Armet v CFC Consolidated Pty Ltd
[2022] WASCA 63
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ARMET -v- CFC CONSOLIDATED PTY LTD [2022] WASCA 63
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 27 MAY 2022
DELIVERED : 15 JUNE 2022
FILE NO/S: CACV 17 of 2022
BETWEEN: STEPHANE ARMET
Appellant
AND
CFC CONSOLIDATED PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
Citation: ARMET -v- CFC CONSOLIDATED PTY LTD [2022] WADC 5
File Number : APP 30 of 2021
Catchwords:
Workers' compensation - Arbitration - Where a party sought recusal of an arbitrator due to alleged actual or apprehended bias - Unsuccessful appeal to District Court against dismissal of recusal application - No arguable basis upon which it could be found that primary decision was wrong
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 254
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McCabes |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2022] WADC 5
Charisteas v Charisteas [2021] HCA 29
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lashanky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260
Marks v Coles Supermarkets [2020] WADC 36
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78
WKS v The State of Western Australia [No 4] [2020] WASCA 178
JUDGMENT OF THE COURT:
Introduction
This matter came to a hearing on 27 May 2022 to consider the application by the appellant (Mr Armet) for leave to appeal. Leave to appeal is required under s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) (Act). Mr Armet is self-represented.
The appeal is against a decision of Lemonis DCJ in Armet v CFC Consolidated Pty Ltd (primary decision).[1] The primary decision was concerned with an appeal by Mr Armet against a decision by an arbitrator in arbitration proceedings under the Act brought by Mr Armet against his former employer, the respondent (CFC). In that arbitration, Mr Armet brought an application for an arbitrator, Mr Nunn, who was case‑managing the arbitration, to recuse himself from further involvement in the arbitration on the basis of actual or apprehended bias. Arbitrator Nunn dismissed the application for recusal and published reasons on 16 April 2021.[2] Mr Armet appealed to the District Court against the dismissal of his recusal application. The appeal was heard by Lemonis DCJ, who dismissed the appeal.
[1] Armet v CFC Consolidated Pty Ltd [2022] WADC 5.
[2] Arbitrator's decision A93766 (Arbitrator's Decision).
For the reasons which follow, and making due allowance for the fact that Mr Armet is not legally represented,[3] leave to appeal should be refused on the basis that the appellant's case discloses no reasonably arguable basis upon which it could be found that the primary decision was wrong or attended with any doubt as to its correctness. The appeal should accordingly be dismissed.
[3] As to which, see Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
Background
Procedural history
Mr Armet's position is that he suffered a number of injuries as a result of his employment with CFC:[4]
1.An injury to his lumbar spine.
2.An injury to his right foot, as well as plantar fasciitis to his right foot.
3.An injury to his cervical spine.
4.Tinnitus.
5.A psychiatric injury caused as a result of the lumbar spine injury.
6.Loss of hair as a consequence of medication he was on for his injuries.
[4] Primary decision [6].
Mr Armet has pursued a number of claims under the Act:
1.In A34818, CFC admitted liability in relation to the lumbar spine injury.[5] 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.[6]
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.[7]
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.[8]
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.[9]
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.[10]
6.In A60985, A64958, and A64753, Mr Armet brought three applications which were all abandoned or discontinued by consent.[11]
7.In A93766, Mr Armet brought a claim for statutory expenses incurred as a result of his compensable injuries, plus interest (statutory expenses arbitration).
The recusal application in the arbitration
[5] Primary decision [7.1]; Arbitrator's Decision [11] - [14].
[6] Arbitrator's Decision [11] - [14]; primary decision [98].
[7] Arbitrator's Decision [15] - [16]; primary decision [7.2].
[8] Arbitrator's Decision [17] - [19]; primary decision [7.3].
[9] Arbitrator's Decision [20] - [21]; primary decision [7.4] - [7.5].
[10] Arbitrator's Decision [22], [40(f)].
[11] Arbitrator's Decision [23] - [24].
Mr Armet's application for the disqualification of Arbitrator Nunn was brought in the statutory expenses arbitration. Arbitrator Nunn determined that the recusal application was brought on the basis of apprehended or actual bias, and approached the application on that basis.[12]
[12] Arbitrator's Decision [1] - [3].
