Armet v CFC Consolidated Pty Ltd

[2025] WADC 50

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ARMET -v- CFC CONSOLIDATED PTY LTD [2025] WADC 50

CORAM:   LONSDALE DCJ

HEARD:   1 OCTOBER & 15 NOVEMBER 2024

DELIVERED          :   22 AUGUST 2025

FILE NO/S:   APP 33 of 2024

BETWEEN:   STEPHANE ARMET

Appellant

AND

CFC CONSOLIDATED PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKERS COMPENSATION ARBITRATION SERVICE

Coram:   ARBITRATOR WALLBRIDGE

File Number            :   A119319

Catchwords:

Workers' compensation - Appeal under s 391 of the Workers Compensation and Injury Management Act 2023 (WA) 'total liability of employer' - 'Permanent total incapacity for work' - Failure to give adequate reasons - Bias - Lack of procedural unfairness - Denial of natural justice

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 3(d), s 5A(1A), s 188, s 217, s 247, Sch I cl 11(2)

Workers Compensation and Injury Management Act 2023 (WA), s 391

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr T H Offer and Ms M L Radford

Solicitors:

Appellant	:	Not applicable
Respondent	:	McCabes

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

Armet v CFC Consolidated Pty Ltd (Unreported, Workers Compensation Arbitration Service, A119319 12 April 2024)

Armet v CFC Consolidated Pty Ltd [2018] WADC 109

Armet v CFC Consolidated Pty Ltd [2020] WADC 142

Armet v CFC Consolidated Pty Ltd [2022] WADC 5

Armet v CFC Consolidated Pty Ltd [2022] WASCA 63

Armet v Stephen Browne [2024] WASCA 44

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Catholic Education Office of WA v Granitto [2012] WASCA 266

F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Joyce v Anderson [2020] WASCA 48

Kipoi Holdings Mauritius Ltd v Kirman [No 4] [2024] WASCA 145

Lockwood-Hall v BHP Billiton Nickel West Pty Ltd (Unreported, C 5/12 (McCann PP) 18 May 2012)

Mercantile Mutual Insurance (Workers' Compensation) Ltd v Cini (Unreported, CM 57/96 (Heath SA) 25 September 1996)

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Robertson v Kraft Foods Ltd (Unreported, CM 64/99 (Heath SA) 28 July 1999)

Tabloid Pty Ltd v Pringle [2024] WASCA 152

Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Zamora v OCS Services Pty Ltd [2025] WASCA 117

LONSDALE DCJ:

Introduction and overview

1. On 18 March 2015 the appellant suffered an injury to his lumbar spine whilst in the employ of the respondent.  On 30 July 2025 the appellant lodged an application for workers' compensation pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (the 1981 Act).

2. On 4 September 2015 the appellant suffered an aggravation of the back injury following which the respondent accepted liability for the aggravation of the injury.  Weekly payments of compensation commenced.  The appellant continued to receive weekly payments until September 2019. 

3. Arising out of the injury to his lumbar spine, the appellant claims he has suffered various secondary conditions.  These conditions are said to be injuries to his right foot, plantar fasciitis, tinnitus, psychiatric ill health and alopecia (hair loss). 

4. The appellant's claims have been the subject of many applications and hearings in the Workers' Compensation Arbitration Service from which there have been several appeals to this court and from this court to the Court of Appeal. 

5. The appellant sought an extension of weekly payments from 1 September 2019 on the basis that he had suffered a permanent incapacity for work.  The application, which was assigned the number A119319, was heard and determined by Arbitrator Wallbridge who dismissed the application.  The appellant appeals to this court against that decision.

Procedural history of the appellant's claims

1. In order to understand the appellant's case in these proceedings it is necessary to set out something of the history of proceedings since the appellant was first injured.  A convenient summary is set out by the Court of Appeal in Armet v CFC Consolidated Pty Ltd [2022] WASCA 63 [5]:

   Mr Armet has pursued a number of claims under the Act:

   1.In A34818, CFC admitted liability in relation to the lumbar spine injury.  However, CFC subsequently brought an application to reduce the rate of Mr Armet's weekly payments on the basis that Mr Armet had partial capacity for employment.  Arbitrator Rutherford upheld CFC's application.  Mr Armet appealed (APP 6 of 2018).  That matter (weekly payments dispute) was ultimately resolved by consent.  Weekly payments were reinstated in their original amount, and CFC made back payments to reflect payments which otherwise would have been made to Mr Armet had it not been for the orders made by Arbitrator Rutherford. 

   2.In A34042, Mr Armet sought a determination that his tinnitus was compensable (tinnitus dispute).  Arbitrator Rutherford determined this was not compensable.  Mr Armet appealed (APP 4 of 2018).  The appeal was dismissed. 

   3.In A36114, Mr Armet sought a determination that the alopecia, foot pain, plantar fasciitis and neck pain were compensable (related injuries dispute).  Arbitrator Rutherford determined the foot pain was a function of sciatic referred pain from Mr Armet's back injury and was therefore compensable.  Arbitrator Rutherford determined that the other injuries were not compensable.  Mr Armet appealed to the District Court (APP 5 of 2018).  The appeal was dismissed.

   4.In A49618, Mr Armet brought a claim for consequential psychiatric injury (psychiatric claim).  Arbitrator Nunn case‑managed that matter and adjourned the directions hearing on 26 February 2018.  The substantive matter was ultimately determined by Arbitrator Soh.  Arbitrator Soh awarded Mr Armet statutory expenses. 

   5.In A57329, CFC applied to suspend Mr Armet's weekly payments of compensation for alleged failure to attend scheduled medical reviews (medical reviews dispute).  The application was brought in the arbitration in relation to the psychiatric claim.  Arbitrator Nunn accepted the application for lodgement.  The substantive merits of the application were never ventilated because CFC abandoned its application after Mr Armet attended medical reviews. 

   6.In A60985, A64958, and A64753, Mr Armet brought three applications which were all abandoned or discontinued by consent. 

   7.In A93766, Mr Armet brought a claim for statutory expenses incurred as a result of his compensable injuries, plus interest (statutory expenses arbitration). 

   (footnotes omitted)

2. It is convenient for the sake of consistency and to enhance the readability of my reasons to adopt the same descriptions for the various applications used by the Court of Appeal.  I will therefore refer to the various disputes as the weekly payments dispute, the tinnitus dispute, the related injuries dispute, the psychiatric claim, the medical reviews dispute and the statutory expenses arbitration. 

The application before Arbitrator Wallbridge - relevant statutory provisions

1. The appellant's application for an extension of weekly payments was made pursuant to s 217 of the 1981 Act which provides as follows:

   Order as to total liability of employer

   (1)This section applies where -

   (a)an arbitrator considers that an injury to a worker that is compensable under this Act has resulted in the permanent total incapacity for work of the worker; and

   (b)an order for redemption of the liability for the incapacity has not already been made under section 67; and

   (c)no memorandum of agreement for the payment of a lump sum in redemption of the liability for the incapacity has been recorded under section 76; and

   (d)the total weekly payments by way of compensation payable under clause 7 for that injury have reached the prescribed amount.

   (2)If this section applies, the arbitrator may, subject to this section, make any order as to the total liability of the employer for the incapacity that the arbitrator thinks proper in the circumstances.

   …

2. Section 5A(1A) of the 1981 Act provides:

   (1A)In this section -

   …

   prescribed amount means -

   (a)for a financial year ending before 1 July 2020, the amount that was the prescribed amount for that financial year under this Act as in force on 1 July of that year;

   (b)for the financial year ending 30 June 2021, the amount of $235 971.00;

   (c)for any subsequent financial year, the amount prescribed, or worked out, under the regulations for that financial year.

Procedural history relevant to the present application (A119319)

1. The appellant had begun receiving weekly payments of compensation for his injuries in mid‑2015. He continued to receive them until 1 September 2019 when the total payments reached the 'prescribed amount' having regard to s 5A(1A) and sch 1 cl 11(2) of the 1981 Act.

2. On 9 April 2019, the appellant (anticipating that the total amount of weekly payments was soon to reach the prescribed amount and would thereafter cease) filed an application for an order for total liability pursuant to s 217 of the 1981 Act (application case number A60985).

3. This application suffered from a fundamental flaw: it had been filed prior to the total weekly payments reaching the prescribed amount. It was thus bound to fail because of the precondition in s 217(1)(d) of the 1981 Act that the total weekly payments must have reached the prescribed amount.

4. The application came before Arbitrator Nunn (as he then was) on 21 June 2019 for directions.  Arbitrator Nunn made orders discontinuing the application and made no order as to costs.  Arbitrator Nunn recorded the following case note:[1]

   Parties attended for first directions hearing.  Worker is self-represented.

   Worker seeks orders under s 217, cl 18A and S 158 however each suffer from jurisdictional issues and in any event all seem to be premature given the ongoing appeals in the District Court related to the alleged hair loss, neck injury, foot injury and tinnitus as well as the claim for a psychiatric injury presently before Arbitrator Soh.

   Employer intends to seek costs if these matters progress however (after obtaining instructions) confirmed that if the matters were discontinued today it would not pursue costs and Mr Armet could bring these applications again at some future time when the jurisdictional bars were removed.

   The parties consented to the matter being discontinued on this basis.[2]

   [1] WorkCover WA file, Directions Orders of Arbitrator Nunn, Case No A60985, page 988.

   [2] WorkCover WA file, page 988.

5. Arbitrator Nunn's reference in the case note to 'ongoing appeals in the District Court' would appear to be a reference to appeals lodged by the appellant in relation to the 'related injuries dispute' (A36114), the 'tinnitus dispute' (A34042) and the 'psychiatric claim' (A49618) which were each the subject of APP 4 of 2018 and APP 5 of 2018.  See Armet v CFC Consolidated Pty Ltd [2018] WADC 109 (Principal Registrar Melville); and Armet v CFC Consolidated Pty Ltd [2020] WADC 142 (Stewart DCJ).

6. It is common ground that the appellant had lodged the application early in order to avoid weekly payments being terminated until the application for total liability was determined. He was evidently unaware of the effect of s 217(1)(d) when he filed the application. It is apparent that the appellant feels aggrieved by the dismissal of the application by Arbitrator Nunn on what he regarded as a technicality.

The second application for total liability

1. By September 2019, the weekly payments had reached the prescribed amount. Thereafter, the appellant was no longer precluded from seeking an order under s 217. The appellant made a second application which was assigned the number A64753.  This application, together with the appellant's application for compensation for a foot injury (A64958) (something different to the foot pain and plantar fasciitis the subject of the 'related injuries dispute') came before Arbitrator Nunn on 18 December 2019 for directions. 

2. At the hearing on 18 December 2019, Arbitrator Nunn made an order dismissing both the application for total liability under s 271 and the application for the foot injury (A64753 and A64958).  Arbitrator Nunn made the following case note:[3]  

   [3] WorkCover WA file, directions orders of Arbitrator Nunn, Case No A60985, page 1011.

