Armet v Stephen Browne
[2024] WASCA 44
•29 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ARMET -v- STEPHEN BROWNE [2024] WASCA 44
CORAM: MITCHELL JA
VAUGHAN JA
HALL JA
HEARD: 8 JUNE 2023
DELIVERED : 29 APRIL 2024
FILE NO/S: CACV 97 of 2021
BETWEEN: STEPHANE ARMET
Appellant
AND
STEPHEN BROWNE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHEPHERD DCJ
Citation: ARMET -v- STEPHEN BROWNE [No 2] [2021] WADC 88
File Number : CIV 1375 of 2019
Catchwords:
Solicitor's negligence - Workers' compensation - Election to retain right to common law damages in respect of workplace injuries - Whether application to extend time within which to make election made prematurely - Whether referral of appellant to particular approved medical specialist was appropriate - Delay in advice regarding extension of deadline to make election - Consequential compression of time to elect - Whether delay causative of appellant's failure to elect on time - Turns on own facts
Appeals - Alleged denial of procedural fairness by trial judge against self‑represented litigant - Alleged actual or reasonable apprehension of bias on behalf of decision‑maker - Alleged error in finding solicitor respondent was a reliable and credible witness - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 93B, s 93K, s 93L, s 93M
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | G P Bourhill SC |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Gilchrist Connell |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Armet v Stephen Browne [No 2] [2021] WADC 88
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318
McRobert Superannuation Pty Ltd v Cranston [2021] WASCA 126
Michael v The State of Western Australia [2007] WASCA 100
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Reynolds v Rayney [2023] WASCA 144
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
This is an appeal against orders of the District Court of Western Australia (Shepherd DCJ) dismissing an action brought by the appellant against the respondent (SBL), his former solicitor, alleging negligence in the performance of its retainer in respect of a workplace injury.[1]
[1] See Armet v Stephen Browne [No 2] [2021] WADC 88 (primary reasons).
The primary judge held that, in one respect, SBL, which is an incorporated legal practice, breached its duty of care to the appellant. SBL failed to inform the appellant in a timely way of an extension of the 'termination day' by which the appellant might elect to retain his right to common law damages. Other complaints as to SBL's conduct were held not to constitute a breach of duty. However, while in that one respect the appellant made out a breach of duty, the primary judge concluded that the appellant had not discharged his burden of proving that the breach as established was causative of the loss asserted by the appellant. For that reason the action was dismissed.
The appellant challenges the primary judge's findings as to breach (so far as the appellant failed at first instance) and causation. In both cases there are some challenges to the primary judge's intermediate fact finding. There is also an overarching complaint that the primary judge failed to accord the appellant procedural fairness and that there was actual or reasonably apprehended bias on the part of the primary judge.
The appeal is without merit and must be dismissed.
Background facts
What follows as to the background facts relevant to the appeal is taken from the primary judge's reasons. In considering the facts the reader will be assisted if he or she enjoys a working knowledge of aspects of the Workers' Compensation and Injury Management Act 1981 (WA) and the regulations thereto which enable an injured worker who has claimed compensation by way of weekly payments under the Act to retain his or her right to seek common law damages for the injury. The operation of the relevant statutory provisions is conveniently referred to in another decision of this court involving the appellant, Armet v CFC Consolidated Pty Ltd.[2]
[2] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [4], [36] - [70], [107] - [120]. See generally Workers' Compensation and Injury Management Act pt IV. The primary judge addresses the statutory provisions at primary reasons [136] ‑ [142]. The statutory provisions have been amended after the events that give rise to the litigation. These reasons refer to the provisions as in force at the time of the events the subject of the litigation.
In 2015 the appellant was employed as a manual labourer by CFC Consolidated Pty Ltd (CFC). The appellant alleged that he suffered a workplace injury on 18 March 2015. He lodged a claim for workers' compensation on 30 July 2015. Following a return to work the appellant says that he sustained an aggravation to his original injury. Later, the appellant having ceased work, the appellant alleged that he suffered various sequalae.
In November 2015 the appellant instructed a law firm. At that time the appellant claimed to be suffering five injuries. These comprised injuries to the appellant's lower back, his right foot (there was also subsequent mention of a plantar fasciitis injury) and his neck as well as tinnitus and hair loss. Subsequently the appellant complained of suffering a psychiatric injury that was said to have developed gradually. The relationship with the initial law firm was short-lived. On 2 February 2016 the appellant met with and instructed Joel Trigg of SBL. The relationship between the appellant and SBL was also of short duration. It ended on 11 May 2016. Accordingly, Mr Trigg and SBL acted for the appellant for a little over three months.
When the appellant first instructed SBL, he had until 30 July 2016 to lodge an election under s 93K of the Workers' Compensation and Injury Management Act to make a claim against CFC for common law damages (this then being the 'termination day' for the purpose of s 93M of that Act).
Section 93K of the Workers' Compensation and Injury Management Act provides for a statutory constraint on the award of common law damages. It applies, among other things, to the awarding of damages in respect of an injury suffered by a worker if the injury was caused by the negligence of the worker's employer and compensation has been paid or is payable in respect of the injury under the Act (s 93B). By s 93K(4):
Damages in respect of an injury can only be awarded if:
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. (emphasis added)
Section 93L of the Workers' Compensation and Injury Management Act deals with an election under s 93K to retain the right to seek common law damages. Relevantly, there are two situations in which a worker may make an election under s 93K(4). By s 93L(2):
A worker can only elect under section 93K(4) to retain the right to seek damages if:
(a)the worker and the employer agree:
(i)that the worker's degree of permanent whole of person impairment is at least 15%; and
(ii)as to whether or not the worker's degree of permanent whole of person impairment is at least 25%;
or
(b)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.
Accordingly, a s 93K(4) election requires either agreement between the worker and the employer (of the type mentioned in s 93L(2)(a)) or an assessment of the worker's degree of permanent whole of person impairment that is at least 15% (meeting the criteria in s 93L(2)(b)). The Director must also record the agreement or assessment in accordance with the regulations.
Where, as in the appellant's case, a claim for compensation by way of weekly payments had been made with respect to the injury or injuries concerned, a s 93K(4) election could not be made after the 'termination day' (s 93L(4)). Accordingly, by statute there is a time limitation for the s 93K(4) election. The statutory concept of the 'termination day' is defined in s 93M. Relevantly for present purposes, unless a later day is fixed as permitted by either s 93M(3) or s 93M(4), the termination day for a s 93K(4) election is that day being 12 months after the claim for compensation is made (s 93M(1)). As the appellant made a claim for compensation on 30 July 2015 the initial termination day was 30 July 2016.
SBL referred the appellant to an approved medical specialist, Dr Fairhurst, for assessment. Dr Fairhurst examined the appellant on 12 February 2016 and determined that the appellant's back injury had not yet sufficiently stabilised to the extent required for a normal evaluation of the appellant's degree of permanent whole of person impairment. Among other things, Dr Fairhurst certified that an extended termination day was required - he recommended that an extension should be given to 12 February 2017. On 29 February 2016, acting on the appellant's behalf, SBL applied for an extension to the appellant's termination day. An extension was sought to 12 February 2017. On 9 March 2016 the Director extended the termination day to 12 February 2017.
As mentioned, SBL ceased to act for the appellant as and from 11 May 2016. Nevertheless, on 13 July 2016, some two months after the end of its retainer, SBL sent the appellant a letter dated 12 July 2016 by email. The letter stated:
We again remind you that in respect of your back claim, your termination date has been extended until 12 February 2017. (emphasis added)
At trial there was an issue about whether, as suggested by the 12 July 2016 letter, SBL had in fact previously informed the appellant of the extended termination day. The appellant's evidence was that the 12 July 2016 letter was the first time he had been informed of the extension. By this time, as a matter of arithmetic, the appellant had lost approximately four months of the time he had to meet the election criteria as prescribed under the Workers' Compensation and Injury Management Act to pursue CFC for damages at common law (calculated from the date of the grant of the extension).
The appellant took a number of steps after 12 July 2016. These were described by the primary judge as follows:
[The appellant] took a number of steps to make appointments with different approved medical specialists in respect of his different injuries. He underwent further testing and investigation in respect of some of those injuries.
[The appellant] ultimately issued formal requests in the manner prescribed in the Act and the Regulations (the issue of 'Forms AMS 1') for whole of person impairment assessments to four different approved medical specialists as follows:
(i)A Form AMS 1 to Dr Ian Wallace, ENT specialist, on 8 September 2016 in respect of his tinnitus injury.
(ii)Three separate Forms AMS 1 to Mr Soni Narula, neurosurgeon, on 5 October 2016 in respect of his lumbar spine injury; his foot, heel pain and right leg injury and his neck/spine injury respectively.
(iii)A Form AMS 1 to Dr Gebauer, dermatologist, on 22 March 2017 in respect of his hair loss injury.
(iv)A Form AMS 1 to Dr Peter McCarthy, psychiatrist, on 9 October 2017 in respect of his psychiatric condition.
The Forms AMS 1 in respect of the hair loss and psychiatric injuries were not formally issued by [the appellant] until after the termination date had expired.
Mr Narula was nominated by [the appellant] as the 'lead assessor' to aggregate and collate all of the individual whole of person impairment assessments prepared by the four different approved medical specialists.[3]
[3] Primary reasons [29] - [32].
However, the appellant did not lodge a s 93K(4) election on or before the extended termination day of 12 February 2017. As a result, as is explained in this court's decision in Armet v CFC Consolidated Pty Ltd, proceedings seeking common law damages later commenced by the appellant against CFC in the District Court were struck out.
Mr Narula completed the overall degree of permanent whole of person impairment assessment for all of the appellant's injuries on 12 February 2018 (ie one year after the expiration of the termination day as extended).
Primary judge's reasons
For reasons that do not need to be explained for the purpose of the appeal, the trial was confined to two substantive questions. First, whether or not SBL was negligent. Second, whether or not SBL's negligence, if established, caused loss to the appellant (but only as to 'factual causation', ie whether the fault was a necessary condition of the occurrence of the harm).[4] In the latter respect the posited loss was 'the loss of a reasonable opportunity for [the appellant] to meet his [s 93K(4)] election criteria in the prescribed manner and within the prescribed time'.[5]
[4] See primary reasons [629] - [632].
[5] Primary reasons [83].
