Re Ross Monger; - [2001] WASCA 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE ROSS MONGER; EX PARTE SWAN PORTLAND CEMENT LTD [2001] WASCA 321

CORAM: MALCOLM CJ
KENNEDY J
STEYTLER J

HEARD: 5 JUNE 2001

DELIVERED : 23 OCTOBER 2001

FILE NO/S: CIV 2306 of 2000

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

EX PARTE
SWAN PORTLAND CEMENT LTD
Applicant
AND
ROSS MONGER
First Respondent
DEAN THORNE
Second Respondent

Catchwords:

Administrative law - Prerogative writs and orders - Certiorari - Decisions of Director of Conciliation Directorate under the Workers' Compensation and Rehabilitation Act 1981 (WA) to accept application under s 93D and related decisions - Errors of law on the face of the record - Error in finding jurisdictional fact that a dispute had arisen for the purposes of s 93D(8) and reference of Form 22 to a Review Officer under s 93D(10) - Wrongful assumption of jurisdiction

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA) s 5, s 93D, s 93E

Workers' Compensation and Rehabilitation Regulations 1982, reg 19M

Result:

Order nisi made absolute

Category: A

Representation:

Counsel:

Applicant:     Ms A R Aria Retnam
First Respondent           :     No appearance
Second Respondent      :     Mr B L Nugawela

Solicitors:

Applicant:     Jackson McDonald
First Respondent           :     No appearance
Second Respondent      :     D'Angelo & Partners

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

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Craig v South Australia (1995) 184 CLR 163
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
Re Director, Conciliation and Review Directorate; Ex parte Nowicki [2000] WASC 280
Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex parte Dutch & Ors [2001] WASCA 220
Re Monger; Ex parte Ivey [1999] WASC 250
Re Monger; Ex parte Woodford [1999] WASC 273

Case(s) also cited:

Ansett Australia v Finn (unreported, CM (WA), 57/00, 21 July 2000)

