REGIS AGED CARE PTY LTD -v- HUNTER [2017] WADC 12

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WADC 12
Case No:	APP:79/2016	Heard:	13 JANUARY 2017
Coram:	PARRY DCJ	Delivered:	1/02/17
Location:	PERTH
No of pages:	14	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal dismissed
PDF Version

Parties:	REGIS AGED CARE PTY LTD MAUREEN HUNTER
Catchwords:	Workers' compensation Application for leave to appeal from decision of arbitrator Application by employer for discontinuance, suspension or reduction of weekly payments of compensation to worker under s 60 of Workers' Compensation and Injury Management Act 1981 (WA) on basis of genuine dispute as to liability to pay compensation in consequence of worker's failure to mitigate loss by refusing to participate in alternative employment training Application refused by arbitrator because employer had not persuaded arbitrator that issue of notice under s 61 of Workers' Compensation and Injury Management Act 1981 or commencement of application under s 62 of Workers' Compensation and Injury Management Act 1981 not available to it Whether question of law involved Whether arbitrator erred in law in failing to determine s 60 application Whether arbitrator erred in law in focusing on availability of s 61 or s 62 of Workers' Compensation and Injury Management Act 1981 to employer Threshold issue Whether s 60 application competent
Legislation:	Workers' Compensation and Injury Management Act 1981 (WA) s 60, s 60(2), s 61, s 61(3), s 62, s 247, s 247(1), s 247(2)(b), s 247(5)
Case References:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Slater v BHP Billiton Iron Ore Pty Ltd [2016] WADC 148 Taylor v Star Broken Meats (Unreported, WASCA, No 119 of 1991, 26 August 1992) The State of Western Australia (Department of Education) v Leek [2014] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : REGIS AGED CARE PTY LTD -v- HUNTER [2017] WADC 12 CORAM : PARRY DCJ HEARD : 13 JANUARY 2017 DELIVERED : 1 FEBRUARY 2017 FILE NO/S : APP 79 of 2016 BETWEEN : REGIS AGED CARE PTY LTD

Appellant

AND

MAUREEN HUNTER

Respondent

ON APPEAL FROM:

Jurisdiction : WORKCOVER WA

Coram : ARBITRATOR A DAVIES

Citation : A33466

Catchwords:

Workers' compensation - Application for leave to appeal from decision of arbitrator - Application by employer for discontinuance, suspension or reduction of weekly payments of compensation to worker under s 60 of Workers' Compensation and Injury Management Act 1981 (WA) on basis of genuine dispute as to liability to pay compensation in consequence of worker's failure to mitigate loss by refusing to participate in alternative employment training - Application refused by arbitrator because employer had not persuaded arbitrator that issue of notice under s 61 of Workers' Compensation and Injury Management Act 1981 or commencement of application under s 62 of Workers' Compensation and Injury Management Act 1981 not available to it…

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.

Keep reading for free

Create a free CaseChat account to read Regis Aged Care Pty Ltd v Hunter and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] WADC 12
Decision Date: 1 FEBRUARY 2017

CaseChat Overview and Summary

Regis Aged Care Pty Ltd sought leave to appeal from a decision of an arbitrator who refused the company's application under section 60 of the Workers' Compensation and Injury Management Act 1981 (WA). The employer sought to discontinue, suspend, or reduce weekly payments of compensation to a worker on the basis of a genuine dispute as to liability to pay compensation, due to the worker's refusal to participate in alternative employment training. The arbitrator rejected the employer's application, considering that the employer had not shown that the statutory notice under section 61 or the application under section 62 of the Act were not available to it. The court had to decide whether the question involved a matter of law, whether the arbitrator erred in law in failing to determine the section 60 application, and whether the arbitrator erred in law by focusing on the availability of sections 61 or 62 of the Act to the employer. The threshold issue was whether the section 60 application was competent.

The court held that the question involved a matter of law. The court found that the arbitrator did not err in law in refusing the application, because the employer had not demonstrated that the statutory notice under section 61 or the application under section 62 of the Act were not available to it. The court held that the arbitrator was correct to focus on the availability of sections 61 or 62 of the Act to the employer, as these sections provided the employer with alternative remedies. The court concluded that the section 60 application was competent. The employer's application for leave to appeal was granted, but the appeal was dismissed.

Orders

Orders of the court

Leave to appeal granted

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.