Arbitrator Nunn summarised the legal principles. In relation to apprehended bias, Arbitrator Nunn said the test was the fair-minded lay observer test as described by the High Court in Johnson v Johnson.[13] Arbitrator Nunn also referred Ebner v Official Trustee in Bankruptcy.[14] The arbitrator also summarised the principles in relation to actual bias by reference to WKS v The State of Western Australia [No 4][15] and Lashanky v Legal Practice Board of Western Australia [No 3].[16] The arbitrator said these principles applied equally to an arbitrator.[17]
[13] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488.
[14] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8] (Gleeson CJ, McHugh, Gummow, & Hayne JJ); Arbitrator's Decision [28].
[15] WKS v The State of Western Australia [No 4] [2020] WASCA 178 [341].
[16] Lashanky v Legal Practice Board of Western Australia [No 3] [2013] WASCA 260 [2].
[17] Arbitrator's Decision [32]. See Marks v Coles Supermarkets [2020] WADC 36 [183].
Having reviewed approximately 500 pages of material filed by Mr Armet in support of his application,[18] Arbitrator Nunn considered that Mr Armet had not established either actual or apprehended bias, and that his application should be dismissed.[19]
[18] Arbitrator's Decision [4].
[19] Arbitrator's Decision [43].
The District Court appeal
Mr Armet sought leave to appeal to the District Court, and to appeal, the dismissal of his recusal application.
Overview
In the primary decision, the judge described the Arbitrator's Decision as 'comprehensive'.[20] The judge found that the arbitrator had not acted with actual or apprehended bias.[21] His Honour dismissed the appeal.
Mr Armet's case in the District Court
[20] Primary decision [25].
[21] Primary decision [125], [130].
In the District Court, Mr Armet's appeal notice contained 10 grounds of appeal. Mr Armet filed lengthy submissions and four affidavits.[22] Although this evidence extended beyond material which was before Arbitrator Nunn, Lemonis DCJ granted leave to receive the affidavits.[23] The judge said that, during the course of the appeal, Mr Armet sought to demonstrate that Arbitrator Nunn 'had acted in a manner such as to reflect bias'.[24] The judge noted that '[w]hile this approach did not accord precisely with the grounds of appeal, it allowed Mr Armet to present his arguments consistently with how he had prepared for the hearing and thus enabled the appeal to be conducted as efficiently as possible'.[25]
[22] Primary decision [39].
[23] Primary decision [41].
[24] Primary decision [42].
[25] Primary decision [42].
The judge summarised the primary thrust of Mr Armet's submissions as being that Arbitrator Nunn had acted so as to intentionally cause harm to Mr Armet. A secondary theme was that the arbitrator had treated Mr Armet as inferior.[26]
[26] Primary decision [43].
The judge said the substantive matters raised by Mr Armet in the application were whether the arbitrator acted with actual or apprehended bias.[27]
The judge's approach to the appeal
[27] Primary decision [59] - [61].
The judge identified the applicable legal principles, including with reference to the High Court's decision in Charisteas v Charisteas.[28]
[28] Charisteas v Charisteas [2021] HCA 29 [11]; primary decision [54].
The judge dealt with the appeal by reference to the topics raised in oral submissions rather than by cross referencing those topics with the grounds of appeal. The judge accepted this was not ideal, but said it was appropriate because (1) CFC was not prejudiced as it did not seek to be heard, and (2) it was a 'far more efficient way … to get to the core of Mr Armet's concerns'.[29]
[29] Primary decision [53].
The judge accordingly considered Mr Armet's allegations of bias with reference to the following substantive topics raised by Mr Armet in the appeal:
1.Adjournment of a directions hearing on 26 February 2018 in respect of Mr Armet's claim for psychiatric injury (primary decision [62] ‑ [67]).
2.The arbitrator's concerns with the scope of consent orders in APP 6 of 2018 in relation to the disposal of the weekly payments dispute (primary decision [68] ‑ [73]).
3.The medical reviews dispute, including the cancellation by doctors of Mr Armet's medical appointments and CFC's application to suspend weekly payments on the basis that Mr Armet was allegedly obstructing the medical examinations (primary decision [74] ‑ [84]).
