Woolworths (WA) Ltd v Thomas
[2001] WASCA 257
•28 AUGUST 2001
WOOLWORTHS (WA) LTD -v- THOMAS [2001] WASCA 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 257 | |
| THE FULL COURT (WA) | 28/08/2001 | ||
| Case No: | CIV:1475/2001 | 17 MAY 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 17/05/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | WOOLWORTHS (WA) LTD JAMES PATRICK THOMAS |
Catchwords: | Workers' compensation Delay in bringing matter on for hearing No issue of natural justice arising |
Legislation: | Nil |
Case References: | Bednarczyk v Natcorp Investments Ltd, unreported; CM-110/94 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 Steele v Robert George & Co [1942] AC 497 Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WOOLWORTHS (WA) LTD -v- THOMAS [2001] WASCA 257 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- Applicant (Defendant)
AND
JAMES PATRICK THOMAS
Respondent (Plaintiff)
Catchwords:
Workers' compensation - Delay in bringing matter on for hearing - No issue of natural justice arising
Legislation:
Nil
(Page 2)
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant (Defendant) : Dr J T Schoombee
Respondent (Plaintiff) : Ms T J Laslett
Solicitors:
Applicant (Defendant) : Downings Legal
Respondent (Plaintiff) : Friedman Lurie Singh
Case(s) referred to in judgment(s):
Bednarczyk v Natcorp Investments Ltd, unreported; CM-110/94
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Steele v Robert George & Co [1942] AC 497
Case(s) also cited:
Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
(Page 3)
1 JUDGMENT OF THE COURT: The applicant sought leave to appeal to the Full Court from a decision of a Compensation Magistrate delivered on 16 March 2001 whereby the learned Magistrate answered in the negative the following question of law referred to him for determination by the Review Officer, namely:
"In the event that the employer is not entitled to allege prejudice pursuant to s 84I of the Workers' Compensation and Rehabilitation Act 1981 as amended, is it entitled to, having regard to the peculiar circumstances of this matter to (sic) raise as a defence a general principle of prejudice, in respect of the application filed on 14 June 2000?"
- At the conclusion of the hearing of the application, the Court refused leave to appeal and indicated that it would provide reasons at a later date
2 On 6 November 1997, the respondent claimed that he had slipped at work and injured his back. He reported the incident immediately to his employer, the applicant, and in due course he gave the applicant formal notice of the occurrence of the disability. On 17 November 1997, he provided the applicant with a First Medical Certificate which, the learned Compensation Magistrate held, complied with the requirements of s 57A of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"). Presumably, the reference was intended to be to compliance with the requirements of s 57B and not s 57A of the Act, having regard to the fact that the applicant is a self-insurer. On 18 November 1997, the respondent made a claim for compensation in accordance with s 84I(1)(b) of the Act.
3 The applicant having declined liability for the alleged disability, the respondent, on 26 February 1998, lodged a Form 1 application with the Conciliation and Review Directorate, pursuant to s 24B of the Act, seeking weekly payments and medical expenses. On 23 July 1998, the respondent formally withdrew his Form 1 application, without it having been determined. However, he did not withdraw his claim for compensation.
4 Neither party did anything then for nearly two years until, on 14 June 2000, the respondent lodged a fresh Form 1 application with the Directorate, giving "the date of injury" as "July 97 & Nov 97". The fresh application sought a determination of liability in relation to two alleged disabilities sustained in July 1997 and on 6 November 1997 respectively.
5 When the fresh application came on for hearing before a Review Officer, the applicant sought to raise a question as to "prejudice"
(Page 4)
- occasioned to it by reason of delay in respect of each injury. Pursuant to s 84ZM of the Act, the Review Officer referred to the Compensation Magistrate two questions for determination:
"1. Having regard to (the above mentioned) findings of fact, is the employer, in these proceedings, entitled to allege prejudice pursuant to the provisions of s 84I of (the Act) insofar as it relates to the disability of 6 November 1997, in respect of the application filed on 14 June 2000?
2. In the event that the employer is not entitled to allege prejudice pursuant to s 84I of the Act, is it entitled to, having regard to the peculiar circumstances of this matter to raise as a defence a general principle of prejudice, in respect of the application filed on 14 June 2000?"