Accordingly, the appellant pursued a loss of opportunity claim.
In bringing the negligence claim against SBL the appellant made two identifiable complaints about SBL's conduct in relation to the termination day. These were:[6]
1.SBL's 29 February 2016 application to extend the termination day of 30 July 2016 was premature - the effect of doing so was to deprive the appellant of five additional months for his injuries to stabilise and for the appellant to comply with the s 93K(4) election criteria.
2.Although the Director extended the termination day on 9 March 2016, SBL failed to inform the appellant that the extension application had been made, and granted, until 13 July 2016 - the effect of doing so was to significantly compress the time available to the appellant to meet the s 93K(4) election criteria.
[6] Primary reasons [35]. Elsewhere in the primary reasons the primary judge identified 11 alleged failures complained of by the appellant from which her Honour distilled these two overarching complaints: primary reasons [52].
In the latter respect, the appellant contended that the compression of time was of such significance that he was deprived of a reasonable opportunity to meet his s 93K(4) election criteria by the extended termination day of 12 February 2017. The appellant argued that SBL's negligence deprived him of the chance to make his s 93K(4) election on time. Consequently, for the purpose of her Honour's analysis of the issues under s 5B of the Civil Liability Act2002 (WA), the primary judge identified the relevant risk of harm to be 'the risk that [the appellant] would lose a reasonable opportunity to meet his election criteria in the prescribed manner and within the prescribed time frame'.[7]
[7] Primary reasons [578]. See also [584].
In other words, the primary judge focused on whether, by reason of a breach of duty on the part of SBL, there was such a compression of time that the remaining period within which the appellant might have made his s 93K(4) election could not be said to be reasonable - in effect because, acting reasonably, the appellant would be unable to meet the s 93K(4) election criteria on time and in the prescribed manner.[8]
[8] Primary reasons [584] - [585].
The primary judge identified 10 issues raised by the appellant's negligence case. For the purposes of the appeal the 10 issues relevantly included:
…
(ii)Did SBL inform [the appellant] that the outcome of the referral to Dr Fairhurst would likely mean that SBL would then apply to WorkCover for an extension to the initial termination date?
(iii)Did SBL inform [the appellant] that it had made an application to extend the initial termination date?
(iv)Did SBL apply 'too early' for an extension to the initial termination date?
(v)Prior to the 12 July 2016 letter, did SBL inform [the appellant] that the application to extend the termination date had been granted, and granted to 12 February 2017?
(vi)What was the effect of SBL's failure to advise [the appellant] of the extension to his termination date until the 12 July 2016 letter?
(vii)What was the effect of the 12 July 2016 letter? Did it remedy any breach of SBL's duty of care?
…
(ix)In determining factual causation, what is the relevance of the fact that by:
(a)5 October 2016 [the appellant] had done everything he could do in requesting in the prescribed manner that Mr Narula provide a whole of person impairment assessment in respect of the injuries falling within his area of expertise?
(b)8 September 2016 [the appellant] had done everything he could do in having his tinnitus injury investigated and in having a report from Dr Wallace that provided a whole of person impairment estimate for that injury?
(c)13 September 2016 [the appellant] had done everything he could do in having his hair loss injury investigated and in having a report from Dr Gebauer that postulated a causal link between the pain killing medication and his hair loss?
(x)In determining factual causation what is the relevance of the absence of evidence from Mr Narula at trial?[9]
[9] Primary reasons [38].
The primary judge summarised her various conclusions on these issues as follows (the paragraph enumeration below refers to the number of the 10 issues as listed in [24] above):
…
(ii)SBL did not inform [the appellant] that the outcome of the referral to Dr Fairhurst would likely mean that SBL would then, without further notice to [the appellant], apply to WorkCover for an extension to the initial termination date.
(iii)SBL did not inform [the appellant] that it had applied to extend his termination date.
(iv)SBL was not negligent in applying to extend the initial termination date 'too early'. SBL was acting in [the appellant's] best interests at the time.
(v)SBL did not inform [the appellant] that the application to extend the termination date had been granted, and granted to 12 February 2017, until the 12 July 2016 letter. This comprised a breach of the duty of care SBL owed to [the appellant].
(vi)The effect of SBL's failure to advise [the appellant] of the extension to his termination date until the 12 July 2016 letter was to compress the time in which [the appellant] had to comply with his election criteria.
(vii)The 12 July 2016 letter brought SBL's breach of its duty of care to an end; it did not remedy that breach.
…
(ix)The following facts are relevant to my determination of whether [the appellant] has discharged the burden of proof that he bears in proving factual causation:
(a)the fact that by 5 October 2016 [the appellant] had done everything he could do in requesting in the prescribed manner that Mr Narula provide a whole of person impairment assessment in respect of [the appellant's] back, foot and neck injuries;
(b)the fact that by 8 September 2016 [the appellant] had done everything he could in having his tinnitus injury investigated and in having a report from Dr Wallace that provided a whole of person impairment estimate for that injury;
(c)the fact that by 13 September 2016 [the appellant] had done everything he could in having his hair loss injury investigated and in having a report from Dr Gebauer that postulated a causal link between the pain killing medication and his hair loss injury;
(d)the fact that [the appellant] could have issued the Form AMS 1 in respect of his hair loss injury prior to the termination date;
(e)the fact that [the appellant] did not take any steps to consult Dr McCarthy, psychiatrist, until 9 October 2017, eight months after the expiry of the termination date.
(x)The absence of evidence from Mr Narula at trial is a relevant factor in my determination of causation. There is no evidence from Mr Narula explaining why he was not able to complete the whole of person impairment assessment for the back, foot and neck injuries prior to the termination date, nor to explain why the aggregated assessment was not completed until 12 February 2018, one year after the termination date had expired. I note also that [the appellant's] evidence at trial was that it was not for him to tell Mr Narula 'what to do and when to do it'.[10]
[10] Primary reasons [40].
It is not necessary, at this stage, to set out more fully the primary judge's reasons for reaching these conclusions. The primary judge gave careful and very detailed reasons over some 150 pages. After providing an overview and introduction, her Honour's reasons addressed: the parties' respective cases (this, among other things, saw her Honour distil the appellant's complaints about SBL's conduct into 11 alleged failures); the course of the trial; general observations on the credibility and reliability of the witnesses; the relevant statutory framework; the evidence and the facts (her Honour carefully set out her findings on intermediate factual issues, giving comprehensive reasons for those findings based on the evidence that she relied on); her Honour's conclusions on the 11 failures as alleged by the appellant; and, ultimately, the questions of breach of SBL's duty of care and causation.
It is appropriate to consider specific aspects of the primary reasons more closely so far as they are material to evaluating the appellant's grounds of appeal. We will do so in the context of the various grounds of appeal when examining the alleged error asserted by the ground.
In very broad terms, however, the primary judge concluded that:
1.SBL did not breach its duty of care to the appellant by applying to extend the termination day prematurely.[11]
2.SBL did breach its duty of care to the appellant by not informing him of the extension to the termination day (from 30 July 2016 to 12 February 2017) until 13 July 2016.[12]
3.The effect of SBL's breach of its duty of care to the appellant, as found, was to compress the time the appellant had in which to make his s 93K(4) election for common law damages.[13] Her Honour observed that the practical effect of SBL's failure amounted to a 30% truncation of the time within which the appellant might meet the s 93K(4) election criteria and make the s 93K(4) election.[14]
4.The appellant had not established that the breach by SBL of its duty of care to the appellant was causative of the appellant's failure to make his s 93K(4) election by the extended termination day of 12 February 2017.[15]
[11] Primary reasons [40](iv), [579]. See also [509] - [517].
[12] Primary reasons [40](v), [41], [585] - [587], [626]. See also [600] - [606], [617], [620], [622] - [625].
[13] Primary reasons [40](vi), [42]. See also [588], [617], [637] - [638], [728].
[14] Primary reasons [588]. See also [28].
[15] Primary reasons [44], [728] - [729], [731] - [736].
For these reasons the primary judge dismissed the appellant's action against SBL.
Grounds of appeal and notice of contention
The appellant is a self‑represented litigant. There is, with respect, a great deal of infelicity in the way in which he has expressed his grounds of appeal. However, reading the grounds with the appellant's written submissions, in the context of the primary reasons, the appellant's essential complaints are readily identifiable.
In substance, the appeal is based on the following grounds:
1.The primary judge erred in law by failing to accord the appellant procedural fairness having regard, in particular, to the appellant's status as a foreign national self‑represented litigant with disabilities (referring to primary reasons [122] - [135]). In this respect the appellant complained that the primary judge failed to recognise 'rights and fundamental freedoms' established by international laws and instruments and treated the appellant in a way that was patronising, paternalistic and condescending. (Ground 3)
2.The primary judge erred in fact in finding that Mr Trigg was an honest, credible and reliable witness; and, consequently, an honest, competent and reliable lawyer at SBL when acting for the appellant (referring to primary reasons [114] - [121]). (Ground 2)
3.The primary judge erred in fact and in law in finding that SBL did not breach its duty of care in referring the appellant to Dr Fairhurst rather than Mr Narula (referring to primary reasons [689]).[16] In this respect the appellant complained that the primary judge was in error in finding that the referral to Dr Fairhurst was appropriate. (Ground 1 pars 3 and 4)
4.The primary judge erred in fact and in law in finding that SBL did not breach its duty of care by prematurely applying to extend the appellant's termination day (referring to primary reasons [509] - [517], [689]).[17] (Ground 1 par 2)
5.The primary judge erred in fact and in law in finding that the appellant did not adduce evidence of his activities between October 2016 and 12 February 2017 (referring to primary reasons [734] - [735]). (Ground 4 par 1)
6.The primary judge erred in fact and in law in attributing responsibility for the appellant's failure to register an election to retain the right to seeks common law damages before the termination day to Mr Narula rather than SBL (referring to primary reasons [685] - [690], [734] - [735]). (Ground 4 par 2 and par 2(c))
7.The primary judge erred in fact and in law in finding that SBL's breach of its duty of care in relation to the extension of the termination day was not a cause of the relevant loss (namely, the appellant's loss of opportunity to pursue a common law action for damages for personal injury against CFC) (referring to primary reasons [44], [731]). (Ground 1 par 1)
[16] The reference to primary reasons [689] is incorrect. The relevant finding is instead at primary reasons [556] - [558].