4.The relisting, on 27 September 2018, of Mr Armet's application that he suffered psychiatric injury as a result of his back injury (primary decision [85] ‑ [96]).
5.The discontinuance of CFC's application to reduce weekly payments to Mr Armet (primary decision [97] ‑ [101]).
6.Matters addressed at the directions hearing held on 14 February 2019 (primary decision [102] ‑ [113]).
7.Matters concerning Mr Armet's appointment with a consultant psychiatrist, arranged by CFC in January 2019 (primary decision [114] ‑ [115]).
8.Mr Armet's application on 9 April 2019 seeking an extension of the prescribed amount for weekly payments (primary decision [116] ‑ [118]).
9.Provision of documents to the District Court by WorkCover WA (primary decision [119] ‑ [122]).
10.Matters following the 24 September 2020 directions hearing (primary decision [123] ‑ [124]).
Disposition and reasons
The judge's findings and conclusions with respect to the 10 topics are summarised below.
Topic 1 - adjournment and application for psychiatric injury
On 26 February 2018, the psychiatric claim in arbitration A49618 came for its first directions hearing before Arbitrator Nunn.[30] The arbitrator adjourned the directions hearing on the ground that Mr Armet had lodged appeals in the tinnitus dispute (APP 4 of 2018), the related injuries dispute (APP 5 of 2018) and the weekly payments dispute (APP 6 of 2018). The arbitrator said those appeals had the potential to 'significantly impact on the outcome of [the arbitration]' and the arbitrator's hearing note recorded:[31]
The three decisions of Arbitrator Rutherford have been appealed to the District Court.
The worker is keen to progress this dispute to arbitration. However, in my view, the matters being appealed have the potential to significantly impact on the outcome of this dispute such that to proceed at this stage with the outcome of those appeals as yet undetermined may potentially invalidate these proceedings.
In order to ensure the true and correct position between the parties is advanced, so I may more accurately determine what the 'past and present condition of the worker' is and to better preserve the resources of the arbitration service and the parties, this matter will be adjourned to a date to be fixed and will be called on for further directions to ascertain the state of the appeals between the parties and how this dispute can best be progressed in light of the progress of those appeals.
Whilst that causes some inevitable delay and may be a source of frustration for the worker in my view that is the most just outcome in the circumstances.
[30] Primary decision [62].
[31] Primary decision [63].
The judge found that the rationale for the adjournment was 'legitimate', in that it sought to avoid unnecessary uncertainty and was consistent with efficient resolution of the claim. The psychiatric claim arbitration was listed for hearing once the position was clarified.[32]
Topic 2 - the arbitrator's concerns with orders disposing of the weekly payment dispute (APP 6 of 2018)
[32] Primary decision [67].
As noted earlier, Mr Armet appealed Arbitrator Rutherford's decision in the weekly payments dispute (APP 6 of 2018). The appeal was ultimately resolved by consent in Mr Armet's favour.
Arbitrator Nunn was concerned that the consent orders in APP 6 of 2018 only set aside the final orders made by Arbitrator Rutherford, and not Arbitrator Rutherford's decision. Arbitrator Nunn wrote in that regard to Mr Armet and the respondent's solicitors by letters dated 19 July 2018 and 30 August 2018.[33]
[33] Primary decision [71].
Arbitrator Nunn's letter of 30 August 2018 raised concerns that whilst there had been a disposition of Arbitrator Rutherford's orders, the decision and the findings on which those orders were based had not been quashed. This might give rise to legal issues such as estoppel which would render further action in the arbitration moot.[34] Accordingly, amended orders were made quashing the decision and orders of Arbitrator Rutherford on 31 August 2018.[35]
[34] Primary decision [71].
[35] Primary decision [72].
The judge said that the matter could have been dealt with more expeditiously by Arbitrator Nunn asking the parties to clarify their understanding of the orders, and that a person in Mr Armet's position might perceive the arbitrator's letters as reflecting an overly technical approach to the implementation of the court's orders and might, in that regard, have a sense of grievance, especially as the approach resulted in a delay in the arbitration. However, the judge found that the arbitrator's approach was designed to ensure that the orders permitted the matter to be heard afresh, and the concerns raised by the arbitrator were:[36]
clearly directed to ensuring that Mr Armet was not bound by the findings which Arbitrator Rutherford had made. Understood in this way, the … 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 … arbitrator to harm Mr Armet, nor does it demonstrate [that the arbitrator] had acted in a retaliatory manner against Mr Armet.
