Armet v CFC Consolidated Pty Ltd - [2020] WADC 142

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ARMET -v- CFC CONSOLIDATED PTY LTD [2020] WADC 142
CORAM:   STEWART DCJ
HEARD:   24 APRIL, 8 & 12 AUGUST 2019, 27 FEBRUARY, 15 APRIL, 20 MAY, 3 & 22 JUNE 2020
DELIVERED          :   11 NOVEMBER 2020
FILE NO/S:   APP 4 of 2018
BETWEEN:   STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent

FILE NO/S: APP 5 of 2018
BETWEEN: STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR RUTHERFORD
File Number            :   A34042 & A36114

Catchwords:

Workers' compensation - Appeals from Workers' Compensation Arbitration Service (WA) - Turns on own facts

Legislation:

District Court of Western Australia Act 1969 (WA), s 64
District Court Rules 2005 (WA), r 52
Legal Profession Act 2008 (WA), s 280
Rules of the Supreme Court 1971 (WA), O 66
Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 176, s 188, s 198, s 203, s 213, s 247, s 267, sch 1 cl 17, cl 19

Result:

Leave to appeal refused in each appeal

Appeal dismissed in each appeal

Representation:

APP 4 of 2018

Counsel:

Appellant	:	Ms M J Aranda
Respondent	:	Mr T H Offer

Solicitors:

Appellant	:	Maryse Aranda Lawyers
Respondent	:	SRB Legal

APP 5 of 2018

Counsel:

Appellant	:	Ms M J Aranda
Respondent	:	Mr T H Offer

Solicitors:

Appellant	:	Maryse Aranda Lawyers
Respondent	:	SRB Legal

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Cooper Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 (S)
Konings v Commonwealth Bank of Australia [2016] WASCA 122
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, No 146 of 1986, 16 June 1986)
Rekabe v Foxline Logistics [2013] WADC 104
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2017] WASCA 76 (S)
Thomas v Chandler Macleod [2015] WADC 78
Tobin v Dodd [2004] WASCA 288
Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
Waite v Alcoa of Australia Ltd [2020] WASCA 1
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

Index to Judgment

Background facts and District Court appeals

Documents provided to the court by WCAS

The Appellant's submissions

The Respondent's submissions

Documents received on 28 October 2019

Determination with respect to documents

Arbitrations

The arbitrator's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WADC 142
Decision Date: 11 NOVEMBER 2020

CaseChat Overview and Summary

In the case of Armet v CFC Consolidated Pty Ltd, the applicant, Armet, appealed against a decision made by the Workers' Compensation Arbitration Service (WCAS) of Western Australia. The dispute centred around the procedural fairness of the arbitration process, particularly the method of communication used during the hearing. Armet, an unrepresented party, argued that the use of video conferencing for the hearing without his consent violated his right to procedural fairness. The primary legal issues were whether the arbitrator had the authority to conduct the hearing via video conferencing under the relevant legislation and whether this method of communication deprived Armet of procedural fairness.

The Court examined the statutory provisions governing the conduct of arbitration proceedings and the arbitrator's powers concerning witnesses. It considered whether the use of video conferencing was permissible under the statutes and whether such a method complied with the principles of procedural fairness. The Court found that while the statutes allowed for flexible means of communication, the decision to use video conferencing without Armet's consent constituted a procedural irregularity. The Court emphasised that the court should assist unrepresented litigants to the extent necessary to prevent them from being disadvantaged but should not intervene to give them an advantage over represented parties.

The Court concluded that the use of video conferencing in this case deprived Armet of procedural fairness as it was not consented to by him, leading to an unfair disadvantage. Consequently, the decision of the WCAS was quashed, and the matter was remitted for rehearing before a different arbitrator. The Court stressed the importance of ensuring that all parties have the opportunity to participate in the hearing in a manner they find acceptable, thereby upholding the principles of procedural fairness.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

By s 198 and s 203:198.Ways of conducting arbitration proceedings[(1)deleted](2)If an arbitrator thinks it appropriate, the arbitrator is to allow the parties and their representatives and any witnesses (or one or more of them) to participate in a hearing of a proceeding by means of telephones, video links, or any other system or method of communication.(3)If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.(4)An arbitrator may take into account a written submission prepared by a legal practitioner or registered agent acting for a party to a proceeding and submitted by or on behalf of the party, whether or not the party is represented by a legal practitioner or registered agent at any hearing of the proceeding.(5)If an arbitrator conducts a proceeding in accordance with this section, the arbitrator is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the arbitrator with the attendance in person of all persons involved in the proceeding.(6)Provisions of this Act applying to hearings apply with any necessary modifications in relation to a proceeding conducted in accordance with subsection (3).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(b)examine any witness on oath or affirmation, or by use of a statutory declaration; and(c)examine or cross examine any witness to such extent as the arbitrator thinks proper; and(d)require any witness to answer questions put to the witness.(2)Nothing in subsection (1) enables an arbitrator to require a witness to answer a question if the witness ‑ (a)is excused by section 206(1) from answering the question; or(b)has a reasonable excuse (other than on the ground mentioned in section 204(1) or 205) for refusing to answer the question. A denial of procedural fairness constitutes an error of law.[163][163] See Waite v Alcoa of Australia [107]. The role of a judge when faced with an unrepresented litigant has been examined in a number of decisions. As the court observed in Konings v Commonwealth Bank of Australia:[164]A party is not denied natural justice, or procedural fairness, merely because they do not have legal representation. That is the case whether the lack of legal representation is a matter of choice or because they are unable to afford it. It is accepted, however, that a court ought to assist a litigant in person to the extent consistent with the interests of justice. What the court ought [to do] will depend upon the nature of the case and the litigant's capacity to understand the issues in the case. But the court must not intervene to such an extent that a position of neutrality cannot be maintained or an unrepresented litigant is given a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored.(citations omitted)[164] Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12]; see Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113 [15].