MALCOLM CJ: This is the return of orders nisi for writs of certiorari and mandamus or, alternatively, a writ of prohibition against the respondents, Ross Monger, Director of the Conciliation Directorate constituted under the Workers’ Compensation and Rehabilitation Act 1981 (“the Act”), who I shall refer to as “the Director” and Mr Dean Thorne (“the claimant”). The State Crown Solicitor filed a notice dated 24 November 2000 that the Director would abide by the decision of the Court in relation to this matter save as to costs. I note that, although the notice was served on the applicant’s solicitors, a copy of the notice was not included in the application book.
The applicant is an employer against whom the claimant has made a claim for compensation under the Act.
On 7 November 2000, on the application of the applicant dated 6 October 2000, Miller J made an order nisi in the following terms:
“1.The applicant have leave to bring this application.
2.[The Director] do show before the Full Court … why a writ of certiorari should not be issued against the Director to remove into this Court for the purpose of being quashed the Director’s decisions:
(a)to accept an application issued by [the Claimant] dated 30 March 2000 (‘Form 22’) as a valid application under sections 93D and 93E of the Workers’ Compensation and Rehabilitation Act 1981 (‘the Act’);
(b)to forward to the Applicant a notice signed by the Director on 4 April 2000 (‘Form 23’) pursuant to Regulation 19J(1) of the Regulations made pursuant to the Act;
(c)that a dispute pursuant to section 93D(8) of the Act has arisen for the purposes of Part IIIA of the Act; and
(d)that the question of the Claimant’s degree of disability be referred pursuant to section 93D(10) of the Act for resolution under the provisions of Part IIIA (other than Division 2) of the Act;
which acceptance, forwarding, decision and referral were contrary to the provisions of the Act.
3.The Director do show cause before the Full Court … why a Writ of Mandamus should not be issued against the Director commanding the Director to reject the Form 22, alternatively a Writ of Prohibition should not be issued against the Director prohibiting him from dealing with the Form 22, on the basis that it does not comply with section 93D and 93E of the Act.
4.The order nisi and affidavit of the Applicant be served on the Director and on [the Claimant] within seven days of the date of this order.”
On 11 January 2001, on an application dated 20 December 2000, the applicant was granted an extension of time within which to serve the order nisi until 11 January 2001 and enter the matter for hearing within 14 days from the date of service of the order.
The grounds upon which the order was made were not set out in the order. It can only be assumed, therefore, that the order was made on the grounds set out in the application. The case was argued on that basis.
The application for relief by way of certiorari was made on the grounds that:
“(a)the Claimant’s Form 22 lodged with the Director on 4 April 2000 claimed a degree of disability of not less than 16%, and therefore the Claimant must have submitted this Form 22 for the purpose of electing to retain the right to seek common law damages under ss 93E(3)(b) and (4) of the Act;
(b)pursuant to s 3 of the Workers’ Compensation & Rehabilitation Amendment Act (No 3) 1999, the termination day by which the Claimant had to elect was 5 January 2000;
(c)the Claimant was not able to make an election pursuant to the Regulations as at the date on which he lodged his Form 22, and as the sole purpose of the Form 22 was to obtain a determination for the purpose of electing to pursue common law damages, the Director should have rejected the Form 22 as it served no purpose under the Act, was an abuse of process under the Act and failed to comply with the Act;
(d)the Director should not have issued the Applicant with a Form 23 ‘Notice of Referral of Question of Degree of Disability’ pursuant to s 93D(7) of the Act;
(e)the Director should not have determined that a dispute pursuant to s 93D(8) of the Act had arisen for the purposes of Part IIIA of the Act; and
(f)the Director should not have referred under s 93D(10) of the Act, the question of the Claimant’s degree of permanent disability for resolution under the provisions of Part IIIA (other than Division 2) of the Act.”
The grounds in the application for relief by way of mandamus or, alternatively, prohibition, were the same.
It was submitted on behalf of the applicant that the issues for determination were whether the Director should have:
(a)accepted the claimant’s Form 22 “Referral of Question of Degree of Disability” dated 30 March 2000 (“Form 22”) pursuant to s 93D(5) of the Act;
(b)issued the applicant with a Form 23 “Notice of Referral of Question of Degree of Disability” dated 4 April 2000 (“Form 23”) pursuant to s 93D(7) of the Act;
(c)determined that a dispute arose pursuant to s 93D(8) of the Act for the purposes of Pt IIIA of the Act, in or about April 2000; and
(d)referred the question of the claimant’s degree of disability for resolution under the provisions of Pt IIIA (other than Div 2 of the Act) pursuant to s 93D(10) of the Act,
in circumstances where the claimant had not had an election to retain the right to seek damages at common law recorded, and a determination or agreement as to the claimant’s degree of disability had not been recorded prior to the termination date on 5 October 2000.
In these circumstances, the applicant contended that the Director’s acceptance of the Form 22, issue of the Form 23 and subsequent referral of the Form 22 for determination was defective, misconceived and contrary to ss 93E(5), (6) and (7) of the Act and served no purpose under the Act. It was also contended on behalf of the applicant that the applicant and the claimant had at no time entered into an agreement regarding the claimant’s degree of disability for the purposes of s 93D of the Act, and that the Director had not made a determination as to his degree of disability. Notwithstanding the failure to take these steps on 13 December 1999, the claimant lodged a Form 25 “Election to Retain the Right to Seek Damages” dated 9 December 1999 (“Form 25”) for registration by the Director. In the absence of an agreement or determination as to the claimant’s degree of disability, by letter dated 14 February 2000 the Director declined to register the Form 25 until at least 14 days after an agreement or determination was recorded pursuant to reg 19M(4) of the Regulations.
Regulation 19M(4), as it stood at the relevant time, provided that:
“If the election is lodged before an agreement or determination as to the degree of disability is recorded under section 93E(4) of the Act, the Director must not register the election until at least 14 days after agreement or determination is recorded.” (emphasis added)
In those circumstances, the applicant submits that the claimant has not yet made an effective election for the purposes of s 93E(4) of the Act because the election was not and cannot be registered because no agreement or determination has been recorded.
The issue raised by these proceedings is yet another case concerning the true construction of the provisions of s 93E of the Act, which is contained in Pt IV Div 2 of the Act and which would seek to limit the scope for common law damages claims in respect of injuries compensable by way of workers’ compensation under the Act. These provisions were introduced by the Workers' Compensation and Rehabilitation Amendment Act 1999 with effect from 5 October 1999. They replaced the previous provisions for obtaining leave to proceed with a common law damages claim in respect of a work related injury, which would attract workers’ compensation under the Act. Previously, it was a pre‑condition that a worker show that he or she had suffered a “serious disability” in order to obtain leave to commence proceedings under the former s 93D of the Act. The new regime requires that a worker who has been paid workers’ compensation, or to whom compensation is payable under the Act, and who wishes to commence proceedings for damages at common law from his or her employer in respect of a “disability”, must follow the procedure now contained in Pt IV of the Act.
The term “disability” is defined in s 5 of the Act to include:
“(a)a personal injury by accident arising out of or in the course of employment, or whilst the worker is acting under the employer’s instructions;
…
(d)the recurrence, aggravation or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree.”
So far as is presently relevant, the effect of the legislation, details of which are set out below, is that a Court is not to award damages to a worker unless the “degree of disability” is not less than either one or other of two specified percentage levels. If the worker and the employer cannot agree whether the degree of disability is not less than the relevant level, provision is made to refer the question to the Director. Such a referral is required to be made under s 93D(5) by means of Form 22 in Appendix 1 to the Workers’ Compensation and Rehabilitation Regulations 1982.
The 1999 amendments to the Act were introduced by three Amending Acts, namely, the Workers’ Compensation and Rehabilitation Act 1999, the Workers’ Compensation and Rehabilitation Act (No 2) 1999 and the Workers’ Compensation and Rehabilitation Act (No 3) 1999. I will refer to them as the No 1 Amendment Act, the No 2 Amendment Act and the No 3 Amendment Act respectively.
Section 32(8) of the No 1 Amendment Act states that:
"If weekly payments of compensation in respect of a disability –
(a)commenced before the assent day; or
(b)were ordered by a dispute resolution body to commence before the assent day,
and the termination day referred to in section 93E of the amended provisions would be within 3 months after the assent day, the termination day is postponed by this subsection so that it is the day that is 3 months after the assent day."
The “assent day” was defined in s 32(6) as “the day on which this Act receives the royal assent”. That day was 5 October 1999. The “amended provisions” as so defined meant Pt IV Div 2 of the principal Act as amended by s 32 of the No 1 Amendment Act.
Section 32(8) of the No 1 Amendment Act was amended by s 3 of the No 3 Amendment Act, which was assented to on 5 November 1999, to read as follows:
"If weekly payments of compensation in respect of a disability –
(a)commenced before the assent day; or
(b)were ordered by a dispute resolution body to commence before the assent day,
and the termination day referred to in section 93E of the amended provisions –
(c)was before the assent day;
(d)is the assent day; or
(e)would not be more than 3 months after the assent day,
the termination day is to be regarded as being the day that is 3 months after the assent day."
The result is that, for present purposes, the No 1 Amendment Act as most recently amended now provides in s 32(8):
“If weekly payments of compensation in respect of a disability –
(a)commenced before the assent day; or
(b)were ordered by a dispute resolution body to commence before the assent day,
and the termination day referred to in section 93E of the amended provisions -
(c)was before the assent day;
(d)is the assent day; or
(e)would not be more than 3 months after the assent day,
the termination day is to be regarded as being the day that is 3 months after the assent day.”
Section 2 of the No 3 Amendment Act provided that it would come into operation immediately after the No 1 Amendment Act came into operation. As the latter Act came into operation on 5 October 1999, the No 3 Amendment Act, although not assented to on 5 November 1999, was deemed to have come into operation on 5 October 1999. Hence, for present purposes, the “termination day” was 5 January 2000, being three months after the assent day.
Section 93D(6), as amended by the No 1 Amendment Act as from 5 October 1999, provided that:
“A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner’s opinion, the degree of disability is not less than the relevant level.”
It was submitted on behalf of the applicant that it had at no time entered into an agreement with the claimant regarding his degree of disability for the purposes of s 93D of the Act.
Pursuant to s 93E of the Act as amended in 1999, restrictions were placed on the awarding of damages against employers at common law. Section 93E relevantly provides that:
“(3)Damages can only be awarded if -
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.
(5)Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.”
Accordingly, the claimant submits that s 93E(5) of the Act places a time limit on when an injured worker can make an election, namely the termination day. The term “termination day” as used in s 93E, is defined in s 93E(1) of the Act to be, “… the day that is 6 months after the day on which weekly payments commenced”. That date is the day on which the worker receives his or her first weekly payment: Re Director, Conciliation and Review Directorate; Ex parte Nowicki [2000] WASC 280. The claimant’s weekly payments commenced on or about 24 October 1997 or, alternatively, on or about 1 December 1997 according to par 3 of the affidavit of Jason Hodgkinson sworn on 25 October 2000. Accordingly, the claimant’s original “termination day” for the purposes of s 93E was, at the latest, 1 June 1998.
The No 1 Amendment Act received Royal Assent on and took effect from 5 October 1999. As has been seen, the transitional provisions of the No 1 Amendment Act as amended by the No 3 Amendment Act had extended the time for election in respect of claims where weekly payments had commenced prior to the assent day. In that regard, the position in this case was that if weekly payments of compensation had commenced before the assent day the termination day was to be regarded as being the day that is three months after the assent day. As a result, the claimant’s extended termination day was 5 January 2000. Accordingly, in order to be able to make an election, it was necessary for the claimant to have his election recorded by 5 January 2000. In my opinion, on the face of it, the applicant’s submission that the claimant failed to register an election prior to 5 January 2000 must be upheld.
There was, however, a provision in s 93E(6) of the Act for a further extension of time in which to make an election available to the claimant. Section 93E(6) as amended as at 5 October 1999 provided that:
“Despite subsection (5), if -
(a)medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and
(b)a dispute arising under section 93D(8) has not been resolved before the termination day,
an election can be made under subsection (3)(b) within 7 days after the dispute is resolved.”
To avail himself of the extension provided by s 93E(6) of the Act, as it stood at the relevant time, the claimant should have produced to the Director medical evidence indicating that his degree of disability was not less than the appropriate level by not later than 14 December 1999, being the date 21 days prior to the extended termination day. In the result, the claimant did not lodge the Form 22 with supporting medical evidence with the Director until 4 April 2000, well after the time limited by s 93E(6), as well as after his extended termination day.
On 25 January 2000 the applicant was informed by the Directorate that the claimant’s Form 25 was rejected on the basis that no election could be registered unless or until it was agreed or determined that the claimant’s degree of disability was not less than 16% for the purposes of s 93D of the Act, and that no such agreement or determination had been made at the time when the claimant’s Form 25 was lodged. This position was admitted to have been correct so far as the Directorate was concerned at the time. By a letter dated 20 January 2000 the Director acknowledged the lodgment of the election on 14 December 1999 and referred to the new reg 19M which came into force on 14 December 1999. The Director specifically referred to reg 19M(6) which provided that:
“This Regulation applies to an election under section 93E(3)(b) of the Act that is commenced on or after the day on which the Workers’ Compensation and Rehabilitation Amendment Regulations (No 11) 1999 comes into operation.”
Reference was also made to reg 19M(1) which provides that:
“(1)An election under section 93E(3)(b) of the Act -
(a)is to be made in the form of Form 25 in Appendix I (‘the election form’) and lodged with the Director; and
(b)cannot be made unless -
(i)it is agreed that the degree of disability is not less than 16%; or
(ii)it is determined that the degree of disability is not less than 16%.”