[17] The reference to primary reasons [689] is incorrect. There are, however, relevant findings at primary reasons [509] - [517].
The complaint in sub-par 5 of [31] above bears on the complaint in sub-par 6. The complaints in sub-pars 5 and 6 bear on the complaint in sub-par 7.
The appellant's written and oral submissions - particularly his oral submissions - ranged far and wide. In many respects they exceeded the scope of the grounds of appeal. The appellant plainly has a view as to the manner in which the legal system has adjudicated on his claim against SBL and what was instead required by international laws and conventions and the principle of rule of law. The appellant has every right to voice his views on these subjects. However, this court's task is to determine the appeal by reference to the appellant's grounds of appeal. To the extent that the appellant's written and oral submissions exceeded his grounds of appeal they are not matters for this court and should not be addressed. We do not propose to do so.
SBL does not concede any ground of appeal. SBL also seeks to uphold the decision on a basis not relied on by the primary judge. In a notice of contention SBL says that:
1.The only compensable injury that the appellant has is the injury to his lower back.
2.The degree of permanent whole of person impairment (WPI) assessed by Professor Narula for the appellant's lumbar spine was 7%, and therefore the appellant was not entitled to pursue a claim for damages against his employer.
There is a difficulty with the notice of contention. The primary judge noted that it was outside the agreed parameters of the trial to determine the extent of any whole of person impairment assessment for the appellant's injuries (either individually or aggregated).[18] Accordingly, no medical evidence was called at the trial.[19] SBL consented to the tender of medical reports, but only did so on a limited basis. The primary judge recorded that:
[SBL] did not consent to the medical evidence being tendered to establish the truth of the content of the reports in the absence of the authors of those reports being called.
The medical reports were therefore not tendered for the truth of their content but to enable [the appellant] to give his narrative of events, for example, what steps he took between 13 July 2016 and 12 February 2017 to meet the termination date.[20]
[18] Primary reasons [85](iii).
[19] Primary reasons [108].
[20] Primary reasons [109] - [110].
In particular, the medical reports were not tendered as proof of various figures as to post-termination day whole of person impairment assessments.[21]
[21] Primary reasons [111].
In those circumstances, the notice of contention cannot succeed. It was not open to the primary judge to dismiss the appellant's action on the basis advanced by the notice of contention. To do so would have been to rely on the medical reports in a way that was impermissible having regard to the way in which the trial was conducted. What was impermissible at trial - based on the way the trial was conducted - remains impermissible on appeal. The argument in the notice of contention seeks to rely on the medical reports in a way that SBL objected to at trial. The notice of contention is without merit and must be dismissed. Nothing more needs to be said about it.
The appellant's submissions
It has been possible to summarise the appellant's grounds of appeal. The task is more difficult with the appellant's written and oral submissions. It is appropriate to say something about our general approach to the appellant's submissions - not least so that the appellant is informed of the court's concern to ensure that it has thoroughly reviewed the materials he has relied on.
An appellant's case was filed on 24 March 2022. SBL applied to strike out the appellant's case by an application in an appeal dated 14 April 2022. SBL claimed that the appellant's case was non-compliant with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). Rather than accede to that application, the court engaged with the appellant at a directions hearing to confirm the substance of the appellant's complaints of alleged error in the primary judge's reasons. By doing so it was possible to identify that various paragraphs included in a document headed 'Grounds of Appeal' were instead particulars of the appellant's substantive ground of appeal. The court, by orders made 27 May 2022, provided for amendment of the grounds of appeal conformably with the appellant's explanation of his case at the directions hearing. The amendments separated out grounds and particulars, removed some scandalous references (including personal invective directed to the primary judge), recast some matters to better reflect the appellant's true legal target and corrected various typographical matters.
A similar process was undertaken for the appellant's written submissions included as part of the appellant's case.
In reviewing the appellant's written submissions, as amended pursuant to the orders of 27 May 2022, it is apparent that the appellant has, in broad terms, organised his written submissions in a way that corresponds with his grounds of appeal. The appellant identifies four grounds of appeal (although, as will be apparent from the description at [31] above, some of the items identified as a ground allege more than one error and are best addressed as discrete topics). There are likewise four headings in the appellant's written submissions. It is tolerably clear that 'Submissions 1' in the written submissions relate to 'Ground 1' in the grounds of appeal and so on.
Accordingly, in considering the grounds of appeal, we have read and taken into consideration the appellant's written submissions on that aspect of the appeal.
The appellant also relies on various other written materials.
The appellant filed 20 pages of written submissions in answer to SBL's notice of contention. Much of that went beyond the matter raised by the notice of contention. There was, in part, some reference to matters raised by the appellant's grounds of appeal (especially the allegation of lack of procedural fairness the subject of ground 3). In considering the grounds of appeal we have taken the appellant's reply into consideration even though, more often than not, it is simply assertive or repetitive of what was said in the appellant's initial written submissions as amended. In reviewing the appellant's submissions in reply to the notice of contention it has, however, been necessary to put aside numerous matters that are simply outside the grounds of appeal.
The appellant's oral submissions at the appeal hearing were primarily directed to ground 3 and the assertion of lack of procedural fairness.
At the appeal hearing the appellant referred to a 'written plea'.[22] This was a document of some 209 pages. It included an unsworn 'affidavit' in the District Court responding to SBL's outline of opening submissions at trial (a sworn copy of which was already in the Blue Appeal Book),[23] an unsworn 'affidavit' in the District Court providing the appellant's closing submissions at trial (a sworn copy of which was also included in the Blue Appeal Book)[24] and the appellant's reply to SBL's notice of contention (two versions each formatted slightly differently). It not necessary to say anything more about the reply to the notice of contention (although we note that one of the versions included in the written plea exceeded the 20 page version in the White Appeal Book as it quoted extensively from various international instruments and other secondary sources).
[22] Appeal ts 29.
[23] BAB 156 - 169.
[24] BAB 170 - 196.
The written plea also contains 110 pages that, in substance, provided the basis for the appellant's oral address to the court. It was observable at the appeal hearing that for much of the time the appellant was reading from his written plea document - something that is confirmed by comparing this part of the written plea with the transcript of the appeal hearing. The appellant's oral address as transcribed largely follows the written plea. However, the written plea also reproduces parts of the transcript of the trial which were highlighted to designate what the appellant was referring to in the written plea and his oral address. During his oral address the appellant simply referred to the relevant page number of the trial transcript.
The appellant foreshadowed at the commencement of his oral address that he would like the court to receive the written plea. It was apparent by the conclusion of the appeal hearing, however, that the appellant had been able to read all of the written plea that he wished to refer to. Accordingly, the court did not receive the written plea as part of the formal record.[25] Nonetheless, while the written plea was not accepted for filing, it was made available to the court. We have referred to the written plea as appropriate where there are evident transcription difficulties with the transcript of the appeal hearing or where there is ambiguity about the substance of the appellant's submission. The written plea was also of considerable use in identifying the precise passage of the trial transcript that the appellant wished the court to read given that the appellant had helpfully highlighted the particular passages he relied on. We have read all of the trial transcript references identified in the written plea document and given particular attention to the portions of the transcript that were highlighted by the appellant in the written plea.
[25] Appeal ts 29, 67 - 69.
After the appeal hearing the appellant purported to file, without leave, a document described as an 'amended' version of the written plea. By then the written plea had grown to 440 pages. It continued to contain the materials filed in the District Court and the two versions of the appellant's reply to the notice of contention. The appellant had, however, taken an opportunity to amplify and expand on various matters.
Following the conclusion of an appeal hearing it is impermissible to file further submissions without leave.[26] For that reason we have not taken the amended version of the written plea into consideration in evaluating the grounds of appeal.
[26] Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246, 258; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 [27] - [31], [143]; NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 [192].
Ground 3: alleged failure to accord the appellant procedural fairness
It is appropriate to commence with ground 3. The appellant's oral submissions were primarily directed to the subject matter of ground 3. Moreover, so far as ground 3 raises an allegation of actual or apprehended bias on the part of the primary judge, the ground raises an issue about the validity and acceptability of the primary proceedings that must be considered at the outset.
Ground 3 states:
(At [122] - [135])
The DCJ erred in law and in fact by failing to afford a self-represented foreign national with disabilities procedural fairness, natural justice, equal protection of the law.
The DCJ failed to appreciate the necessity and obligation to recognize the rights and fundamental freedoms, set forth in the International Human Rights laws and Instruments.
The DCJ erred in law (and misapplied the applicable principle of non-discrimination) by treating [the appellant] in a way that is apparently kind and helpful but in fact betrays a feeling of superiority.
The reference to primary reasons [122] - [135] is misplaced. That is the portion of her Honour's reasons in which the primary judge made general observations as to the credibility and reliability of the appellant's evidence. It is readily apparent that the complaint the subject of ground 3 is not limited to those findings. The nature of the ground appears from the particulars provided in support of it. It is a multi‑faceted complaint about failure to accord procedural fairness and a lack of impartiality on the part of the primary judge.
The applicable legal principles to challenges of the kind made by ground 3 are well established.
As to the assertion of want of procedural fairness, this court has had many recent occasions to discuss the applicable principles in ensuring procedural fairness to a self‑represented litigant. It is enough to acknowledge, without repeating in full, the statements of principle in Woodley v Woodley[27] and Zerjavic v Chevron Australia Pty Ltd.[28] The court's obligation in the case of a self‑represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair hearing. In a specific case the content of the principle depends on the circumstances of the case. However, as was stated in Zerjavic:
A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised.
All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self‑represented litigant.[29] (original emphasis)
[27] Woodley v Woodley [2018] WASCA 149 [76] - [77].
[28] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [76], [84], [86].
[29] Zerjavic v Chevron Australia Pty Ltd [75.4] - [75.5].
Ultimately, of course, it is a trial judge's task to ensure that the proceedings are conducted in accordance with due process, fairly and impartially. Trial judges may, at times, find it necessary to be strong and forceful. From time to time a trial judge may react with impatience or irritation. However, no matter what the provocation, a trial judge should always comport himself or herself with dignity. A trial judge should not overstep the mark by discourteous or rude behaviour.[30]
[30] Michael v The State of Western Australia [2007] WASCA 100 [69], [71] - [72].
The New South Wales Court of Appeal considered the legal principles as to actual bias in Reid v Commercial Club (Albury) Ltd.[31] Relevantly:
1.A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly. Cogent evidence is required.
