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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- AGLC
- Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
- Case
- [2019] WASCA 165
- Decision Date
CaseChat Overview and Summary
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].