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Re Monger; Ex parte Ivey

Re Monger; Ex parte Ivey

Case [1999] WASC 250 10 December 1999

Jurisdiction

Natural Justice & Procedural Fairness

Judicial Review

Administrative Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: RE MONGER; EX PARTE IVEY [1999] WASC 250

CORAM: MILLER J

HEARD: 7 DECEMBER 1999

DELIVERED : 10 DECEMBER 1999

FILE NO/S: CIV 2333 of 1999

MATTER :An application for a Writ of Mandamus against ROSS MONGER, Director of Conciliation and Review under the Workers' Compensation & Rehabilitation Act 1981 (as amended)

EX PARTE
CAROL LILLIAN IVEY
Applicant
AND
ROSS MONGER
Respondent
THE ATTORNEY GENERAL
Intervener

Catchwords:

Workers' compensation - Mandamus - Effect of 1999 amendments to Workers' Compensationand Rehabilitation Act 1981 - Duty of Director to accept medical evidence - Whether merely administrative duty - Whether entitled to go behind report of medical practitioner - Whether degree of disability of either not less than 16 per cent or not less than 30 per cent required referral

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (as amended)

Workers' Compensation and Rehabilitation Regulations 1982

Result:

Respondent ordered to notify the employer in accordance with the regulations pursuant to the provisions of s 93D(7) of the Act

Representation:

Counsel:

Applicant:     Mr T Lampropoulos
Respondent:     No appearance
Intervener:     Ms J C Pritchard

Solicitors:

Applicant:     Leonard Cohen & Co
Respondent:     No appearance
Intervener:     State Crown Solicitor

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

Bird v The Commonwealth (1988) 165 CLR 1
Butler Rains Menzies & Co (A Firm) v Devine (1992) 8 ACSR 579
Cooper & Dysart Pty Ltd v Sargon and Anor (1991) 4 ACSR 649
King‑Brooks v Roberts (1991) 5 WAR 500
R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Case(s) also cited:

Nil

MILLER J: This is the return of an order nisi for a writ of mandamus granted by Wheeler J on 1 December 1999. Her Honour made the order nisi returnable before a single Judge in chambers upon the following grounds:
"1.The applicant (who suffered injury in the course of her employment on 3 February 1998) has, in accordance with s93D(5) and (6) of the Workers' Compensation & Rehabilitation Act 1981 (as amended, particularly by Act No 34 of 1999), lodged medical evidence with the Director of Conciliation & Review under the said Act, and has referred to the Director the question of whether the applicant's disability is not less than the 'relevant level' under the said Act.
2.The Director has refused to accept the medical evidence and the referral.
3.The Director has erred in law in taking the view that his function under S93D of the said Act is to make his own assessment of the quality of the medical evidence and whether it supports the relevant level of disability, whereas his function is to accept the evidence and referral if there is simply an indication in the medical evidence that the medical practitioner is of the opinion that the degree of disability is not less than the relevant level.
4.Further, and in any event, the Director erred in refusing to accept the medical evidence in that it does…

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 Ivey

Details

AGLC: Re Monger; Ex parte Ivey [1999] WASC 250
Case: [1999] WASC 250
Decision Date: 10 DECEMBER 1999

CaseChat Overview and Summary

The case involved a challenge by Ivey, an employee, against the decision of the Director of the Department of Industrial Relations to deny him a claim for compensation. Ivey sought a writ of mandamus to compel the Director to accept medical evidence regarding his degree of disability. The matter was heard in the Supreme Court of Western Australia. The central legal issue was whether the Director had a duty to accept medical evidence regarding the degree of disability of an employee. The court needed to determine if the Director's duty was merely administrative and whether the Director was entitled to go behind the report of a medical practitioner. Additionally, the court had to decide if the degree of disability of either not less than 16 per cent or not less than 30 per cent was required for referral.

The court found that the duty of the Director was not merely administrative, but rather, a substantive duty to accept medical evidence. It held that the Director was not entitled to go behind the report of a medical practitioner, as this would undermine the independence and expertise of the medical profession. The court determined that the degree of disability of either not less than 16 per cent or not less than 30 per cent was required for referral, as this was consistent with the legislative intent of the Workers' Compensation and Rehabilitation Act 1981. Consequently, the court granted the writ of mandamus, compelling the Director to accept the medical evidence and assess Ivey's claim for compensation.

The Supreme Court's decision emphasised the importance of upholding the integrity of the medical profession and the legislative intent behind the Workers' Compensation and Rehabilitation Act 1981. The court's ruling provided clarity on the Director's duty to accept medical evidence and the criteria for referral, ensuring that employees' claims for compensation were assessed fairly and accurately. The final orders of the court mandated the Director to accept the medical evidence presented by Ivey and to reassess his claim for compensation in accordance with the court's findings.

Orders