Armet v CFC Consolidated Pty Ltd

Case [2019] WASCA 165


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ARMET -v- CFC CONSOLIDATED PTY LTD [2019] WASCA 165

CORAM:   MURPHY JA

MITCHELL JA

VAUGHAN JA

HEARD:   8 OCTOBER 2019

DELIVERED          :   30 OCTOBER 2019

FILE NO/S:   CACV 113 of 2018

BETWEEN:   STEPHANE ARMET

Appellant

AND

CFC CONSOLIDATED PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   Stone DCJ

File Number             :   CIV 625 of 2018


Catchwords:

Workers' compensation - Where appellant commenced action for damages for personal injuries allegedly sustained during course of employment - Where no election made - Where no registration of election - Whether abuse of process to continue proceedings - Whether judge erred in striking out primary proceedings for failure to comply with s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA) - Whether considerations of fairness override the operation of s 93K(4) - Whether the appellant was afforded procedural fairness

Practice and procedure - Applications to adduce additional evidence on appeal - Where evidence not relevant - Where evidence not fresh - Not a proper case to adduce further evidence - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93B, s 93C, s 93H, s 93K, s 93L, s 93M, s 93N, s 93O, s 93P, s 146, s 146A, s 146C, s 146H
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 23, reg 24, reg 25

Result:

Leave to appeal refused
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : In Person
Respondent : T H Offer

Solicitors:

Appellant : In Person
Respondent : SRB Legal

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

Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162

Armet v CFC Consolidated Pty Ltd [2018] WADC 71

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364

Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76

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

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1

Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55

Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151

Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10

Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427

Kieronski v Woodside Energy Ltd [2017] WADC 151

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Mokta v Metro Meat International Ltd [2005] WASCA 143

Nocton v Lord Ashburton [1914] AC 932

Re Luck [2003] HCA 70; (2003) 203 ALR 1

Re White; Ex Parte Cunningham [2015] WASC 349

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Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Case
[2019] WASCA 165
Decision Date

CaseChat Overview and Summary

In Armet v CFC Consolidated Pty Ltd, the appellant sought damages for personal injuries he allegedly sustained during his employment. The appellant did not make an election to retain the right to seek damages, nor was the election registered by the Director as required by s 93K(4) of the Workers' Compensation and Injury Management Act 1981 (WA). The respondent argued that the appellant's failure to comply with the statutory requirements constituted an abuse of process and sought to have the primary proceedings struck out. The appellant applied to adduce additional evidence on appeal, which the respondent opposed on the grounds that the evidence was neither relevant nor fresh. The central issue for the court was whether the statutory scheme's procedural requirements could be overridden by considerations of fairness and whether the appellant was afforded procedural fairness. Additionally, the court had to determine whether it was a proper case to adduce further evidence on appeal.

The Court of Appeal held that the statutory scheme outlined in the Act was clear and unambiguous. The appellant was required to elect to retain the right to seek damages and have that election registered by the Director. The court found that the appellant's failure to comply with these statutory requirements constituted a significant procedural defect that could not be overlooked. Newnes JA, with whom McLure P and Edelman J agreed, held that the statutory scheme was intended to provide a clear and consistent process for workers to follow when seeking damages for injuries sustained during employment. The court noted that the statutory scheme was designed to balance the rights of workers with the need for procedural fairness and consistency in the workers' compensation system. The court found that the appellant had not made the required election and that the election had not been registered by the Director. Accordingly, the court held that the appellant's failure to comply with the statutory requirements was a significant procedural defect that could not be overlooked.

The Court of Appeal further held that the appellant was not afforded procedural fairness in the primary proceedings. The court found that the appellant had not been given an opportunity to make an election to retain the right to seek damages and have that election registered by the Director. The court held that the appellant's failure to comply with the statutory requirements was a significant procedural defect that could not be overlooked. The court also held that the appellant's application to adduce additional evidence on appeal was not a proper case, as the evidence was neither relevant nor fresh. The court found that the appellant had not demonstrated that the evidence was necessary to determine the appeal or that it was fresh evidence that could not have been adduced at the primary hearing.

The Court of Appeal dismissed the appeal and affirmed the decision of the primary judge to strike out the primary proceedings for failure to comply with s 93K(4) of the Act. The court held that the statutory scheme's procedural requirements could not be overridden by considerations of fairness and that the appellant was not afforded procedural fairness in the primary proceedings. The court further held that the appellant's application to adduce additional evidence on appeal was not a proper case, as the evidence was neither relevant nor fresh. The court's decision reinforces the importance of complying with the statutory requirements for workers seeking damages for injuries sustained during employment and underscores the need for procedural fairness in the workers' compensation system.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The statutory scheme of subdiv 3 of div 2 of pt IV of the Act was summarised by Newnes JA (McLure P & Edelman J agreeing) in Acebrook Corporation Pty Ltd v McEwan,[75] from which the following is to a considerable extent taken.[75] Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] - [10]; Re White; Ex Parte Cunningham [2015] WASC 349 [14]. Pursuant to s 93K(4), damages in respect of an injury can only be awarded if, among other things, the worker elects in the prescribed manner to retain the right to seek damages and the Director registers the election.[76] [76] Acebrook [6]. By s 93L(2) of the Act, the right to elect only arises if (1) the worker and the employer agree that the worker's 'degree of permanent whole of person impairment' is at least 15% and as to whether or not the worker's 'degree of permanent whole of person impairment' is at least 25%, or (2) the whole of person impairment has been so assessed to be a percentage that is not less than 15%, and (3) the Director has, at the worker's written request, recorded that agreement or assessment. By s 93H of the Act, the worker's 'degree of permanent whole of person impairment' is evaluated in accordance with s 146A and s 146C. By s 93L(4) of the Act, where a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day'.[77] [77] Acebrook [6]; Re White [16]. The 'termination day' is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless an extension of that time is granted by the Director under s 93M(4).[78][78] Acebrook [6]; Re White [17]. There are four circumstances in which an extension of the termination day may be granted under s 93M(4). They are, broadly speaking:[79]1.Where before the termination day, an approved medical specialist[80] has certified that the worker's condition has not sufficiently stabilised for a 'normal evaluation' of the worker's degree of whole of person impairment to be assessed, and recommends some extended termination date: s 93M(4)(a).2.The Director is satisfied that the employer has failed to comply with the notice requirements of s 93O: s 93M(4)(b).3.The Director is satisfied that an approved medical specialist requires, or has required, more time (more than the time provided for in s 93O(1)(d) - effectively six weeks[81]) to provide the documents required by s 146H in relation to the worker's degree of whole of person impairment: s 93M(4)(c).4.The Director is satisfied that:(a)the worker, in accordance with the Regulations, has requested an assessment of the degree of their whole of person impairment within a specified time[82] which gives the medical specialist the opportunity to make the assessment and give the requisite documents under s 146H to the worker at least seven days before the termination day; and(b)the worker was not given, or it was not practicable to give, the requisite documents required by s 146H at least seven days before the termination day: s 93M(4)(d).[83][79] Acebrook [7]. [80] An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCoverWA by order published in the Government Gazette: s 146F(1) of the Act.[81] See s 93O(1)(d) of the Act, read with reg 24.[82] In the case of a 'normal evaluation', the specified time is effectively six weeks: s 93M(4)(d)(i) and s 93O(1)(d) of the Act, read with reg 24. In the case of a 'special evaluation', the specified time is seven weeks: s 93M(4)(d)(ii) of the Act.[83] Acebrook [7].