2.Where the issue is actual bias in the form of prejudgment it must be established that the primary judge was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
3.There are distinct elements underlying an assertion of prejudgment: first, that the primary judge has an opinion on a relevant aspect of the matter in issue in the case; second, that the primary judge will apply that opinion to the matter in issue; third, that the primary judge will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. Allegations of actual bias through prejudgment often fail at the third step.
4.The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the primary judge. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious. The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not is beside the point.
5.The circumstances in which actual bias can be demonstrated solely from published reasons for decision must be considered to be rare and exceptional.
[31] Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 [68] - [74].
Finally, as to the allegation of reasonable apprehension of bias, there is a recent summary of the applicable principles in Reynolds v Rayney.[32] We adopt those principles. Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide. In applying this principle, it is necessary to identify what is said might lead the judicial officer 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. The reasonableness of the apprehension may then be assessed.
[32] Reynolds v Rayney [2023] WASCA 144 [28] - [36].
The test is objective and the fair-minded lay observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial. However, the fair-minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.
With that background we turn to the appellant's case in support of ground 3 as articulated in the particulars to ground 3 and the appellant's written and oral submissions.
At particular 3A the appellant identifies questions that are raised by ground 3. These include: whether the primary judge failed to afford the appellant natural justice or failed to conduct the trial fairly and in accordance with law (including by conducting the trial in a disorderly and detrimental manner); whether the primary judge let her free will be supplanted by that of another; whether the primary judge demonstrated an inability to ignore extraneous considerations and predilections such that there is a real basis to doubt her Honour's ability to make an objective judgment; and whether the primary judge showed impatient behaviour during the trial or otherwise interrupted or intimidated the appellant or made improper or insulting remarks and unjustified reprimands to the appellant.
This may be summed up, as the appellant does in one of the questions posed by particular 3A, as to whether there was a failure to accord the appellant procedural fairness and whether there was actual or reasonably apprehended bias on the part of the primary judge.
More specifically, by particular 3B the appellant alleges that:
1.The primary judge failed to take all reasonable and necessary steps to prevent court records and documents from disappearing, alteration, destruction or being withheld (particular 3B(a)). In this respect the appellant refers to ts 50, 71 & 218.
2.The primary judge failed to inform the appellant of his opportunity to tender documents as evidence for two and a half days at trial (particular 3B(b)). In this respect the appellant refers to ts 50, 268 & 355 - 356.
3.The primary judge failed to consider equally and impartially each party's tendered documents (particular 3B(c)). In this respect the appellant refers to primary reasons pages 152 - 153 (at these pages the primary judge summarises which of the appellant's documents were or were not admitted into evidence).
4.The primary judge failed to respect and protect the appellant's freedom of speech by untimely and arbitrary interruptions which had the effect of interfering, diverting and stopping the presentation of the appellant's case at trial (particular 3B(d)).
Some, but not all, of the matters raised in the appellant's particulars were the subject of his written submissions in support of the appeal. Given their diffuse nature the appellant's written submissions are best understood by referring to general themes. First, the appellant complains of inequality of treatment between him and SBL so far as the parties' respective documentary tender was concerned.[33] Second, based on statistical discrepancies, the appellant complains of stoppages and interruptions in the presentation of his case (both in terms of giving his evidence and in cross-examining Mr Trigg).[34] Third, the appellant complains that the primary judge warned the appellant about his conduct before Mr Trigg was cross‑examined and arranged for a security guard to be present at the trial.[35] There is no evidence that a security guard was present in court at the direction of the primary judge. Accordingly, this complaint may be discarded. Fourth, the appellant complains that the primary judge ridiculed the appellant.[36] Finally, the appellant complains more generally about the primary judge exhibiting a paternalistic attitude and patronising behaviour.[37]
[33] Appellant's submissions pages 24 - 25 pars 108 - 114 (the appellant referred to ts 59 - 60, 74, 116, 133, 138, 188 - 192, 218, 242, 268 - 276, 296 - 297, 312 - 333, 346 - 347, 353 - 356, 359, 367, 372, 411, 439 ‑ 440).
[34] Appellant's submissions pages 25 - 26 pars 115 - 117 (the appellant referred to ts 91 - 132, 136 - 186).
[35] Appellant's submissions page 26 par 118 (the appellant referred to ts 310 - 311).
[36] Appellant's submissions page 26 par 118 (the appellant referred to ts 257, 382).
[37] Appellant's submissions page 26 par 119.
In his oral address to this court the appellant referred to a number of international conventions and instruments. In particular the appellant structured much of his oral submissions around the Bangalore Principles of Judicial Conduct and commentary thereto. The Bangalore Principles are not part of the domestic law of Western Australia. We accept, however, that the Bangalore Principles are largely consistent with and reflective of the principles of procedural fairness and judicial independence and impartiality to which we have already referred. We proceed on the basis that although the appellant referred to the Bangalore Principles by name he effectively invoked the equivalent principles of Western Australian law which we have addressed.
The appellant referred to the Bangalore Principles values of independence, impartiality, integrity, equality and competence, and diligence. Then, by reference to the accompanying principle to the various values and on occasions its applications, the appellant traversed much of the commentary pertinent to the various values. In doing so, by specified enumerated paragraphs of the applicable commentary, the appellant identified where, in his submission, one or more of the Bangalore Principles had been transgressed in the course of the trial. The appellant mentioned the trial transcript pages that he relied on and invited the court to read the relevant passages of the transcript.
It is fair to say that the appellant relied on much of the trial transcript. Indeed, the appellant referenced more than 150 individual pages in his written plea document, namely, trial transcript pages:
50, 52, 53, 54, 55, 56, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 78, 79, 81, 82, 86, 89, 90, 93, 95, 97, 102, 103, 108, 112, 119, 121, 131, 132, 133, 138, 142, 143, 144, 146, 156, 157, 158, 161, 162, 165, 166, 175, 176, 179, 182, 184, 185, 186*, 188, 189, 190, 191, 192, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 226, 230, 231, 232, 242, 243, 249, 250, 253, 264, 265, 268, 269, 270, 271, 272, 273, 274, 275, 276, 296, 297, 310, 311, 334, 335, 354, 355, 358*, 359, 360, 361, 362, 363, 366, 370, 371, 372, 373, 376, 377, 378, 381, 382, 383, 391, 393, 400, 405, 406, 408, 410, 411, 415, 421, 423, 424, 425, 428, 429, 432, 433, 438, 439, 440, 441.[38]
[38] The asterisked pages are trial transcript pages which are reproduced in the appellant's written plea which were not mentioned in the course of the appellant's oral submissions.
We have read the passages of the trial transcript pages identified and helpfully highlighted by the appellant in his written plea document. Conscious, also, that sometimes the whole is more than the sum of the parts, we have considered it necessary and appropriate to read the entirety of the trial transcript as a single document to better appreciate the manner in which the trial proceeded and the evidence emerged. We have thus considered each of the passages complained of by the appellant at least twice.
It is evident that the primary judge was acutely aware of the appellant's status as a self-represented litigant for whom English is a second language.[39] The primary judge correctly summarised the relevant principles where a litigant is self‑represented.[40] Moreover, in evaluating the credibility and reliability of the appellant's testimony, the primary judge made allowances for the difficulties that the appellant faced as a non-native English speaker representing himself in complex proceedings where, undoubtedly, the appellant felt aggrieved by the actions of SBL. The primary judge was conscious that the trial was a stressful experience for the appellant.[41]
[39] Primary reasons [86], [94].
[40] Primary reasons [94] - [97].
[41] Primary reasons [122] - [126].
The primary judge also referred to steps that were taken to ensure that procedural fairness was accorded to the appellant. Relevantly:
1.After the appellant concluded his evidence-in chief it became apparent that he may not have appreciated the necessity to address evidentiary matters going to the question of causation. The appellant was afforded an opportunity to reopen his evidence-in-chief so as to specifically address the issue of causation.[42]
2.The primary judge also gave the appellant an opportunity to call Mr Narula to give evidence addressing the issue of causation - specifically why it was 'impossible' (as maintained by the appellant) for the degree of permanent whole of person impairment assessments to be completed and lodged before the termination day. The appellant declined that opportunity.[43]
[42] Primary reasons [99] - [100].
[43] Primary reasons [101] - [102].
In addition, our review of the trial transcript reveals the following:
1.At the outset of the trial the primary judge provided the appellant with a succinct but adequate summation of the procedure that would be adopted for the trial.[44]
[44] ts 55 - 60.
2.At the outset of the trial the primary judge emphasised to the appellant that he bore the onus of proof - the appellant was informed that he had to prove his claim.[45]
[45] ts 55.
3.A concern emerged when it became apparent that the parties and the court may not have been working off the same set of tender documents. Before opening addresses the primary judge adjourned the proceedings so that her Honour's staff could work through the discrepancies in the set of documents available to the court. This appears to have taken a little over two hours. It is apparent, however, that the primary judge was taking care to ensure that the presentation of the appellant's case was not impaired by difficulties in the compilation of the tender documents.[46]
[46] ts 63 - 72.
4.The appellant made a short oral opening address during which the primary judge actively sought to clarify the case that the appellant was advancing.[47]
[47] ts 72 - 78.
5.The appellant's evidence‑in‑chief was disjointed. In the absence of counsel to lead his evidence the appellant tended to set forth his recollection of events by a stream of narrative. At the outset, however, the primary judge made it clear that the appellant was to be given some latitude given that he was a self‑represented litigant.[48] The appellant was encouraged to give his story.[49] There are many examples - too many to list - of the primary judge offering follow up questions or questions to clarify the appellant's evidence so as to satisfy her Honour that she correctly understood the substance of the appellant's evidence‑in‑chief. The appellant was offered or provided with frequent breaks to facilitate the appellant in collecting his thoughts.[50] At times, when the process became difficult, the primary judge counselled the appellant, appropriately, about becoming upset with the clear object of ensuring that the appellant maintain his composure.[51] In the course of the appellant's evidence‑in‑chief the primary judge explained the difference between the appellant's evidence and matters for legal argument.[52] The primary judge suggested to the appellant that he make a note of matters that occurred to him in the witness box which he would need to deal with as matters for legal argument.[53]
[48] ts 89 - 90.
[49] ts 141 - 142.