   Parties attended for further directions hearing.  The position set out in my previous orders canvassed with the parties.

   Mr Armet maintained his position that he did not wish to proceed with any of the applications as brought on the face of the applications and sought to have them discontinued.  The employer indicated it agreed to the matters being discontinued but reserved its position in respect of any other applications it may have regarding these matters.  In effect applications A64753 and A64958 are discontinued by consent and accordingly it is not necessary for me to address the employer's interlocutory applications in those matters.

   Mr Armet maintained that he wished to proceed with a determination of liability in regards to his alleged foot injury, this being something he contends is other than the plantar fasciitus [sic] injury and the referred pain from his back manifest in his foot as dealt with by Arbitrator Rutherford at first instance.  Mr Armet maintains that this was before Arbitrator Rutherford and is not a new injury or a new claim of any kind.

   The remedy Mr Armet seeks is payment of treatment expenses in regards to this foot injury.

   Nature of this injury and how that matter might be progressed in light of the appeals presently on foot discussed.  At that stage Mr Armet became intemperate and left the hearing.

   Given the discontinuance of the applications as brought nothing seems to remain between the parties in respect of A 64753 and A64958.

   If Mr Armet has any further applications to bring specifically in regards to treatment expenses for the further alleged foot injury he remained free to do so.

   With the consent of the parties the following Order(s) have been made:

   1.Applications A64753 and A64958 are discontinued by consent.

3. Thus, according to the case note, the appellant's second application for an order for a total liability also failed. 

The third application for total liability

1. The application for an extension of weekly payments under s 271, being the subject of the present appeal was the third such application (A119310).  This application proceeded to hearing before Arbitrator Wallbridge on 3 October 2024. 

2. On 12 April 2024 Arbitrator Wallbridge dismissed the application and gave written reasons.[4]

The issues before Arbitrator Wallbridge

[4] Armet v CFC Consolidated Pty Ltd (Unreported, Workers Compensation Arbitration Service, A119319 12 April 2024) (Arbitrator Wallbridge) (Arbitrator's reasons).

1. By the time of the hearing before Arbitrator Wallbridge, the issues that had plagued the appellant's previous applications for an order for an extension of weekly payments pursuant to s 217 of the 1981 Act were no longer present. That is there had been no redemption of liability for incapacity under s 67 of the 1981 Act, no memorandum of agreement for the payment of a lump sum under s 76 of the 1981 Act and the total weekly payments had reached the 'prescribed amount'. Therefore, Arbitrator Wallbridge was able to determine the application on its merits.

2. Further, by the time of the hearing before Arbitrator Wallbridge, all other disputes, save for the 'statutory expenses arbitration' had been heard and finally determined.  Therefore, the only issue before Arbitrator Wallbridge was whether the appellant was entitled to an order as to total liability on the basis of the appellant having a permanent total incapacity for work.

Evidence before Arbitrator Wallbridge

1. The appellant and the respondent had filed extensive documentation and submissions in advance of the hearing.  This included many medical certificates and medical reports, amounting to some 1,700 pages.  The respondent did not require the appellant to be cross‑examined so the appellant did not give or call any oral evidence. 

2. The hearing itself was fairly short.  Both the appellant (who represented himself) and counsel for the respondent appeared via telephone.  The parties presented as content to have the matters dealt with on the papers but both the appellant and counsel for the respondent made short oral submissions.

3. The appellant tendered the following expert reports in support of the application:

Document	Date
Report of Dr Soni Narula, Neurosurgeon	6 November 2015
Report of Dr Soni Narula, Neurosurgeon	12 February 2018
Report of Dr Peter Watson, Neurosurgeon	1 November 2016
Report of Dr Peter McCarthy, Consultant Psychiatrist	7November 2017
Report of Associate Professor Euan Thompson, Consultant Occupational and Environmental Physician	1 February 2019

1. The respondent filed the following medical and expert reports:

Document	Date
Report of Dr Iyad Dayoub, Consultant Occupational Physician	28 September 2022
Report of Dr Iyad Dayoub, Consultant Occupational Physician	26 April 2023
Report of Dr Lawrence Terace, Consultant Forensic Psychiatrist	3 February 2023
Report of Dr John Low, Occupational Physician	28 December 2015
Report of Dr John Low	1 May 2016
Report of Dr John Low	4 February 2017
Report of Dr Lawrence Terace	12 February 2019
Report of Registered Psychologist Lyn Csendes	22 September 2016
Report of Clinical Psychologist Jo Rae	3 March 2020
Psychological progress report of Jo Rae	6 July 2020
Report of Psychologist Mr Malcolm Heckenberg	16 June 2022
Progress Medical certificates	Various
Report of Dr Ian Wallace	8 September 2016
Report of Dr Hannes Gebauer	22 March 2017
Report of Dr McCarthy	17 November 2017

The appellant's contention at the hearing before Arbitrator Wallbridge

1. The appellant's primary contention was that his application for an order for total liability should be made because the evidence established he had a total permanent incapacity for work.  The appellant relied on the declarations of unfitness contained in progress medical certificates.  The most recent progress medical certificates were dated 23 April 2023 for the back injury and 26 June 2023 for the psychiatric injury. 

The respondent's contention at the hearing before Arbitrator Wallbridge

1. The respondent submitted that the progress medical certificates, together with the expert evidence, did not support a conclusion that the appellant was suffering a permanent total incapacity for work. 

Overview of Arbitrator Wallbridge's reasons

1. In his written reasons, Arbitrator Wallbridge acknowledged the appellant's submissions and statement filed in support of the application as well as the other material lodged with the arbitration service.  He noted that he had considered some 1,700 pages of documentation.  This included all of the documentation filed by the appellant as well as the evidence of the respondent's medical experts.[5] 

   [5] Arbitrator's reasons [4].

2. Arbitrator Wallbridge identified that the only issue was whether any compensable injury suffered by the appellant had resulted in permanent incapacity for work and, if so, whether it was appropriate to make an order for total liability pursuant to s 271 of the 1981 Act.[6] 

   [6] Arbitrator's reasons [7].

3. Arbitrator Wallbridge referred to the legal principles applicable to arbitrations,[7] the relevant legislation and the legal principles relevant to the application of s 217 of the 1981 Act.

   [7] Arbitrator's reasons [8] - [15].

1. Next, Arbitrator Wallbridge identified the compensable injury the subject of the application, namely the injury to the appellant's lumbar spine and the subsequent aggravation of that injury.[8] 

   [8] Arbitrator's reasons [27].

2. Arbitrator Wallbridge stated that he would adopt the decisions of arbitrators in previous proceedings concerning the appellant, namely decisions concerning the tinnitus dispute (A34042), the related injuries dispute (A36114) and the psychiatric claim (A49618). 

3. Arbitrator Wallbridge found, consistent with the decisions of other arbitrators, that the neck injury, foot injury (plantar fasciitis), hair loss (alopecia) and tinnitus were not compensable.[9]  His findings as to what constituted the relevant compensable injury are as follows:

   36I am satisfied that on or about 18 March 2015, Mr Armet suffered a primary injury while working for CFC being a compensable injury to his lumber spine and a later aggravation of this injury on or about 4 September 2015.  This is not in dispute.

   37Adopting the findings and decisions made by the relevant arbitrators in Arbitrator's Decisions numbers A34042, A36114 and A49618 (the Arbitrator's Decisions), I am satisfied Mr Armet has suffered consequential referred right foot heel pain for which he was entitled to podiatric treatment expenses: I am also satisfied Mr Armet has suffered a consequential adjustment disorder for which he was entitled to limited psychological treatment expenses; for the same reasons found in the Arbitrator's Decisions, I am not persuaded Mr Armet's alleged neck injury, foot injury (plantar fasciitis), hair loss (alopecia), and tinnitus are compensable injuries pursuant to the Act.  In coming to this conclusion, I have considered the legislation and legal principles relevant to the proof of injury pursuant to the Act as set out in the Arbitrator's Decisions.

Arbitrator Wallbridge's examination of the phrase 'permanent total incapacity for work'

[9] Arbitrator's reasons [35].

1. Arbitrator Wallbridge examined the meaning of the phrase 'permanent total incapacity for work' in s 217(1)(a) citing Lockwood‑Hall v BHP Billiton Nickel West Pty Ltd (Unreported, C 5/12 (McCann PP) 18 May 2012), the relevant portion of which it is convenient to reproduce here:

   38…

   [10]  The words 'permanent' or 'permanently' connote an incapacity which will continue indefinitely or for the foreseeable future (see Re Croser; ex parte Rutherford [2001] 25 WAR 170 per Olson AUJ at [94]).

   [11]  As for 'total incapacity for work', an employer's liability for a weekly payment for incapacity arises under s 18, which provides that an employer is liable to pay compensation in accordance with Schedule 1 if an injury to a worker occurs.  Pursuant to s 21, an employer is liable to pay compensation from the date of any incapacity for work which 'results from' the injury (subject to clause 9, which applies to statutory expenses).  The weekly payment itself is based on a worker's 'weekly earnings' calculated in accordance with cl 11.

   [12]  Sub-clause 7(1) of Schedule 1 creates an entitlement to weekly payments for any period of total incapacity for work which 'results from' an injury.

   [13]  Total incapacity for work connotes a worker being wholly unable to earn a living in the labour market in which he was working before suffering the injury or in which he could reasonably be expected to work, that is, one which is reasonably accessible to him and for which he is vocationally suited.  It is common ground that there is a subjective element to these tests in that it is relevant to take into account the background of the worker, his or her physical characteristics, age, pre‑existing physical disabilities, employment background, skill, expertise, training and education.  (See Ross v Corruption and Crime Commision [2008] WACC C15-2088 at [19] - [20])

   [14]  There are three means by which a partially incapacitated worker (ie, one who has some retained earning capacity) may establish an entitlement to weekly payments which are equal to total weekly earnings:

   •First, as an 'odd lot'.  A worker is regarded as an 'odd lot' if he is totally incapacitated for work except for some special employment of an unusual kind and there is an absence of evidence that such special employment is available to him.  Such a person is regarded as having a total incapacity.  (See Dettenmaier v Minister for Works [1979] WAR 203 per Burt CJ at 205 and Bavcevic v Commonwealth (1957) 98 CLR 296 per Dixon CJ and Kitto J at 303‑4).

   •Second, pursuant to sub cl 7(2) of Schedule 1, which deals with weekly payments for partial incapacity, if it is established that there was no suitable employment for the worker during the period of incapacity (described as an 'extreme situation' by Roberts-Smith J in Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 at [83]). This is similar to the odd lot scenario, the difference being that on this scenario the residual working capacity need not be confined to some form of special employment.