Topic 3 - medical appointments and CFC's application
[36] Primary decision [73].
This issue involved three medical practitioners cancelling appointments with Mr Armet:
1.An orthopaedic surgeon, Professor Sikorski, declined to see Mr Armet because of, inter alia, concern that it would be difficult to assess Mr Armet objectively.[37]
2.An occupational physician, Dr Easton, cancelled a scheduled examination of Mr Armet due to concerns about the nature of Mr Armet's communications with the physician's staff prior to the consultation, including references to firearms which were interpreted as threatening.[38]
3.A psychiatrist, Dr Lee, refused to conduct an examination. Arrangements had been made for a security guard and interpreter to attend.[39]
[37] Primary decision [76].
[38] Primary decision [77].
[39] Primary decision [78].
The judge found the decisions to cancel appointments were made independently by each of the medical professionals for reasons they considered appropriate.[40] Further, the judge found that the arbitrator did not encourage or acquiesce in this approach.[41]
[40] Primary decision [79].
[41] Primary decision [80].
In addition, Mr Armet complained about CFC's application to suspend Mr Armet's weekly payments of compensation, on the alleged basis that he was unreasonably obstructing the required examinations. The arbitrator accepted that application for lodgement.[42] The judge found there was no basis for the arbitrator to refuse to accept CFC's application for lodgement.[43]
[42] Primary decision [81].
[43] Primary decision [81].
In addition, Mr Armet pointed to reports indicating he was willing to cooperate with medical professionals.[44]
[44] Primary decision [82].
The judge found that this was irrelevant, because the appeal concerned the conduct of the arbitrator, and not whether Mr Armet was in fact willing to attend the cancelled appointments.[45]
Topic 4 - relisting of Mr Armet's application that he suffered a psychiatric injury because of his back injury
[45] Primary decision [83].
The application for arbitration in relation to the claim for psychiatric injury was apparently first made on 23 January 2018 (A49618).[46] It was adjourned on 26 February 2018.[47] On 30 August 2018, Mr Armet sent an email to WorkCover complaining about the conduct of the arbitrator and sought to reactivate the arbitration.[48] The matter was ultimately listed for directions on 27 September 2018 before Arbitrator Nunn.[49] The hearing note stated, relevantly:[50]
Mr Armet accepts that A49618 (the consequential psychiatric injury) can only be based on the back or foot injury and is content to proceed on that basis.
[46] Arbitrator's Decision [40(d)(i)].
[47] Primary decision [93].
[48] Primary decision [85].
[49] Primary decision [90].
[50] Primary decision [91].
In relation to this matter, Mr Armet submitted that the only way his claim for consequential psychiatric harm could succeed was in reliance on his back or foot injury, not other injuries. The judge surmised that, in effect, this was a submission to the effect that his cause of action should have been obvious to Arbitrator Nunn, and that that the matter should therefore not have been adjourned on 26 February 2018. The judge found the arbitrator was initially concerned with potential uncertainty over the claim and that this was his rationale for adjourning.[51]
[51] Primary decision [93].
Mr Armet also submitted that the arbitrator only reactivated the arbitration after he complained. The judge found, however, that the matter was adjourned due to uncertainty and noted that when it was relisted, Arbitrator Nunn agreed to Mr Armet's request that neither he, nor Arbitrator Rutherford, hear the claim.[52]
Topic 5 - discontinuance of CFC's application to reduce weekly payments to Mr Armet
[52] Primary decision [92], [94].
This issue related to CFC's application to reduce Mr Armet's weekly payments (A34818).
On 12 February 2019, CFC informed Mr Armet that it no longer intended to pursue this application and that it would make back payments to reflect payments which otherwise would have been made to Mr Armet had it not been for orders made by Arbitrator Rutherford.[53]
[53] Primary decision [98].
Mr Armet alleged that Arbitrator Nunn had deliberately delayed the ultimate resolution of Arbitration A34818.
