CASE SUMMARY: District Court Number 
WADC 12, Regis Aged Care P/L v Hunter
On 13 January 2017 Parry DCJ in the District Court delivered the
reasons for decision in an appeal by the employer, Regis Aged Care
P/L against an arbitrator's dismissal of an application brought
by the employer pursuant to s60 of the Workers'
Compensation and Injury Management Act.
The worker, Ms Hunter was an enrolled nurse who sustained a hip
injury in the course of her employment on 28 June 2013.
Mrs Hunter was ultimately able to return to work on a part-time
basis, however in May 2016 Regis contended that there was a genuine
dispute as to liability based upon the failure of Ms Hunter to
mitigate her loss. Regis had offered Ms Hunter the opportunity to
train as a phlebotomist but she had declined this invitation on the
basis that she wished to continue to be employed as an enrolled
Regis issued a s60 application on the basis that the
worker's decision gave rise to a genuine dispute as to
liability to make weekly payments.
In dismissing the application, the arbitrator made reference to
the State of Western Australia (Department of Education) v
Leak  WADC 10, to support the proposition that an
application pursuant to s60 would not be competent if the
circumstances giving rise to the application were such as to enable
an employer to either issue a s61 notice or to bring a s62
In the appeal by Regis, Parry DCJ considered the principles
applicable to this dispute derived particularly from the decision
of the Court of Appeal in Taylor v Star Broken Meats,
library number 920434, 26 August 1992, and the Leak
In Leak, His Honour Staude DCJ made it clear that the
point of s60 was to establish whether or not there was a genuine
dispute and this did not require the arbitrator to focus on the
merits of the employer's grounds. In fact, His Honour made the
"These authorities to which
I have referred make it clear that the Arbitrator does not look
behind the declared attitude of the employer provided it is sincere
and serious and that the grounds of the dispute are not
On the other hand, it was necessary for an employer to establish
that a s60 application was appropriate in the circumstances. The
Court of Appeal decision in Star Broken Meats was relevant here.
Parry DCJ observed that
"On the proper
interpretation of the legislative scheme comprising Section 60 and
Section 61, as determined by the Full Court in Star Broken Meats,
an application could not properly be brought by Regis under Section
60 in circumstances where the substance of the dispute falls within
the scope of Section 61 of the Workers' Compensation and Injury
Her Honour found that although leave to appeal was to be
granted, the Appeal should be dismissed on the grounds that the
employer's application was not competent under s60.
To the extent that the decision of Staude DCJ in Leak
may have encouraged insurers to look more broadly at the
possibilities of issuing a s60 application in preference to seeking
relief under s61 or s62, this decision might be seen as
re-emphasising the limits that need to be observed. Before the
Leak decision, the general view derived from Star
Broken Meats was that s60 would generally be applicable to a
different subject matter than that which would give rise to
potential relief under s61 or s62. Leak on the other hand
reiterated the fact that s60 was not concerned with assessment of
merits so much as the identification of a genuine dispute. It did
not appear to preclude circumstances in which the dispute concerned
incapacity. In Regis v Hunter, we are reminded that a s60
application will not be likely to succeed if, for example, a gloss
is put on the relevance of s61 and s62 based upon the proposition
that a worker has failed to mitigate loss. Failure to mitigate is
of course important, but will not displace the application of ss61
or 62 if they are appropriate to, and better address the substance
of the relief sought.
This decision may not change any existing practices, but when in
doubt, should be worth considering on the issue of the competency
of a potential application under s60.
Of course, while this decision may be instructive, we are still
left, in dealing with s60, with a cumbersome, two stage procedure,
not reflecting the original intent of the provision.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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