Re Spivey

[1999] WASC 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RE SPIVEY; EX PARTE HARDISTY [1999] WASC 164

CORAM:   MILLER J

HEARD:   30 AUGUST 1999

DELIVERED          :   30 AUGUST 1999

PUBLISHED           :  8 SEPTEMBER 1999

FILE NO/S:   CIV 1684 of 1999

CIV 1685 of 1999

MATTER                :An application for a Writ of Mandamus against Review Officer D'Arcy Spivey

AND

Part IIIA Division 3 of the Workers' Compensation & Rehabilitation Act 1981

EX PARTE

MARK JAMES HARDISTY
Applicant

Catchwords:

Prerogative writs - Hypothetical question - No public interest in determination of matter - Turns on own facts

Legislation:

Workers' Compensation & Rehabilitation Act (1981)

Result:

Orders nisi discharged

Representation:

Counsel:

Applicant:     Mr M Seaman

Respondent:     Ms J H Smith

Solicitors:

Applicant:     Michael Seaman

Respondent:     State Crown Solicitor

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

Veloudos v Young (1981) 56 FLR 182

Case(s) also cited:

Nil

1. MILLER J:  The applicant was on 30 June 1999 granted an order nisi for a writ of certiorari calling on Mr D'Arcy Spivey to show cause why a writ should not be issued against him to move into this Court for the purpose of being quashed his order of 18 June 1999 to adjourn sine die an application of the applicant.  At the same time there was an order nisi for a writ of mandamus made in relation to Mr Spivey calling upon him to show cause why a writ should not be issued against him commanding him to determine the applicant's application of 27 May seeking quantification of the hourly rate relevant to his order of 10 July 1998 made in Application 552 of 1998 filed in the Directorate of Conciliation and Review.  That application sought an order that the applicant's employer pay the applicant weekly payments at the appropriate award rate for 8 hours a week.

2. In the order nisi for a writ of certiorari the applicant asserted that the review officer had denied the applicant procedural fairness and had exceeded his jurisdiction by (i) refusing to hear his application, which was the only application before him, (ii) by permitting legal representation at the hearing in the absence of any consent or exercise of his discretion to permit such representation, (iii) by deliberately involving a Conciliation Officer in the proceedings when he had no power to do so and (iv) by permitting the employer's legal representative to make submissions concerning the validity of the Review Officer's orders of 10 July 1998 when the matter was closed.

3. In the order nisi for a writ of mandamus the applicant asserted that the Review Officer refused to exercise his jurisdiction to determine the application pursuant to section 84ZF of the Workers' Compensation & Rehabilitation Act (1981).

4. The respondent to the proceedings before the Review Officer was South West College of TAFE which appears before me through counsel today.  It has filed a number of affidavits in the proceedings: (1) by affidavit sworn 20 August 1999, Ross Ernest Monger, the director of the Conciliation and Review Directorate of WorkCover Western Australia deposed to the fact that having been served with the various papers, he on 8 July 1999 spoke to Review Officer Spivey, who informed him that at the hearing on 18 June 1999 the applicant was advised that he could apply to have the matter relisted by contacting the Directorate.  Mr Spivey also told Mr Monger that he was able to list the matter during the week commencing 19 July if requested to do so but he had received no such request.  On 9 July Mr Monger spoke with the applicant's solicitor, Mr Seaman, and advised him that Mr Spivey could have the matter relisted if requested.  Mr Seaman indicated the applicant did not wish to have the matter listed before Review Officer Spivey as both he and his client wanted the issues heard in the Supreme Court.

5. (2) By affidavit sworn 20 August 1999, Colin Peter Wayte of the Crown Solicitors Office, swore that he had received instructions on behalf of the South-West Regional College of TAFE to deal with the question of quantification of the applicant's workers compensation payments.  Mr Wayte deposed to the fact that the applicant's workers' compensation payments could be quantified at 8 hours per week and that the only matter to be determined by Review Officer Spivey was the actual rate of pay per hour payable to the applicant.  This, Mr Wayte swore, was capable of agreement.  He had been advised that the appropriate award was the Lecturers (Public Sector Technical and Further Education) Agreement 1996 and the award rate $45.16 per hour.

6. (3) By supplementary affidavit sworn 27 August 1999 Mr Wayte deposed that on 25 August he took further instructions with respect to the applicant's workers' compensation claim and then spoke by telephone to Mr Seaman at about 9.20 am that day in relation to the appropriate rate.  He asked Mr Seaman whether the applicant agreed that the appropriate award and rate was as stated in par 9 of his earlier affidavit and if so, he would tell the claims advocate to inform the respondent of the new workers' compensation rate of payments and request it to commence making payments at that rate immediately and pay the applicant the back payment required.  Mr Seaman then indicated he would take instructions and get back to him.

7. Mr Seaman has informed the Court this morning that he was unable to get instructions until the weekend, but his client now accepts the proposition which has been put forward and the matter is therefore resolved from the applicant's point of view.  Mr Seaman says however that there still remains live in the proceedings the question whether the Court should deal with the orders nisi.  He contends that there is a public interest in so doing. 

8. However, I have been referred by counsel for the respondent to the decision in Veloudos v Young (1981) 56 FLR 182 and in particular to the passage of Lockhart J (at 190) where His Honour said:

   "Courts will not decide a question that is academic in the sense that it is useless, merely hypothetical, raised prematurely or a dead issue; although they preserve a discretion to determine a question which has ceased to be a live issue inter‑parties where the determination would be in the public interest."

9. In my opinion the issues which are sought to be determined in this matter are hypothetical.  The issues are dead and although I have a discretion to determine a question which has ceased to be a live issue inter parties where it would be in the public interest so to determine it, it is my view that no public interest would be served by determining the matters which are the subject of the orders nisi in this case.

10. Mr Seaman has urged me to take account of a Report of the Review of the Western Australian Workers' Compensation System to the Minister for Labour Relations dated 30 June 1999.  It is said that amendments to the appropriate legislation, the Workers' Compensation & Rehabilitation Act 1981 based upon this Report are imminent.  However, the Report has no statutory status, and legislation has not yet been introduced.  In any event, I fail to see how it impacts upon the matters which are before the Court.  Those issues have been fully resolved.  For these reasons I am not prepared to entertain the matter further and I therefore discharge the orders nisi in each of matters 1685 of 1999 and 1684 of 1999.