A and S Sadak Pty Ltd v Kanar - [2013] WADC 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: A & S SADAK PTY LTD -v- KANAR [2013] WADC 180

CORAM: FENBURY DCJ

HEARD: 4 OCTOBER 2013

DELIVERED : 27 NOVEMBER 2013

FILE NO/S: APP 11 of 2013

BETWEEN: A & S SADAK PTY LTD
Appellant
AND
MUSTAFA KANAR
Respondent

Catchwords:

Appeal from registrar's decision making various procedural orders relating to an appeal in the absence of the respondent - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 s 247

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr P E Jarman
Respondent: Mr T J Hammond

Solicitors:

Appellant: Jarman McKenna
Respondent: Simon Walters

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

FENBURY DCJ: On 20 February 2012 Mustafa Kanar filed an application for arbitration pursuant to s 58 of the Workers' Compensation and Injury Management Act 1981 (WCIMA) for determination of liability for commencement of weekly payments.
On 16 May 2012 Arbitrator Melville dismissed Mr Kanar's application.
The learned arbitrator did not give reasons for his decision, nor was he ever requested to do so by either party.
Section 247(1) of the WCIMA states:
If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
Section 213(3) of the WCIMA states:
The reasons for a decision of an arbitrator are to be given in writing to a party to a proceeding if –
(a)the arbitration rules state that the reasons are to be given in writing to the party; or
(b)within 14 days after the arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.
Section 247(4) WCIMA states:
An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
Nearly four months after dismissing the application, and on 3 September 2012, the learned arbitrator heard an application on behalf of Mr Kanar's employer, A & S Sadak Pty Ltd t/as Efe's Baker Pty Ltd seeking an order for costs pursuant to s 264 of the WCIMA.
On 21 January 2013, another four months later, the employer's costs application was dismissed.
In amongst the reasons published by the arbitrator for the dismissal of the employer's costs application, in pars 35 – 39 he indicated that he felt his decision to dismiss Mr Kanar's application for arbitration on 16 May 2012 eight months earlier may have been wrong and why this might be so.
In other words the learned arbitrator's reasons for exercising his discretion in dismissing the employer's costs application were, in part, because he felt his original decision for which he had not ever been asked to give reasons might have been wrong.
Pausing there it is to be observed that these reasons published on 21 January 2013 were published by the arbitrator to explain why he was dismissing the costs application on May 2012. They were not his reasons for dismissing the original application. They merely revealed his hindsight view, eight months later that his original decision might have been wrong. I doubt they can be treated as the arbitrator's reasons for dismissing Mr Kanar's claim for weekly payments. However, that issue is not before me.
Be that as it may on 18 February 2013, Mr Kanar, acting in person, sought to appeal the arbitrator's decision delivered some eight months before.
He did so by filing an appeal notice using a Form 6 pursuant to the District Court Rules 2005 (WA), being an out of date form. Mr Kanar named WorkCover and QBE Insurance as the respondents.
Thereafter a number of procedural applications were brought by Mr Kanar and dealt with by a registrar of the District Court.
It is against the procedural orders made by that registrar that A & S Sadak Pty Ltd seek to appeal. It is those appeals against procedural orders made that are the subject of these proceedings.
On 5 March 2013 Registrar Hewitt ordered that the name of the respondent to Mr Kanar's appeal be amended from WorkCover and QBE Insurance to read A & S Sadak Pty Ltd.
This order was made in the absence of A & S Sadak and also of WorkCover and QBE Insurance. It is put on behalf of A & S Sadak that there has been procedural unfairness in not allowing Sadak to be heard.
Further, on 18 April 2013, Registrar Hewitt ordered that Mr Kanar serve an amended notice of appeal on Sadak, together with a copy of the orders made that day.
Further, on 9 May 2013, Registrar Hewitt ordered that Mr Kanar have leave to substitute the appeal notice with another appeal notice being a Form 8A then required following an amendment to the District Court Rules gazetted on 18 November 2011. It was obvious Mr Kanar was unaware of, and further, did not have his attention drawn by the registry to the correct form when he initially attended in person to commence an appeal.
Also, on 9 May 2013, Registrar Hewitt ordered that the substituted notice be served on the respondent (Sadak) within 21 days together with orders made on 5 March 2013 and on 9 May 2013.
