Workers' Compensation and Rehabilitation Act 1981 (as amended), s 93B, s 93C, s 93C, s 93E(3), s 93E(4), s 84ZF(3), s 84ZF(4)

Farmer v AOC Australia Pty Ltd [2002] WASCA 340

Re Monger; ex parte Dutch et al [2001] WASCA 220; (2001) 25 WAR 96

Re Monger; ex parte United Constructions Pty Ltd [2002] WASCA 253

O'SULLIVAN DCJ:

1 The plaintiff has brought proceedings in this Court seeking damages for personal injuries said to have been sustained in the course of his employment by the defendant. Causes of action in negligence, contract and for breach of statutory duty are pleaded in the statement of claim.

2 The relief which the plaintiff seeks is of a kind which can only be granted in accordance with the provisions of Part IV Division 2 of the Workers' Compensation and Rehabilitation Act 1981 (as amended) ("the Act"). (See s 93B and s 93C). Further s 93E which is within Division 2 states in part:

(a) it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations_;_ or

(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.

(4) For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."

3 The parties have not agreed upon the extent of the plaintiff's disability and so it has been necessary for the plaintiff to seek a determination. For that purpose what is commonly known as a "Form 22" was lodged with the Director of Conciliation and Review at the Workers' Compensation and Rehabilitation Commission on 3 January 2001. The Director referred the matter to a review officer who conducted a hearing on 10 May 2001 and handed down his decision on 8 August of that year stating that he had concluded that the plaintiff's level of disability was "not less than 16%."

4 The action in this Court is listed for trial in late March. The defendant is seeking to have the review officer reconsider his decision but it may not be possible for a hearing for that purpose to be held before the date of trial. Accordingly the defendant seeks an adjournment of the trial and a stay of proceedings pending the reconsideration.

5 Under s 84ZF(3) of the Act a review officer may reconsider a decision and vary or revoke it if he considers it appropriate to do so having regard to any "new information" which might be placed before him. "New information" is defined in s 84ZF(4) to mean: "information that was not available to the review officer when the decision was made and, in the opinion of the review officer, justifies reconsideration of the decision."

6 The defendant will seek to argue before the review officer that he lacked the jurisdiction to determine the extent of the plaintiff's disability. He will submit that following the decisions of the Full Court in Re Monger; ex parte Dutch et al [2001] WASCA 220; (2001) 25 WAR 96; Re Monger; ex parte United Constructions Pty Ltd [2002] WASCA 253 and Farmer v AOC Australia Pty Ltd [2002] WASCA 340 it is now clear that before the question of the extent of a worker's disability can be referred to a review officer the medical evidence lodged in support of the Form 22 application must include evidence that in the opinion of a medical practitioner the degree of disability of a worker is not less than the relevant level. It will be argued that the Director's task upon receipt of a Form 22 is not merely administrative because he must be satisfied that the medical evidence "indicates" that the degree of disability is not less than the required level. If the Director does not do so and there is no evidence meeting the required description it will follow, as Malcolm CJ said in Dutch (supra) at [85] that: "the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer."

7 The defendant will argue that the definition of "new information" in s 84ZF(4) is wide enough to cover decisions of the Full Court which have been handed down since the initial determination. United Constructions (supra) was not handed down until 12 September 2002 and Farmer (supra) was handed down on 11 December 2002 and Dutch (supra) was handed down on 30 July 2001, just before the determination of the review officer.

8 The principles which govern applications of the kind here being considered are not in doubt. The court should be cautious to deny a party's right to prosecute a claim but has a wide discretion to ensure that proceedings before it result in an effective disposition of the issues which have been raised and constitute an efficient use of the court's resources and of the time and money of the parties.

9 I have been taken to the "medical evidence" to which the defendant will refer in its application for a reconsideration of the review officer's decision. Having considered it, it seems to me that it is clearly arguable that it does not meet the criteria laid down in the authorities for the proper conferring of jurisdiction to determine the extent of a plaintiff's disability. While the decision is not for me it is sufficient to say that in my opinion the defendant clearly has an arguable case before the review officer.

10 If the defendant's application to the review officer succeeds it will follow that this Court may never be able to award damages to the plaintiff. The earlier determination will have been void (see Farmer (supra) at [11] per Steytler J). In these circumstances the time of this Court and of the parties will have been wasted.

11 In my opinion until a reconsideration of the review officer's decision has taken place there is a great deal of uncertainty surrounding the plaintiff's claim. Against this background I have come to the conclusion that there should be a stay of the proceedings.