The Director then stated in his letter:
“The above election was lodged on or after 14th December 1999. Accordingly I do not consider you have met the requirements to make an election pursuant to the provisions of section 93E(3)(b) of the Act and Regulation 19M(1).”
The solicitors for the claimant disputed this position in a letter to the Director dated 24 January 2000 in which they said:
“Our letter to you dated 9 December 1999 enclosing the Form 25 and a photocopy of the medical report of Desmond Williams dated 2 December 1999 was faxed to you on 13 December 1999 and a Form 25 was acknowledged with a Conciliation & Review Directorate stamp dated 14 December 1999. Accordingly, we are of the view that we have complied with the provisions of section 93E(3)(b) of the Act.”
By letter dated 14 February 2000 the Director pointed out that the Form 25 was lodged prior to the regulations being amended. Consequently, by virtue of reg 19M(4), he was unable to register the election until at least 14 days after an agreement or determination was recorded. It was indicated that the Form 25 would be kept at the office of Conciliation and Review until an agreement or a determination in relation to the matter was recorded at which time the election would be registered. Following receipt of a letter from the applicant’s insurer dated 28 March 2000 giving notice that the applicant did not agree with the assessment of degree of disability, the applicant’s solicitors forwarded the Form 22 to the Director for “necessary action”.
By a letter from the claimant’s solicitors to the applicant’s insurer dated 22 March 2000, the claimant requested that the applicant agree his degree of disability for the purposes of s 93D of the Act at 24%, and indicated that he would refer the issue of his degree of disability to the Directorate in the absence of any agreement. By letter dated 28 March 2000 to the claimant’s solicitors, the applicant’s insurer informed the claimant that the applicant was not willing to agree his degree of disability as proposed. In these circumstances, the claimant then sought to refer the question of his degree of disability for the purposes of s 93D of the Act to the Director pursuant to s 93D(5). A Form 22 dated 30 March 2000 was lodged with the Directorate on 4 April 2000 in which the claimant claimed to have suffered a degree of disability of not less than 16%, namely, 24%.
By letter dated 4 April 2000 the Director forwarded a Form 23 Notice of Referral of Question of Degree of Disability to the applicant for its consideration and response pursuant to s 93D(7) of the Act. In accordance with s 93D(8) the Form 23 was returned to the Directorate on behalf of the applicant with an endorsement of the objection to the claimant’s degree of disability and indicated that the applicant assessed that degree of disability at less than 16% for the purposes of s 93D.
The Director then referred the matter for resolution under the provisions of Pt IIIA of the Act in accordance with s 93D(10). The proceedings for resolution require the Directorate to assess the claimant’s degree of disability for the purposes of s 93D, with a view to the claimant being able to elect to retain his right to compensation under the Act, or the ability to seek damages from the applicant at common law.
The applicant contends that any election by the claimant must have been recorded by the Directorate prior to the “termination day” as defined in s 93E(1) of the Act.
Section 93E(5) of the Act provides that:
“Subject to subsections (6) and (7), if weekly payments of compensation in respect of the disability have commenced an election cannot be made under subsection (3)(b) after the termination day.”
Subsections (6) and (7) provide that:
“(6)Despite subsection (5), if -
(a)medical evidence complying with section 93D(6) was produced to the Director not less than 21 days before the termination day; and
(b)a dispute arising under section 93D(8) has not been resolved before the termination day
an election can be made under subsection (3)(b) within 7 days after the dispute is resolved.
(7)Despite subsection (5), the Director may, in such circumstances as are set out in regulations, extend the period within which an election can be made under subsection (3)(b) until a day (not being a day that is more than 6 months after the termination day) to be fixed by the Director by notice in writing to the worker.”
Section 93E(6)(b) was subsequently amended by the Workers’ Compensation and Rehabilitation Amendment Act 2000 ("the No 4 Amendment Act") by the deletion of par (b) and substituting a new par (b) as follows:
“(b)although a question of whether the degree of disability is not less than 16% was referred to the Director under section 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded,”
In addition, by the No 4 Amendment Act, the figure "7" in the final paragraph of s 93E(6) was amended to "14" and the words "dispute is resolved" were deleted and other words inserted so that the paragraph read:
"an election can be made under subsection 3(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded."
This amendment was given retrospective effect in that by s 2(1) of the No 4 Amendment Act it is deemed to have come into operation on the same day as the amendments in s 32 of the No 3 Amendment Act, namely, 5 October 1999, notwithstanding that it received assent on 17 November 2000.
Regulation 19M(1) of the Regulations provided that such an extension could be made where the Director was satisfied that a worker’s disability was of such seriousness that the worker was likely to require major surgery within six months. Regulation 19M(2) required an application for an extension of time to be made in Form 27, to be accompanied by medical evidence from a medical practitioner specialist in a relevant field of medicine and to be lodged with the Directorate at least 21 days before the termination date, namely, 14 December 1999. The claimant did not make such an application.
In those circumstances, it was submitted on behalf of the applicant that the claimant failed to make an election. Because the Form 22 was lodged with the Directorate after the commencement of the amendments to the Regulations on 14 December 1999, the claimant was required to indicate on the Form 22 whether he sought a determination that his degree of disability was not less than 16% or not less than 30%. By indicating on the Form 22 that his relevant degree of disability was not less than 16%, the claimant was only able to obtain a determination that his degree of disability was such and was required to register an election pursuant to s 93E(3)(b) and s 93E(4) of the Act to retain the right to seek damages at common law.
It was submitted on behalf of the applicant that, as the claimant had not made an election and the extended determination day had passed, the claimant’s purported election was ineffective. The sole purpose of the Form 22 was for the claimant to obtain a determination that his level of degree of disability for the purposes of s 93E(3) was not less than 16%, so as to enable him to register the Form 25 and retain the right to claim damages at common law from the applicant. As he was not able to make an election regardless of the outcome of the Form 22, it was contended that the Director should have refused to accept the Form 22, as it served no purpose under the Act and failed to comply with the provisions of the Act.
As has been seen, by s 93E(3), damages can only be awarded to a worker if:
“(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.”
Section 93G contains the regulation making power which includes a provision that the Regulations may provide for:
“(c)the registration by the Director of elections under section 93E(3)(b) if an agreement or determination for the purposes of section 93E(4) has been recorded, and the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election;
(d)the recording by the Director of an agreement or determination under section 93E as to the degree of disability of a worker; …”
Where weekly payments are commenced, as in the present case, s 93E(5) limits the right to make an election by providing that it must be made before the termination day. Subsections (6) and (7) give the Director power to extend the period, as has been seen, provided certain conditions are met. In this case they were not.
In Re Monger; Ex parte Woodford [1999] WASC 273 at [34] - [42] McKechnie J explained the effect of the relevant provisions as follows:
“… In my view the overall structure of s 93E makes manifest Parliament’s intention that the degree of disability should be resolved prior to the election by a worker under s 93E(3)(b).
This construction fits with s 93E(6) and s 93E(7), which contemplate the possibility that election cannot be made prior to termination day because of a current dispute. In such a case there must at least be some evidence of significant disability produced to the director. These sections would appear to be unnecessary if the applicant’s contention is correct. The power to grant an extension is temporally limited to six months beyond termination day, indicating Parliament’s intention that the whole issue of disability and election be resolved sooner rather than later.
Furthermore, there would appear to be little sense in requiring an election within a defined period but then postponing, for a further undefined and undetermined period, the registration of the election. It would not appear to be beneficial to allow a worker to make an election but then at some period in the future, when the degree of disability has been settled, and the election is able to be registered, the director refuses to register because he or she is not then satisfied that the worker has been properly advised of the consequences of the election.
There would be a significant period of time before an employer was notified of an election, during which the worker would continue to receive benefits because the election, though lodged, has not been registered.
