte Momin Ali [1984] 1 WLR 663 Re Monger; Ex parte Dutch & Ors (2001) 25 WAR 96; [2001] WASCA 220 Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253 Re Monger; Ex parte WMC Resources Ltd & Anor [2002] WASCA 129 Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 Thorp v Wanneroo City Council, unreported CM (WA), 49/00, 31 July 2000 Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 Re Monger; Ex parte Ivey [1999] WASC 250 Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165 Ex parte Savage and Savage [1989] WAR 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RE MONGER; EX PARTE BARMINCO PTY LTD [2002] WASC 279 CORAM : McLURE J HEARD : 11 NOVEMBER 2002 DELIVERED : 27 NOVEMBER 2002 FILE NO/S : CIV 2148 of 2001 MATTER : An application for a Writ of Certiorari against ROSS MONGER, THE DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE constituted under the Workers' Compensation & Rehabilitation Act 1981 (WA) ("Director") EX PARTE

BARMINCO PTY LTD

Applicant

Catchwords:

Workers' Compensation - Prerogative writ - Certiorari - Decision of Conciliation Directorate under Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D of the Act - Whether medical opinion supported by medical evidence - Whether medical evidence sufficient - Whether relief should be refused on discretionary grounds

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 56 r 11

Workers' Compensation and Rehabilitation Act 1981 (WA), s…

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; Ex parte Barminco Pty Ltd

Details

AGLC: Re Monger; Ex parte Barminco Pty Ltd [2002] WASC 279
Case: [2002] WASC 279
Decision Date

CaseChat Overview and Summary

This case concerned an application by Barminco Pty Ltd (the applicant) for a writ of certiorari against Ross Monger, the Director of the Conciliation & Review Directorate under the Workers' Compensation & Rehabilitation Act 1981 (WA) (the Director). The applicant sought to challenge the Director's decisions to accept an application by the worker, Peter MacPhilomey, under s 93D of the Act and to refer a dispute under Pt IIIA of the Act. The applicant argued that the Director was required to examine the medical evidence produced by the worker in support of the application and that the medical evidence did not comply with the requirements of the Act. The worker opposed the application and submitted that the Court should exercise its discretion to refuse relief on the basis of the applicant's delay, prejudice to him, and the availability of an alternative remedy. The Court considered the legal principles governing the exercise of discretion in cases of judicial review and found that, although the delay was lengthy, it was not undue and that the worker had not been significantly prejudiced by the delay. The Court also found that the availability of an alternative remedy was not a sufficient ground to refuse relief. The Court exercised its discretion to grant relief and ordered that the order nisi be made absolute and that a writ of certiorari be issued directing the Director to remove into this Court for the purpose of being quashed the decisions the subject of the order nisi.

Orders