Re Monger; Ex Parte Mount Magnet Gold Nl
[2006] WASCA 148
•1 AUGUST 2006
RE MONGER; EX PARTE MOUNT MAGNET GOLD NL [2006] WASCA 148
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 148 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:1504/2005 | 23 MARCH 2006 | |
| Coram: | STEYTLER P WHEELER JA PULLIN JA | 1/08/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Orders nisi made absolute | ||
| B | |||
| PDF Version |
| Parties: | MOUNT MAGNET GOLD NL |
Catchwords: | Workers' compensation Where Director of Conciliation and Review accepted worker's Form 22A Whether s 93EA Workers' Compensation and Injury Management Act 1981 (WA) satisfied Turns on own facts |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA), s 93D(5), s 93D(6), s 93E(3), s 93E(4), s 93E(5), s 93E(7), s 93E(8), s 93E(9), s 93EA(1), s 93EA(3) |
Case References: | Nil Craig v State of South Australia (1995) 184 CLR 163 Re Monger; Ex parte Dutch (2001) 25 WAR 96 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE MONGER; EX PARTE MOUNT MAGNET GOLD NL [2006] WASCA 148 CORAM : STEYTLER P
- WHEELER JA
PULLIN JA
MOUNT MAGNET GOLD NL
Applicant
Catchwords:
Workers' compensation - Where Director of Conciliation and Review accepted worker's Form 22A - Whether s 93EA Workers' Compensation and Injury Management Act 1981 (WA) satisfied - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 93D(5), s 93D(6), s 93E(3), s 93E(4), s 93E(5), s 93E(7), s 93E(8), s 93E(9), s 93EA(1), s 93EA(3)
(Page 2)
Result:
Orders nisi made absolute
Category: B
Representation:
Counsel:
Applicant : Mr G W Nutt
Solicitors:
Applicant : Jarman McKenna
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Craig v State of South Australia (1995) 184 CLR 163
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
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1 STEYTLER P: This is the return of an order nisi in terms calling upon the Director of the Conciliation and Review Directorate of WorkCover (WA) ("Director") to show cause why a writ of certiorari should not be issued against him for the purpose of quashing his decisions:
"a. To accept a Form 22A application issued by Raymond Leslie Beaver ('Claimant') dated 22 December 2004 ('Form 22A') as complying with Section 93EA of the Workers' Compensation and Injury Management Act 1981 ('Act').
b. To forward to the Applicant a Form 23A notice signed by the Director on 4 January 2005 ('Form 23A') pursuant to s.93EA(5) of the Act.
c. That a dispute had arisen pursuant to s.93D(8) of the Act for the purposes of Part IIIA of the Act; and
d. That the question of the Claimant's degree of disability be referred pursuant to s.93D(10) of the Act for resolution under the provisions of Part IIIA (other than Division 2) of the Act … "
2 On 25 September 1997, the applicant (then known as Hill 50 Gold Mine NL) entered into a contract with McMahon Contractors (WA) Pty Ltd ("McMahon") whereby McMahon agreed to provide services to the applicant to develop its mineral deposits by the establishment of an open cut mine at Mt Magnet. McMahon, in turn, entered into a labour hire contract with Extraman (WA) Pty Ltd ("Extraman") pursuant to which Extraman provided McMahon with the services of Mr Raymond Beaver ("worker") as a qualified diesel fitter. The worker was injured on about 19 February 1998 in the course of his performance of work for McMahon.
3 In order to secure a right to obtain common law damages in respect of his injury (as to which see s 93E(3) and (4) of the Workers' Compensation and Injury Management Act 1981 (WA) ("Act"), as it was then titled), the worker issued a Form 22 "Referral of Question of Degree of Disability". The form, which was dated 29 November 1999, recited that his employers were McMahon, a company known as Sons of Gwalia Ltd and the applicant. Although he asserted that his degree of disability had been assessed by a medical practitioner at 40 per cent, his Form 22 referral sought an answer to the question whether or not his relevant level of disability was not less than 16 per cent, as well as the answer to the
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- question whether it was not less than 30 per cent (the distinction is significant for reasons provided by s 93E(5) and (8) of the Act).
4 On 13 December 1999, the worker issued a second Form 22 referral, in terms similar to that earlier issued, save that Extraman was identified as the employer.
5 Both referrals appear to have been accepted by the Director. In accordance with s 93D(7) of the Act, he issued notices ("Forms 23") of receipt of the worker's referrals to each of the companies that had been identified as his employer.
6 The dispute between the worker and the various parties named as his employers not having been resolved (there was no agreement regarding the degree of his disability), the Director referred the dispute to a review officer, Mr D McCloskey. The applications by the worker were assigned one application number, being AP668/99.
