Re Monger

[2006] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RE MONGER; EX PARTE BELL [2006] WASCA 187

CORAM:   STEYTLER P

WHEELER JA
PULLIN JA

HEARD:   5 SEPTEMBER 2006

DELIVERED          :   5 SEPTEMBER 2006

PUBLISHED           :  14 SEPTEMBER 2006

FILE NO/S:   CACV 54 of 2006

MATTER                :An Application for Writs of Certiorari and Mandamus against ROSS MONGER, Director of the Conciliation & Review Directorate constituted under the Workers' Compensation and Rehabilitation Act 1981

EX PARTE

GREGORY FRANKLIN BELL
Applicant

Catchwords:

Workers' compensation - Director refused to accept Form 22A - Whether s 93EA Workers' Compensation and Injury Management Act 1981 (WA) satisfied - Whether "same question" involved

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93D(5), s 93EA

Result:

Order nisi made absolute

Category:    B

Representation:

Counsel:

Applicant:     Mr M D Cuerden

Solicitors:

Applicant:     Slater & Gordon

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

Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159

Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253

Case(s) also cited:

Re Monger; Ex parte Dutch (2001) 25 WAR 96

Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385

1. STEYTLER P:  I agree with Pullin JA.

2. WHEELER JA:  I have had the advantage of reading in draft the reasons for decision of Pullin JA.  I agree with those reasons and have nothing to add.

3. PULLIN JA:  This is the return of an order nisi for a writ of certiorari to quash the decision of the Director of Conciliation & Review Directorate, made on 9 February 2005. By the decision the Director refused to accept a Form 22A lodged by the applicant on 25 January 2005. It was lodged by the applicant pursuant to s 93EA(3) of the Workers' Compensation and Rehabilitation Act 1981.  The applicant also applies for a writ of mandamus to compel the Director to accept the applicant's Form 22A which will mean that the question of the applicant's degree of disability may be determined in accordance with s 93D of the Act.  Neither the Director nor the employer appeared at the hearing of this application.  They have filed notices of intention to abide by the decision of the Court.

4. In September 1998 the applicant sustained an injury in the course of his employment and obtained weekly payments of compensation.  In December 1999 he lodged a Form 22 to have the degree of disability in respect of his injury determined.  The description of the injury on the Form 22 was "back and right leg injury".  It referred to the date of injury as 21 September 1998 and the relevant level of disability was said to be not less than 30 per cent. 

5. The Director issued a Form 23 in December 1999 and the matter was subsequently listed before a Review Officer for determination.  The decision of the Review Officer was that the Form 22 was valid and that he had jurisdiction to determine the level of disability.

6. In March 2003, as a result of the decision in Re Monger; Ex parte United Construction Pty Ltd  [2002] WASCA 253 a compensation magistrate allowed an appeal and quashed the decision of the Review Officer and in consequence dismissed the application to the Review Officer.

7. On 25 October 2004 the Act was amended by the introduction of s 93EA. That section, so far as it is relevant for present purposes, reads as follows:

   "(1)    Unless it does not apply because of subsection (2) [which is not applicable in this case], subsection (3) applies if ‑

(a)on or before 30 September 2001, a worker ‑

(i)sought to refer a question to the Director under section 93D(5); and

(ii)in order to satisfy section 93D(6), produced to the Director anything that, even though it may not have constituted evidence of the kind required by that subsection, was accepted by the Director as evidence of that kind;

and

(b)the Director treated the question as having been referred under section 93D(5), after which, for a reason based on a failure to satisfy the requirements of section 93D(6) for a referral under section 93D(5) ‑

(i)a review officer did not deal with the substance of the question; or

(ii)a court set aside or quashed a decision of a review officer that dealt with the substance of the question.

…

(3)If this subsection applies, the worker may, within the time limited by subsection (4)(b) and otherwise in accordance with subsection (4), refer to the Director under section 93D(5) the same question as is mentioned in subsection (1)(a)(i), relating to the same disability and only that disability."

1. The provisions of s 93D(6), referred to in s 93EA(1), are to the effect that a question can only be referred under s 93D(5) (the subsection under which the referrals in this case were made) 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.

2. Relying upon s 93EA, the applicant lodged his Form 22A in January 2005. The details appearing on Form 22A referred to the back injury sustained on 21 September 1998. The degree of disability was now shown as not less than 16 per cent, this being supported by a medical report from Dr Duncan Steed, dated 21 January 2005, who expressed the opinion that the applicant had a 20 per cent permanent loss of the efficient use of the lower back. The report was not accepted by the Director. He wrote to the applicant care of his solicitors on 9 February 2005. The Director's letter read:

   "I refer to the Form 22A lodged with this Directorate on 25 January 2005 with attached medical report from Dr Duncan Steed of 21 January 2005 indicating the assessed level of disability. 

   Section 93EA(3) of the Workers' Compensation (Common Law Proceedings) Bill 2005 (CLPA) requires that the question referred regarding the degree of disability on a Form 22A referral should relate to the same 'question' indicated in the original Form 22 referral. I note the original referral lodged on 14 December 1999 indicates a degree of disability of not less than 30% whereas the Form 22A referral of 25 January 2005 indicates a level of disability of not less than 16%.

   Accordingly, as the Form 22A referral was not lodged with respect to the original level of disability claimed, I regret I am unable to process the application."

3. After the Director's decision, and on 24 August 2005, this Court in Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 said this about the question which is referred to the Director under s 93D(5) of the Act:

   "… the question which is referred to the Director under s 93D(5) … is that of what is the degree of disability suffered by the worker. ... the question which is referred by the Director for resolution is always the same, being that of what is the relevant level or, to put it differently, what is the degree of disability."

4. The consequence is that the question referred to the Director in December 1999 was not whether the applicant's level of disability was not less than 30 per cent, but was rather "what is the applicant's degree of disability".  The fact that there had been nomination of a level of disability of not less than 30 per cent would not have precluded a finding that the relevant level of disability was in fact not less than 16 per cent.  As a result the Director erred in refusing to accept the Form 22A.

5. That leaves only an issue about delay.  The decision of the Director was made on 9 February 2005.  The six month time limit in O 56 r 11(1) does not apply to a decision of the Director as he is not an inferior court or tribunal within the meaning of that rule: Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253, at [2], [4], [24] ‑ [29] and [49]. However, the Court still has a discretion to decline relief in cases where there has been delay, but a consideration of the usual factors would suggest that the discretion to decline relief should not be exercised. There is no evidence of prejudice to any other party, the strength of the application favours the grant of relief and the delay has been explained. The explanation is in the applicant's affidavit. He said that he commenced District Court proceedings seeking damages in 2004. In May 2005 an appearance was entered and an application was made to strike out the writ and for summary judgment. That application was dismissed by a Registrar and the employer then appealed to a Judge of the District Court. I gather that this appeal was dismissed because the applicant says that the writ "was not dismissed". The application for the order nisi was then filed in February 2006.

6. In my opinion the order nisi should be made absolute and the decision of the Director to refuse to accept the applicant's Form 22A should be set aside and there should be an order that the Director accept the Form 22A and refer it pursuant to s 93D of the Act.