The applicant argues that the effect of s 93E(6)(a) is to reduce the time limit by 21 days. Counsel illustrated this submission by postulating the case of a worker who does not seek to make an election until a period within 21 days and has no agreement or determination as to whether he or she has a significant disability.
This, it is said, suggests that Parliament cannot have intended that the determination or agreement as to a significant disability is a pre-condition to election.
There is some force in the submission but the answer lies in the notification provisions. Section 93G(a) states specifically that regulations may provide for the notification to be given to workers of the effect of the provisions of s 93G.
Regulation 19P, which is not impugned, places an obligation on employers to give a worker who has an unfinalised claim for compensation, written notice of the requirement under s 93E(3)(b) to elect, and the date by which the election is to be made.
While this regulation may not be directly applicable to the applicant, in combination with s 93G(a), it does provide an indication that Parliament intended to minimise any possible prejudice by ensuring steps would be taken to inform workers of their right to elect in good time. Therefore, I do not think the possibility that some workers may be shut out from election earlier than other workers, because they have not obtained medical evidence in good time, detracts from the general inference that the intention behind s 93E is to have the question of significant disability resolved prior to election.”
In my opinion, this analysis of the relevant provisions is correct. It is consistent with the provisions of subss (6) and (7) of s 93E and with the possibility that an election cannot be made prior to the termination day, but some evidence of a significant disability is required to be produced to the Director in order to make any extension of time. Those provisions would not be necessary if it were possible to make an election after the extended termination day.
It follows that, given the lapse of time in this case, the Director was not empowered to have issued the Form 22, determined that a dispute had arisen for the purposes of s 93D(8) of the Act, or referred the Form 22 to a Review Officer under s 93D(10).
In my opinion, each of the issues raised in these proceedings poses a question of law of the same kind as was referred to in par [11] of my judgment in Re Monger; Ex parte Dutch & Ors [2001] WASCA 220, namely, that where the ultimate fact in issue involves a term used in a statute, the question whether the facts adduced by the evidence and found establish the ultimate fact is, at least generally, if not always, a question of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 - 289. In my view, each of the issues to which I have referred raises a question of law so that certiorari will lie where there is an error of law on the face of the record, or where there was an error of law in relation to some relevant fact in determining whether the jurisdiction or power to refer the matters to a Review Officer had arisen: Craig v South Australia (1995) 184 CLR 163 at 175 - 176 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
Where, as here, the ground upon which certiorari is sought is based on jurisdictional error, such as a wrongful assumption of jurisdiction, the court to which the application is made may take into account any relevant material that is put in evidence: Craig v South Australia at 176. A jurisdictional error is an error of law which causes the Tribunal to identify an irrelevant issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion: Craig v South Australia at 179.
In Re Monger; Ex parte Dutch at [16] - [24] I set out the legislative context in Pt IV Div 2 of the Act. Under s 93E of the Act, damages can only be awarded if it is agreed or determined that the “degree of disability” is not less than 30%, or is not less than 16%, and the worker elects, before the termination day, to retain the right to seek damages. A relevant degree of disability is to be determined in accordance with Sch 2 as read with s 25, or the prescribed edition of the Assessment of Disability Guide produced by the Western Australian Branch of the Australian Medical Association Inc or the Regulations: s 93D(1), (2) and (3).
The effect of these provisions is to create three categories of injured workers. The first is that of workers who have a disability of less than 16%. They can only claim workers’ compensation and have no right of action for common law damages. The second is that of workers who have a disability of between 16% or more but less than 30%. They are required to make an election whether to receive statutory benefits or to exercise their right of action at common law. Common law damages are capped at $250,000 inclusive of any sums paid as statutory benefits: s 93F(8). An election can only be made:
(i)within 6 months of the date of commencement of weekly payments; and
(ii)if it has been agreed or determined that the worker’s degree of disability is not less than 16%.
The third category comprises workers whose disability has been agreed or determined to be 30% or more. They are entitled to exercise their right of action at common law without any limitation on the amount of damages, and are entitled to receive statutory benefits in the meantime. No election is required.
It is in this context that, if the worker and the employer cannot agree that the degree of disability is not less than the requisite level, the worker may, subject to s 93D(6), refer “the question” to the Director under s 95D(5). The relevant question is whether the “degree of disability” is not less than the requisite level. That question can only be referred if the relevant “evidence” required by s 93D(6) is produced to the Director. The Director must be satisfied that the medical evidence does “indicate” that the degree of disability is not less than the requisite level. The performance of this function is a matter which is capable of judicial review by way of prerogative writ: Re Monger; Ex parte Ivey [1999] WASC 250 at [19] - [22] per Miller J. If the employer does not agree that the disability is not less than the requisite level, and the dispute about the degree of disability is not resolved by agreement with the assistance of the Director in consultation with the parties, the Director’s function is to refer the dispute for resolution under the provisions of Pt IIIA (other than Div 2): see s 93D(7) - (12).
Under Pt IIIA, provision is made for such a dispute to be resolved by a Review Officer, acting according to the substantial merits of the case and not being bound by the rules of evidence: s 84Z, s 84ZA, s 84AB, s 84ZD and s 84ZH. Where a question of law is involved, an appeal lies from a decision by a Review Officer to a Compensation Magistrate and, thereafter, subject to a grant of leave, to the Supreme Court: s 84ZN and s 84ZW.
In my opinion, the circumstances in this case are similar to those which were considered by Parker J in Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19. In that case, the worker opted to lodge a Form 25 on the extended termination day without there first being any agreement or determination of his degree of disability. The Director did not accept the election as valid pursuant to reg 19M of the Regulations. The Form 22 seeking a determination that the worker’s degree of disability was not less than 16% was lodged after the extended termination day on 3 May 2000. In par [7] Parker J said:
“Section 93E(3)(b) is, from its terms, directed primarily to a court of competent jurisdiction and precludes an award of damages in respect of a disability where a worker has a ‘significant disability’, unless there has been an election in the prescribed manner, which election is registered in accordance with the Regulations. Section 93E(5) precludes an election being made under s 93E(3)(b) ‘after the termination day’ if weekly payments of compensation in respect of the disability have been commenced. The ‘termination day’ means the day 6 months after the day weekly payments commence (s 93E(1)). It is necessary therefore, for the election to be made before the termination day, although, by s 93E(6) and (7), in carefully specified circumstances a late election is possible. It is significant that once an election has been registered the worker’s entitlement to compensation for the disability or any recurrence, aggravation or acceleration of it ceases by operation of s 93E(8).”
Parker J went on to say in par [9]:
“An election to retain the right to seek damages pursuant to s 93E(3)(b) by a worker with a ‘significant disability’ is to be made within a strict time limit. The election must be registered prior to the termination day, although by virtue of transitional provisions, the termination day in the case of Mr Spencer was 5 January 2000. The time for election may be extended pursuant to s 93E(6) where a dispute as to the degree of disability arising under s 93D(8) has not been resolved before the termination day. However, for that to occur the worker must have produced to the Director, not less than 21 days before the termination day, medical evidence indicating that in a medical practitioner’s opinion the degree of disability is not less than the ‘relevant level’ (which is defined in s 93D(1) and in this case is not less than 16%). In such a case, an election can be made within 7 days after the dispute is resolved. Mr Spencer did not produce medical evidence to the Director not less than 21 days before the termination day so as to invoke s 93E(6). Section 93E(7) also provides for an extension of the election day by the Director in circumstances set out in regulations, but it is not contended that this provision has any operation in this case.”