"1. The respondent is entitled to allege prejudice, pursuant to the provisions of s 84I, in respect of the application lodged on 14 June 2000, insofar as it relates to an alleged injury in July 1997, but not insofar as it relates to an alleged injury on 6 November 1997."
- There has been no application for leave to appeal against that decision.
7 The learned Compensation Magistrate indicated in this respect that it was clear, and it was accepted by the respondent, that if he desires now to maintain proceedings before the Review Officer in respect of the disability allegedly suffered at some time in July 1997, he will have to satisfy the Officer as to the matters addressed by s 84I(1)(c) and (d). Those paragraphs provide that the want of, or any defect or inaccuracy in a notice of the occurrence of the disability, or the failure to make a claim within 12 months from the occurrence of the disability (or the death of a worker) as required by s 84I(1)(b) of the Act, is not a bar to the maintenance of the proceedings if it is found that the employer, inter alia, is not prejudiced in his or her defence.
8 As to the Magistrate's answer to the second question, the Act repeatedly stresses the need for expedition in the resolution of disputed claims for compensation. Amongst the stated purposes of the Act in s 3 is to make provision for the hearing and determination by the dispute resolution bodies of disputes between parties involved in workers'
(Page 5)
- compensation matters in a manner that is fair, just, economical, informal and quick.
9 Under s 84N, any party to a dispute may, by application, refer the dispute to the Director of Conciliation and Review for conciliation. There is then an obligation on the Conciliation Officer to act fairly, economically, informally and quickly in making all reasonable efforts to bring the parties to the dispute to agreement. By subs (3) of s 84B, the Conciliation Officer is enjoined to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent. By s 84U, if the party to a dispute who has been required to attend before a Conciliation Officer does not do so, the absence of the person does not preclude the making of any order that could be made if the person had attended. There is, however, no provision for striking out a claim for want of prosecution.
10 By s 84Y, a Conciliation Officer is to refer a dispute for review if any of the parties so requests, unless he or she is of the opinion that the party making the request has not made reasonable endeavours to have the dispute resolved through conciliation.
11 Section 84ZA(1) provides that review by a Review Officer is to commence within 14 days after the day on which the matter is referred for review, or as soon as practicable thereafter. By subs (2), the Review Officer is to act fairly, economically, informally and quickly in resolving the dispute, whether by bringing the parties to agreement or otherwise. By subs (3), the Review Officer is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent.
12 It was consequently open to the applicant at any time after the respondent had complied with s 84I in relation to the injury allegedly sustained by the respondent on 6 November 1997 to expedite the resolution of the matter by referring the dispute to the Director for conciliation. The respondent could not defeat any such action on the applicant's part by withdrawing his own Form 1 application. The applicant, however, chose not to take this step, although it is apparent from the information before us, as we have earlier said, that the claim for compensation in respect of the alleged injury on 6 November 1997 had never been withdrawn.
13 The rules of natural justice, upon which the applicant sought to rely, do not appear ever to have been carefully formulated by it. Rules of
(Page 6)
- natural justice are concerned with fairness in the making of decisions by courts and tribunals, a breach of which may lead to the setting aside of a decision. They are not applicable to raising as a defence "a general principle of prejudice" which was put forward, in the context of the question referred for determination, as a complete answer to the respondent's claim.
14 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, upon which the applicant relied, was a very different case. It was not concerned with "prejudice", as such, but with a worker's obligation at common law, as a result of what Lord Wright, in Steele v Robert George & Co [1942] AC 497 at 503, described as a piece of judicial legislation, to take reasonable steps to mitigate his damage on an application under the Workmen's Compensation Ordinance of the Northern Territory. So much appears to have been recognised by the learned Compensation Magistrate at page 8 of his reasons, in which he referred to the decision in Bednarczyk v Natcorp Investments Ltd, unreported; CM-110/94. His Worship adopted the view expressed by the learned Compensation Magistrate in that case, who held that "there was no denial of a right to be heard but prejudice arising from delay might give rise to other issues although not to any breach of the rules of natural justice". Mitigation is such an issue - see Fazlic v Milingimbi Community Inc at 353 - 354.
15 For the foregoing reasons, we were not of the view that leave should be given.
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