[50] See eg ts 102, 111 - 112, 118 - 119, 132, 173, 256, 278.
[51] See eg ts 102, 131, 161, 185, 264 - 265, 277 - 278.
[52] ts 180 - 181, 253.
[53] ts 143.
6.The appellant makes specific complaint about the treatment of his documents for tender. We will say more about that in a moment. It is clear, however, that the primary judge was concerned that having to tender documents as exhibits on a document-by-document basis as referred to in the course of evidence might interrupt the flow of the appellant's evidence‑in‑chief. Accordingly, the primary judge took the practical approach of inviting the appellant to hand up documents to the court usher as referred to with the evident intention that they would formally be received as an exhibit at some later point in the trial.[54]
[54] ts 90.
7.When the appellant had apparently concluded his evidence‑in‑chief the primary judge allowed the appellant to review his written submissions to ensure that he had covered all the things he wished to address in his evidence.[55]
8.Before commencement of the appellant's cross‑examination by counsel for SBL the primary judge counselled the appellant to listen to the questions and answer the questions, emphasising that it was important for the appellant to be 'nice and calm'.[56]
9.After reflecting on the appellant's evidence‑in‑chief, during the luncheon break on day 2 of the trial, the primary judge became concerned about whether the appellant had provided all of the evidence available to him going to the question of causation.[57] There was a long discussion between the primary judge, counsel for SBL and the appellant. The primary judge informed counsel for SBL that she was minded to allow the appellant to re‑open his evidence‑in‑chief so that he might give evidence about what effect he said SBL's inaction had on him, what he did subsequent to 13 July 2016 and why he did not make the s 93K(4) election by 12 February 2017.[58] That opportunity was in fact afforded to the appellant. Before the appellant was invited to re‑open his evidence‑in‑chief for that purpose the primary judge explained the current gap in the appellant's evidence. The appellant obtained clarification from her Honour as to the nature of the evidence that might be adduced pursuant to the leave to re‑open.[59]
10.At the conclusion of the appellant's re‑opened evidence‑in‑chief the appellant confirmed that he thought he had said everything he needed to say about the issue of causation.[60]
11.At the conclusion of the appellant's cross‑examination the primary judge explained the sort of evidence that the appellant might wish to adduce by way of re‑examination.[61]
12.At the completion of the appellant's case, when counsel for SBL announced that he intended to call Mr Trigg, the primary judge informed the appellant of the process for Mr Trigg's evidence.[62] We accept that at this time the primary judge raised the appellant's conduct with him - her Honour requested that the appellant be 'nice and calm' and 'polite' to Mr Trigg.[63] However, her Honour did so to establish her expectations for the appellant's future conduct during Mr Trigg's evidence. The primary judge was justified in doing so given the appellant's past conduct during the trial. In any case it is readily apparent that the appellant was not inhibited in his cross-examination of Mr Trigg. The appellant's cross-examination of Mr Trigg occupies nearly 100 pages of transcript.[64] At times the primary judge assisted the appellant so that he did not formulate his questions in an objectionable manner. The appellant thanked the primary judge for her guidance.[65] There was no inappropriate curtailment of the appellant's cross‑examination of Mr Trigg. At the completion of Mr Trigg's cross‑examination the appellant confirmed, in response to the primary judge's enquiry, that he was satisfied that he had asked all the questions he needed to ask of Mr Trigg.[66]
13.On day 2 of the trial the primary judge raised with the appellant whether he needed to adduce evidence from Mr Narula.[67] The primary judge raised the issue again when hearing SBL's closing submissions.[68] Then, in the course of the appellant's closing submissions, the primary judge questioned whether she could conclude that it was impossible for the degree of permanent whole of person impairment assessment to be completed in the time available before the termination day without hearing from Mr Narula.[69]
14.The primary judge offered the appellant an opportunity to re‑open his case for the limited purpose of adducing such evidence by calling Mr Narula.[70] (The primary judge had previously confirmed that SBL would not stand in the way of such a re-opening.)[71] The appellant declined that opportunity.[72]
15.At times the primary judge requested that the appellant not swear.[73] However, at no time did her Honour do so in terms that might have been construed as being intimidating or threatening. To the contrary, in language that was quite temperate given that the admonition generally followed an instance of the appellant swearing, the primary judge acknowledged the stress that the appellant was under, and that it was hard, but politely requested that the appellant remember that he was not to swear in court. The primary judge's statements in this regard were entirely appropriate and in no way support ground 3.
16.The primary judge did not ridicule or demean the appellant as alleged in the appellant's submissions. In this respect we have carefully reviewed the two passages of trial transcript relied on by the appellant. It is not the case that, at ts 257, the primary judge made 'fun' about the appellant having been checked for a sexually transmitted disease.[74] Rather, in circumstances where there was some uncertainty about the effect of the appellant's evidence the primary judge sought to clarify what in fact had happened. Nor, at ts 382, does the primary judge make 'fun' of the appellant's hair loss.[75] The primary judge was simply illustrating why a question the appellant directed to Mr Trigg was not a fair question.
[55] ts 183. See also ts 182 - 185.
[56] ts 185.
[57] ts 203, 218 - 219.
[58] ts 222. See generally ts 217 - 230.
[59] ts 234, 238 - 239.
[60] ts 268, 277.
[61] ts 305 - 306.
[62] ts 310.
[63] ts 310 - 311.
[64] ts 334 - 433.
[65] ts 382.
[66] ts 433.
[67] ts 234.
[68] ts 461, 472. See also ts 519, 521, 523.
[69] ts 527. See also ts 524 - 526, 532.
[70] ts 532 - 534.
[71] ts 524.
[72] ts 533 - 535.
[73] See eg ts 108, 256 - 257, 288, 310.
[74] Compare appellant's submissions par 118.
[75] Compare appellant's submissions par 118.
The appellant's complaints now made on appeal under the auspices of ground 3 are not made out by our review of the trial transcript. Indeed, while on appeal the appellant is highly critical of the way in which the primary judge ran the trial, that was not the appellant's attitude at the trial. At the trial, when the primary judge explained that she did not want to be unfair to the appellant, the appellant responded, 'you're not unfair, your Honour, no, no, you're fine'.[76] The appellant thanked the primary judge 'very much' for her compassion.[77] And when, at some point, there was a discussion as to whether the trial might best be adjourned to await the outcome of other proceedings involving the appellant, the appellant said, in effect, that he would do whatever the primary judge wanted but insisted that he would request that the primary judge remain the judge to decide the dispute. The appellant said: 'I don't want another judge than you'.[78] The appellant also thanked the primary judge for her patience in dealing with him in the course of his evidence.[79]
[76] ts 142.
[77] ts 234.
[78] ts 228.
[79] ts 308.
In this vein, mid-way through the trial the primary judge said to the appellant that she was trying to make sure that he was receiving a fair hearing. The appellant responded:
Your Honour, you are the number nine judge that I met [sic] and you are the first with whom I have a fair hearing.[80]
[80] ts 278.
Later on day 3 of the trial the appellant said that the primary judge had never been unfair with him.[81] More generally the appellant complimented the primary judge in relation to the assistance her Honour provided to him in the course of cross‑examining Mr Trigg[82] and the questions that the primary judge had for Mr Trigg.[83] When the primary judge allowed the appellant more time than he had asked for to prepare his written closing submissions the appellant said that the primary judge was 'very fair'.[84]
[81] ts 334.
[82] ts 433.
[83] ts 436.
[84] ts 444.
The statements and attitude of the appellant towards the primary judge at trial are inconsistent with, and belie acceptance of, the appellant's contentions on appeal of actual or reasonably apprehended bias on the part of the primary judge. Similarly, the appellant's statements and attitude at the time of the trial are inconsistent with a want of procedural fairness.
One of the main matters relied on in support of ground 3 is the primary judge's treatment of the appellant's tender documents. Particular 3B(a)'s point as to disappearance, alteration and destruction goes nowhere. When it became apparent that there were inconsistencies between the documentary sets available to the parties and the court, the primary judge took practical measures to ensure that all participants in the trial had a complete set of the same tender documents available to them. The primary judge's conduct demonstrates her Honour's commitment to ensuring a fair trial process. The appellant did not suffer any procedural disadvantage by the adjournment for this purpose. To the contrary the primary judge ensured the efficient and effective conduct of the trial in a manner that benefited the appellant.
The primary judge explained her approach to the receipt, into evidence, of the appellant's tender documents at primary reasons [103] ‑ [106]. It was not the case, as suggested by particular 3B(b), that the primary judge neglected to inform the appellant of his opportunity to tender documents as exhibits for two and a half days at trial. Rather, the trial transcript shows that the primary judge accepted the appellant's two booklets of documents as Exhibit 1 and Exhibit 2 before lunch on day 2 of the trial (other documents were accepted as an exhibit on an ad hoc basis in the course of the trial[85]). In doing so her Honour clarified that not all of the documents were admissible - and, in due course, there would be extraction out of those documents which had not been referred to or which were not admissible.[86] The primary judge provided the appellant with a fuller explanation of what was intended immediately after the luncheon adjournment on day 2. In substance the primary judge contemplated removing individual documents within Exhibits 1 and 2 which were either inadmissible or were not referred to. However, given that the appellant might cross‑examine on some of the documents, the primary judge contemplated that this task would be undertaken after all the oral evidence had been heard. The appellant accepted what was proposed.[87]
[85] See eg ts 242 - 243, 261, 373, 412.
[86] ts 188 - 189.
[87] ts 200 - 201. See also ts 249 - 250, 272, 274.
As to particular 3B(c), on day 4 of the trial, after the oral evidence had been heard, the primary judge invited submissions directed to the documents to be included in or excluded from evidence as parts of Exhibit 1 and Exhibit 2.[88] Effectively, with both parties' approval, the primary judge proposed to accept into evidence those documents which had been referred to in evidence-in-chief or cross-examination. A similar process was followed for SBL's tender bundle.[89] However, as the primary judge explained, she read both bundles of documents as comprised Exhibit 1 and Exhibit 2 in their entirety. To the extent that the documents were not received as evidence they were nonetheless read and considered and taken into account as part of the appellant's submissions to the court.[90]
[88] ts 440 - 443.
[89] ts 439.
[90] Primary reasons [105].
There was no want of procedural fairness so far as the appellant's tender documents are concerned. Particulars 3B(a) - (c) are without merit.
