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:

1. 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

1. 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).

2. 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 of s 93K(4) of the Act, which in very general terms provided that common law damages could only be awarded to the appellant if he elected to retain the right to seek common law damages and the Director registered that election before the action was commenced. This court upheld the decision of Stone DCJ dismissing the action in the District Court by reason of the appellant's failure to comply with this requirement.

3. The present appeal is against the orders of Stewart DCJ (primary judge) refusing the appellant leave to appeal against two decisions of an arbitrator.  Her Honour dismissed the two appeals (which had been consolidated), involving the arbitrator's dismissal of the two applications submitted for his determination.

4. The arbitrator had, in effect, dismissed the appellant's claims for workers' compensation payments in respect of tinnitus, a foot injury, a neck injury and hair loss which the appellant attributed to the 2015 back injury.  While the arbitrator had accepted that the appellant suffered tinnitus, he was not satisfied that this condition was a consequence of the appellant's employment.  Apart from some heel pain (for which the arbitrator allowed the costs of treatment), the arbitrator concluded that the foot injury was not compensable.  The arbitrator considered that, whilst the evidence established that the appellant suffered referred foot pain as a result of the March 2015 injury, it did not establish that the September 2015 events or the appellant's employment contributed to any significant degree to the ongoing condition the appellant alleged.  The arbitrator was not satisfied that the appellant's neck pain or hair loss was the result of any work-related injury.

5. The appellant appealed to the District Court against the arbitrator's decisions, pursuant to s 247 of the Act, in two separate appeals. Section 247(1) provides that a party to an arbitrated dispute may appeal to the District Court with the leave of the District Court. The primary judge held that s 247(2)(a) prevented the court from granting leave to appeal unless a question of law was involved and the amount at issue in the appeal was at least $5,000. The judge found that the amounts at issue in the two appeals were $3,939.26 and $3,718.45 respectively. Her Honour held that, as the amount in issue in each appeal was less than $5,000, leave to appeal could not be granted.[1] The primary judge appears to have proceeded on the basis that the reference to the 'amount at issue in the appeal' in s 247(2)(a)(i) of the Act in this case is to the amount in issue in each of the two separately instituted appeals, rather than the combined amount in issue in the subsequently consolidated appeal.

   [1] Primary decision [205] - [217].

6. In case she was wrong as to the amount in issue in each appeal, the primary judge went on to address the appellant's amended grounds of appeal to the District Court which were:[2]

   1.That the arbitrator misdirected himself in law as to the facts, and misinformed himself is an error of law.

   2.That the arbitrator failed to give adequate reasons for his decision and/or whether the arbitrator had no evidence to support his conclusions is an error of law.

   3.Whether natural justice was not afforded to the worker and/or the arbitrator failed to conduct the hearing fairly and in accordance with the [Act] and thus a jurisdictional error.

   [2] Primary decision [219].

7. In relation to ground 1, the primary judge analysed the appellant's contentions and found that they did not involve a question of law.  Her Honour found that the appellant's complaint was about the facts upon which the arbitrator relied and the weight given by the arbitrator to parts of the evidence.[3]  Her Honour also rejected the appellant's contentions that the arbitrator misapprehended the evidence in making findings of fact[4] (other than an error as to when hair loss was observed or reported, which the judge concluded did not undermine the arbitrator's decision).[5]

   [3] Primary decision [224] - [229], [267], [288], [298].

   [4] Primary decision [232].

   [5] Primary decision [288].

8. The primary judge also concluded that the arbitrator's reasons for decision were adequate and that ground 2 did not involve a question of law.[6]

   [6] Primary decision [271] - [273], [289] - [292], [299] - [301], [303].

9. The primary judge accepted that ground 3 raised an error of law but, having reviewed the transcript of proceedings before the arbitrator, her Honour rejected the appellant's contention that he was denied natural justice in the way the arbitration proceedings were conducted.[7]

   [7] Primary decision [251] - [261], [303].

10. The primary judge's decision was delivered on 11 November 2020.  The appellant filed an appeal notice in this court on 1 December 2020 and an amended appeal notice on 2 December 2020.  On 28 January 2021, the Court of Appeal Registrar granted an extension of time to file and serve the appellant's case to 19 February 2021.

11. The appellant attempted to file an appellant's case on 19 February 2021.  However, it was not accepted for filing because it did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).  Having reviewed the document which the appellant attempted to file, I agree with the Registrar's decision not to accept the document for filing.  Notably, the 32 pages of grounds of appeal did not 'state the grounds, and concise particulars of them, succinctly in numbered paragraphs'.[8]  Further, the written submissions did not contain the appellant's submissions or argument 'for each ground of appeal … expressed so as to convey the substance of them clearly and as succinctly as possible'.[9]  The appellant's grounds and submissions were not clearly directed to the critical aspects of the reasons, summarised above, for the primary judge's dismissal of the appellant's appeal to the District Court.  They were not in a form which enabled the court to properly understand, or to give the respondent a fair opportunity to respond to, the appellant's argument in the appeal that the primary decision was based on material errors. 

    [8] Rule 32(4)(b) of the Rules.

    [9] Rule 32(5)(a) of the Rules.