On 4 June 2013 Mr Kanar served copies of the orders of Registrar Hewitt of 5 March and 18 April 2013 on Sadak. On 12 July 2013 he served a copy of the orders made by Registrar Hewitt of 9 May 2013 on Sadak.
It is asserted on behalf of Sadak that the registrar erred in law in granting Mr Kanar's application to file a substituted appeal notice and also in granting an order that the name of the respondent be amended.
Sadak Pty Ltd complains that it was denied procedural fairness as it was not present or heard when either of these orders was made.
It is further asserted that there is no power in the District Court Rules or WCIMA that allows the court to grant leave to substitute the form of the appeal notice pursuant to r 51, that there is no power to extend the time to file an appeal notice pursuant to s 247(4) of the WCIMA and that there is no power in the Rules for the court to amend the name of the respondent. It is submitted on behalf of Sadak that in granting the orders that he did, the registrar eaffectively extended the time for the appellant to make an application for leave to appeal in a situation where there is no power for the court to extend time pursuant to s 247 of the WCIMA.
An extension of time to appeal the decision of the registrar is sought on behalf of Sadak. I think that issue can be quite shortly dealt with. Having regard to pars 24 to 30, inclusive of submissions filed on behalf of Sadak, I think it would be appropriate for an extension of time to be granted. In short, Sadak had no idea the registrar was making the orders that he did until time had expired. A notice of intention to appeal was filed on 3 July 2013 to appeal the registrar's decision on 3 July 2013 which was some 19 days after Sadak had been served with a substituted appeal notice. It is pointed out that:
[Sadak] will be prejudiced if an extension is not granted as it was not in a position to appeal the orders within 10 days of the orders being made as it was not involved in the matter until 3 July 2013 and was not provided with copies of the orders until 4 June 2013 and 12 July 2013. Any prejudice to the appellant would be outweighed by the substantial prejudice that would be suffered by the respondent [Sadak] in being denied procedural fairness in not being allowed to be present or heard when the orders were made by the registrar.
I notice that Mr Kanar does not take issue with Sadak's request for leave to appeal out of time. On behalf of Mr Kanar who is the respondent to this appeal but the appellant in relation to the substantive appeal, it is put that Sadak's notice of appeal does not seek orders that the claim be dismissed but simply that they be set aside and time extended for Sadak to file its notice of appeal. It is put on behalf of Sadak that r 55(3) of the District Court Rules provides for an enormous discretion for a registrar to 'make any order or direction that in his or her opinion will or may facilitate the appeal being conducted officially, economically and expeditiously'. It is submitted that clearly the registrar had the powers to make the orders that he did in the case. At par 28 it is put on behalf of Mr Kanar that:
Factors that militate against a finding that [Sadak] appeal ought to be successful include:
(a)at the time of the filing of the appeal notice the appellant was self‑represented, and it is clear he does not have a superior grasp of either the legal system nor the English language;
(b)there is no prejudice suffered to [Sadak] in this case. [Sadak] has had the same insurer and/or same firm of solicitors represented since the claim was first disputed;
(c)there has been no evidence provided by [Sadak] as to why it is prejudice in either its notice of intention filed 3 July 2013 nor in its materials provided to the court on 10 September 2013.
It is put that the substituted notice 'is uncontroversial'. It simply sets out in standard form the issue as raised by the arbitrator in his written reasons – on the basis of recent authority of this court. There is doubt cast over whether the arbitrator had jurisdiction to dismiss the application on jurisdictional grounds.
Having considered the matter, in my view, I accept the assertions made on behalf of Mr Kanar that, upon analysis, no great harm has been done in the lack of procedural fairness that appears to exist to date. True it is, Sadak was not aware of what was occurring. Sadak should be able to ventilate these matters in an appeal if it wishes to do so but, at the end of it all, I would not be minded to interfere with the orders that were in fact made. As described, they are fairly uncontroversial and procedural in their nature.
That of course leaves the issue of a substantive appeal which is for another day.