Parker J noted that an election under s 93E(3)(b) “cannot be made unless” the degree of disability is agreed or determined at not less than 16% by virtue of reg 19M of the Workers’ Compensation Regulations.
Parker J then referred to the comments of McKechnie J in Re Monger; Ex parte Woodford, supra, and said at [10]:
“The parties do not dispute the correctness of this decision although with respect to [35] I would note that s 93E(7) is not necessarily limited to the case of a current dispute and the time limit of 6 months applies only to s 93E(7) whereas under s 93E(6) an election must be made within 7 days after the dispute is resolved.”
In Re Monger; Ex parte Cargo Enterprises Pty Ltd, supra, under s 93E(3)(b) it was not possible for the claimant, Mr Spencer, to register an election to retain the right to seek damages as s 93E(3)(b) precluded an award of damages in the absence of an election registered in accordance with the Regulations, and the time within which the election must be registered had passed. He noted, however, that had he produced to the Director medical evidence complying with s 93D(6) not less than 21 days before 5 January 2000, he could have invoked the extended period of time contemplated by s 93E(6), but he did not do so. The claimant in that case failed because he could only be awarded damages, if an election was made and registered in accordance with the Regulations which had not occurred and could no longer occur.
Parker J concluded at par [18] that:
“In the present case, where a ‘significant disability’ is claimed, as the applicant may only be awarded damages if an election is made and registered in accordance with the Regulations, and that has not occurred and can no longer occur, no purpose of the statutory scheme is served by construing s 93D(5) so as to enable its provisions still to be invoked. To do so would be a futile and entirely wasteful exercise, even if the worker could demonstrate a degree of disability of not less than 16%. In my view that was not the intention of the legislature. The submissions of Mr Spencer approach the construction of the statutory provisions in too narrow and constrained a way and lose sight of their purpose.”
I agree with Parker J.
It was contended on behalf of the claimant that the applicant’s application was misconceived because, prior to the promulgation of the new reg 19M on 14 December 1999, the Director had accepted the claimant’s Form 25 election which was “lodged” on 13 December 1999 pursuant to the former reg 19M(4), which provided that:
“If the election is lodged before an agreement or determination as to the degree of disability is recorded under s 93E(4) of the Act, the Director must not register the election until at least 14 days after the agreement or determination is recorded.”
It was contended on behalf of the applicant that this was a case in which neither s 93E(6) nor s 93E(7) was applicable. Neither of those provisions was complied with and the claimant did not contend that there had been compliance within the extension of time provided for in those provisions.
As at 13 December 1999 when the claimant lodged his Form 25 election, reg 19M(4) provided that:
“If the election is lodged before an agreement or determination as to the degree of disability is recorded under s 93E(4) of the Act, the Director must not register the election until at least 14 days after the agreement or determination is recorded.”
In my opinion, however, it follows that the election will not be effective unless and until it is agreed or determined that the worker’s degree of disability is not less than 16% and that agreement or determination was recorded in terms that the worker has a significant disability and elects to retain the right to seek damages, and the election is registered in accordance with the Regulations: s 93E(3).
Counsel for the claimant submitted that the application for certiorari was misconceived because, prior to the promulgation of the new reg 19M on 14 December 1999, the Director had accepted the claimant’s Form 25 election which was lodged on 13 December 1999 pursuant to the former reg 19M(4) which provided that:
“If the election is lodged before an agreement or determination as to the degree of disability is recorded under s 93E(4) of the Act, the Director must not register the election until at least 14 days after the agreement or determination is recorded.”
The election was lodged on 13 December 1999. It was submitted that, on the proper construction of the regulation, if the election is lodged before the issue related to the Form 22 was determined, the Director must not register the election until at least 14 days after the determination. In those circumstances, unless and until the issue raised in relation to the Form 22 resolved by agreement or determination, the Director is required not to register the election until at least 14 days after the agreement or determination is recorded. It was submitted that that was what the claimant did. The question whether or not the election was “registered” was said to be a separate issue under s 93E(3)(b). Registration of the election had not occurred because the Form 22 degree of disability dispute had not been determined. Only once that had been determined could the election lodged on 13 December 1999 pursuant to the former reg 19M(4) be registered and a trial Judge then proceed to award damages. It was submitted that nothing in s 93D itself required a Form 22 to be lodged before an election could be made.
In my view, the difficulty with these submissions is the requirement in s 93E(3) that damages can only be awarded if:
“… the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the Regulations.”
A worker only has a “significant disability” for the purposes of s 93E(3)(b) if, as provided in s 93E(4):
“… it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the Regulations.”
Consequently, there must be an agreement or determination that there is “a significant disability” and, further, such agreement or determination must be recorded. In this case, it has not been agreed or determined that the degree of disability is not less than 16% and no agreement or determination has been recorded.
It was submitted that the important words were the opening words in s 93E(4), namely, “For the purposes of subsection (3)(b)”. That, however, requires both that the worker “has a significant disability” and has made the necessary election and that election “is registered in accordance with the Regulations”.
It was submitted that the important words in s 93E(4) were, “For the purposes of subsection (3)(b)”, which deals with the time of the awarding of damages. I am unable to accept that proposition because the purpose of subs (3) is to stipulate the conditions under which damages can be awarded.
