Re Monger; Ex parte Velsberry Pty Ltd - [2003] WASCA 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE MONGER; EX PARTE VELSBERRY PTY LTD [2003] WASCA 9

CORAM: MURRAY J
SCOTT J
STEYTLER J

HEARD: 11 OCTOBER 2001 & 21 JUNE 2002

DELIVERED : 7 FEBRUARY 2003

FILE NO/S: CIV 1650 of 2001

MATTER :Application for a Writ of Certiorari against ROSS MONGER, DIRECTOR OF CONCILIATION & REVIEW under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE
VELSBERRY PTY LTD (ACN 078 480 092)
Applicant
AND
ROSS MONGER, DIRECTOR OF CONCILIATION & REVIEW
First Respondent
TU ANH OU NEE TRAN
Second Respondent

Catchwords:

Administrative law - Availability of certiorari - Decision of Director of Conciliation & Review under Workers' Compensation and Rehabilitation Act 1981 (WA) - Referral to review officer of dispute as to degree of disability

Legislation:

Interpretation Act 1984, s 73

Workers' Compensation & Rehabilitation Act 1981, s 93B, s 93D(2), s 93D(5), s 93D(6), s 93E(4)

Workers' Compensation & Rehabilitation Regulations 1982, reg 19J

Result:

Order nisi discharged

Category: A

Representation:

Counsel:

Applicant:     Mr P E Harris
First Respondent           :     No appearance
Second Respondent      :     Mr R R Cywicki

Solicitors:

Applicant:     D G Price & Co
First Respondent           :     No appearance
Second Respondent      :     S C Nigam & Co

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

Craig v State of South Australia (1995) 184 CLR 163
Janssen v Commonwealth of Australia (1994) 2 Qd R 596
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129

Case(s) also cited:

Commonwealth of Australia v Janssen (1994) 2 QLR 596
Peters v Oscar Mayer Pty Ltd [1963] VR 390
Re Skirving & Ors; Ex parte Forward, unreported; FCt SCt of WA (Murray J); Library No 980737; 18 December 1998
Re Monger; Ex parte Ivey [1999] WASC 250

MURRAY J: This application for certiorari has something of a history. Its progress before this Court has been delayed. I need not refer to the circumstances in these reasons. They are not matters which it is suggested should result in the discretionary refusal of relief.
This is another of those cases concerned with the procedures under the Workers' Compensation and Rehabilitation Act 1981, Div 2 of Pt IV whereby a worker seeks to obtain not only workers' compensation, but also damages at common law for negligence or another tort committed by the worker's employer. By s 93C, if the Division applies, a Court is not to award damages to a person contrary to its provisions. I shall return to the provisions in more detail but, essentially, what is involved is an assessment of what is described as the relevant level of the degree of disability of the worker. The significant points are where there is a degree of disability of 30 per cent or a degree of disability of 16 per cent, as calculated pursuant to the statutory scheme set out in s 93D.
Expressing the provision broadly, s…

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: [2003] WASCA 9
Decision Date: 7 FEBRUARY 2003

CaseChat Overview and Summary

In this matter, Velsberry Pty Ltd sought an order of certiorari to quash a decision of the Director of Conciliation and Review, who had ruled that a dispute regarding the degree of a worker's disability should be referred to a review officer. The case was heard in the Supreme Court of Western Australia. The respondent, the Director of Conciliation and Review, had determined that a dispute over the degree of a worker's disability should be referred to a review officer, a decision contested by the petitioner, Velsberry Pty Ltd.

The central legal issue before the court was whether the Director of Conciliation and Review had the authority to refer a dispute regarding the degree of a worker's disability to a review officer under the relevant legislative framework. Specifically, the court needed to determine the availability of the remedy of certiorari and the appropriate circumstances in which such a referral could be mandated. The court examined the statutory provisions and the scope of the Director's discretion in making the referral decision.

The court found that the Director of Conciliation and Review did have the authority to refer a dispute about the degree of a worker's disability to a review officer, as provided for in the Workers' Compensation and Rehabilitation Act 1981 (WA). The court held that the Director's decision was within the bounds of the statutory powers conferred upon them. Consequently, the petition for certiorari was dismissed, as the Director's decision was not found to be an error of law or jurisdiction that warranted the issuance of such an order. No further orders were made by the court.

Orders