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…
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- Case
- [2002] WASCA 223
- Decision Date
CaseChat Overview and Summary
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
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
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Ratio Decidendi
Legal Principle Established
Established by: ANDERSON J
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