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[2017] WASCA 200
General information, not legal advice.
Court of Appeal (WA)
2017-11-02
Murphy JA
Original judgment source is linked above.
[1] At the time the Act was called the Workers' Compensation and Rehabilitation Act. It is convenient to refer to the Act by its current name.
[2] The current legislation refers to an 'injury' while at the time of the conciliation agreement the reference was to a 'disability'.
[4] See, for example, Catholic Education Office of WA v Granitto [2012] WASCA 266. Such impairment may also satisfy other limbs of the definition in certain circumstances: see Kanowna Belle Goldmines v Feierabend [2003] WASCA 246 [19] - [24].
[6] Currently, this is subject to s 174(5AA) of the Act. At the time of the conciliation agreement, the General Account was called the 'General Fund'.
[8] Section 84A and s 84B of the Act at the time of the conciliation agreement; s 176 of the Act now.
[9] Section 84I of the Act at the time of the conciliation agreement; s 178 and s 179 of the Act now.
[12] Section 182ZV and s 185 of the Act.
[13] Part IIIA div 2 of the Act at the time of the conciliation agreement; currently pt XI div 3 of the Act.
[16] Rule 9 of the Workers' Compensation (Conciliation and Review) Rules 1994 (WA).
[24] Kezic v St John of God Health Care Inc [2015] WASCA 220 [56].
[25] As to operation of s 60(1)(e) of the Supreme Court Act see Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167 [93] - [105].
[26] Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [27].
[27] Kezic v St John of God Health Care Inc [2015] WASCA 182 [84] - [86].
[28] Allmark v Mossensons (A Firm) [2006] WASCA 127 [26].
[29] John v Denwest Nominees Pty Ltd [2015] WADC 22 (primary decision) [7] - [40].
[30] As noted above, the amount claimed was $9470.55, being the difference between $11,331.60 and the $1,861.05 awarded on the respondent's counterclaim in the Magistrates Court.
[31] Arbitrator's decision [48] - [53], [108].
[32] Arbitrator's decision [46], [101] - [106], [109].
[33] Arbitrator's decision [20], [29] - [45], [56] - [100].
[35] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93.
[47] Primary decision [99] - [101].
[48] Reichel v McGrath (1889) 14 App Cas 665, 668.
[50] Primary decision [103] - [104].
[52] Affidavit of Michael Joseph Lourey affirmed on 2 July 2015.
[53] Rule 27 of the Supreme Court (Court of Appeal) Rules 2005 (WA).
[54] The State of Western Australia v Cunningham [No 2] [2017] WASCA 197 [49] - [50].
[55] Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93 [5] - [6], [118] - [119].
[56] Sheraz [8] - [20], [118] - [134], [151].
[58] Particulars to the ground of appeal; Appellant's Submissions, pars 40 - 43.
[61] Appellant's Submissions, pars 30, 39, 45.
[66] Appellant's Submissions, par 33, made by reference to primary decision [92].
[71] Respondent's Submissions, pars 29 - 32.
[73] Respondent's Submissions, pars 34 - 37
[78] Respondent's Submissions, pars 59 - 60.
[79] Appellant's Submissions, pars 52 - 53.
[80] For example, primary decision [9] - [15], [77], [88] - [89].
[81] Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58].
[82] See, for example, Avsar v Binning [2009] WASCA 219 [37]; Simonsen v Legge [2010] WASCA 238 [9]; A v C [No 2] [2015] WASCA 199 [17] (Albeit misattributing the observation to Kirby J).
[83] Frigger v Lean [2012] WASCA 66 [53]
[84] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [8] - [9].
[85] See, for example, Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] and Frigger v Professional Services of Australia Pty Ltd (No 2) [2016] WASCA 68 [81].
[86] See, for example, Frigger v Kitay (No 2) [2017] WASCA 139 [120] and Glew v City of Greater Geraldton [2012] WASCA 94 [11].
[87] Cardno BSD Pty Ltd v Water Corporation (No 2) [2011] WASCA 161 [10], Newnes JA agreeing at [12].
[88] Kidd v The State of Western Australia [2015] WASCA 62 (S) [2].
[89] Garner v Rohanna Pty Ltd [1999] WASCA 178 [15] per Malcolm CJ, who would have refused leave to appeal in that case. Ipp and Parker JJ would have granted leave on the basis that the case raised a question of sufficient general importance: [23],[31], [45].
A
C [No 2]
Citation : JOHN -v- DENWEST NOMINEES PTY LTD t/as CUNDERDIN ROADHOUSE [2015] WADC 22
A v C [No 2] [2015] WASCA 199
Allmark v Mossensons (A Firm) [2006] WASCA 127
Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167
Avsar v Binning [2009] WASCA 219
Cardno BSD Pty Ltd v Water Corporation (No 2) [2011] WASCA 161
Catholic Education Office of WA v Granitto [2012] WASCA 266
Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95
Frigger v Kitay (No 2) [2017] WASCA 139
Frigger v Lean [2012] WASCA 66
Frigger v Professional Services of Australia Pty Ltd (No 2) [2016] WASCA 68
Garner v Rohanna Pty Ltd [1999] WASCA 178
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Glew v City of Greater Geraldton [2012] WASCA 94
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Kanowna Belle Goldmines v Feierabend [2003] WASCA 246
Kezic v St John of God Health Care Inc [2015] WASCA 182
Kezic v St John of God Health Care Inc [2015] WASCA 220
Kidd v The State of Western Australia [2015] WASCA 62 (S)
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Simonsen v Legge [2010] WASCA 238
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
The State of Western Australia v Cunningham [No 2] [2017] WASCA 197
The discretion regarding costs has been described as absolute, unconfined or unfettered, although a discretion that must be exercised judicially, not arbitrarily or capriciously, or on grounds unconnected with the litigation. The principles to be applied in an appeal from a decision awarding costs were recently summarised in Keet v Ward [2011] WASCA 139:
(2003) 28 WAR 95
(1998) 194 CLR 106
(2015) 48 WAR 93