   •Third, pursuant to a deemed total incapacity pursuant to Clause 8 of the Schedule 1, which provides as follows:

   '8. Deemed total incapacity

   Where a worker who has so far recovered from his injury as to be fit for employment of a certain kind satisfied an arbitrator that he has taken all reasonable steps to obtain, and has failed to obtain, that employment and that the failure is a consequence, wholly or mainly, of the injury, the arbitrator may, without limiting the arbitrator's powers of review, order that the worker's incapacity be treated, or continue to be treated, as total incapacity for such a period, and subject to such conditions, as the order may provide.'  (See, generally, Department of Education and Training v Haig [2008] WACC c12-2009 at [11] ‑ [12] and Ross at [25] - [26]).

   [15]  The principles in relation to causation (ie, as to whether an incapacity 'results from' a comensable injury) are similar to those which apply at common law, ie the test is whether as a matter of fact and common sense the injury materially contributed to the period of incapacity.  (See Leggett v Argyle Diamond Mines Pty Ltd[2000] WASCA 182 and Treasure v WA Country Health Service [2010] WACC C17-2010).

2. I respectfully agree with McCann PP's analysis of the meaning of the phrase 'total permanent incapacity' in s 271 of the 1981 Act.  Neither the appellant nor the respondent have sought to challenge the correctness of that analysis. 

Arbitrator Wallbridge's analysis of the medical records

1. After stating the relevant legal principles, Arbitrator Wallbridge referred to the medical evidence filed by the appellant and the respondent, summarising the conclusions of the various experts.[10] 

   [10] Arbitrator's reasons [43] ‑ [76].

2. After analysing the medical evidence, Arbitrator Wallbridge stated that he accepted the opinions of Dr Dayoub (in his report dated 28 September 2022)[11] and Dr Terace (in his report dated 3 February 2025).[12] 

   [11] Arbitrator's reasons [49] - [50].

   [12] Arbitrator's reasons [52] - [54].

3. Arbitrator Wallbridge then concluded, on the basis of the reports of Dr Dayoub and Dr Terace that the appellant had not established a total permanent incapacity for work.  Relevantly, Arbitrator Wallbridge said:[13]

   … I am not persuaded by Mr Armet that he continues to suffer a permanent total incapacity to do work as a result of his back injury and its sequelae, i.e., as a result of his compensable injury.  This is because Dr Dayoub's opinion is the most current and up to date and is to the effect Mr Armet has recovered from his primary back injury including, logically, the referred right foot heel pain.  Importantly, and despite Mr Armet's submissions, Dr Dayoub's opinion is supported by the other expert medical reports Mr Armet has tendered into evidence. 

   In respect of Dr Terace's opinion it is also the most current and up to date and is to the effect Mr Armet no longer suffers from a psychiatric disease, i.e., an adjustment disorder, that was found to be a psychiatric sequela. Significantly, and notwithstanding Mr Armet's submissions, Dr Terace's opinion is supported by other expert medical allied health evidence tendered by Mr Armet in this case.

   [13] Arbitrator's reasons [55] - [56].

4. Arbitrator Wallbridge then went on to summarise the opinions of Dr Narula and Dr Watson[14] as well as Associate Professor Thompson,[15] psychologist Lyn Csendes, Dr Watson, clinical psychologist Jo Rae and psychologist Malcolm Heckenberg. 

   [14] Arbitrator's reasons [57] - [59].

   [15] Arbitrator's reasons [60] - [62].

5. After summarising the opinion of the various experts, Arbitrator Wallbridge concluded that the appellant's current symptomology was unrelated to the compensable injury:

   74On the whole of the evidence, I am satisfied Mr Armet's primary compensable injury is a minor lower back strain more likely at the L4/L5-L5/S1 level, and that by 2019 any acute injury had resolved such that is more probable Mr Armet is now suffering symptomatology associated with unrelated degenerative change in his lumbar spine with no evidence of any radiculopathy affecting the right side, and logically, any referred pain in his right foot.  Similarly, the psychiatric/psychological reports, and some of the other medical experts, report over a considerable period of time record Mr Armet's frustration and anger with his legal processes and sense of injustice in respect of this workers' compensation claim rather than any psychiatric condition resulting from his primary injury.  These reports also support a conclusion Mr Armet's focus, anger and frustration with his legal processes and his workers' compensation claim is exacerbating his symptomatology and hindering his rehabilitation and return to work.

   75Mr Armet disputes the opinions of Dr Dayoub and Dr Terace, as well as generally those experts who he does not agree with, as set out in his statement and submissions.  However, Mr Armet's argument in respect of what his compensable injury is and its sequelae fundamentally rests upon his own unqualified opinion.  In the circumstances, I prefer the qualified opinions of Dr Dayoub and Dr Terace whose opinions are well founded and supported by the preponderance of expert medical and allied health evidence.

   (footnote omitted)

6. Thus, having analysed the medical evidence tendered by both the appellant and the respondent, Arbitrator Wallbridge rejected the appellant's contentions that he had suffered total permanent incapacity for work or that any incapacity was causally related to the compensable injuries; he found that the appellant, from both a physical and psychiatric perspective, did have some capacity to do work and retrain within his physical and psychiatric restrictions.[16]  Arbitrator Wallbridge expressed his findings about the appellant's capacity for work as follows:

   92On the whole of the evidence, I am not persuaded by Mr Armet his claimed permanent total incapacity to do work is causally or materially related to his employment with CFC.  This is because from a physical perspective in respect of his compensable lower back injury and referred right foot heel pain, I am not persuaded by Mr Armet that he could not work in a semi-skilled or unskilled role with physical restrictions.  This conclusion is consistent with the reports of Dr Narula and A/Prof Thompson, and consistent with Dr Dayoub's opinion Mr Armet has recovered from his lower back injury.  From a psychiatric perspective, I am not persuaded by Mr Armet that he suffers from any totally incapacitating psychiatric sequela, with or without restrictions.  This conclusion is consistent with the opinion of Dr McCarthy and with the opinion of Dr Terace that Mr Armet is not presently suffering from any psychiatric sequela from his lower back injury.  Consequently, I find Mr Armet has some capacity to do work or a residual earning capacity within the identified restrictions.

   (footnote omitted)

   [16] Arbitrator's reasons [91].

7. Further, Arbitrator Wallbridge found that the appellant had not taken genuine or reasonable steps to obtain gainful employment and focus on his rehabilitation.  Rather, Arbitrator Wallbridge found that the appellant was unreasonably focused on his frustration and grievances with the workers' compensation system and a preoccupation with legal processes.[17] 

   [17] Arbitrator's reasons [99].

8. Arbitrator Wallbridge went on to consider whether the appellant satisfied the criteria of an 'odd lot' category or 'extreme situation' category.[18]  He concluded that he did not.  Arbitrator Wallbridge said:

   101I do not consider Mr Armet fits into the 'odd lot' category as he is not incapacitated to do work except for some special employment of an unusual kind.  As can be seen from Mr Armet's work history the majority of his employment has not consisted of work of a special or unusual kind, except perhaps for shotfirer, the majority of work being labouring or semi‑skilled occupations such as a truck driver, freight officer and waiter.

   102I do not consider Mr Armet fits the 'extreme situation' either.  This is because Mr Armet has not persuaded me he is totally incapacitated to do work and as such he bears the obligation to take genuine or reasonable measures to mitigate his loss.  The Act requires all parties adopt a reasonable, common sense, practicable and good faith approach to return to work.  Public policy dictates that where persons have been injured in the workplace, they should make genuine and reasonable efforts to obtain gainful employment again.  This is reflected in s 3(b) of the Act which indicates that one of the purposes of the Act is to promote rehabilitation to enable a worker to achieve that goal.

   [18] Arbitrator's reasons [95], [105].

The notice of appeal dated 8 May 2024

1. The appellant filed a notice of appeal against the decision of Arbitrator Wallbridge on 8 May 2024. 

2. The notice of appeal sets out 10 specific grounds of appeal which are reproduced below verbatim:

   Ground 1.  [At 4 5] The Government body WorkCover WA, its arbitration services and CEO failed to afford procedural fairness, natural justice, violating right to non-discrimination and right of equality and equal protection of the law to a self‑represented French National with disabilities.

   Ground 2.  The learned Arbitrator [Wallbridge] erred in law in failing to afford the applicant procedural fairness while the person has legitimate expectation, interest and legal rights.

   Ground 3. The learned Arbitrator [Wallbridge] erred in law in failing to afford the French national natural justice in accordance with s.3(d) of the Act, conduct with integrity its decision-making in accordance with s.188(4)(b) of the Act and failed to effectively exercise the power provided to him under s.188(3).

   Ground 4.  [At 7] The learned Arbitrator [Wallbridge] erred in law when deciding the only real issue in dispute is whether the compensable injuries has resulted in permanent total incapacity for work.

   The arbitrator engaged in a conduct of deceit and practice of misleadingness when stating that the other jurisdictional conditions of s.218 were not in dispute.

   Ground 5. [At 25 -25 - 27 28 - 29 36 and 37] The arbitrator erred (and misapplied the applicable) law, in failing to describe the events causing all the injuries in accordance with the objectives set out in s.3(d) and s188(2)(b); as result of that, impacting the appreciation of s.217 order as to total liability of the employer.

   Ground 6.  The arbitrator erred in law by falsely indicating that Mr. Armets medical specialist and allied health evidence now support the other partys case after 9 years of procedure, despite not being considered as supportive at all.

   Ground 7. [At 77 - 78 - 79] the arbitrator erred in law in failing to conduct any arbitration procedures and hearing in accordance with the objectives set out in s.3(d) and s.188(2)(b), and s.188(3), and failed to reasonably exercise the powers provided to him under s.203(1) of the Act.

   Ground 8. [At 103 - 104 - 105] The learned Arbitrator [Wallbridge] erred in law in failing to its obligation of competence in accordance with the objectives set out in s.3(d) and s.188(3) of the Act, failed to reasonably exercise the powers provided to him under s.203(1)(a) of the Act, and discharge the legal obligation to afford opportunity to respond to any misapprehended document provided by the self‑represented French national.

   Ground 9.  [At 85, 87 and 88] The arbitrator erred in law by focusing on unrelated comments regarding Mr. Armet's feelings and reactions toward legal practice and workers compensation proceedings; rather than addressing the real causation of Mr. Armets incapacity to work and inability to find work.

   Ground 10.  Further or amended ground to be provided after transcripts are made available (documentation really considered by the learned Arbitrator [Wallbridge]).

The second notice of appeal dated 9 May 2024

1. On 9 May 2024, the appellant also filed what was purported to be a notice of appeal containing 44 pages in total.  It is apparent that this second 'notice of appeal' contains no new grounds but reproduces verbatim the grounds set out in the notice of appeal filed on 8 May 2024, enlarged by extensive written submissions.