As to particular 3B(d), we accept that there are numerous instances where the primary judge interrupted the appellant in the course of his evidence-in-chief and in his cross-examination of Mr Trigg. The appellant's written submissions quantify the interruptions.[91] We have not attempted to determine whether the appellant's calculations are correct in quantitative terms. We will assume that the appellant has accurately identified all of the stoppages and interruptions. Not all of the interruptions were due to the primary judge seeking clarification of the appellant's case or his evidence. Sometimes, for example, the appellant stood up in the course of giving his evidence. The primary judge had to remind the appellant to sit down so that the evidence could be properly transcribed. Other interruptions are similarly not attributable to the primary judge in any meaningful way.
[91] Appellant's submissions pars 115 - 116.
It is, however, well settled that a trial judge may have to intervene in proceedings from time to time; and, moreover, that there may be added occasion to do so where a litigant is representing himself or herself. In Michael v The State of Western Australia Steytler P (McLure JA & Miller AJA agreeing) stated:
[I]t will often be necessary, particularly with self‑represented litigants, for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions. In Johnson at [13] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
Indeed, a trial judge who does not intervene to prevent undue delay and to ensure that the parties focus on the crucial issues may be criticised by an appellate court.[92] (citations omitted)
[92] Michael v The State of Western Australia [65].
In any case, reading the trial transcript fairly and as a whole, we are satisfied that the primary judge's interruptions were justified and, indeed, calculated to better achieve a fair trial. Sometimes the appellant had to be brought back on track. Sometimes, to aid understanding of the appellant's case or the appellant's evidence, clarification had to be sought. At all times, in our opinion, the primary judge's interruptions were consistent with the conduct of a fair trial.
None of the interruptions caused the appellant any difficulty at trial. Indeed, in the course of the appellant's re-opened evidence‑in‑chief, after the primary judge apologised for interrupting the appellant's evidence and said she would not interrupt, the appellant said: 'That's fine … I mean, maybe I express myself wrongly … It's okay'.[93] And, as we have already observed, during the trial there was no complaint of lack of procedural fairness. To the contrary the appellant was well satisfied that he had received a fair hearing.
[93] ts 240 - 241.
There is no merit in particular 3B(d).
For these reasons there was no failure to accord the appellant procedural fairness as asserted by ground 3. Nor, all the more so, is there any basis to find that the trial was vitiated by actual bias on the part of the primary judge. So far as the appellant raised reasonable apprehension of bias, his written and oral submissions did not develop ground 3 by reference to the applicable legal principles. There was, for example, no articulation of the alleged logical connection between the matter which it was said might lead the primary judge to decide the appellant's claim other than according to their legal or factual merits and the feared deviation. In any case, having read and considered the transcript of the trial in full, there is nothing in the conduct of the trial which establishes any arguable foundation for the contention that the primary judge was either biased favourably towards SBL or biased against the appellant. Put simply, nothing in the conduct of the trial reveals any basis for a fair‑minded lay observer to reasonably apprehend bias on the part of the primary judge. The allegation of reasonable apprehension of bias is without merit.
Ground 3 must be dismissed.
Ground 2: alleged error in finding that Mr Trigg was an honest, credible and reliable witness
Ground 2 provides:
(At [114] - [121]) DCJ erred in fact and law when deciding, without reservation, that Mr Trigg is an honest, credible and reliable witness when he was giving his evidence at trial, and consequentially an honest, competent and reliable lawyer at SBL when acting on behalf of [the appellant] (02/02/2016 - 11/05/2016).
The particulars in support of ground 2 referred to particular findings involving Mr Trigg that were said to be in error.
The appellant submitted that:
1.There was documentary evidence that contradicted Mr Trigg's evidence - for example, Mr Trigg's evidence that he could not recall the appellant providing him with documents at their first meeting (which Mr Trigg later recanted from in any event).
2.There was also evidence that Mr Trigg was provided with documents by the solicitors the appellant initially consulted, as well as CFC's insurer.
3.There was evidence that the appellant provided Mr Trigg with various documents.
4.There was documentary evidence that Mr Trigg misapprehended the then termination day (and the commencement date of the appellant's workers' compensation claim) at the time that SBL sought an extension to the termination day.
5.There was documentary evidence that the appellant informed SBL about his neck, plantar fasciitis, hair loss and psychiatric injuries in addition to his back, foot and tinnitus injuries.
6.There was no evidence that the appellant ever obstructed the release and handover of his initial solicitors' file to SBL.
The appellant contended that Mr Trigg gave false and perjured evidence at trial. That contention as advanced in the appellant's written submissions on appeal was little more than assertion. However, in oral submissions the appellant referred the court to his written closing submissions at trial before the primary judge. In those submissions the appellant listed numerous alleged discrepancies, contradictions or omissions in Mr Trigg's testimony. The appellant accused Mr Trigg of having a flawed memory and being evasive.
Ground 2 challenges the primary judge's assessment of Mr Trigg as an honest, credible and reliable witness.
In McRobert Superannuation Pty Ltd v Cranstonthis court discussed the limitations of a ground of appeal that challenges a general credibility finding. A ground of appeal that seeks to challenge a finding that a witness is 'generally credible' is, without more, of no consequence unless there is an identified challenge to a finding of fact that was in issue at trial.[94] The same may be said where there is a finding that a witness's evidence is 'generally reliable'.
[94] McRobert Superannuation Pty Ltd v Cranston [2021] WASCA 126 [166] - [167] (referred to with approval in L v P [2022] WASCA 40 [37]).
There are two difficulties with ground 2.
First, it is not the case that the primary judge found, without reservation, that Mr Trigg was an honest, credible and reliable witness in the terms challenged by ground 2. The primary judge's actual findings are far more measured. The primary judge accepted that Mr Trigg 'did his best' to give honest and reliable evidence.[95] However, the primary judge also found that, where there were no contemporaneous notes, at times Mr Trigg relied on the advice he would have given as opposed to the advice he did in fact give.[96] Where Mr Trigg's evidence was of this character the primary judge said that she approached the reliability of Mr Trigg's evidence 'with some caution'.[97] The primary judge specifically acknowledged that Mr Trigg's recollection was 'not infallible'.[98]
[95] Primary reasons [119]. See also [114], [255].
[96] Primary reasons [121], [256].
[97] Primary reasons [121]. See also [115].
[98] Primary reasons [255].
The only part of Mr Trigg's evidence that the primary judge accepted 'without reservation' (or, as stated in another way, with 'no hesitation') was evidence that concerned matters that were covered in contemporaneous notes or the extensive email correspondence between the appellant and Mr Trigg.[99]
[99] Primary reasons [114], [120].
The primary judge accepted significant parts of Mr Trigg's evidence.[100] But in doing so it is clear that her Honour adopted the approach of carefully scrutinising the reliability of Mr Trigg's evidence where it was not corroborated by a contemporaneous note or some email correspondence. It was not the case that the primary judge accepted Mr Trigg's evidence without reservation. Indeed, the primary judge did not accept all of Mr Trigg's evidence. Specifically, the primary judge rejected Mr Trigg's evidence that the appellant gave him (Mr Trigg) instructions on 2 February 2016 to extend the termination day if Dr Fairhurst (or some other approved medical specialist) concluded that the appellant's injuries had not settled.[101] In this respect the primary judge preferred aspects of the appellant's evidence over Mr Trigg's evidence.[102]
[100] See eg primary reasons [259], [262], [263], [266], [362], [379], [516], [518](v), [556].
[101] Primary reasons [276].
[102] See esp primary reasons [276](iv).
Accordingly, ground 2's challenge is misconceived so far as it is directed to there being a general finding that Mr Trigg was a credible and reliable witness. The primary judge made no such finding.
Second, as we have mentioned, a challenge to a general credibility or reliability finding goes nowhere of itself. It can only assist on appeal if there is some other challenge to a finding on a fact in issue at trial such that, by impugning the general credibility or reliability finding, an appellant may undermine the foundation for the trial judge's finding on that factual issue. The appellant recognised this in as much as ground 2 went on to challenge a supposed consequential finding that Mr Trigg was 'consequentially an honest, competent and reliable lawyer' at SBL when acting on behalf of the appellant.
The difficulty is that the primary judge made no such consequential finding, in terms or otherwise, as to Mr Trigg being an honest, competent and reliable lawyer.
Ground 2 is misconceived. It must be dismissed. Otherwise we acknowledge that the particulars to ground 2 refer to a number of other findings. However, the particulars cannot exceed the scope of the ground. It is, in any case, not apparent that the primary judge relied on any general credibility or reliability finding on the part of Mr Trigg in coming to the other factual conclusions specified in particulars 2.B ‑ 2.G.
Ground 1 pars 3 and 4: alleged error in finding that SBL did not breach its duty of care in referring the appellant to Dr Fairhurst rather than Mr Narula
Ground 1 pars 3 and 4 state:
(At [689]) DCJ erred in fact and law (and misapplied the applicable principle of Non‑discrimination) when deciding that SBL and Mr Trigg's referral to Dr Fairhurst and not Professor Soni Narula was not a breach of duty of care or negligence (Failure Eleven).
DCJ erred in fact and law when deciding that SBL and Mr Trigg referral to Dr Fairhurst was appropriate.
The reference to primary reasons [689] in ground 1 par 3 is incorrect. The primary judge actually deals with so-called 'Failure 11' at primary reasons [556] - [558]. Failure 11 was the referral of the appellant to Dr Fairhurst for assessment rather than Mr Narula.[103] At trial the appellant maintained that he, the appellant, should have gone to see Mr Narula because Mr Narula had seen the appellant before and understood the appellant's condition.[104] Also, the appellant requested at the time that he be referred to Mr Narula. However, Mr Trigg said that he wanted the appellant to see Dr Fairhurst.[105]
[103] Primary reasons [52.11].
[104] Primary reasons [321].
[105] Primary reasons [321].
In rejecting Failure 11 the primary judge stated:
I accept Mr Trigg's evidence about the reasons for him referring [the appellant] to Dr Fairhurst and not to Mr Narula. Dr Fairhurst was an approved medical specialist. SBL had a working relationship with Dr Fairhurst. SBL trusted that Dr Fairhurst would see [the appellant] promptly, which he did, and that he would examine and then report on [the appellant] in the manner prescribed in the Act. Dr Fairhurst did this promptly, as well as providing Mr Trigg with a report on the degree of whole of person impairment assessment for [the appellant's] back and foot as he assessed them to be at that time.
