Re Monger; Ex parte TNT Australia Pty Ltd - [2002] WASCA 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MONGER; EX PARTE TNT AUSTRALIA PTY LTD [2002] WASCA 223

CORAM: WALLWORK J
ANDERSON J
STEYTLER J

HEARD: 26 JULY 2002

DELIVERED : 14 AUGUST 2002

FILE NO/S: CIV 2270 of 2000

MATTER :Application for Writ of Certiorari and Writ of Mandamus against ROSS MONGER Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
TNT AUSTRALIA PTY LTD
Applicant

Catchwords:

Prerogative Writ - Certiorari - Workers' compensation - Election to retain right to common law damages - Election made out of time - Validity

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 84I, s 93C, s 93D, s 93E

Workers' Compensation and Rehabilitation Regulations 1982, reg 19K, reg 19M

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant: Mr G W Nutt
Contradictor : Mr B L Nugawela

Solicitors:

Applicant: Jackson McDonald
Contradictor : D'Angelo & Partners

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

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Dimasi v ABB EPT Constructions Pty Ltd (1995) 14 WAR 497
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Case(s) also cited:

Re Monger; Ex parte Swan Portland Cement Ltd [2001] WASCA 321

WALLWORK J: I agree with the reasons for judgment and the conclusions of Anderson J.
ANDERSON J: This is the return of an order nisi for writs of certiorari and mandamus granted by Murray J on 15 November 2000. The order nisi called on Mr Ross Monger, the Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981 to show cause before the Full Court why a writ of certiorari should not issue against him to quash his decision firstly to accept and register a form 25 (an election to retain the right to seek damages at common law) and secondly to notify the applicant employer that the form 25 had been registered. The order nisi also called upon Mr Monger to show cause before the Full Court why a writ of mandamus should not issue against him commanding him to reject and refuse to register the form 25.

Background

The applicant is an employer (a) who is liable to make payments of workers' compensation under the Act in respect of injury sustained by a worker in the course of his employment, and (b) against whom the worker may wish to bring proceedings at common law to recover damages in respect to his injury. We have no information before us as to the alleged accident save that the worker, Mr Bennett, claimed to have suffered a left wrist injury on 8 May 1998. I think we can take it that the worker submitted a claim for weekly payments of compensation in the prescribed form (form 2B) satisfying…

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: [2002] WASCA 223
Decision Date: 14 AUGUST 2002

CaseChat Overview and Summary

The case of Re Monger; Ex parte TNT Australia Pty Ltd involved a dispute regarding the validity of an election made by a worker to retain their right to claim common law damages, which was submitted outside the prescribed time frame. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the election, which was made beyond the allowable period, was still valid and binding on the parties involved.

The court was tasked with determining the scope and effect of statutory provisions that set out the timeframe for making such an election. It had to examine whether the prescribed period was a strict procedural requirement or if it could be considered a mere guideline. Furthermore, the court needed to decide whether the failure to adhere to the prescribed period rendered the election invalid or if there were circumstances under which the election could still be considered valid despite the delay.

The court ruled that the prescribed period for making an election under the relevant statutory provisions was not merely a guideline but a strict procedural requirement. It found that the failure to comply with this requirement rendered the election invalid. The court emphasised that strict adherence to statutory timeframes was necessary to maintain the integrity and predictability of legal processes. Consequently, the court determined that the election made by the worker was invalid because it was submitted outside the prescribed period. As a result, the court ordered that the election was not valid and did not confer the right to claim common law damages on the worker.

Orders