2. The second notice of appeal commences by referencing all of the applications the subject of the previous workers' compensation tribunal hearings.  The appellant complains, in non-specific terms, of being the victim of inter alia fraud, conspiracy, obstruction of justice, delay, procrastination and bias. 

3. The grounds of appeal read with the submissions are discursive, diffuse and difficult to follow.  Nevertheless, I have managed to identify seven broad categories raised in the grounds of appeal and the submissions as follows:

   1.Denial of natural justice (grounds 1 and 3).

2.Lack of procedural fairness (grounds 1, 2, 7 and 8).

3.Bias (grounds 1, 3 and 4).

4.Failure to give adequate reasons (ground 5).

5.Error of law based on erroneous factual conclusions (grounds 5 and 6).

6.Errors of law by failure to comply with the relevant legislation (grounds 3, 7 and 8).

7.Error of law by focus on irrelevant considerations (ground 9).

Overview of other issues raised in the submissions

1. It is apparent from the appellant's grounds of appeal (as they appear in their enlarged form in the second notice) that complaints of a denial of natural justice, lack of procedural fairness and bias refer not only to the decision of Arbitrator Wallbridge but to wide-ranging complaints against WorkCover WA and its officers over many years. 

2. Insofar as these complaints concern other decision‑makers, they do not relate directly to the decision being appealed against and should be disregarded. 

3. For example, the appellant complains that the 'Government Insurance Office' has not acted in good faith.  The appellant calls in aid various international treaties which he impliedly submits the 'State' has breached.[19] 

   [19] Appellant's submissions, filed 17 September 2024, pages 2 and 3.

4. The appellant submits that previous proceedings have been characterised, inter alia, by policies involving cover ups, racist conduct, harassment, denial of his rights and unlawful conduct. 

5. Many of the issues raised by the appellant in his notice of appeal and his submissions in support thereof are not new issues.  See, for example, the appellant's complaints in Armet v CFC Consolidated Pty Ltd [2022] WASCA 63 (an appeal against a decision of Lemonis DCJ, as he then was, involving an assertion of bias by Arbitrator Nunn).

6. Given that the appellant's complaints are wide-ranging, I must be mindful that I should not permit a re-agitation of issues of either fact or law previously raised and determined.  In Armet v CFCConsolidated Pty Ltd [2022] WASCA 63, the court confronted a similar problem with the appellant. In dismissing the appeal the court relevantly said:[20]

   … The appeal is not the occasion for more generally ventilating complaints concerning the operation of the arbitration process in the past few years in respect of Mr Armet's complaints of injury.

   [20] Armet v CFC Consolidated Pty Ltd [2022] WASCA 63 [63].

The appellant as self-represented litigant and non-native speaker

1. I am conscious that the appellant, although his English is quite fluent, does not speak English as a first language; he is not legally trained and was unrepresented at the appeal before me.  For these reasons, I must be careful to ensure that I do not overlook any valid argument raised in the grounds of appeal which might not be readily apparent from his submissions.  See Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].

2. Due to the way that the appellant has expressed his grounds of appeal and the considerable overlap between the issues raised within them, I have done my best to unpick what appear to be the main issues.  I have then examined the appellant's submissions in order to extract any particulars within those grounds to determine whether there is an arguable error of law justifying a grant of leave. 

3. It is appropriate, having regard to the wide‑ranging nature of the appellant's complaints and to his status as a non-native English speaker and self-represented litigant, that I deal with the grounds of appeal according to the issues raised within them, rather than adopting an overly technical approach by reference to the grounds.  See Glew v Frank Jasper Pty Ltd [13].

Documents before this court

1. On 23 May 2024, this court wrote to the registrar of the Workers Compensation Arbitration Service requesting the provision of documents relating to A119319, being the decision the subject of the present appeal. 

2. The Workers Compensation Arbitration Service filed three lever arch volumes of documents including the following:

   •Volume 1 containing the formal order recording the decision and the arbitrator's reasons for decision together with the transcript of the hearing to which the decision relates. 

   •Volumes 1 ‑ 3 containing the documents or other records tendered as exhibits at the hearing together with the Workers Compensation Arbitration Service exhibit list. 

3. The Workers Compensation Arbitration Service provided an index of exhibits as follows. 

   SCHEDULE

No.	Documents	Exhibit	Volume No.
1	Arbitration Service exhibit list	1
2	Appellant's submissions and statements supporting the application filed 2 October 2023	Exhibit 1	1
3	Appellant's index of evidence lodged with the Arbitration Service filed 2 October 2023'	Exhibit 2	1
3.1	Documents referred to in the appellant's index number 1	1
3.2	Documents referred to in appellant's index number 2	1
3.3	Documents referred to in appellant's index number 3	1
3.4	Documents referred to in appellant's index number 4	2
3.5	Documents referred to in appellant's index number 5	2 and 3
4	Appellant's bundle of St George statements sealed 2 October 2023	Exhibit 3	3
5	Appellant's 'weekly payment calculation September 2023' sealed 2 October 2023	Exhibit 4	3
6	Respondent's 'outline of submissions: annexure A' sealed 19 September 2023	Exhibit 5	3
7	Respondent's book of documents sealed 19 September 2023 containing exhibits	Exhibits 6, 7 and 8	3

Observations with respect to the documents

1. I am satisfied that I have all the documents that were before Arbitrator Wallbridge. 

2. I observe that the documentation runs into well excess of 1,500 pages.  Many of the documents have been filed in respect of more than one application so there is a considerable amount of duplication in the documents.

3. In addition to the documents before the Workers Compensation Arbitration Service, I have read and considered the following documents filed in this appeal:

   1.The notice of appeal dated 8 May 2024. 

   2.The notice of appeal dated 8 May 2024 and filed 9 May 2024. 

   3.The appellant's 'affidavit' sworn 3 August 2024 and filed 5 August 2024. 

   5.The appellant's 'affidavit 3' with attachments sworn and filed 17 September 2024. 

   6.The appellant's 'affidavit final' (also referred to as 'affidavit 4') sworn 24 September 2024 and filed 26 September 2024. 

4. In relation to the 'affidavit' of 17 September 2024, I observe that the document is not so much an affidavit but rather a repetition of the appellant's grounds and submissions in support of his appeal.  It has 65 pages in total and annexures including various documents and applications filed with WorkCover WA, a schedule of weekly payments, financial documentation referring to the appellant's income, correspondence between the appellant's and the respondent's solicitors' and various articles downloaded from the internet. 

5. The 'final affidavit' sworn on 24 September 2024, contains further submissions which reproduce the appellant's grounds of appeal and previous submissions.  I note that this affidavit contains an attachment with final submissions and an index with reference to what the appellant submits is relevant documentation. 

6. At the hearing of the appeal the appellant also made oral submissions.  Those submissions essentially followed the outline in the written submissions.  Both the written and oral submissions contain complaints exceeding the scope of the decision being appealed.  Insofar as the appellant's submissions exceed the bounds of the grounds of appeal, I do not propose to address them. 

Legal principles relevant to the appeal

1. The present appeal was lodged after the proclamation of the Workers Compensation and Injury Management Act 2023 (WA) (the 2023 Act). Section 391 of that Act provides for leave to appeal from a decision of an arbitrator to this court. Section 391 of the 2023 Act is essentially in the same terms as s 247 of the 1981 Act. Section 391 provides:

   391.Appeal against arbitrator's decision

   (1)If written reasons for an arbitrator's decision under this Act in respect of a dispute are given to a party to the dispute, the party may, with the leave of the District Court, appeal to the District Court against the decision.

   (2)The District Court must not grant leave to appeal unless a question of law is involved.

   (3)In addition to the requirement that a question of law is involved, the District Court must not grant leave to appeal when an amount of compensation is at issue unless -

   (a)the amount at issue in the appeal is -

   (i)at least $5 000 (or a greater amount, if any, prescribed by the regulations); and

   (ii)at least 20% of the amount awarded in the decision appealed against;

   or

   (b)the District Court is of the opinion that the matter is of such importance that, in the public interest, an appeal should lie.

   (4)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.

   (5)An appeal under this section is by way of review of the decision appealed against and, except as provided by this Part, must be conducted in accordance with the rules of court of the District Court.

   (6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.

   (7)On hearing an appeal made under this section, the District Court may -

   (a)affirm, amend or quash the decision appealed against, or substitute, or make in addition, any decision that should have been made in the first instance; and

   (b)subject to the limitations on an award of costs imposed by section 400, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.

Question of law must be 'involved'

1. As for an appeal under s 247 of the 1981 Act, I may only grant leave to appeal under s 391 of the 2023 Act if the appellant establishes that the arbitrator has made an error of law. See Catholic Education Office of WA v Granitto [2012] WASCA 266 [53] - [54]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].

2. Insofar as an error of law is identified, it must be an error that is material to the decision; it must contribute to the decision and but for the error the decision would or might have been different.  See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; BHP Billiton Iron Ore Pty Ltd v Brady [15] (Pullin JA, Buss and Wheeler JJA agreeing).

3. The distinction as to what constitutes an error of fact, and an error of law was discussed in the case of Australian Broadcasting Tribunal v Bond:[21] 

   [21] Australian Broadcasting Tribunal v Bond (355) - (357) (Mason J).

   …

   (4)Review of the Findings of Fact

   (a)Grounds of Review

   As I have explained, findings of fact and inferences of fact are not reviewable under the A.D.(J.R.) Act unless jurisdiction is enlivened by the review of a 'decision' or 'conduct'.  Findings of fact, including inferences, may be reviewed under the A.D.(J.R.) Act for error of law (s. 5(1)(t)) and on the ground 'that there was no evidence or other material to justify the making of the decision' (s. 5(l)(h)).  It is not necessary to consider the content of the ground in s. 5(1)(j), 'that the decision was otherwise contrary to law'.

   The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd.; Australian Gas Light Co. v. Valuer-General.  Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v. Bathurst City Council.  This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd.  So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden.

   But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v. The Commonwealth, per Brennan J.  Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White:

   Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.  To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.

   Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law.  So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 

   On the other hand, there are statements in the English cases which support a 'no sufficient evidence' test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah.  It remains to be seen whether these statements convey any more than a 'no probative evidence' test.  So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic.  There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow; Cooper v. Stubbs; British Launderers' Research Association v. Borough of Hendon Rating Authority; Ashbridge Investments Ltd. v. Minister of Housing and Local Government.  Further, in Mahon v. Air New Zealand the Judicial Committee stated that natural justice requires that 'the decision to make [a] finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory'.  These statements may be traced back to the observations of Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore; see also Minister for Immigration and Ethnic Affairs v. Pochi, per Deane J. (an appeal from a decision of the Administrative Appeals Tribunal under the AA.T. Act).  The approach adopted in these cases has not so far been accepted by this Court. 

