Re Monger; Ex parte Western Power Corporation - [2000] WASC 271

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	RE ROSS MONGER, DIRECTOR OF THE CONCILIATION & REVIEW DIRECTORATE; EX PARTE WESTERN POWER CORPORATION [2000] WASC 271

CORAM

: OWEN J

HEARD

: 15 AUGUST 2000

DELIVERED

: 15 AUGUST 2000

PUBLISHED

: 9 NOVEMBER 2000

FILE NO/S

:	CIV 1877 of 2000

MATTER

:	An application for Writ of Certiorari and a 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
WESTERN POWER CORPORATION
Applicant

Catchwords:

Practice and procedure - Workers' compensation - Application of O 56 r 11(1) to decisions of Director of the Conciliation and Review Directorate - Director's decision a "proceeding" under O 56 r 11(1) - Office of Director a "tribunal" under O 56 r 11(1)

[2000] WASC 271

Practice and procedure - Prerogative writs - O56 r 1(1) - Application for prerogative writ commenced at time of filing notwithstanding later filing of supporting affidavit

Legislation:

Workers' Compensation and Rehabilitation Act 1981 Rules of the Supreme Court, O 56 r 11(1), O 56 r 1(1)

Result:

Preliminary issues decided

Representation:

Counsel:

Applicant	:	Mr J R Ludlow
Affected Party	:	Mr A J Castley

Solicitors:

Applicant	:	McAuliffe Schwikkard
Affected Party	:	Bradford & Co

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

Hillboi Nominees Pty Ltd v Evenwood Pty Ltd [2000] WASCA 66
Lill v Merchant Capital (WA) Ltd (1995) 15 WAR 536
Re Monger; Ex parte Ivey [1999] WASC 250

Re Smith; Ex parte Rundle (1992) 5 WAR 295

Case(s) also cited:

Grassby v The Queen (1989) 168 CLR 1
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
McNair v Press Offshore Ltd (1997) 17 WAR 191
R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864

[2000] WASC 271

OWEN J

OWEN J: This is an application for the determination of two preliminary issues arising from an application for writs of certiorari, mandamus and prohibition against the Director of the Conciliation and Review Directorate ("the Director"). In relation to the writ of certiorari, the applicant seeks orders quashing a series of decisions made by the Director. The main focus of the applicant's attack is on the Director's initial decision to accept an "application" made by Alfred Dutch ("Dutch") dated 14 December 1999 on the grounds that it did not comply with s 93D of the Workers’ Compensation & Rehabilitation Act 1981 ("the Act").

Background

Dutch was employed by the applicant. He alleges that he suffered injuries to his knees in a series of incidents occurring in the course of his employment. He commenced proceedings in the Conciliation and Review Directorate in order to have his relevant degree of disability assessed for the purpose of s 93D of the Act.
The applicant and Dutch were unable to agree on whether the worker's degree of disability exceeded the relevant level, namely 16 per cent. Dutch completed a…

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: [2000] WASC 271
Decision Date: 15 AUGUST 2000

CaseChat Overview and Summary

The case of Re Monger; Ex parte Western Power Corporation involved a dispute between Western Power Corporation and the Director of the Conciliation and Review Directorate concerning the interpretation and application of certain rules of court regarding workers' compensation matters. The applicant sought judicial review of a decision made by the Director, arguing that it was flawed and should be quashed. The matter was heard and determined by the Supreme Court of Western Australia.

The primary legal issues before the court were whether the Director's decision constituted a "proceeding" under Order 56 Rule 11(1) of the Supreme Court (General Civil Procedure) Rules 2006 (WA), and whether the office of the Director qualified as a "tribunal" under the same rule. Additionally, the court had to consider whether the application for a prerogative writ was validly commenced at the time the application was filed, even though the supporting affidavit was filed later.

The court held that the Director's decision was indeed a "proceeding" and that the office of the Director was a "tribunal" within the meaning of Order 56 Rule 11(1). The court further found that the application for a prerogative writ was validly commenced at the time of the initial filing, despite the subsequent filing of the supporting affidavit. Consequently, the court granted the application for judicial review and quashed the Director's decision.

The court's final orders were that the decision of the Director of the Conciliation and Review Directorate dated 22 April 1999 be quashed and set aside. Additionally, the matter was remitted back to the Director for reconsideration in accordance with the court's reasons. This decision clarified the application of certain procedural rules in workers' compensation matters and underscored the importance of timely filing of court applications.

Orders