Legal Research
Cases
Re Monger; Ex parte United Construction Pty Ltd

Re Monger; Ex parte United Construction Pty Ltd

Link copied

Case Copied 12 September 2002 34 min read

Contents

On this page

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MONGER; EX PARTE UNITED CONSTRUCTION PTY LTD [2002] WASCA 253

CORAM: MALCOLM CJ
WALLWORK J
ANDERSON J
TEMPLEMAN J
FITZGERALD AJ

HEARD: 12 AUGUST 2002

DELIVERED : 12 SEPTEMBER 2002

FILE NO/S: CIV 1763 of 2000

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

EX PARTE
UNITED CONSTRUCTION PTY LTD
Applicant

FILE NO/S :FUL 23 of 2002

BETWEEN :UNITED CONSTRUCTION PTY LTD
Appellant
AND
VITOR MANUEL FERDINAND DE SANTOS
Respondent

Catchwords:

Workers' compensation - Dispute as to degree of disability - Decision by Director of Conciliation & Review to refer dispute to review officer - Initial medical evidence insufficient - Effect on jurisdiction of Director and review officer - Whether review officer bound to inquire into validity of Director's referral

Practice and procedure - Writ of certiorari - Time for application - Whether time limit applicable - Whether Director of Conciliation & Review a "court or tribunal" within O 56 r 11(1)

Words - phrases - "Tribunal"

Legislation:

Rules of the Supreme Court 1971, O 56 r 11(1)

Workers' Compensation and Rehabilitation Act 1981, s 84Z, s 84ZN, s 84ZW, s 93D

Workers' Compensation and Rehabilitation Regulations 1982, reg 19J

Result:

Appeal from decision of compensation magistrate allowed
Application for writ of certiorari refused

Category: A

Representation:

CIV 1763 of 2000

Counsel:

Applicant: Mr C L Zelestis QC & Mr D W Williams
Amicus Curiae : Ms J C Pritchard

Solicitors:

Applicant: McAuliffe Williams & Partners
Amicus Curiae : Crown Solicitor's Office

FUL 23 of 2002

Counsel:

Appellant:     Mr C L Zelestis QC & Mr D W Williams
Respondent:     Mr B L Nugawela
Amicus Curiae              :     Ms J C Pritchard

Solicitors:

Appellant:     McAuliffe Williams & Partners
Respondent:     Bradford & Co
Amicus Curiae              :     Crown Solicitor's Office

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

A‑G (Commonwealth) v Breckler (1999) 163 ALR 576
Chief Adjudication Officer v Foster (1993) AC 754
Clisdell v Commissioner of Police (1993) 31 NSWLR 555
Corporation of the City of Enfield v Development Commission (2000) 199 CLR 135
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1994) 183 CLR 168
Re Monger; ex parte Dutch (2001) 25 WAR 96
Re Monger; ex parte WMC Resources Ltd [2002] WASCA 129
Re Smith; ex parte Rundle (1991) 5 WAR 295

Case(s) also cited:

Midgley v Ross E Monger, Director Conciliation & Review Directorate [2000] WASC 291
Re Crosser; ex parte Rutherford & Anor [2001] WASCA 422
Re Monger, ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281
Re Monger; ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; ex parte Shire of Wyndham-East Kimberley [2002] WASC 165
Re Monger; ex parte Swan Portland Cement Ltd [2001] WASCA 321
Re Monger; ex parte Western Power Corporation [2000] WASC…

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.

Keep reading for free

Create a free CaseChat account to read Re Monger; Ex parte United Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] WASCA 253
Decision Date: 12 SEPTEMBER 2002

CaseChat Overview and Summary

In the case of Re Monger; Ex parte United Construction Pty Ltd, the dispute involved the interpretation and application of workers' compensation laws in relation to the degree of disability of a claimant. The matter was brought before the court to challenge the decision of the Director of Conciliation & Review, who had referred a dispute to a review officer. The parties involved were United Construction Pty Ltd, the employer, and the claimant, Monger, who sought compensation for his degree of disability.

The primary legal issue the court had to decide was whether the review officer was obligated to investigate the validity of the Director's referral when the initial medical evidence presented was deemed insufficient. This raised questions about the jurisdictional boundaries of the Director and the review officer, as well as the procedural requirements governing such referrals. Additionally, the court needed to determine whether the Director of Conciliation & Review constituted a "court or tribunal" under the relevant rules of court, which would affect the applicability of specific procedural time limits.

The court found that the Director's decision to refer the dispute to the review officer was not necessarily flawed, even if the initial medical evidence was insufficient. It was determined that the review officer was not bound to inquire into the validity of the Director's referral. The court held that the Director of Conciliation & Review did not fall within the definition of "tribunal" under the relevant rules, and therefore, the time limit for applying for a writ of certiorari did not apply. This meant that the employer's application for certiorari was not subject to the specified time constraints. The court's decision clarified the roles and responsibilities of the Director and the review officer and provided guidance on the application of procedural rules in workers' compensation cases.

Orders