   …

   (footnotes omitted)

Mixed law and fact

1. In some circumstances, a matter of mixed law and fact could involve a question of law, within the meaning of the 1981 Act.  In relation to this issue, Wheeler JA said in Pacific Industrial Co v Jakovljevic [2008] WASCA 60:

   …

   18The legislative use of the term 'involved' indicates that the commissioner's role is not confined to the determination of pure questions of law.  Plainly, it extends to questions of mixed fact and law.  Further, in other contexts, it has been held that, if an appeal is provided for where a question of law is 'involved', the result is that if some question of law is involved, the whole of the decision appealed from is open to review, and not merely the question of law:  Ruhamah Property Co Ltd v The Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 151 (Knox CJ, Gavan Duffy, Powers and Starke JJ), XCO Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 37; (1971) 124 CLR 343, 348 (Income Tax Assessment Act 1922, 1936 (Cth)); Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199; (2001) 115 LGERA 152 [12] (McLure J) (Town Planning and Development Act1928 (WA)). The commissioner's function on a review differs from that of this court, to which an appeal under the Act may only be brought 'on a question of law': Fitzgerald v Smorgon Steel Pty Ltd [2004] WASCA 185 [3] (Murray J).

   …

2. Further, Wheeler JA said that an appeal might 'involve' an error of law but if it is plainly unarguable, leave should not be granted:

   25… If, on such a hearing, it is the commissioner's view that, although a question of law is 'involved', there has been no relevant error of law, that may be a factor which the commissioner will consider relevant to the question of whether leave should be granted.  To take an extreme case, should an appellant raise a number of issues which were plainly questions of law, but were equally plainly unarguable, in an attempt to persuade the commissioner to engage in a pure factual review, the commissioner might consider that that was not appropriate, having regard to the legislative focus upon the correction of errors of law as the commissioner's principal, but not only, task.

3. There will have been no error of law merely because the arbitrator has found facts wrongly or on a doubtful basis.  See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] ‑ [55] cited with approval by Buss JA in Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17.

Appellant's complaints found in the submissions filed in support of the notices of appeal but not pleaded

1. Before dealing with the grounds of appeal, it is convenient to deal with the appellant's complaints of a general nature, as they emerged in the written material filed by him and in his oral submissions. 

2. Insofar as the appellant complains of breaches of international law in the context of his asserted human rights, there is no merit in this submission.[22]  Principles of international law have no application in the WorkCover WA jurisdiction.  As the Court of Appeal observed in Armet v CFC Consolidated Pty Ltd [2022] WASCA 63 [66] the courts in Western Australia are concerned with the application of domestic law and no error is shown by the court failing to address international law instruments.

Arbitrator Wallbridge's adoption of the decisions of previous arbitrators

[22] Notice of appeal filed 9 May 2024, page 4.

1. The appellant complains he was denied natural justice because Arbitrator Wallbridge adopted the decisions of previous arbitrators which the appellant submits was a failure to correctly apply s 188 of the 1981 Act.

2. Section 188 of the 1981 Act provides:

   Practice and procedure, generally

   (1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.

   (2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -

   (a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and

   (b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

   (3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.

   (4)An arbitrator may -

   (a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

   (b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.

   (5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

3. The appellant's submission that Arbitrator Wallbridge did not act in accordance with s 188(4) of the 1981 Act criticises Arbitrator Wallbridge's adoption of the decision of previous arbitrators. However, s 188(4)(b) in fact permits an arbitrator to adopt 'any finding, decision or judgment of a court or other person or body acting judicially'. Plainly, arbitrators are persons 'acting judicially' within the meaning of s 188(4)(b). See Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 and Robertson v Kraft Foods Ltd (Unreported, CM 64/99 (Heath SA) 28 July 1999) [33].

4. It follows that Arbitrator Wallbridge was entitled to adopt the findings of arbitrators in previous proceedings; and he was therefore entitled to proceed on the basis that, consistent with those previous findings, the only compensable injury relevant to the application before him was for the initial injury to the appellant's lumbar spine and the subsequent aggravation. 

5. There is no merit in the appellant's submission that Arbitrator Wallbridge did not 'correctly apply' s 188 of the 1981 Act.

Denial of natural justice (grounds 1 and 3)

1. The appellant asserts he was denied natural justice because: 

   1.WorkCover WA was in 'violation of its international obligations' to the appellant who had been barred from entering and participating freely in proceedings at WorkCover WA;[23] and

   2.the appellant's application was not heard in person and determined in a timely manner since 2019.  There was also a failure to recognise the appellant 'as a person before the law'. 

   [23] Notice of appeal filed 9 May 2024, ground 1.1.

2. As I have just observed, proceedings in the workers' compensation jurisdiction concern the application of domestic rather than international law.  To focus on whether WorkCover WA has any obligations under international law would be an error.  See Armet v CFCConsolidated Pty Ltd [2022] WASCA 63 [66].

3. It seems to me that the appellant's complaints about a denial of natural justice are really based on his dissatisfaction with the circumstances in which the hearing took place.  In my view, the appellant's complaint is more appropriately characterised as a complaint about a lack of procedural fairness. 

4. I turn now to examine whether the appellant was denied procedural fairness. 

Lack of procedural fairness (grounds 1, 2, 7 and 8)

Procedural fairness - relevant legal principles

1. Recently, the Court of Appeal in Zamora v OCS Services Pty Ltd [2025] WASCA 117 (Zamora) restated the general propositions in relation to affording a litigant procedural fairness. The court said at [57] - [61].

   57…

   1.What is required by procedural fairness is a fair hearing, not a fair outcome:  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.

   2.To say that a court, tribunal or statutory decision-maker is obliged to afford procedural fairness is only the first step of analysis.  The second step is to identify the content of the requirements of procedural fairness.  It is the second step that is critical in most cases:  Kioa v West.

   3.The precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised and the facts and circumstances of the particular case:  SZBEL [26].

   4.The rules of procedural fairness do not have immutably fixed content but rather are flexible.  The content of procedural fairness will vary according to the circumstances of the particular case.  Procedural fairness is essentially practical; it is not an abstract concept.  The concern of the law is the avoidance of practical injustice.  What is necessary to avoid practical injustice will depend on the circumstances.  See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam; HT v The Queen.

   5.One aspect of procedural fairness is that a litigant must be given a 'reasonable opportunity' of being heard, ie of appearing and presenting its case by evidence, information and submissions.  It is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it:  HT v The Queen [17].

   6.Similarly, a court, tribunal or statutory decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the court, tribunal or statutory decision‑maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided:  Re Refugee Review Tribunal; Ex parte Aala.

   7.The application of the requirements of procedural fairness to a court or tribunal requires analysis of the procedures of the court or tribunal and the legislation and rules which govern them:  Assistant Commissioner Condon v Pompano Pty Ltd.

   8.Ordinarily, in order to ground relief, a failure to comply with the requirement to afford procedural fairness must have been material ‑ it must have deprived the party of the possibility of a successful outcome:  Stead v State Government Insurance Commission; Nobarani v Mariconte.

   58Something more should be said about the fifth and sixth propositions recited above having regard to aspects of the appellant's argument on the appeal.

   59A litigant is, ordinarily, entitled to have brought to its attention the critical issues or factors on which a decision is likely to turn so as to give the litigant an opportunity to deal with those issues or factors:  Commissioner for ACT Revenue v Alphaone Pty Ltd.  However, a court, tribunal or statutory decision‑maker is not usually required to disclose to a person to whom procedural fairness must be accorded the court's, tribunal's or statutory decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made:  Commissioner for ACT Revenue v Alphaone Pty Ltd (591), (592); Apache Northwest Pty Ltd v Agostini [No 2].  To the contrary as this court stated in McKay v Commissioner of Main Roads:

   Generally speaking in litigation, the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated … [although] procedural fairness may require the judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial.

   60This passage was referred to with approval by this court in its recent decision of Davie v Manuel.

   61These decisions are consistent with the High Court's recognition in SZBEL that procedural fairness does not require a decision‑maker to give a litigant a running commentary about what the decision‑maker thinks about the evidence that is given [48]. In SZBEL the High Court also quoted with approval what was stated by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

   [T]he rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.  If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.[24]

   (footnotes omitted)

   [24] F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 369.

2. Of course, there are additional considerations relevant to the issue of procedural fairness where a litigant is self‑represented. 

3. In Armet v Stephen Browne [2024] WASCA 44, another case in which the appellant had complained of a denial of procedural fairness, the Court of Appeal referred to the applicable legal principles ensuring procedural fairness to a self‑represented litigant. There, the court said:

   55As to the assertion of want of procedural fairness, this court has had many recent occasions to discuss the applicable principles in ensuring procedural fairness to a self‑represented litigant.  It is enough to acknowledge, without repeating in full, the statements of principle in Woodley v Woodley and Zerjavic v Chevron Australia Pty Ltd.  The court's obligation in the case of a self‑represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair hearing.  In a specific case the content of the principle depends on the circumstances of the case.  However, as was stated in Zerjavic:

   A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised.

   All the more so the trial judge's role in providing information to the self‑represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant.  (original emphasis)

   (footnotes omitted)

4. As best I can ascertain from the appellant's grounds of appeal and his submissions in support of them, the appellant contends that there are six factors which rendered the proceedings before Arbitrator Wallbridge procedurally unfair.  They are as follows. 

5. First, the hearing was conducted by telephone.[25] 

   [25] Notice of appeal filed 9 May 2024, page 11.

6. Secondly, the proceedings were brief and not 'subject to any genuine consideration nor questioning' by the arbitrator.[26] 

   [26] Notice of appeal filed 9 May 2024, page 11.

7. Thirdly, Arbitrator Wallbridge 'did not give any consideration' to the appellant's decision and failed to inform him about the 'case to be met with a description of the possible decision, the criteria for making that decision and information on which any such decision would be based'.[27] 

   [27] Notice of appeal filed 9 May 2024, page 12.

8. Fourthly, Arbitrator Wallbridge failed to afford him an opportunity to reply 'in a way that is appropriate for the circumstances, during a proper hearing and before any decision is made'.[28]

   [28] Notice of appeal filed 9 May 2024, page 12.

9. Fifthly, there was no opportunity for the appellant to present his case and no 'exchange of ideas or opinions'.[29] 

   [29] Notice of appeal filed 9 May 2024, page 12.

10. Sixthly, that it was 'unclear what kind and amount of documents had been taken by the arbitrator for consideration'.[30] 

First issue ‑ the hearing was conducted by telephone

[30] Notice of appeal filed 9 May 2024, page 13.

1. It is common ground that at the time of the hearing before Arbitrator Wallbridge the appellant was barred from entering WorkCover WA premises. 

2. The appellant annexed a letter from WorkCover dated 25 September 2020 to the notice of appeal filed on 9 May 2024 (ie: the second notice of appeal).  The letter explains the reasons why he was barred from attending WorkCover premises.[31] 

   Your recent behaviour has been unreasonable and threatening and as a result I am required to take steps to protect the safety and health of staff and visitors at WorkCover WA.