Mr Trigg expressed concerns about treating doctors not completing the paperwork on time. Mr Trigg trusted Dr Fairhurst to do this and he did so promptly.
For these reasons I conclude that [the appellant] has not established failure eleven.
In support of the ground, the appellant's particulars contend that, at primary reasons [15.4], the primary judge misapprehended the inadequacy of the referral to Dr Fairhurst rather than to Mr Narula (particular 1.D).
By [15.4] the appellant is apparently referring to section 15.4 in the primary reasons, ie primary reasons [321] - [326] dealing with Mr Trigg's evidence about the referral to Dr Fairhurst rather than Mr Narula. Once that is appreciated it is apparent that the particulars to this part of ground 1 do not identify why the primary judge was in error in concluding that SBL did not breach its duty to the appellant in referring him to Dr Fairhurst rather than Mr Narula. It is necessary, in this respect, to recall that an appellant who challenges a primary judge's finding of fact must demonstrate that the finding was wrong, not merely that an alternative finding was open.
Nor is the assertion of error developed in any meaningful way in the appellant's written submissions (it not being mentioned in the appellant's oral submissions). The appellant's written submissions in support of ground 1 address the complaints by par 1 and par 2 of ground 1 as well as pars 3 and 4. Insofar as the appellant challenged the referral to Dr Fairhurst rather than Mr Narula the appellant submitted that:
1.The primary judge's acceptance of Mr Trigg's choice of Dr Fairhurst over Mr Narula was 'purely discriminatory' - Dr Fairhurst was said to be a white male English born Australian while Mr Narula (and the appellant) were not.
2.Mr Narula was the right person, and the best choice, for the conduct and supervision of any assessment in relation to the appellant. In this respect the appellant compared the respective qualifications and experience of Dr Fairhurst and Mr Narula.
There is no substance in the submission that the primary judge's rejection of this aspect of the appellant's case was actuated by discrimination against Mr Narula, whether on the basis of ethnicity or otherwise. It is plain from the passage reproduced at [103] above that the primary judge accepted Mr Trigg's evidence about the reasons that he, Mr Trigg, decided to refer the appellant to Dr Fairhurst rather than Mr Narula. It could not be suggested that Dr Fairhurst lacked the necessary qualifications for the purpose of the assessment sought by SBL. Dr Fairhurst was an approved medical specialist. Evidently, by reason of Dr Fairhurst's prior working relationship with SBL, Mr Trigg was satisfied that Dr Fairhurst would see the appellant promptly and complete any necessary paperwork correctly and in a timely way. The appellant has not demonstrated any error in the primary judge's acceptance that this reasoning readily justified SBL referring the appellant to Dr Fairhurst. Even if Mr Narula was better qualified and more experienced than Dr Fairhurst it cannot be said that SBL failed to exercise the skill, care and diligence expected of a reasonably competent solicitor in referring the appellant to Dr Fairhurst.
Ground 1 pars 3 and 4 fail.
Ground 1 par 2: alleged error in finding that SBL did not breach its duty of care by prematurely applying to extend the termination day
Ground 1 par 2 states:
(At [509] - [517], [689]) DCJ erred in fact and law (and misapplied the applicable principle of justice) when deciding that the SBL and Mr Trigg did not prematurely apply to extend [the appellant's] common law termination date (Failure One).
'Failure 1' was the appellant's complaint that SBL elected to extend the appellant's s 93K(4) termination day prematurely.[106] The primary judge determined this adversely to the appellant for the following reasons:
[106] Primary reasons [52.1].
Failure one - [SBL] elected to extend [the appellant's] common law termination date prematurely
I make the assessment of whether this breach allegation has been made out viewing the position from the knowledge that Mr Trigg had at that time, as opposed to viewing that action with the benefit of hindsight.
I am satisfied that at the time of making the referral to Dr Fairhurst, Mr Trigg understood that the work-related injuries of which [the appellant] complained were the lower back and foot injuries and the tinnitus injury.
Only the lower back and foot injuries were within Dr Fairhurst's area of expertise.
Mr Trigg was ensuring that the critical date in preserving [the appellant's] right to make his election was extended.
I accept [SBL's] submissions that there is no set time upon which a referral to an AMS ought to occur.
There was no guarantee, at that point in time, that had Mr Trigg left the referral to closer to the original termination date, that the approved medical specialist would have concluded that the injuries had not stabilised.
I accept that Mr Trigg referred [the appellant] to Dr Fairhurst for a number of reasons including:
(i)to ascertain if [the appellant's] back and foot injuries had at that stage stabilised and, if not, to have Dr Fairhurst certify that the injuries had not reached maximum medical improvement;
(ii)to provide the necessary medical certification to apply for an extension to the termination date if the injuries had not then stabilised;
(iii)to counter Dr Low's opinion regarding [the appellant's] ability to return to work and Mr Trigg's concern that GIO would cease the workers' compensation payments;
(iv)to obtain a medical report with an assessment of whole of person impairment to be able to use to negotiate a settlement with the insurer in the event that the WPI was lower than the 15% threshold; and
(v)to ensure that the referral was made to a doctor Mr Trigg trusted would complete the prescribed forms in a timely manner.
I am satisfied on the evidence of Mr Trigg that at the time he referred [the appellant] to Dr Fairhurst for an assessment, Mr Trigg was acting in [the appellant's] best interests.
[The appellant] has failed to satisfy me on the evidence that failure one has been established.[107]
[107] Primary reasons [509] - [517].
These findings were broadly consistent with Mr Trigg's evidence as to what was discussed about an extension to the termination day in his 2 February 2016 meeting with the appellant.[108] Relevantly, Mr Trigg's evidence included that:
1.As at 2 February 2016 he knew that the termination day was 'likely' some time in or around the June or July range (ie June or July 2016) but he believed that it was likely that it would have been extended out for a period of another 12 months.[109]
2.Deciding to extend the termination day early (ie approximately six months before it was due) was what he decided was the best course of action in the appellant's claim at the time.[110]
3.His logic was that the extension put the termination day out for another 12 months.[111]
4.It seemed unlikely, at the time, that the appellant's injury had stabilised - so the likelihood was that the termination day would be extended out for another 12 months.[112]
[108] Primary reasons [231] - [243].
[109] ts 427.
[110] ts 426.
[111] ts 434.
[112] ts 318.
The appellant's particulars in support of this aspect of ground 1 provide little elaboration on why the primary judge's reasons for rejecting alleged Failure 1 demonstrate error. The allegation of error is reasserted at particulars 1B, 1D and 1J. Otherwise the complaint is that:
1.The primary judge failed to take account of the 'first compression of time' caused by the premature extension of the termination day, misapprehended the loss of days in respect of the available extension to the termination day and the period of time to pursue a common law damages action against an employer, and miscalculated the 'second compression of time' by failing to consider and accept the effect of the two 'consecutive compressions of time' (particulars 1C, 1E, 1F, 1G and 1H).
2.The primary judge misapprehended the nature and content of various evidentiary matters (particular 1D).
3.The primary judge misapprehended the inadequacy of a referral to Dr Fairhurst rather than to Mr Narula (particular 1D). This matter is raised directly by pars 3 and 4 of ground 1 and is considered, and dismissed, in that context.
4.The primary judge misapprehended the facts and evidence in relation to the injuries attributable to the appellant's workplace known or reasonably known to SBL during the retainer (particular 1I). This matter is outside the scope of ground 1 par 2. In any event it could, if established, have no material effect on the determination of ground 1 par 2. Accordingly, it may be put aside.
In his written submissions the appellant emphasises that he had until 30 July 2016 to apply for an extension to the termination day. Accordingly, in the appellant's submission, any application for an extension before that date was inappropriate. This was because, in an overall sense, the earlier any application for an extension the greater the reduction of time for the appellant to satisfy the criteria for election under s 93K(4).
The appellant submitted that:
1.In early February 2016 there was no urgency to obtain a medical review for the purpose of an extension of the termination day.
2.At that time SBL did not have sufficient information to initiate any extension of the termination day.
3.Mr Trigg, on behalf of the respondent, did not know the actual date of the workers' compensation claims and therefore misapprehended the initial termination day.
We do not accept that the primary judge was under any misapprehension as to the effect of SBL applying for an extension of the termination day in late February 2016 rather than July 2016. In support of this contention the appellant focused on the primary judge's identification, at primary reasons [28], that by SBL's failure to inform the appellant of the extension of the termination day to 12 February 2017, SBL had in effect brought about a 30% compression of the appellant's time to meet the s 93K(4) election criteria. But that was concerned with the consequences of SBL's failure to inform the appellant of the March 2016 extension of the termination day in a timely way rather than the effect of applying for the extension to the termination day in late February 2016 rather than July 2016.
So far as ground 1 par 2 is concerned, the primary judge was well aware that the appellant contended that SBL had breached its duty by making a premature application for an extension of the termination day. The primary judge recorded that:
The effect of that [ie the allegedly premature application] was to deprive [the appellant] of five additional months for his injuries to stabilise and for him [ie the appellant] to comply with his election criteria.[113]
[113] Primary reasons [35](i).
Accordingly, contrary to particular 1C, the primary judge did not fail to take account of the so‑called 'first compression of time' caused by the timing of the application to extend the termination day.
The other alleged arithmetic errors as to compression of time go nowhere in terms of supporting ground 1 par 2. Rather, these are concerned with the compression of time that resulted from SBL's failure to inform the appellant of the extension to the termination day until 13 July 2016. But, in this respect, the primary judge held that SBL breached its duty. Accordingly, any error in this respect is immaterial for present purposes (ie in evaluating ground 1 par 2). Particulars 1E - 1H may also be put aside for the purpose of ground 1 par 2.
In terms of the evidentiary matters, the appellant fastened on the fact that SBL's employer liability 'information sheet' dated 2 February 2016 (as completed by Mr Trigg in relation to the appellant's back and foot injuries) recorded an incorrect termination day. That was undoubtedly the case; the termination date recorded was 17 March 2016 (with the date of accident being correctly recorded as 18 March 2015).[114] Different dates were recorded for the tinnitus injury.[115] SBL's letter dated 3 February 2016 also referred to an incorrect termination day (it mentioned 17 March 2016).[116] However, the primary judge was under no misapprehension as to these matters. Her Honour referred to the documents, summarising their contents accurately, and did likewise with SBL's letter to the appellant dated 8 February 2016 referring him to Dr Fairhurst.[117]
[114] GAB 797.