The judge found, however, that the delay was not a result of the arbitrator's conduct, but rather a result of the following procedural steps:[54] (1) Mr Armet's appeal from Arbitrator Rutherford's decision, (2) the resolution of the appeal by consent, (3) the remitter of the matter for further determination, and (4) ultimately, CFC's discontinuance of the application to seek a reduction of the weekly payments.
Topic 6 - matters addressed at the directions hearing held in February 2019
[54] Primary decision [99].
On 14 February 2019, Arbitrator Nunn held a directions hearing to address related arbitrations involving Mr Armet. Mr Armet submitted that the arbitrator's hearing note from that directions hearing 'portrayed him as an idiot', in that it suggested that there was little utility in proceeding with the arbitration in relation to the psychiatric claim (A49618).[55]
[55] Primary decision [107].
The hearing note recorded, relevantly:[56]
This leaves unresolved A49618. The worker may wish to press for determination of this matter. The realities of this were pointed out that in many respects the outcomes and orders sought by the worker in bringing this application have now been achieved by virtue of the consent orders resolving A34818 [ie the weekly payments dispute].
The worker is in receipt of weekly payments of compensation for total incapacity and cannot receive more than this as a worker cannot be more than 100% totally incapacitated.
Arbitrators can only make orders as to money rather than declaratory orders. Accordingly, the only remaining order to be made can be in relation to any medical expenses sought.
The employer stated that there was no specific amount sought in A49618 but that if presented with a figure for expenses incurred it would be happy to consider resolving the dispute by negotiation rather than proceeding to arbitration.
[56] Primary decision [106].
The judge found that although Mr Armet in fact had legitimate reasons to pursue the psychiatric claims, and was ultimately awarded statutory expenses for future treatment in relation to that matter, the hearing note did not demonstrate any intent to harm Mr Armet. Nor was the hearing note disparaging of him.[57]
[57] Primary decision [108].
There was a further directions hearing on 15 February 2019. Mr Armet submitted that the arbitrator was harassing Mr Armet to resolve the arbitration in relation to the psychiatric claim.[58] Arbitrator Nunn's hearing note recorded, relevantly:[59]
The employer agreed to pay the historical expenses in relation to Dr McCarthy (approx. $3000) and future expenses as recommended by Dr Terace (approx. $7500) on a without prejudice basis. However, additional expenses sought were considered by the employer to be beyond the scope of the Act and not maintainable.
Prima facie I agree that some of the additional expenses are not encompassed by cl 17 however regardless of this as the offer to pay was only on a without prejudice basis there remains a dispute as to liability under the Act.
Whether the parties continue to negotiate is a matter for them however at this stage there appears a series of narrowed issues to proceed to arbitration on.
[58] Primary decision [110].
[59] Primary decision [109].
When it became apparent that the matter could not be resolved, Arbitrator Nunn made orders which facilitated the hearing of the arbitration commencing on 21 February 2019.[60]
[60] Primary decision [111].
The judge found that Arbitrator Nunn was attempting to explore settlement options that would provide certainty of outcome, and if possible remove the need for an arbitration hearing.[61]
Topic 7 - Mr Armet's appointment with a consultant psychiatrist
[61] Primary decision [110].
CFC's solicitors contacted Mr Armet on 19 February 2019 to inform him they had made arrangements for him to visit a psychiatrist for medical review. The letter said the solicitors acted for GIO, CFC's insurer, and explained that the psychiatrist would see him in the presence of a French interpreter and a security guard.[62] Mr Armet submitted that this was discrimination against him.[63]
[62] Primary decision [114].
[63] Primary decision [115].
The judge found that (1) the matter did not reflect actual or apprehended bias on the part of Arbitrator Nunn, (2) to the extent that the arbitrator facilitated discussions for an interpreter to be present, this was to facilitate the prompt resolution of the matter, and (3) the material did not indicate that the arbitrator was involved in the decision to have a security guard attend.[64]
Topic 8 - Mr Armet's application seeking an extension of the prescribed amount for weekly payments
[64] Primary decision [115].
On 9 April 2019 Mr Armet applied for extension of weekly payments under the Act. The application was premature and discontinued by consent. This discontinuance was effected at a directions hearing before Arbitrator Nunn.[65]
[65] Primary decision [116].