   Additionally, WorkCover WA has not resumed face to face interactions in conciliation and arbitration in response to the COVID‑19 pandemic and there are remote lodgement options available so there is no need for you to attend the office in person.

   To enable you to manage your case before the Arbitration Service, you can communicate with WorkCover WA in relation to your dispute via email to [email protected] and by telephone to attend related hearings. 

   [31] Notice of appeal filed 9 May 2024, page 8.

3. The appellant complains that, as a consequence of the ban on him attending WorkCover premises, he has been 'totally secluded and excluded from any proceedings' since.[32] 

   [32] Notice of appeal filed 9 May 2024, page 6.

4. I reject the submission that the appellant had been denied the opportunity to fully participate in the process by reason of his enforced absence from WorkCover premises.  The decision to restrict the appellant access to WorkCover premises was an administrative one.  The appellant has not demonstrated how that decision resulted in a disadvantage to him or that he was denied the ability to participate in the process as fully as if he had been physically present. 

5. It is important to note that counsel for the respondent also appeared at the hearing via telephone. 

6. The appellant made no complaint either during or subsequent to the hearing that he had been given insufficient opportunity to present evidence or make submissions by reason of the circumstances in which the hearing was conducted. 

7. The conduct of proceedings remotely, whether by telephone or audiolink, whilst arguably not preferable, is now a routine practice adopted by courts and tribunals in this State, particularly since the COVID-19 pandemic.  There is no merit in the appellant's submission that he was denied procedural fairness because he was not physically present. 

Second issue - the proceedings were brief and not subject to any 'genuine consideration or questioning' by the arbitrator

1. The appellant submits that, because the hearing was short and Arbitrator Wallbridge did not ask him many questions, the arbitrator had failed to genuinely consider the issues.  The appellant, both in written and oral submissions asserted that the hearing was a 'fake hearing' on the basis that the hearing involved '10 minutes of speech time'. 

2. In my view, a long hearing was not necessary; nor was it necessary for the arbitrator to engage in any interrogation of the appellant's case.  That is because the arbitrator was seized of all of the evidence and written submissions necessary to consider the application.  This included some 1,700 pages of medical certificates, medical and other expert reports as well as other material.  It is apparent from Arbitrator Wallbridge's reasons that he had read and considered that evidence. 

3. It is true, as the appellant contends, that the hearing was short and that the arbitrator did not ask him many questions.  However, the appellant has not shown how this has resulted in a denial of procedural fairness.  There is no merit in this submission. 

Third and fourth issues - failure to inform the appellant about the case to be met with a description of the possible decision and to give him the opportunity to reply before any decision is made

1. The appellant submits that Arbitrator Wallbridge had an obligation to inform him of his decision in advance in order to give him an opportunity to formulate a rejoinder to it.  Such a submission reveals a fundamental misunderstanding of the judicial function.  See Zamora [59] ‑ [61].

2. I acknowledge that a different approach may be required for a person who is not legally represented.  That is, to ensure procedural fairness to a self‑represented litigant, the court has an obligation to provide the litigant with sufficient information about the practice and procedure of the court to enable him to overcome any procedural disadvantages.  However, I must emphasise that this obligation does not extend to a duty to formulate or conduct a litigant's case for them.[33]  See Armet v Stephen Browne [2024] WASCA 44 [55] and the cases cited therein.

   [33] See Armet v Stephen Browne [2024] WASCA 44 [55] and the cases cited therein.

3. I find, for the reasons expressed later in my reasons, that Arbitrator Wallbridge did provide the appellant with the information necessary for him to overcome any procedural disadvantage. 

4. There is no merit in this submission.

Fifth issue - no opportunity for the appellant to present his case and no 'exchange of ideas or opinion'

1. Similarly, there was no obligation for the arbitrator to engage in an 'exchange of ideas or opinion' with the appellant.  See Zamora [59] ‑ [61]. This submission also lacks merit.

Sixth issue - lack of transparency as to what documentary evidence was before the arbitrator and no opportunity to respond to any 'misapprehended document' relied upon by the appellant

1. Arbitrator Wallbridge's reasons clearly reveal that he had read all of the relevant documentary evidence.  There is no basis to assert that Arbitrator Wallbridge 'misapprehended' any document before him or that there was a lack of transparency. 

2. The contention that the appellant should have been given an opportunity to respond to any 'misapprehended document' is similar to the arguments raised in the fourth and fifth issues.  Likewise, this submission has no merit. 

3. It is significant that Arbitrator Wallbridge had commenced the proceedings by checking with the appellant that he had received all of the material filed by him.  This included documents sent on 23 May 2023, 24 May 2023, 30 May 2023 and 27 September 2023.  The appellant confirmed that 'all the documents and all the emails are part of the submissions that I sent to you; a 26-page email yesterday'.[34] 

   [34] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 3.

4. Arbitrator Wallbridge again checked with the appellant that he had received a document purporting to be his submissions and statements in support of the application.[35] 

   [35] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 3.

5. Arbitrator Wallbridge invited the appellant to make an oral statement or to rely on his submissions and the statements supporting the application as his evidence‑in‑chief.  At one stage, the appellant enquired of Arbitrator Wallbridge whether he should read the transcription of the 26 pages he had filed.  Arbitrator Wallbridge told him that it was not necessary for him to read it because he would accept that document as an exhibit.  There was then a discussion between the learned arbitrator and the appellant where the learned arbitrator assured the appellant that he would read the submissions without the appellant needing to read them out.  The appellant expressed a concern that in previous proceedings written material had not been accepted.[36]  Arbitrator Wallbridge reassured the appellant that the document would be accepted as an exhibit; he also made it clear that the appellant was at liberty to refer to the document and make oral submissions should he wish to do so.  Relevantly, Arbitrator Wallbridge said:[37] 

   So, the evidence will be all the material that you filed, all the material that the CFC Consolidated Pty Ltd have filed, and then your statement and submissions, and the submissions of CFC Consolidated Pty Ltd, as well as anything you wish to add today, and as well as anything Mr Offer wishes to add today.  So I'm happy for you to make some further statement if you wish about your matter.  I'm happy for you to take me to any part of your submissions and statement that you filed and go through that with me.  And then I'll hear from Mr Offer about what he wants to include.  And then if there's anything else, we can deal with that as well.

   [36] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 4.

   [37] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, pages 5 - 6.

6. Arbitrator Wallbridge then explained to the appellant that he had read the documentation filed by reference to the submissions and told the appellant that he understood his submission. 

7. Arbitrator Wallbridge then engaged in a discussion with the appellant about the operation of s 217 and the issue that he was to determine and about other matters that were not in issue. He reassured the appellant he should not 'take this the wrong way by eliminating [those matters which are not in issue]'.[38] 

   [38] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 6.

8. The appellant registered no dissent to Arbitrator Wallbridge's approach in this regard.  On the contrary, the appellant appeared to endorse Arbitrator Wallbridge's approach by saying:[39] 

   No.  I am cool with you, Mr Wallbridge.  I don't know you.  I've never met you.  I have no problem with you.  It's a pity that you have to deal with me now because some cunts before fucked me up.  Ok.  Otherwise, I am cool with you.  That's no problem.

   [39] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 8.

9. Arbitrator Wallbridge informed the appellant that the issue that he was to try was:[40]

   So, if I'm satisfied with that section that there's a total permanent incapacity for work, Mr Armet, then I have to consider subsection (2) which is the order as to total liability of the employer.  And I can make an order which I think is proper in the circumstances.  And then that goes onto that section (3), which is 'that I'm not to make an order unless I'm satisfied the order ought to be made having regard to the "as you've been saying" the social and financial circumstances and reasonable financial need of the worker'.  Alright.  So that's - so, you're urging me to make an order under subsection (2), and I'll do that having regard to those matters you've set out in your document, the social and financial circumstances and your reasonable financial need. … I'm just going through the - what's required under the section.  Ok.  For me to turn my mind to.

   Mr Armet: yes sir.

   [40] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 8.

10. Arbitrator Wallbridge then went on to discuss the orders for payment should he find in the appellant's favour.  After some further discussion, the appellant enquired of Arbitrator Wallbridge whether he had any further questions for him to which Arbitrator Wallbridge indicated that he did not.[41] 

    [41] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 10.

11. Arbitrator Wallbridge then enquired of the appellant whether he had considered the various reports filed by the respondent to which the appellant replied:[42] 

    Yes I have to tell you, I have been through with this case for over 8 years.  So, I knew the businesses.  I knew them.  Ok.  Upside down and inside out I knew then, all of them ok.

    [42] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 11.

12. After hearing submissions from counsel for the respondent, Arbitrator Wallbridge again asked Mr Armet whether there was anything else he would like to add or say to him.  The appellant again enquired whether Arbitrator Wallbridge wanted him to read anything but the arbitrator assured him that the written submissions were an exhibit.[43] 

Analysis of Arbitrator Wallbridge's conduct of the hearing

[43] Transcript of proceedings before Arbitrator Wallbridge, 4 June 2024, page 14.

1. Arbitrator Wallbridge was, with respect, patient and helpful in his dealings with the appellant.  He was careful to ensure that the appellant had filed all of the necessary documentation and had seen the documentation filed by the respondent.  He did not attempt to curtail the appellant's opportunity to make oral submissions.  He carefully explained the fact that the appellant's submissions and the evidence filed in support of those submissions would be considered. 

2. The arbitrator was obliged to act in accordance with s 3(d) of the 1981 Act ‑ that is, in a manner which is fair, just, economical, informal and quick and according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. In my view, Arbitrator Wallbridge did just that.

3. There is no principle in the legislation or at common law obliging the arbitrator to engage in any oral debate with a litigant before making a decision as the appellant contends.  Nevertheless the appellant and Arbitrator Wallbridge did engage in a discussion about the issues in the case and it would have been apparent to Arbitrator Wallbridge what the appellant's position was. 

4. The fact that Arbitrator Wallbridge did not reveal a provisional view (if indeed he had one) as to the merits of the application, was not an error.

Other issues relevant to procedural fairness - the appellant is not a native speaker of English

1. It is apparent from the transcript of the hearing that the appellant was able to hear and engage in the proceedings.  The appellant has submitted that because English was not his first language, he was at a disadvantage.  However, I found that the appellant spoke in clear and comprehensible English before Arbitrator Wallbridge.  The appellant gave no indication he did not understand what Arbitrator Wallbridge was saying.  Of course, the fact that Arbitrator Wallbridge would have understood him does not mean he was obliged to accept the appellant's submissions. 

