re Monger; ex parte Cross

Case [2004] WASCA 176


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   RE MONGER; EX PARTE CROSS [2004] WASCA 176

CORAM:   MALCOLM CJ

TEMPLEMAN J
WHEELER J
PULLIN J
EM HEENAN J

HEARD:   8 MARCH 2004

DELIVERED          :   13 AUGUST 2004

FILE NO/S:   CIV 2367 of 2002

MATTER                :An application for a writ of certiorari and a writ of mandamus against Mr Ross Monger, Director, Workcover Conciliation and Review

EX PARTE

PETER NORMAN CROSS
Applicant

AND

BORAL CONCRETE LTD
Respondent
 

Catchwords:

Workers' Compensation - Administrative law - Judicial review - Certiorari and mandamus - Decision of Director of Conciliation and Review under Workers' Compensation and Rehabilitation Act 1981 (WA) - Purported election to exercise common law remedies - Late production of medical evidence - Effect of non-compliance with statutory timetable - Estoppel or waiver of statutory defences by conduct

Legislation:

Interpretation Act 1984 (WA), s 61(1)(f)

Limitation of Actions (Personal Injury Claims) Act 1983 (Vic)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E(6)
Workers' Compensation and Rehabilitation Act 1987 (NSW), s 151D
Workers' Compensation and Rehabilitation Amendment Act (No 3) 1999 (WA), s 3
Workers' Compensation and Rehabilitation Amendment Act 1999 (WA)

Workers' Compensation and Rehabilitation Regulations 1982, reg 19M

Result:

Order nisi for writ of certiorari discharged

Category:    B

Representation:

Counsel:

Applicant:     Mr S Melville

Respondent:     Mr M W Schwikkard

Intervenor

(Attorney General

for Western Australia)    :     Ms J C Pritchard

Solicitors:

Applicant:     Chapmans

Respondent:     Jackson McDonald

Intervenor

(Attorney General

for Western Australia)    :     State Solicitor

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

Archer v Howell (1992) 7 WAR 33

Australian Iron & Steel Ltd v Hoogland (1961) 108 CLR 471

Baker and Campbell (1983) 153 CLR 52

Bestobell Overseas Ltd v Carden [1988] VR 891

Bingham v England (1996) 17 WAR 226

Brikom Investments Ltd v Carr [1979] 1 QB 467

Bropho v Western Australia (1990) 171 CLR 1

Cerealmangimi SpA v Toepfer [1981] 3 All ER 533

Chapple v Durstan (1830) 1 Cr & J 1; (1830) 148 ER 1311

Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159

Clarke v Bailey (1993) 30 NSWLR 556

Coco v The Queen (1993) 179 CLR 427

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501

Commonwealth v SCI Operations Pty Ltd (1998) 72 ALJR 687

Commonwealth v Verwayen (1990) 170 CLR 394

Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305

Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161

Dow Jones Company Inc v Gutnick (2002) 210 CLR 575

Durham Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd [1968] 2 QB 839

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Enoka v Shire of Northampton (1996) 15 WAR 483

Giumelli v Giumelli (1999) 196 CLR 101

Graham v Ingleby (1848) 1 Ex 651; (1848) 154 ER 277

Groves v The Commonwealth…

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AGLC
re Monger; ex parte Cross [2004] WASCA 176
Case
[2004] WASCA 176
Decision Date

CaseChat Overview and Summary

In the case of re Monger; ex parte Cross, the decision was made in the Federal Court of Australia. The dispute involved an application for a writ of certiorari and a mandamus in relation to a decision made by the Director of Conciliation and Review under the Workers' Compensation and Rehabilitation Act 1981 (WA). The applicant, Cross, sought to challenge the Director's decision to exercise common law remedies instead of proceeding under the Workers' Compensation and Rehabilitation Act. The central issue was whether the Director could validly elect to exercise common law remedies, especially given the late production of medical evidence and the potential effect of non-compliance with statutory timetables. Another question was whether the statutory defences could be waived or estopped by the conduct of the parties involved.

The court examined the statutory provisions and the implications of the late production of medical evidence. It was held that the statutory provisions did not clearly or necessarily imply the abrogation of the important common law right to claim damages for personal injury. The court relied on the principle that statutory provisions are not to be construed as abrogating significant common law rights unless expressed by clear words or necessary implication. This principle was reinforced by the High Court's decision in Daniels Corporation International Pty Ltd v ACCC and other cases. The court found that the right to claim damages for personal injury was an important common law right that remained unaffected by the statutory provisions. It further noted that the statutory conditions applied only as procedural requirements and did not extinguish the underlying common law rights. Thus, the Director's decision to exercise common law remedies was valid, and the statutory defences could not be estopped or waived by the conduct of the parties.

The final orders of the court were that the application for a writ of certiorari and a mandamus was dismissed, affirming the Director's decision to exercise common law remedies. The court held that the Director's decision was not affected by the late production of medical evidence, and the statutory defences remained in effect. The court emphasized the importance of adhering to statutory procedural requirements while recognizing the continued existence of common law rights.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TEMPLEMAN J

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Ratio Decidendi

Legal Principle Established

Established by: TEMPLEMAN J

As Heenan J has pointed out, the limitations and constraints imposed by the legislation on the rights otherwise available to the persons whose rights and liabilities are dealt with by the legislation can only abrogate those rights by statutory provisions expressed by clear words or necessary implication: Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 77 ALJR 40. In that case at [11], Gleeson CJ, Gaudron, Gummow and Hayne JJ held that statutory provisions are not to be construed as abrogating important common law rights in the absence of clear words or necessary implication to that effect: Potter v Minahan (1908) 7 CLR 277 at 304 per O'Connor J; and Baker and Campbell (1983) 153 CLR 52; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1993) 179 CLR 427; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1996) 188 CLR 501. McHugh J expressed a similar opinion at [43] – [44]. Clearly, the right to claim damages for personal injury caused by the negligence of another is an important common law right which falls into the relevant category covered by the High Court decisions to which I have referred. This was recently confirmed by the High Court in Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161, which was concerned with the interpretation of the amendments to the Workers' Compensation and Rehabilitation Act 1981 (WA) and the effect of the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA) ("the 1999 Act"), s 93D in the context of the Interpretation Act 1984 (WA), s 37(1) and (2). In July 1998, Dossett applied to the District Court for leave to commence common law proceedings to recover damages in respect of an employment injury. While the application was pending, the 1999 Act received the Royal Assent. This imposed more restrictive conditions on the award of common law damages, but contained transitional savings provisions. The District Court held that the 1981 Act as amended applied to the applicant's application so that the Court had no power to grant leave to commence proceedings under the former provisions. This decision was upheld by the Full Court, but was overruled by the High Court. McHugh J decided the case on the basis that the transitional provisions in the amending act did not override or exclude s 37(1) or (2) of the Interpretation Act 1984 (WA), which applied notwithstanding any express saving provision in the amending act. It followed that the appellant in that case was entitled to proceed with his application under the former provisions. This result was consistent with the decision of the Full Court in Toolan v Metro (Perth) Trust (2001) 25 WAR 1. In Dossett v TKJ Nominees Pty Ltd (supra) at [59], Kirby J said that nothing in the Workers' Compensation Act either before or after the 1999 Act abolished the appellant's common law rights. All that happened was that the enforcement of those rights was made the subject of procedural conditions both before and after the 1999 Act. Section 93C provided that if Div 2 applied, a Court was not to award damages to a person contrary to the Division. His Honour described at [61] "the procedural condition" for leave in s 93D as "the procedural gateway through which the appellant had to pass before being entitled to commence proceedings for damages in the District Court".