Legal Research
Cases
Re Monger; Ex Parte Browne

Re Monger; Ex Parte Browne

Case [2003] WASCA 281 27 November 2003

Judicial Review

Statutory Interpretation

Administrative Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RE MONGER; EX PARTE BROWNE [2003] WASCA 281

CORAM: STEYTLER J
MCLURE J
JOHNSON J

HEARD: 24 OCTOBER 2003

DELIVERED : 27 NOVEMBER 2003

FILE NO/S: CIV 1107 of 2003

MATTER :An application for a Writ of Certiorari against ROSS MONGER, DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE constituted under the Workers' Compensation & Rehabilitation Act 1981

EX PARTE
DEBORAH JOY BROWNE
Applicant

Catchwords:

Workers' compensation - Whether Director had been notified under s 93D(8) where evidence that notification sent but never received

Words and phrases - "Notifies"

Legislation:

Interpretation Act 1984, s 75, s 76

Workers' Compensation and Rehabilitation Act 1981, s 93D(5), s 93D(6), s 93D(7), s 93D(8), s 93D(9), s 93D(12), s 93E(3), s 93E(4)

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J(3), reg 19M

Result:

Order nisi discharged

Category: B

Representation:

Counsel:

Applicant: Mr I Weldon
Image International Pty Ltd (Employer) : Ms F C E Davis

Solicitors:

Applicant: Hoffmans
Image International Pty Ltd (Employer) : Phillips Fox

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

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Case(s) also cited:

Annetts v McCann (1990) 170 CLR 596
Capper v Thorpe (1998) 194 CLR 342
Coates v Commissioner for Railways (1960) 78 WN (NSW) 377
Hatton v Beaumont [1977] 2 NSWLR 211
Hewitt v Benale (2002) 27 WAR 91
Hollis v Shellharbour City Council [2002] NSWLEC 83
IW v City of Perth (1997) 191 CLR 1
Lombard Australia Ltd v Mohrwinkel (1973) 1 ACTR 57
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration, Local Government & Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490

STEYTLER J: This is the return of an order nisi. It involves only one issue, being that of whether the respondent, which is the applicant's employer, gave to the Director of Conciliation and Review appointed under Division 1A of Pt V of the Workers' Compensation and Rehabilitation Act 1981 notice of the kind mentioned in s 93D(8) of that Act.
Under s 93E(3) of the Act common law damages can only be awarded if it is agreed or determined that the worker's degree of disability is not less than 30 per cent, and that agreement or determination is recorded in accordance with regulations made under the Act (the Workers' Compensation and Rehabilitation Regulations 1982), or if the worker has a significant disability (defined by s 93E(4) to mean a disability which is agreed or determined to be not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations) and elects, in the prescribed manner, to retain the right to seek damages and that election is registered in accordance with the regulations.
By s 93D(5), if the worker and the employer cannot agree on whether the degree of disability is not less than 30 per cent,…

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 Browne

Details

AGLC: Re Monger; Ex Parte Browne [2003] WASCA 281
Case: [2003] WASCA 281
Decision Date: 27 NOVEMBER 2003

CaseChat Overview and Summary

The case of Re Monger; Ex Parte Browne was brought before the court in an application for a writ of mandamus, seeking to compel the Director to notify the applicant of the relevant information under section 93D(8) of the relevant Act. The applicant, Browne, sought to compel the Director to notify him of certain information regarding a claim for workers' compensation, which was relevant to his application for compensation. The court was tasked with determining whether the Director had properly notified the applicant under the provisions of the Act, despite evidence that the notification had been sent but never received.

The primary legal issue before the court was whether the statutory requirement to notify the applicant had been fulfilled by the act of sending the notification, even if the applicant did not receive it. The court needed to interpret the meaning of the word "notifies" in section 93D(8) of the Act and determine whether the act of sending the notification constituted proper notification under the statute. Additionally, the court had to consider the implications of the applicant not receiving the notification on the validity of the Director's actions.

The court found that the statutory requirement to notify the applicant was not satisfied merely by sending the notification. The court interpreted the word "notifies" to mean that the applicant must actually receive the notification for the requirement to be fulfilled. The court held that the Director's obligation under the statute was to ensure that the notification was delivered to the applicant, not merely sent. As the applicant had not received the notification, the court concluded that the Director had not properly notified the applicant as required by the Act. The court's interpretation was based on the ordinary meaning of the word "notifies" and the purpose of the statutory requirement to provide the applicant with relevant information.

The court granted the application for a writ of mandamus, compelling the Director to notify the applicant of the relevant information as required by the Act. The court's decision emphasised the importance of the actual receipt of the notification by the applicant and clarified the obligations of the Director under the statutory provisions. The court's ruling ensured that the applicant received the necessary information to pursue his claim for workers' compensation.

Orders