2. In my view, having regard to the foregoing, Arbitrator Wallbridge conducted a hearing which was fair to the appellant.  He gave him a reasonable of opportunity to be heard in the sense that he was able to present his case both orally and in writing.  He made it clear what the issues were.  There was nothing in the way the hearing was conducted which could have denied the appellant of a successful outcome.  Arbitrator Wallbridge drew the appellant's attention the critical issues in the case. 

3. There is no merit in the submission that the hearing lacked procedural fairness, and I would refuse leave on this ground. 

Bias (grounds 1, 3 and 4)

1. The appellant's complaints of bias contain claims of, inter alia, a cover up, the disregarding of facts, racist and corrupt practices at WorkCover WA by Arbitrator Nunn, a political conspiracy under 'McGowan's governance' and a disregard of international law.  The appellant's grievances relating to his assertions of bias are expressed in hyperbolic terms in various ways in his written and oral submissions.  These assertions of bias, if they could be proven, do not, however relate to Arbitrator Wallbridge's decision.  I note that this is not the first time the appellant has complained of bias against officers of WorkCover WA. 

2. Armet v Stephen Browne [2024] WASCA 44 was also a case in which the appellant had complained of bias albeit against another arbitrator. In dismissing his appeal, the Court of Appeal made the following observations in relation to legal principles of alleged bias and reasonable apprehension of bias:

   57The New South Wales Court of Appeal considered the legal principles as to actual bias in Reid v Commercial Club (Albury) Ltd.  Relevantly:

   1.A finding of actual bias is a grave matter.  An allegation of actual bias must be distinctly made and clearly proved.  Such a finding should not be made lightly.  Cogent evidence is required.

   2.Where the issue is actual bias in the form of prejudgment it must be established that the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

   3.There are distinct elements underlying an assertion of prejudgment: first, that the primary judge has an opinion on a relevant aspect of the matter in issue in the case; second, that the primary judge will apply that opinion to the matter in issue; third, that the primary judge will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.  Allegations of actual bias through prejudgment often fail at the third step.

   4.The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the primary judge.  However, actual bias need not be confined to an intentional state of mind.  Bias may be subconscious.  The wrong involved is the failure to decide a case impartially.  Whether that failure was deliberate or not is beside the point.

   5.The circumstances in which actual bias can be demonstrated solely from published reasons for decision must be considered to be rare and exceptional.

   58Finally, as to the allegation of reasonable apprehension of bias, there is a recent summary of the applicable principles in Reynolds v Rayney.  We adopt those principles.  Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide.  In applying this principle, it is necessary to identify what is said might lead the judicial officer to decide a case other than on its legal or factual merits and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The reasonableness of the apprehension may then be assessed.

   59The test is objective and the fair-minded lay observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.  However, the fair-minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.

   (footnotes omitted)

The appellant's complaints of bias against Arbitrator Nunn in these proceedings

1. In the present case, the appellant's submissions reveal a fixation with conduct on the part of Arbitrator Nunn in relation to A93766 (the statutory expenses arbitration).  The appellant alleges that Arbitrator Nunn 'engaged in conduct to obstruct, pervert and prevent the course of process of [the appellant's] process and determination'.[44] 

   [44] Notice of appeal filed 9 May 2024, page 5.

2. Although the present appeal does not concern orders made by Arbitrator Nunn, I infer that the appellant submits that the conduct of Arbitrator Nunn has had a consequential effect on the decision made by Arbitrator Wallbridge.  The appellant's logic is difficult to follow but, as it has been raised, I will examine his complaints to determine whether there is any merit in his assertions. 

3. Arbitrator Nunn was assigned to determine the statutory expenses arbitration.  The appellant sought to have Arbitrator Nunn recuse himself.  The application for recusal was made on the basis that Arbitrator Nunn had conducted himself in previous proceedings (in relation to the weekly payments dispute) which had resulted in delay and the appellant being denied weekly payments for a period of time.  The appellant asserted in those proceedings that Arbitrator Nunn had conducted himself intentionally to harm him by depriving him of the benefit of the weekly payments to which he was entitled.  Arbitrator Nunn declined to recuse himself. 

4. The appellant appealed Arbitrator Nunn's dismissal of the recusal application.  The appeal was heard by Lemonis DCJ who dismissed the appeal: Armet v CFC Consolidated Pty Ltd [2022] WADC 5. An appeal from the decision of Lemonis DCJ also failed: Armet v CFC Consolidated Pty Ltd [2022] WASCA 63.[45] 

   [45] After the hearing of the appeal, I became aware that there was a suppression order on Lemonis DCJ's decision.  I convened a hearing in order to hear submissions from the parties as to whether the suppression order should be varied to permit me to read the decision.  I considered that it was necessary for me to read Lemonis DCJ's decision in order to ensure that it did not raise any issue estoppel.  After hearing from the parties, I made an order varying the order to permit me to read the decision but I did not remove the suppression order.  As it will be necessary for me to refer to that decision, and that decision has been the subject of a published decision by the Court of Appeal I have now cancelled the suppression order.

5. In his written reasons, Lemonis DCJ acknowledged that the appellant had suffered considerable frustration with the proceedings related to his claims.  The main reason for that frustration was the fact that the proceedings in which the respondent had challenged the appellant's weekly payments ie: the weekly payments dispute had resulted in the appellant having been deprived of significant amounts of compensation for a period of time before those payments were reinstated. 

6. Lemonis DCJ found that the reason why the appellant had been deprived of compensation for a period was procedural.  Although Lemonis DCJ dismissed the notion that Arbitrator Nunn had conducted himself in a way to cause harm to the appeal, his Honour acknowledged that it was understandable that the appellant felt a sense of grievance.  Relevantly, his Honour said:[46] 

   The learned arbitrator's letters evince his intention to ensure that the orders permitted the matter to be heard afresh.  It may well have been that the matter could have been dealt with more expeditiously by the learned arbitrator first asking the parties to clarify that their understanding of the orders was that the matter was to be heard afresh.  Further, a person such as Mr Armet may well perceive the learned arbitrator's letters as an overly technical approach to the implementation of the court's orders and therefore may have a sense of grievance, especially as this approach resulted in a delay in the arbitration being brought back on for further hearing and thus a delay in Mr Armet being paid the monies he was due.  While it is understandable that Mr Armet might have such a sense of grievance, the concerns raised by the learned arbitrator with the terms of the consent order were clearly directed to ensuring that Mr Armet was not bound by the findings which Arbitrator Rutherford had made.  Understood in this way, the learned arbitrator's intervention sought to ensure that Mr Armet had the full benefit of the appeal being allowed.  This does not demonstrate an intention by the learned arbitrator to harm Mr Armet, nor does it demonstrate the learned arbitrator had acted in a retaliatory manner against Mr Armet.

   [46] Armet v CFC Consolidated Pty Ltd [2022] WADC 5 [73].

7. Lemonis DCJ further observed at [97] - [100] that there had been a delay in the appellant being advised that the respondent no longer intended to pursue the application to reduce weekly payments (A34818) and had indeed, intended to make back payments: 

   Discontinuance of the respondent's application to reduce weekly payments to Mr Armet

   97The respondent's application to reduce Mr Armet's weekly payments (Arbitration A34818) was listed for hearing at the same time as Mr Armet's claim for a psychiatric injury (Arbitration A49618). 

   98On 12 February 2019, the respondent's solicitors wrote to Mr Armet advising him that they no longer intended to pursue Arbitration A34818 to reduce his weekly payments.  Furthermore, the letter stated that in light of this position, the respondent would make back payments to Mr Armet.  These back payments were to reflect the payments that would otherwise have been made to Mr Armet had it not been for the orders made by Arbitrator Rutherford, which were later set aside by consent in APP 6 of 2018. 

   99Mr Armet suggests that the learned arbitrator deliberately delayed the ultimate resolution of Arbitration A34818.  However, in my view, the delay arose in the context of Mr Armet filing an appeal from Arbitrator Rutherford's decision, that appeal being resolved by consent, the matter then being sent back for further determination consequent upon the final consent orders being made and ultimately, the respondent discontinuing its application to seek the reduction of the weekly payments. 

   100The delay did result in Mr Armet being deprived of significant payments for a significant period of time.  In this respect, the respondent's solicitors' letter set out that for the period from 13 December 2017 until 10 February 2019, Mr Armet was to be paid the total sum of $42,850.11 (gross) by way of back payments, with weekly payments of $1,117.48 (gross) being reinstated from 11 February 2019. 

8. Insofar as the present appeal is predicated, in part at least, on what the appellant says was unfair treatment by Arbitrator Nunn, this is an issue which has been heard and determined in proceedings by Lemonis DCJ.  I am bound by the doctrine of issue estoppel to adopt his Honour's findings in relation to the assertion of bias by Arbitrator Nunn.  In any event, the appellant has not demonstrated that the conduct of Arbitrator Nunn has had any bearing on the decision of Arbitrator Wallbridge.

The relevance of the previous decisions of Arbitrator Rutherford in considering the bias complaint

1. The appellant also complains of the conduct of Arbitrator Rutherford in relation to his decision in respect of A34818 in December 2017. 

2. The appellant's grievances against Arbitrator Rutherford were also ventilated before Lemonis DCJ (even though that case concerned an appeal from a decision of Arbitrator Nunn).  Lemonis DCJ did not find that Arbitrator Rutherford had acted improperly either, a finding which the Court of Appeal upheld. 

3. In Armet v CFC Consolidated Pty Ltd [2022] WASCA 63 the Court of Appeal observed, in relation to a similar submission by the appellant:

   62An appeal to this court is for the correction of error.  As Mason and Deane JJ said in Norbis v Norbis:

   According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

   63In the present context, Mr Armet was required to demonstrate appellable error by the primary judge by reference to his Honour's reasons for decision.  The appeal is not the occasion for more generally ventilating complaints concerning the operation of the arbitration process in the past few years in respect of Mr Armet's.

   (emphasis added)

4. With respect, the appellant finds himself in similar territory in these proceedings.  This appeal is not an opportunity to re-agitate his complaints of bias against other arbitrators.  In any event, his complaints of bias are without merit. 

5. The transcript of proceedings reveal that the appellant raised no concern about bias on the part of Arbitrator Wallbridge. 

6. There is no merit to the bias ground and application for leave on this ground is refused.

Error of law based on failure to give adequate reasons (ground 5)

1. The appellant asserts that Arbitrator Wallbridge erred in law by 'failing to describe the events causing all the injuries' and failing to conduct 'a thorough analysis of the causes and origins of all injuries'.[47]

Legal principles - failure to give adequate reasons

[47] The appellant's 'notice of appeal' filed 9 May 2024 with submissions at pars 5.1 and 5.2.

1. In Zamora, the Court of Appeal referred to the recent recitation of the principles applicable to the adequacy of reasons in Tabloid Pty Ltd v Pringle [2024] WASCA 152 [66] ‑ [72] and in Kipoi Holdings Mauritius Ltd v Krima [No 4] [2024] WASCA 145 [486] ‑ [500] (see also [510] ‑ [513], [527] ‑ [529], [534]). It is unnecessary for me to reproduce what the court said there.