It was also submitted that there was a distinction between the making of an election and the registration of the election. It was submitted that under the former reg 19(4) pursuant to which the worker lodged or made his election on 13 December 1999, he in fact made the election. From that point it was contended that the fact that the election could not be registered until after the determination of an underlying degree of disability dispute under the machinery provisions of s 93D, did not invalidate the act of making the election, consequently there was a distinction drawn between making or lodging of an election, on the one hand, and the registration of that election on the other. Counsel for the claimant sought to rely in support of this proposition on the provisions of s 93E(8) which provides that:
“Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the disability, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.”
On this basis it was submitted that an election could be made in the manner that the claimant made it. In such circumstances a dispute can be resolved under the former reg 19M. The Director then has 14 days within which to register the election and statutory benefits then cease. An election is made by completing a Form 25 and lodging it with the Director.
It was common ground that the claimant was not able to make an election pursuant to the Regulations as at the date on which he lodged his Form 22. It was contended, however, that he had made his election on 13 December 1999. It was submitted on behalf of the claimant that the argument of the applicant confused the making of an election with its subsequent registration and the right to receive damages at some future point in time. It was in these circumstances that the scheme provided that the election was, in effect, to be held in escrow until “at least 14 days after an agreement or determination is recorded” in accordance with reg 19M(4).
In answer to the applicant’s contention that no election was made prior to 14 December 1999, it was submitted on behalf of the claimant that this confuses the making of an election with its subsequent registration and the right to receive damages at some future point in time. The issue in that context is whether the claimant was able to make an election pursuant to the Regulations as at the date upon which he lodged his Form 22 with the Director.
In my opinion, the answer to these contentions is that an election cannot be made in the way in which the claimant contends. The only way an election can be made is to refer the dispute to the Director by means of a Form 22, have that dispute determined in accordance with the Act and the Regulations and, following that, to file an election which is then accepted by the Director and registered. In this context, s 93E(3)(b) stipulates three requirements, namely, that the worker has a significant disability, the second is that an election is made, and the third is the registration of the election. Section 93E(4) deals only with the first of those requirements, namely, that the worker has a significant disability if it is agreed or determined that the disability is not less than 16%. Section 93E(5) provides that the election cannot be made after the termination day. It is in this context that s 93E(6) provides for what is, in effect, a provision for an extension of time within which to make an election.
During the course of argument the question was raised with respect to s 93E(6) which, notwithstanding that, on the face of it, that provision assumes that you cannot make an election unless you have a disability and you cannot have a significant disability unless it has been agreed or determined that you have it, the question remained whether it was possible to construe the Act as saying that one cannot award damages unless the applicant has both a significant disability and has made an election, but you can make an election before it is determined that you have a significant disability. It was contended on behalf of the applicant that, under reg 19M, the Director was required not to register the election until at least 14 days after the agreement or determination was recorded. The provision for extension of time in reg 19N contemplated the existence of circumstances other than those present in this case. It was contended on behalf of the applicant that under reg 19M(4) the Director was required not to register the election until at least 14 days after the agreement or determination is recorded. While the election can be made, it can never be registered because the time limit for the determination or agreement is activated by the Form 22 which was filed out of time. It is of no consequence that the election was filed in time because it is not possible to record the election. As from 14 December 1999 reg 19M was amended to make it clearer that one cannot simply lodge an election document without going through the process. Regulation 19M acknowledges an election can be lodged before an agreement or determination is recorded and goes so far as to prevent or prohibit the Director from registering the election until at least 14 days after the agreement or determination is recorded but, in the present circumstances, it cannot be registered.
There was no explanation why the claimant could not have lodged his Form 22 on the same day as he lodged his Form 25. It was submitted that if he was in a position to lodge a form of election by Form 25, he could and should have lodged his Form 22 on the same day. He chose not to do that and must accept the consequence of his actions in either being held to comply or not to comply. It was submitted that the purported election was futile and could not be accepted or given any validity by the subsequent Form 22 being accepted. The claimant, however, maintained that for the applicant to succeed, it ought to have challenged the validity of the Director’s acceptance of the Form 25 election made on 13 December 1999, but had not done so and cannot now do so, because the election was made in accordance with the former reg 19M(4). The Director took the view that, as the Form 25 was lodged prior to the amendment to the regulations on 14 December 1999, he was unable to register the election until at least 14 days after an agreement or determination was recorded.
It was submitted on behalf of the claimant that the application made by the applicant was misconceived because it confuses the right to make an election prior to 14 December 1999 before an agreement or determination as to a degree of disability, with the right to an award of damages upon registration of that election. This is said to be apparent from the ground in par 6(c) which contended that the Director should have rejected the Form 22 as serving no purpose under the Act, was an abuse of process under and failed to comply with the Act: Re Monger; Ex parte Cargo Enterprises Pty Ltd, supra. I am unable to accept that submission.
From that position the claimant contended that, in the alternative, the Form 25 election made on 13 December 1999 was supported by a medical report from Dr Desmond Williams dated 2 December 1999. It was submitted that if all that is required to make a valid election under the former scheme as it existed prior to 14 December 1999, was simply to file a Form 25, then there had been compliance at that time.