12. On 19 February 2021, the acting Court of Appeal Registrar issued a notice to attend for the appellant to show cause why the appeal should not be dismissed for failure to file and serve an appellant's case that complied with the Rules. It appears that the appellant misunderstood the effect of the Registrar's notice, and apprehended that the Registrar had dismissed his appeal. The Registrar did not dismiss the appeal. Rather, the effect of the Registrar's notice was merely to require the parties to attend the hearing on 3 March 2021, and advise the parties of the matter to be considered at that hearing. There is no merit to the appellant's submissions, which were based on his misunderstanding, to the effect that the Registrar erred in dismissing his appeal.

Reasonable apprehension of bias - general principles

1. Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[10]  The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[11]

   [10] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].

   [11] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] - [12].

Reasonable apprehension of bias - disposition

1. This is not a case where a fair-minded lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or has come to a clear view about the credit of a witness, may not be prepared to depart from that view in a subsequent case.[12]  The legal issues raised in this appeal, while they are said to arise from the same initial workplace injury, are quite independent and distinct from the issues which required determination in the 2019 appeal.  I do not consider there to be any reasonable basis on which my joining in the judgment of the court in the 2019 appeal might lead a fair-minded lay observer to reasonably apprehend that I might not bring an impartial mind to the resolution of the questions which fall for decision in the present appeal.

   [12] See British American Tobacco Australia Services Pty Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283[139]; Livesey v NSW Bar Association (1983) 151 CLR 288.

2. The appellant's oral submissions in support of his recusal application were difficult to follow, but appeared to be focussed on the merits of the court's decision in the 2019 appeal to dismiss a number of applications in that appeal, and on what was said to be a mis-description in the court's reasons for decision of the contents of affidavits filed in support of those applications.  This is not the occasion to debate the correctness or otherwise of the court's past decisions or the descriptions given in the court's reasons for dismissing the 2019 appeal.  Even if the appellant was correct in contending that the court erred in its decision, the fact that the court may have made an error in dealing with the appellant's 2019 appeal would not, in my view, be capable of giving rise to any reasonable apprehension that the members of the court might not bring an impartial mind to the determination of the quite different issues which arise for determination in the present appeal.

3. For these reasons, I dismissed the appellant's application that I recuse myself.

Extension of time to file and serve an appellant's case

1. The respondent submitted that the appeal should be dismissed, essentially on the basis that the granting of a further extension of time for the appellant to file and serve an appellant's case would be an exercise in futility.  The respondent contended that it was apparent from the appellant's oral submissions that he did not accept that there was anything wrong with the documents which he had previously attempted to file.  The respondent submitted that there was little prospect that the appellant would file a compliant document if an extension were to be granted.

2. I was satisfied that it was appropriate to give the appellant a further opportunity to file an appellant's case which complies with the Rules. I accept that the appellant's combative attitude in making submissions suggested that he might not take advantage of the opportunity to file a compliant appellant's case. However, in my view that was not a proper basis on which to deprive him of the opportunity.

3. The fact that the appellant was able to formulate intelligible grounds of appeal to the District Court, noted at [7] above, suggests that he has the capacity to file a compliant appellant's case in this appeal. The appellant was in an angry and agitated emotional state when he made oral submissions at the hearing on 3 March 2021. It is to be hoped that, when in a calmer frame of mind, the appellant will take account of the explanation which I gave in the course of the hearing of the problems with the previous document which he sought to file in the present appeal. For that purpose, I have directed that a transcript of the 3 March 2021 hearing be provided to the parties so that the appellant will have the opportunity to reflect on the explanations given at the hearing and in these reasons. At this stage, I am not satisfied that granting a further extension of time to file an appellant's case is necessarily futile.

4. The respondent's submissions noted the costs which it was incurring in the proceedings. However, the respondent is not under an obligation to incur significant costs in defending the primary decision until such time as a compliant appellant's case is filed and the registrar serves a notice on the respondent under r 33(2) of the Rules requiring a respondent's answer to be filed. I was not satisfied that the respondent's legal costs are a matter of significant weight at this stage of the proceedings.

5. I was also not satisfied that it was appropriate to make a springing order, which would automatically dismiss the appeal if a compliant appellant's case is not filed within the extended time. The appellant did attempt to comply with the Registrar's order providing for the filing of an appellant's case by 19 February 2021. Having regard to the appellant's attempts to comply with the requirements of the Rules, the time which has passed since the commencement of the appeal and the considerations which inform the making of a springing order,[13] I was not satisfied that the point of last resort where a springing order is necessary had yet been reached. 

   [13] See Firmware Technologies Inc v Asia Pacific Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453 [41] - [49].

6. I note that, if the appellant does not file a compliant appellant's case by 24 March 2021 there is a prospect that, at that stage, an order might be made either dismissing the appeal or granting a short further extension of time to file an appellant's case subject to a springing order.  However, I was not satisfied that it was appropriate to make a springing order at the hearing on 3 March 2021.

7. For these reasons, I granted the appellant an extension of time to file and serve an appellant's case to 4.00 pm on 24 March 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MT

Associate to the Honourable Justice Mitchell

4 MARCH 2021