2. However, it is convenient to reproduce what the Court of Appeal said in Joyce v Anderson [2020] WASCA 48 which was also an appeal where the adequacy of the primary decision‑maker's reasons were analysed in a workers' compensation appeal). There, the court said:

   80The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination.  Where there is a right of appeal, the reasons must be sufficient to give effect to that right.  The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact.  Just what that will involve depends upon the nature of the case.  As was noted in G v O, whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration.  The court will look at the reasons as a whole, if necessary in the context of the evidence, to determine if they achieve their required function and purpose.  The fundamental elements of a statement of reasons are:

   (1)a reference to the relevant evidence (which need not be detailed);

   (2)a statement of material findings of fact and any ultimate conclusions;

   (3)a statement of the reasons for making those findings and conclusions; and

   (4)an explanation of how the law was applied to the facts as found. 

   In doing these things, the reasons must demonstrate an engagement with the losing party's case.

   (footnotes omitted)

3. For the reasons I have identified earlier in these reasons Arbitrator Wallbridge's reasons were extensive, thorough and clear.  The reasons reveal that the learned arbitrator had considered all of the evidence and had engaged with the appellant's arguments.  He made findings of fact on the evidence and expressed conclusions based on those facts.  He referred to the relevant provisions of the 1981 Act and the case law.

4. There is no merit in this ground. 

5. Leave to appeal is refused.

Errors of law by failure to conduct hearing in accordance with the 1981 Act (grounds 3, 5, 7 and 8)

1. In grounds 3, 5, 7 and 8 the appellant references a failure to comply with the 1981 Act by reference to s 3(d), s 188(2)(b), s 188(3), s 188(4)(b) and s 203(1)(a).

Relevant provisions of Workers' Compensation and Injury Management Act 1981

1. Section 3(d) of the 1981 Act provides:

   to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.

   (emphasis added)

2. Section 188 of the 1981 Act provides:

   188.Practice and procedure, generally

   (1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.

   (2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -

   (a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and

   (b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

   (3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.

   (4)An arbitrator may -

   (a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

   (b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.

   (5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

   An arbitrator may inform himself on any matter as the arbitrator thinks fit.

1. Section 203(1)(a) of the 1981 Act provides:

   203.Arbitrator's powers as to witnesses

   (1)In any proceeding before an arbitrator, the arbitrator may -

   (a)call any person to give evidence; and

   …

Was there a failure to comply with s 3(d) and s 188(2)(b) of the 1981 Act?

1. The appellant asserts that Arbitrator Wallbridge failed to comply with s 3(d) of the 1981 Act, but he has not shown how he did so or how that affected the outcome of the proceedings.

2. As regards s 188(2)(b) the appellant does not say how Arbitrator Wallbridge failed to 'act according to equity, good conscience and the substantial merits of the case …'.

3. Section 203 of the 1981 Act refers to the arbitrator's powers to call witnesses and has no relevance to the arguments raised on this appeal.

4. The appellant's assertions that Arbitrator Wallbridge failed to comply with the provisions of the 1981 Act generally or these provisions in particular, have no merit.

5. I would refuse leave.

Errors of law based on erroneous factual findings (ground 6)

1. Ground 6 challenges Arbitrator Wallbridge's findings that the medical certificates do not support a conclusion that the appellant was not suffering from a permanent total incapacity for work.

2. Arbitrator Wallbridge relevantly stated at [77] ‑ [79]:

   77Mercantile Mutual Insurance (Workers' Compensation) Ltd v Cini CM‑57/96 (25 September 1996) is authority for the proposition where medical certificates unsupported by medical reports are in conflict with detailed medical reports, without more the certificates may be of little or no probative value.  In my view, this is the case with Mr Armet's tendered progress medical certificates the most recent of which for his claimed back injury is dated 23 April 2023 and psychiatric condition is dated 26 June 2023. 

   78Most of the progress medical certificates record 'no change', or similar, in terms of Mr Armet's back injury and sequela; however, they are unsupported by an evidence as to the basis of the opinion as to capacity Mr Armet's GPs express.  There is no explanation as to how or why they have determined Mr Armet has no capacity for any work.  I consider this to be inadequate, particularly as the tendered progress medical certificates and reported incapacity span a time period of nearly four years. 

   79I note, the back injury progress medical certificate dated 23 February 2022 states Mr Armet has some capacity to work modified duties online or office based with no manual handling and modified hours two hours per day for three days per week.  This is consistent with the opinions of Dr Watson, Dr Narula A/Prof Thompson.  Similarly, the psychiatric progress medical certificates dated 28 November 2019 and 3 January 2020; state Mr Armet has some capacity for work.  This is consistent with Dr McCarthy's opinion.  These progress medical certificates contradict the general import of Mr Armet's evidence that he has had no capacity for work since September 2015.  In any event, as I have found, the progress medical certificates have little or no probative value. 

3. The appellant's submissions amount to no more than an assertion of factual error.  Insofar as ground 6 alleges an error of fact there is no merit in this ground and leave is refused.

4. Ground 6 asserts that Arbitrator Wallbridge erred in law by 'falsely indicating that [the appellant]'s medical specialist and allied health evidence now support the other party's case after 9 years of procedure, despite not being considered as supportive at all'. 

5. The thrust of the appellant's argument here is that Arbitrator Wallbridge gave insufficient weight to the progress medical certificates which the appellant submits compels a conclusion that he suffered a permanent total incapacity.  This amounts to a submission that Arbitrator Wallbridge committed a factual error rather than an error of law. 

6. In any event, the appellant's progress medical certificates (the most recent of which were dated 23 April 2023 for the back injury and 26 August 2023 for the psychiatric injury) were not supported by recent specialist reports. The appellant has failed to establish that Arbitrator Wallbridge made any factual (let along legal) error. 

7. Arbitrator Wallbridge was entitled to consider, as he did, that the progress medical certificates were not recent and the appellant had not filed any updated specialist medical reports.  In all of the circumstances, Arbitrator Wallbridge was entitled to rely on the opinion of Dr Terace and Dr Dayoub (whose reports were more recent) in making his factual findings. 

8. In my view, Arbitrator Wallbridge was correct to give limited weight to the progress medical certificates as they conflicted with the conclusion of the specialists.[48]  See Mercantile Mutual Insurance (Workers' Compensation) Ltd v Cini (Unreported, CM 57/96 (Heath SA) 25 September 1996). 

   [48] Arbitrator's reasons [77].

9. Further, and in any event, as Arbitrator Wallbridge observed, the progress medical certificates do not all state that the appellant has no capacity for work.  The back injury progress medical certificate dated 23 February 2022 stated that the appellant has some capacity to work modified duties and modified hours.  (This was consistent with the opinions of Dr Watson, Dr Narula and Associate Professor Thompson.) 

10. Similarly, the psychiatric progress medical certificates dated 28 November 2019 and 3 January 2020 also stated that Mr Armet has some capacity for work (which was consistent with Dr McCarthy's opinion). 

11. Ground 6 challenges Arbitrator Wallbridge's findings that the report of Dr Watson, Associate Professor Thompson and Dr Narula support the conclusions of Dr Dayoub. 

12. The appellant's submissions set out in detail excerpts from the various medical reports in support of his argument.  The submissions are an attempt to challenge Arbitrator Wallbridge's factual findings.  At best, the appellant points to arguments which might form the basis of alternative findings of fact, but they reveal no error of law.  The submissions do not rise beyond an assertion that Arbitrator Wallbridge made errors of fact. 

13. The appellant asserts a failure to comply with the legislation.  However, he has not sought to explain how there was such a failure other than that Arbitrator Wallbridge came to a wrong factual conclusion. 

14. As the appellant has not shown that a question of law is involved.  I decline to grant leave.

15. The appellant has expressed grounds 5 and 6 as containing errors in law.  However, just because the grounds are expressed as errors of law, it is apparent that they assert only errors of fact. 

16. There is no merit in the suggestion that the learned arbitrator made any wrong conclusion of fact.  The learned arbitrator was entitled to conclude as a matter of fact that the evidence relied on by the appellant did not support a finding as to permanent total incapacity.  Although the appellant urges a different conclusion, he has failed to show that Arbitrator Wallbridge is wrong. 

17. There is no merit in either ground 5 or 6 and leave is refused.

Focus on irrelevant considerations (ground 9)

1. Ground 9 contends that Arbitrator Wallbridge placed undue emphasis on the appellant's 'feelings and reactions' towards the proceedings rather than addressing the 'real causation' of the appellant's incapacity to work.  To the extent that Arbitrator Wallbridge did so, he was not in error because the medical evidence references the appellant's frustration and anger with the proceedings.  The weight of the medical evidence suggests that the appellant's incapacity to work had less to do with the primary injury and its sequelae, and more to do with the stress he has suffered as a consequence of the various proceedings.  As Arbitrator Wallbridge found at [91]:

   … It is also my view that the FreshStart reports as well as the opinions of Dr Narula, Dr Terace, and the psychologist, support a conclusion that Mr Armet has failed to engage reasonably or genuinely in his rehabilitation or return to work not because of his compensable injury but because of his anger, frustration and grievances with the workers' compensation system and his preoccupation with legal processes in the pursuit of justice. 

2. At the hearing of this appeal, counsel for the respondent frankly acknowledged that it was understandable that the appellant would feel aggrieved by the failure of the appellant's previous applications for total permanent incapacity (the circumstances of which I have detailed earlier in these reasons).  Counsel for the respondent acknowledged that the workers' compensation legislation was complicated and difficult to understand (even for legal practitioners) and would have caused the appellant to feel angry and frustrated.[49] 

   [49] Transcript of hearing of appeal, 1 October 2024, page 51.

3. The appellant's frustration with the system was also acknowledged to have some justification by Lemonis DCJ in Armet v CFC Consolidated Pty Ltd [2022] WADC 5. Lemonis DCJ acknowledged that the appellant had been denied payment of compensation for a period of time during the 'weekly payments dispute' because of what the appellant may have perceived as being an unduly technical approach by Arbitrator Rutherford's execution of orders in the appellant's favour.

4. Arbitrator Wallbridge cannot be criticised for considering the appellant's feelings of anger and frustration with the proceedings.  This was a factor relevant to whether any claimed incapacity to work could have been as a consequence of a compensable injury or some other factor. 

5. The appellant's contention that Arbitrator Wallbridge focused on irrelevant considerations, namely the appellant's feelings, has no merit.  I decline to grant leave on ground 9. 

Conclusion

1. Neither the first nor second notices of appeal disclose any arguable error of law. 

2. Leave to appeal is refused and the appeal is dismissed. 

Orders

1. The appeal is dismissed.

2. I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MG

Associate

22 AUGUST 2025