Mr Armet submitted that he should have been told earlier that the application was premature, so as to prevent him from wasting his time.
The judge found that (1) it was not apparent that Arbitrator Nunn knew Mr Armet intended to file the application, and (2) it was likely Mr Armet would have been 'aggrieved' if Arbitrator Nunn prevented him from filing the application because of Mr Armet's 'strongly held view … that he should be entitled to file whatever applications he considers appropriate'.[66]
Topic 9 - provision of documents to the District Court by WorkCover WA
[66] Primary decision [117].
The judge summarised this issue as follows:[67]
Mr Armet was concerned that a complete and accurate set of documents had not been sent by WorkCover WA to the District Court for the purposes of Mr Armet's appeals. He engaged with Mr Quinn of WorkCover WA in this respect. This came to the attention of the learned arbitrator, who sent an email to the Principal Registrar of the District Court on 15 August 2019. The email stated:
'I refer to our telephone discussion of 15 August 2019.
Mr Stephane Armet has requested the Arbitration Service conduct an audit of the evidence that was before Arbitrator Rutherford (in Arbitrations A36114, A34818 and A34042). He has contended that the material provided by the Arbitration Service to the District Court, to where he has appealed Arbr Rutherford's decision, is incomplete.
Our review of the material indicates that not all of the material that was before Arbr Rutherford has made its way to the District Court. I understand Mr Armet's appeal is before Her Honour Judge Stewart and has been reserved pending further submission from the parties. Clearly this has the potential to impact on the proceedings before the Court.
Can you please bring this oversight to Her Honour's attention. The material in question is in the process of being collated. This is being co-ordinated by our Operations Manager Mr Adam Quinn.
We will endeavour to provide this to you as soon as possible.
Mr Quinn will gladly handle any of the Court's queries regarding this matter.'
Mr Armet and [CFC] were not copied into this email, nor were they separately provided with a copy of it. The learned arbitrator in his reasons for decision says that this was because the Arbitration Service was functus officio at that stage in relation to that arbitration. It is apparent that Mr Armet first became aware of the email on 9 October 2019 when he attended at the District Court to inspect the court file. Mr Armet raises two concerns. First, that he did not consent to Mr Quinn advising the learned arbitrator of Mr Armet's concerns regarding the material provided by WorkCover WA to the District Court. Second, that he did not receive a copy of the learned arbitrator's email to the Principal Registrar. (footnotes omitted)
[67] Primary decision [119] - [120].
The judge said that Mr Armet should have been provided with a copy of the arbitrator's email, and that a self‑represented litigant might be concerned as to a lack of transparency in relation to an important matter. The judge also said that it was concerning that this failure was only discovered following a complaint by Mr Armet. Nevertheless, the judge said that the conduct reflected an intention to address Mr Armet's concerns as expeditiously as possible to ensure Mr Armet was not disadvantaged.[68] In particular:
1.the matter was addressed promptly, so as to ensure Mr Armet's appeals were not compromised due to the judge hearing those appeals with incomplete information; and
2.the email was placed on the court file and was available to be inspected by Mr Armet.
Topic 10 - matters following the 24 September 2020 directions hearing
[68] Primary decision [121] - [122].
The CEO of WorkCover sent Mr Armet a letter advising that Mr Armet was not permitted to attend the WorkCover WA office. It described Mr Armet's recent behaviour as unreasonable and threatening.[69]
[69] Primary decision [123].
The judge found this action was taken by the CEO of WorkCover and did not reflect conduct attributable to Arbitrator Nunn.[70]
[70] Primary decision [124].
Appellant's case
Grounds of appeal
The grounds of appeal are somewhat discursive but, in substance, were broadly to the following effect.
Ground 1 alleges[71] that the judge erred in law by ignoring and disregarding or failing to accept the State of Western Australia's obligations under and responsibilities towards international human rights laws.[72] Under the heading of ground 1 there is also a reference to Lemonis DCJ 'diverting himself from the subject and substance of the plaintiff's appeal'.[73]
[71] With respect to primary decision [50] - [61], [125], [131].
[72] Primary decision [56].
[73] With respect to primary decision [59] ‑ [61].
