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Re Ross Monger;

Re Ross Monger;

Case [2001] WASCA 321 23 October 2001

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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:

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.

Continue reading Re Ross Monger;

Details

AGLC: Re Ross Monger; [2001] WASCA 321
Case: [2001] WASCA 321
Decision Date: 23 OCTOBER 2001

CaseChat Overview and Summary

The case of Re Ross Monger involved the applicant, Ross Monger, and the Director of the Conciliation Directorate under the Workers' Compensation and Rehabilitation Act 1981 (WA). The dispute centred on the Director's decisions regarding Monger's application under section 93D of the Act and related determinations. The matter was heard in the Supreme Court of Western Australia. Monger sought a writ of certiorari to quash the Director's decisions, contending that they were tainted by jurisdictional error and constituted a wrongful assumption of jurisdiction.

The primary legal issues before the court were whether the Director had erred in finding that a dispute had arisen for the purposes of section 93D(8) of the Act, and whether the reference of Form 22 to a Review Officer under section 93D(10) was lawful. The court needed to determine if these errors were apparent on the face of the record and, if so, whether they warranted the issuance of the writ of certiorari. The focus was on whether the Director had correctly exercised their jurisdiction and whether any jurisdictional errors were significant enough to invalidate the decisions in question.

The court found that the Director had indeed erred in determining that a dispute had arisen. This error was considered jurisdictional, as it was a foundational fact necessary for the Director to exercise their jurisdiction under the Act. Furthermore, the court determined that the Director had wrongfully assumed jurisdiction by referring Form 22 to a Review Officer, as the referral was not warranted under the circumstances. These errors were significant and apparent on the face of the record, leading the court to conclude that the Director's decisions were invalid. Consequently, the court granted the writ of certiorari, quashing the Director's decisions.

The final orders of the court included the quashing of the Director's decisions to accept Monger's application under section 93D and the referral of Form 22 to a Review Officer. The court's decision underscored the importance of jurisdictional accuracy and the consequences of wrongly assuming jurisdiction in administrative law contexts.

Orders