The claimant’s position was that if that submission was not upheld, then the election was made in conjunction with the provision of a medical report from Dr Williams dated 2 December 1999. It was submitted that the effect of lodging the Form 25 election together with the report of Dr Williams amounted to a referral under s 93D, notwithstanding the absence of a Form 22. The substance of Dr Williams’ opinion was that:
“I believe this patient’s long-term permanent residual disability has to be identified in terms of the disability loss of hand and I see disability here over 30% expresses a percentage disability of the whole body according to the second schedule prescribed amount.”
It was contended that the failure to lodge a Form 22 together with that correspondence did not invalidate a reference under s 93D(6) of the Act. In other words, it was contended that there could be a reference under s 93D(5) without compliance with s 19J(1) of the Workers’ Compensation and Rehabilitation Regulations 1982 which provides that:
“A referral under section 93D(5) of the Act –
(a)is to be made in the form of Form 22 in Appendix I; and
(b)is to nominate in the Form 22 one, and only one, relevant level of disability in respect of which the referral is made.”
In my opinion, the absence not only of the Form 22, but also the nomination of the relevant level of disability in respect of which the referral is made, would invalidate the referral.
In the context of the Act, the existence or otherwise of the relevant level of disability is a “jurisdictional fact” in the sense that before making the referral the Director has to determine whether the medical evidence is capable of supporting the relevant opinion. This is a “jurisdictional fact” to the extent that its existence conditions the jurisdiction of the Review Officer: Re Monger; Ex parte Dutch & Ors at par [30] per Malcolm CJ (with whom Wallwork and Owen JJ agreed).
In the present case, Dr Williams’ opinion was that:
“... this patient’s long-term permanent residual disability has to be identified in terms of the disability loss of hand and I see disability here over 30% expresses a percentage disability of the whole body according to the second schedule prescribed amount.”
It was submitted that this complied with s 93D(6). In Re Monger; Ex parte Dutch & Ors, supra, I said at [38]:
“A critical issue in this case is whether the expression ‘degree of disability of the worker’, as it appears in the relevant provisions of the Act, only connotes or relates to some disability of some specified part or parts of the body and does not apply to any overall disability of the body taken as a whole. It was the employers’ case that, on the true construction of s 93D(6), what is required is medical evidence indicating to the Director, in substance, an opinion that there was a degree of disability of the requisite level by reason of the worker having suffered one or more of the disabilities specified. It was submitted on behalf of the employers that a medical opinion, which merely made an assessment of the total disability of the whole body of the worker as a result of a work-related injury, would not be in conformity with what is required by s 93D(2) and (6). The workers’ case, however, was that it was open to assess the disability by reference to a percentage loss of function of the whole body.”
In Re Monger; Ex parte Dutch, supra, it was held that there is no basis in the legislation for the determination of degree of disability in terms of a percentage function of the whole body. Consequently, where the medical evidence was not in accordance with that requirement, it followed that a decision by the Director to refer the matter to a Review Officer under s 93D(5) was wrong in law because the medical evidence required to be produced under s 93D(6) did not indicate that, in the medical practitioner’s opinion, the degree of disability was not less than the relevant level. This was because the opinion referred to an irrelevant degree of disability, namely, loss of function of the whole body. Consequently, the decision of the Director to refer the matter to a Review Officer was incapable of conferring jurisdiction on the Review Officer. It follows that, in this case also, the medical evidence was not such as would entitle a referral under s 93D(5) of the Act.
Under s 93E(3)(b), there are three pre‑conditions to the award of damages where the disability is not less than 16% but less than 30%, namely, first, that the worker has a significant disability; secondly, that the worker elects, in the prescribed manner, to retain the right to seek damages; and, thirdly, the election is registered in accordance with the regulations. Section 93E(4) is only concerned with what constitutes the worker having “a significant disability”. It is s 93E(5) which provides that, subject to subss (6) and (7), if weekly payments of compensation in respect of the disability have commenced, an election cannot be made under subs (3)(b) after the termination day.
Notwithstanding the time limitation in subs (5), subs (6) makes provision for a qualification where medical evidence complying with s 93D(6) was produced to the Director not less than 21 days before the termination day and, although a question about the degree of disability was referred to the Director under s 93D(5) not less than 21 days before the termination day, at the end of the seventh day before the termination day the Director has not given the worker notice in writing that an agreement or determination of the question has been recorded, an election can still be made under subs (3)(b) within 14 days after the Director gives the worker notice in writing that an agreement or determination of the question has been recorded.

This raises the question whether it is the new regulation or the old regulation 19M(4) which was applicable. In my opinion, the amendment to reg 19M(4) makes it clear that the Director must not register the election until the agreement or determination is recorded.
In the present case, there is no question about the validity of the Form 25 in relation to the election. It was simply held in escrow, but could not be recorded because the time limit for the determination or the agreement activated by the Form 22 could never be reached and the Form 22 was filed out of time and ineffective as a referral. Consequently, the election can never be recorded under the former reg 19M(4). After 14 December 1999 reg 19M was amended to make it clearer that it was not possible to simply file an election form without then taking the other prescribed steps. The claimant could have lodged his Form 22 at the same time as he lodged his Form 25. The failure to do that, in the events which have happened, means that his election is invalid.

For these reasons, I am of the opinion that the order nisi should be made absolute in relation to both certiorari and mandamus.
KENNEDY J: I have had the benefit of reading in draft the reasons published by the Chief Justice. I agree with those reasons and with the orders his Honour proposes.
STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision proposed to be delivered by the Chief Justice. I agree with them and have nothing to add.