Ground 2 alleges[74] that the judge erred in fact and law by finding that the arbitrator had a legitimate rationale for adjourning the directions hearing on 26 February 2018 in the proceedings in respect of the claim for psychiatric injury.[75]
[74] With respect to primary decision [62], [64], [66] - [67], [93] - [96].
[75] Primary decision [62], [67].
Ground 3 alleges[76] that the judge erred in fact and law by misrepresenting the 'real motive and purpose' surrounding the disposal of APP 6 of 2018.[77]
[76] With respect to primary decision [68] - [73], [97] - [101].
[77] Primary decision [68], [70], [71].
Ground 4 alleges[78] that the judge erred in fact and law by misrepresenting Mr Armet's concerns over CFC's application to stop the weekly payments, and failing to consider the Arbitrator's 'involvement' in unethical conduct by the doctors.[79]
[78] With respect to primary decision [74], [76] - [82].
[79] Primary decision [74].
Ground 5 alleges[80] the judge erred in fact and law by not considering Mr Armet's 'purpose and grounds in relation to the application of arbitration A93766'.[81]
[80] With respect to primary decision [6] - [7], [12], [130].
[81] Primary decision [6].
Ground 6 alleges[82] the judge erred in fact and law by misrepresenting the purpose of the conduct of Arbitrator Nunn and Registrar Melville in relation to the 'fabrication' of a 'new transcription of arbitration proceedings' in September and October 2019.[83]
Mr Armet's submissions
[82] With respect to primary decision [119] - [122].
[83] Primary decision [119] ‑ [120].
A principal focus of Mr Armet's submissions in his appellant's case was on the topic of human rights and international law instruments. For example, 'Submissions 2' states:
Intentional Act 1: 26 February 2018 - 14 February 2019 (please refer to registrar's decision at 38(e), 40(b)(d))
•Object 1: Obstruction - Violation of Mr Armet's rights - Coercion
•Intention 1: Registrar stopped Mr Armet's workers' compensation claim for injury
- Circumstance:
Who? Someone newly promoted on Tuesday, 23 January 2018 (4 weeks and 5 days before intentional act). Someone with special power (Section 182ZP (3)(4) of the Act). Power never applied to Mr Armet since July 2015 at the WC Scheme.
…
The morality of the registrar's act depends on nature of the intentional act. The registrar's act constitutes multiple violations of a person's rights and fundamental freedoms set forth in the International Human Rights laws, conventions and treaties.
This first Right (right to health) was also the same Right which was violated (refused) by Centurion Transport Logistics and its management at the workplace from 18 March 2015 until Mr Armet's last day at work dated 14 September 2015 (25 weeks and 5 days).
The initial/primary right violated by Centurion Transport Logistics was the right to safe and healthy working conditions, practices or environment for Mr Armet, from 24 November 2014 until Mr Armet's last day at work dated 14 September 105 (42 weeks).
The right to health, like all human rights, imposes 3 types or levels or obligations on State: the obligation to Respect, to Protect and to Fulfill.
In turn, the obligation to fulfill contains obligations to facilitate, provide and promote. The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees (ICESCR).
The obligation to fulfill requires States to adopt appropriate legislative, administrative, budgetary, promotional and other measures to full realisation of the Right to Health. States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons including…, minorities,… migrant workers,… to preventive, curative and palliative health services, abstaining from enforcing discriminatory practices as a State policy…
Obligations to protect include, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health‑related services provided by third parties…
…
Article 6 (1) Part III of the International Covenant of Civil and Political Rights (I.C.C.P.R) states 'Every human being has the inherent right to life. This right shall be protected by Law. No one shall be arbitrary deprived of his life.'
