Armet v CFC Consolidated Pty Ltd - [2021] WASCA 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ARMET -v- CFC CONSOLIDATED PTY LTD [2021] WASCA 42
CORAM:   MITCHELL JA
HEARD:   3 MARCH 2021
DELIVERED          :   3 MARCH 2021
PUBLISHED           :   4 MARCH 2021
FILE NO/S:   CACV 120 of 2020
BETWEEN:   STEPHANE ARMET
Appellant

AND

CFC CONSOLIDATED PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEWART DCJ
Citation: ARMET -v- CFC CONSOLIDATED PTY LTD [2020] WADC 142
File Number            :   APP 5 of 2018, APP 4 of 2018

Catchwords:

Courts and judges - Where a party alleges apprehended bias by judge arising from prior decisions in relation to a party - Whether reasonable apprehension of bias arises from disposition of prior decisions

Appeal - Practice and procedure - Whether an extension of time to file an appellant's case should be granted

Legislation:

Nil

Result:

Application for recusal dismissed
Extension of time to file appellant's case granted

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	TH Offer

Solicitors:

Appellant	:	In person
Respondent	:	McCabe Curwood

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

Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Firmware Technologies Inc v Asia Pacific Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v NSW Bar Association (1983) 151 CLR 288
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423

MITCHELL JA:

At a directions hearing on 3 March 2021, the appellant contended that I should recuse myself from dealing with this appeal. The appellant submitted that my participation in this court's decision in Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 (2019 appeal) gives rise to a reasonable apprehension that I might not bring an impartial mind to the questions I am required to decide in the present appeal. I dismissed the recusal application. I also made orders extending the time for the appellant to file and serve an appellant's case until 4.00 pm on 24 March 2021. I indicated that I would publish reasons for making those orders at a later time. These are my reasons for making the above orders.

Background

Both the 2019 appeal and the present appeal arise out of a back injury sustained by the appellant on 18 March 2015 whilst in his employment with the respondent. The appellant claimed that he aggravated his back injury on 4 September 2015. The respondent accepted liability for payment of workers' compensation benefits under the Workers' Compensation and Injury Management Act 1981 (WA) (Act).
The 2019 appeal was against the decision of Stone DCJ to dismiss the common law proceedings which the appellant had instituted in the District Court. That appeal turned on the proper construction…

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: [2021] WASCA 42
Decision Date: 4 MARCH 2021

CaseChat Overview and Summary

The matter before the court involved Armet, the appellant, who sought the recusal of a judge, and CFC Consolidated Pty Ltd, the respondent, in relation to a prior decision. The appeal was brought against the respondent's decision to dismiss the appellant's application for a writ of prohibition and an injunction. The court of appeal was required to determine whether the judge should be recused due to a reasonable apprehension of bias arising from the prior decisions. Additionally, the court had to decide whether an extension of time should be granted to the appellant to file their case.

The legal issues that arose involved the determination of whether the prior decisions made by the judge created a reasonable apprehension of bias. The appellant argued that the judge had made certain decisions that suggested a predisposition towards the respondent, which may influence the outcome of the current appeal. Furthermore, the court had to consider whether the appellant's delay in filing their case was excusable and whether the extension of time should be granted.

The court found that there was no reasonable apprehension of bias arising from the prior decisions made by the judge. The court held that the judge's prior decisions were not so extreme as to give rise to a reasonable apprehension of bias. The court also considered the appellant's delay in filing their case and found that the delay was excusable. The court granted an extension of time to the appellant to file their case.

The court dismissed the application for recusal and granted the extension of time to the appellant to file their case. The court held that there was no reasonable apprehension of bias and that the delay in filing the case was excusable.

Orders

Orders of the court

Application for recusal dismissed

Extension of time to file appellant's case granted

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

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