RE MONGER; EX PARTE CARGO ENTERPRISES PTY LTD [2001] WASC 19

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 19
Case No:	CIV:2120/2000	Heard:	8 DECEMBER 2000
Coram:	PARKER J	Delivered:	30/01/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Order nisi for certiorari made absolute
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Parties:	CARGO ENTERPRISES PTY LTD CRAIG WILLIAM SPENCER
Catchwords:	Workers' compensation Significant disability Whether question of degree of disability may be referred to Director after time for election
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D(5), s 93E(3)(b)
Case References:	Re Monger; Ex parte Ivey [1999] WASC 250 Re Monger; Ex parte Woodford [1999] WASC 273 Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509 Counsel of Civil Service Unions v Minister of the Civil Service [1985] 1 AC 374 Craig v South Australia (1995) 184 CLR 163 Formosa v Secretary, Department of Social Security (1988) 81 ALR 687 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Hunter Resources v Melville (1988) 62 ALJR 88 Paull v Munday (1976) 50 ALJR 551 R v Greater London Council; Ex Parte Blackburn [1976] 1 WLR 550 Re Smith; Ex Parte Rundle (1991) 5 WAR 295 Thorpe v Wanneroo City Council Appeal No CM-49/2000, Library No 108S (Magistrate Cockram); 1 December 2000

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE MONGER; EX PARTE CARGO ENTERPRISES PTY LTD [2001] WASC 19 CORAM : PARKER J HEARD : 8 DECEMBER 2000 DELIVERED : 30 JANUARY 2001 FILE NO/S : CIV 2120 of 2000 MATTER : Application for a Writ of Certiorari against Mr Ross Monger as Director of the Conciliation & Review Directorate

EX PARTE

CARGO ENTERPRISES PTY LTD

Applicant

AND

CRAIG WILLIAM SPENCER

Respondent

Catchwords:

Workers' compensation - Significant disability - Whether question of degree of disability may be referred to Director after time for election

Legislation:

Workers' Compensation and Rehabilitation Act 1981, (WA) s 93D(5), s 93E(3)(b)

(Page 2)

Result:

Order nisi for certiorari made absolute

Representation:

Counsel:

Applicant : Mr H M O'Sullivan

Respondent : Mr R Castiglione

Solicitors:

Applicant : Srdarov Richards Burton

Respondent : Chapmans

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

Re Monger; Ex parte Ivey [1999] WASC 250
Re Monger; Ex parte Woodford [1999] WASC 273

Case(s) also cited:

Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509
Counsel of Civil Service Unions v Minister of the Civil Service [1985] 1 AC 374
Craig v South Australia (1995) 184 CLR 163
Formosa v Secretary, Department of Social Security (1988) 81 ALR 687
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hunter Resources v Melville (1988) 62 ALJR 88
Paull v Munday (1976) 50 ALJR 551
R v Greater London Council; Ex Parte Blackburn [1976] 1 WLR 550
Re Smith; Ex Parte Rundle (1991) 5 WAR 295
Thorpe v Wanneroo City Council Appeal No CM-49/2000, Library No 108S (Magistrate Cockram); 1 December 2000

(Page 3)

1 PARKER J: This is the return of an order nisi for a writ…

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.

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Details

Case: [2001] WASC 19
Decision Date

CaseChat Overview and Summary

In this case, Cargo Enterprises Pty Ltd sought a writ of certiorari against the Director of the Conciliation and Review Directorate, Mr Ross Monger, challenging his decisions to accept and act on a referral made by Craig William Spencer, an employee of Cargo Enterprises, regarding the degree of disability Spencer claimed to have sustained as a result of a workplace injury. The core legal issues revolved around whether the Director was correct in accepting the referral after the time limit for Spencer to elect to retain the right to seek damages, and if the referral should have been rejected due to Spencer's attempt to aggregate multiple disabilities and the lack of compliance with the required medical assessment process. Parker J concluded that the Director's acceptance of the referral and subsequent referral for resolution under the Workers' Compensation and Rehabilitation Act 1981 was beyond his statutory powers. The court found that Spencer could no longer elect to retain the right to seek damages due to the expiration of the time limit, rendering the referral and subsequent actions by the Director futile and in excess of his authority. As a result, the order nisi for certiorari was made absolute, quashing the Director's decisions.

Orders