7 An issue arose whether the applicant was a party to the proceedings in application AP668/99. After hearing submissions from the parties, Review Officer McCloskey determined, by letter dated 26 September 2002, that the Director had not referred to him, for review, any dispute involving either McMahon or the applicant. He did not, in that letter, say why he had arrived at this conclusion. However, by letter dated 27 November 2002 written to the solicitors for the applicant, he wrote:
"In my letter of 26 September 2002 … I determined the parties to these proceedings were the worker (Mr Beaver), Extraman (WA) Pty Ltd and Sons of Gwalia Ltd. My reason for that was that as [sic] the Director had not referred the question of the worker's relevant level of disability vis-à-vis his Form 22 issued against Mt Magnet Gold NL or McMahon Contractors. This was evidenced by The Director's failure to attempt to conciliate between the worker and the said companies pursuant to s.93D(9) of the Workers' Compensation and Rehabilitation Act, 1981: hence he could not be said to have referred any question or questions involving the worker, Mt Magnet Gold NL and/or McMahon Contractors for Review. Because the Director had not referred such questions for Review I did not have the jurisdiction to determine any issues between the worker and those companies … "
8 Whether the review officer was right in his conclusion may be debatable. However, the fact is that he went on to consider the referred
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- questions only as between the worker, on the one hand, and Extraman and Sons of Gwalia Ltd, on the other. He dismissed the worker's application in each case. None of the worker, the applicant or McMahon sought to appeal against his decision declining to hear the applications so far as they concerned McMahon and the applicant. Nor did any of those parties otherwise challenge the review officer's decision.
9 On 25 October 2004, the Act was amended by the introduction of s 93EA. That section, so far as it is relevant for present purposes, reads as follows:
"(1) Unless it does not apply because of subsection (2) [which is not applicable in this case], subsection (3) applies if —
(a) on or before 30 September 2001, a worker —
(i) sought to refer a question to the Director under section 93D(5); and
(ii) in order to satisfy section 93D(6), produced to the Director anything that, even though it may not have constituted evidence of the kind required by that subsection, was accepted by the Director as evidence of that kind;
and
(b) the Director treated the question as having been referred under section 93D(5), after which, for a reason based on a failure to satisfy the requirements of section 93D(6) for a referral under section 93D(5) —
(i) a review officer did not deal with the substance of the question; or
(ii) a court set aside or quashed a decision of a review officer that dealt with the substance of the question.
(3) If this subsection applies, the worker may, within the time limited by subsection (4)(b) and otherwise in accordance
- with subsection (4), refer to the Director under section 93D(5) the same question as is mentioned in subsection (1)(a)(i), relating to the same disability and only that disability."
10 The provisions of s 93D(6), referred to in s 93EA(1), are to the effect that a question can only be referred under s 93D(5) (the subsection under which the referrals in this case were made) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level.
11 Relying upon s 93EA, on 22 December 2004 the worker lodged a Form 22A "Referral of Question of Degree of Disability" in respect of the same injury as had been the subject of his earlier referrals. He sought an answer to the question whether or not his level of disability was not less than 16 per cent and nominated each of Extraman, McMahon, Sons of Gwalia Ltd and the applicant as his employers. The Director accepted that referral and, by means of a Form 23A dated 4 January 2005, notified the applicant that the referral had been accepted and that evidence complying with s 93D(6) had been produced. On 11 January 2005, the applicant notified the Director that it disputed that the worker's level of disability was not less than 16 per cent and, by letter dated 17 January 2005, the Director referred the proceedings to a review officer for determination.
12 By letter dated 1 February 2005, the solicitors for the applicant wrote to the Director asking him to reconsider and reverse his decision to accept the worker's Form 22A. They pointed out that, although the Form 22 issued by the worker in respect of each of Extraman and Sons of Gwalia Ltd had been dismissed upon the basis that the medical evidence had not complied with the requirements of s 93D(6), there had been no such decision in the case of the applicant, the review officer having ruled that there had never been any valid referral by the Director in respect of it. However, the Director declined to alter his decision and, by letter dated 2 March 2005, said that he remained of the view that the Form 22A referrals had been properly made and would be referred to a review officer for resolution. The applicant thereupon applied to the Supreme Court for prerogative relief and the order nisi to which I have earlier referred was made on 18 May 2005. Since that time, the Director has given notice that he does not intend to appear in these proceedings and
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- will abide the result, save as to costs, and the worker has informed the solicitors for the applicant that he, too, does not wish to be heard.
13 It is plain, from provision s 93EA(1), that subs (3) applies only if, amongst other things, the question referred under s 93D(5) was referred to a review officer and, for a reason based on a failure to satisfy the requirements of s 93D(6), the review officer either did not deal with the substance of the question or had his decision dealing with the substance of the question set aside or quashed by a court. It also seems to me to be clear that, in this case, while the review officer declined to deal with the substance of the question referred to him, his reason for doing so, in the case of the applicant, was not one based on a failure to satisfy the requirements of s 93D(6). Rather, it appears to have been based upon what he understood to be the Director's failure to comply with s 93D(9), which requires the Director "to consider the dispute in consultation with the parties". Consequently, s 93EA(3) had no application.
14 It follows that the order nisi should be made absolute and that the decision of the Director to accept the worker's Form 22A application dated 22 December 2004 should be set aside as it relates to the applicant, as should his consequential decisions to issue to the applicant a Form 23A Notice and to refer the dispute to a review officer for resolution.
15 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
16 PULLIN JA: I have read the draft reasons prepared by Steytler P. I agree with those reasons and have nothing to add.
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