Re Monger; Ex Parte Cross

[2004] WASCA 176

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Election to retain common law damages rights
3. › Statutory time limits for election
4. › Whether non-compliance with time limit fatal
5. › Whether time limit procedural or jurisdictional
6. › Whether capable of waiver or estoppel
7. › Workers' Compensation and Rehabilitation Act 1981 (WA), ss 93C, 93D, 93E
1. Administrative Law
2. › Judicial review
3. › Certiorari and mandamus
4. › Decision of Director of Conciliation and Review
5. › Whether Director entitled to refuse registration of election on ground not raised by employer
6. › Workers' Compensation and Rehabilitation Act 1981 (WA), s 93E
1. Estoppel
2. › Waiver
3. › Statutory defences
4. › Whether statutory time limit may be waived by party for whose benefit it was enacted
5. › Distinction between procedural and jurisdictional statutory bars
6. › Whether failure to raise defence in earlier proceedings precludes later reliance
1. Statutory Interpretation
2. › Non-compliance with statutory conditions
3. › Whether act done in breach of condition invalid
4. › Distinction between mandatory and directory provisions
5. › Presumption against abrogation of common law rights
6. › Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Quick Take

The majority upheld Re Monger; Ex parte TNT Australia Pty Ltd, confirming that the time limits in s 93E(5) and (6) of the Workers' Compensation and Rehabilitation Act 1981 (WA) are mandatory and non-compliance is fatal to an election to retain common law damages rights. However, the minority (Malcolm CJ and Heenan J) provided a detailed analysis concluding these time limits are procedural rather than jurisdictional and capable of waiver or estoppel, which may be influential in future reconsideration. The question whether an employer's failure to raise a time limit defence in review proceedings constitutes waiver remains unresolved by the majority.