•The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art. 12(1) of the ICESCR),
•The creation of conditions which would assure to all medical service and medical attention in the event of sickness (Art. 12 (2)(c) of the ICESCR,
•Everyone has the right to a standard of living adequate for the health of himself…….including…medical care and necessary social services (Art. 25 (1) of the UDHR),
•Right of everyone, without distinction as to race, national, ethnic, social origin, to equality before the law notably in the enjoyment of the right to public health, medical care, social security and services (Art. 5(e)(iv) of the ICERD),
•State shall provide those services needed by persons with disabilities in the provision of health insurance… in a fair and reasonable manner (Art. 25 (b) of the ICRPD),
•State shall prohibit discrimination against persons with disabilities in the provision of health insurance… in a fair and reasonable manner (Art. 25(e) of the ICRPD),
•State shall prevent discriminatory denial of health care or health services… on basis of disability (Art. 25(f) of the ICRPD)
•Migrant workers……shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on basis of equality of treatment with nationals of the State concerned (Art. 28 of the ICPRMW),
•Access to social and health services provided that the requirements for participation in the respective schemes are met (Art. 43(e) and 45(c) of the ICPRMW)
•The Committee on Elimination of Racial Discrimination, in its general recommendation No.30 (2004) on Non‑citizens, and the Committee on Economic, Social and Cultural Rights, in its general comment No.14 (2000) on right to the highest attainable standard of health, both stress that States parties should respect the right of Non‑citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services.
The Alma-Ata Declaration provides compelling guidance on core obligations arising from article 12. Accordingly, in the Committee's view, these core obligations include at least to ensure the right of access to health facilities, goods and services on a non‑discriminatory basis, especially for vulnerable or marginalised groups, to ensure equitable distribution of all health services, goods, facilities.
The right to health is closely related to and dependent upon realisation of other human rights as contained in the International Bill of Rights, including the right to human dignity (self‑determination), right to non‑discrimination, right to equality and the provision against cruel, inhuman, degrading treatment or punishment.
At the hearing on 27 May 2022, Mr Armet also relied on submissions contained in an email dated 25 May 2022 which had as their focus international law.
Otherwise, Mr Armet's submissions in the appellant's case and in relation to the hearing on 27 May 2022 did not connect with the grounds of appeal.
Leave to appeal - principles
Mr Armet requires leave to appeal from the decision of the primary judge. Section 254 of the Act provides that an appeal may be made to this court in respect of a judgment in proceedings in the District Court under pt XIII of the Act, but that the appeal must relate to a question of law and leave to appeal must be obtained from this court. Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.[84]
[84] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [45] ‑ [46].
Disposition
An appeal to this court is for the correction of error. As Mason and Deane JJ said in Norbis v Norbis:[85]
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.
[85] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 ‑ 519.
In 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 complaints of injury.
Neither the grounds of appeal nor the submissions in the appellant's case, nor the arguments advanced by Mr Armet at the hearing on 27 May 2022, reveal any arguable error by the primary judge. For the reasons given by the primary judge, his Honour was correct to dismiss the appeal from the decision of Arbitrator Nunn. The following additional observations may also be made.
The Act provided a procedure for the resolution of disputes by the process of arbitration. The rules of the common law provided the requirement that arbitrators discharge their duties without actual or apprehended bias in accordance with the principles explained by the High Court in cases such as Johnson; Ebner; and Re Polites; Ex parte Hoyts Corporation Pty Ltd.[86] In the latter case, Brennan, Gaudron and McHugh JJ said:
[I]t is necessary to bear in mind the caution expressed by Mason J in Re JRL; Ex parte CJL:
'It seems that the acceptance by this Court of the test of reasonable apprehension of bias … has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.' (emphasis added) (footnotes omitted)
[86] Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78, 86.
The judge was correct in his focus on the application of the common law principles with respect to alleged bias. The matters before his Honour concerned the application of domestic law, and no error is shown in not addressing international law instruments. Moreover, it is evident that his Honour directed himself to the subject matter and substance of Mr Armet's appeal. Ground 1 does not disclose a proper ground of appeal.
In relation to ground 2, the judge's finding was to the effect that the adjournment of the directions hearing on 26 February 2018 did not signify actual bias, nor could it be regarded as conduct evincing apprehended bias. Whilst Mr Armet contends to the contrary, the contention does not engage with the judge's reasoning, and no error is shown.
Grounds 3, 4, 5 and 6 in substance impute actual bias to the arbitrator, but the appellant's case, read as a whole, assumes, rather than demonstrates, any arguable error in the judge's reasoning. Again, there is no real engagement with the judge's process of reasoning.
Conclusion
For the above reasons, orders should be made as follows:
1.Application for leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Murphy
15 JUNE 2022
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