[115] GAB 785.
[116] GAB 816.
[117] Primary reasons [194], [198], [295] - [305], [310] - [312]. See also GAB 832.
In any case SBL's conduct fell to be evaluated as at the time that SBL submitted the application to extend the termination day (ie on or about 29 February 2016) rather than when SBL referred the appellant to Dr Fairhurst. When SBL submitted the application to extend the termination day:
1.SBL had received Dr Fairhurst's report dated 12 February 2016[118] together with:
(a)Dr Fairhurst's Form AMS-7 'Report on Worker's Condition Not Stabilised'[119] in which Dr Fairhurst opined that a further 6 - 12 months of rehabilitation was likely to be required before the appellant's injury would have stabilised to the extent required for him to have received maximum medical improvement;
(b)Dr Fairhurst's Form AMS-8 'Certificate Where Worker's Condition Not Stabilised'[120] by which Dr Fairhurst certified that, in his opinion, the termination day should be extended to 12 February 2017.
2.SBL had completed a Form 35 'Application to Extend Termination Day'[121] in which SBL recorded that the date of injury was 18 March 2015 and a claim for compensation by way of weekly payments was made on CFC as employer on 30 July 2015.
[118] GAB 869.
[119] GAB 859.
[120] GAB 867.
[121] GAB 282.
The termination day was discussed at the appellant's 2 February 2016 meeting with Mr Trigg. In particular, in findings that are unchallenged by any ground of appeal, the primary judge found that, among other things, Mr Trigg advised the appellant: (1) of the importance of the termination day together with the consequences of a failure to comply; and (2) that he, the appellant, had one year from the date the workers' compensation claim was made to be reviewed for the impairment assessment.[122] Mr Trigg gave evidence that he knew the date that the first workers' compensation claim had been lodged - the appellant had provided him with a copy of the relevant form.[123] The primary judge referred to this evidence[124] but made no relevant finding. However, there are timesheet references to SBL employees reviewing the form.[125] In any case by 29 February 2016, when SBL completed the Form 35 'Application to Extend Termination Day', SBL was undoubtedly aware of the date of the workers' compensation claim - and, consequently, of the then termination date.
[122] Primary reasons [270](i) & (vii).
[123] ts 348.
[124] Primary reasons [189](x), [192].
[125] See eg GAB 260.
The appellant has not demonstrated that, at the time SBL lodged the extension application, Mr Trigg continued to be under any misapprehension as to the termination day. Nor was there any error by the primary judge in this respect.
It is true that there was no particular urgency to extend the termination day. But it is not the case that SBL lacked sufficient information to seek an extension of the termination day. SBL had Dr Fairhurst's report and certificate. Importantly, the report suggested that a further 6 - 12 months rehabilitation would be required before the appellant's injury could be considered to have stabilised to the extent required for the appellant to have received maximum medical improvement. Two things would have been apparent to SBL from that aspect of Dr Fairhurst's report. First, an extension to the termination day would be required. The minimum period mentioned by Dr Fairhurst for stabilisation of the appellant's injury exceeded the existing termination day by a couple of weeks (ie six months from 12 February 2016 versus 30 July 2016). Second, a 12 month extension of the termination day to 12 February 2017 was consistent with Dr Fairhurst's report.
Further, delaying the referral to an approved medical specialist was not without risk for the appellant. The primary judge referred to Mr Trigg's evidence as to dangers of waiting 'until the absolute last minute' to apply for an extension of the termination day.[126] Further, as the primary judge noted, there was no guarantee that a medical specialist to whom the appellant might have been referred closer to the termination date would have concluded that the appellant's injuries had not stabilised.[127]
[126] Primary reasons [359] - [360].
[127] Primary reasons [514].
In the circumstances we are not satisfied that SBL failed to exercise the skill, care and diligence expected of a reasonably competent solicitor by applying prematurely to extend the termination day. Based on Dr Fairhurst's report and certificate there was a proper foundation for SBL to apply for the extension. Insofar as the appellant alleges error on the part of the primary judge in concluding that SBL was not negligent in applying to extend the termination day prematurely, none of the specific matters relied on by the appellant to challenge the primary judge's conclusion have been made out. The appellant has not demonstrated that the primary judge's finding was wrong.
Ground 1 par 2 fails.
Ground 4 par 1: alleged error in finding that the appellant did not adduce evidence of his activities between October 2016 and 12 February 2017
Ground 4 par 1 states:
(At [734] - [735]) The judge erred in fact and law (and misapplied the applicable law of evidence) when accusing the self‑represented foreign litigant with disabilities of not having provided evidence of his 'activities' between October 2016 and the illegal or unrealistic date for election.
In a similar vein par 2 (a) and (b) of ground 4 complained:
a)the judge failed to acknowledge and understand [the appellant's] testimony in relation to his 'activities' during July 2016 until February 2017.
b)the judge failed by misapprehending the relevant material brought to the court and part of the plaintiff's book of documents.
The submissions in support of ground 4 do not deal with its various parts. The appellant says that he provided extensive and detailed information as part of his tendered documents. These, according to the appellant, do not support the view that at any time he was lax, lazy or sloth in participating effectively in the completion of a degree of permanent whole of person impairment report.
Ground 4 par 1 does not accurately recite the finding which it seeks to challenge. At primary reasons [734] her Honour says that there is an absence of evidence as to what happened between 5 October 2016 and the termination day (ie 12 February 2017) in respect of the back, foot and neck injuries. The primary judge noted that the appellant had issued the relevant forms to Mr Narula in respect of those injuries on 5 October 2016. The primary judge then held:
The silence as to what happened between 5 October and the termination date, the absence of evidence from Mr Narula, the evidence that does exist that [the appellant] did not press Mr Narula, that 'it was not for him [ie the appellant] to tell Mr Narula what to do and when to do it' lead me, in combination, to conclude that [the appellant] has fallen short of discharging the burden of proof.[128]
[128] Primary reasons [735].
Accordingly, while the ground alleges error in finding that the appellant had not provided evidence of his activities between October 2016 and the termination day, the relevant finding is concerned with an absence of evidence as to what happened between 5 October 2016 and the termination day in respect of the back, foot and neck injuries the subject of the forms as issued to Mr Narula.
There is no basis for the appellant to complain that the primary judge erred at primary reasons [734] - [735] by incorrectly finding that the appellant did not adduce evidence of his activities between 5 October 2016 and 12 February 2017. First, that is not what the primary judge found. The relevant finding was directed to an absence of evidence concerning a relevant assessment of the back, foot and neck injuries. The appellant did not point to any evidence that the primary judge had overlooked in this respect. Second, it is not the case that the primary judge overlooked the evidence that the appellant adduced more generally as to his activities between 5 October 2016 and the termination day. The primary judge faithfully recounted, in detail over some 14 paragraphs, the evidence the appellant gave as to his activities post‑October 2016.[129]
[129] Primary reasons [653] - [666]. See also [729](v).
Ground 4 par 1 fails. So too do pars 2(a) & (b) so far as they are pleaded in aid of ground 4 par 1.
Ground 4 par 2 and par 2(c): alleged error in attributing responsibility for failure to register an election to Mr Narula rather than SBL
Ground 4 par 2 and par 2(c) state:
(At [685] - [690], [734] - [735]) Additionally, the judge erred in fact and law (and misapplied the mandatory obligation to non‑discrimination) when attributing responsibility to Neurosurgeon Pf. Soni Narula for Mr Trigg and SBL's negligence during the retainer and the 'handling of the termination day'.
…
c)the judge failed to explain the relevance of Neurosurgeon, Pf. Soni Narula's testimony in the action against SBL (Mr Trigg) for professional negligence at court.
Paragraph 2(c) is difficult to understand when, as the primary judge recorded, Mr Narula was not called to give evidence.[130] There was in fact no relevant testimony. But the primary judge explained why Mr Narula might have provided relevant and admissible evidence. Her Honour did so in passages that are challenged by this ground:
Mr Narula was not called to give evidence in these proceedings.
The Court therefore did not hear from Mr Narula as to why he did not complete the overall whole of person impairment assessment for all of [the appellant's] injuries prior to the termination date.
Neither did the Court hear why Mr Narula did not submit the whole of person impairment assessment in respect of the back, foot and neck injuries in respect of which he was the approved medical specialist prior to the termination date.
I stress that this is no criticism of Mr Narula in any way. I make these observations because he was not called to give evidence at trial by [the appellant].
[The appellant] was informed that he had the onus of proving why he claimed that the compression of time he had by reason of [SBL's] negligence meant that he was deprived of a reasonable opportunity to meet his election criteria in the prescribed way and on time.
[The appellant] was expressly given the opportunity to call Mr Narula to give evidence in respect of causation; [the appellant] declined to do so.[131]
[130] Primary reasons [685].
[131] Primary reasons [685] - [690]. The other part of the primary reasons challenged by this aspect of ground 4 is referred to at [130] above.
The primary judge went on to state that she must assess the evidence as it stood at trial. Her Honour stated, correctly, that she must not speculate on the reasons why Mr Narula did not submit the whole of person impairment assessments before the termination day. However, as a result of the appellant's decision not to call Mr Narula there were various gaps in the evidence.[132] This resulted in the conclusions we have reproduced at [130] above.
[132] Primary reasons [691] - [695].
The appellant's written submissions in support of this aspect of ground 4 are brief. The appellant submitted that the primary judge applied a personal and discriminatory view, influenced by counsel for SBL, that sought to deflect the blame for SBL's negligence to anyone else. According to the appellant, Mr Narula was simply waiting to be provided with reports of medical examinations and assessment from other specialists. The appellant submitted that Mr Narula was not involved in the extension of the termination day and was not responsible for the excessive shortening of the termination day. It was not for Mr Narula, or the injured appellant, to be forced to comply with an 'arbitrary' termination day (presumably because the termination day as extended was that obtained by SBL). The appellant submitted that Mr Trigg and SBL (together with Dr Fairhurst and the Director at WorkCover WA) were responsible for the extended date of the termination day rather than Mr Narula.
Paragraph 2 and par 2(c) of ground 4 misread the passages of the primary reasons to which they relate. The primary judge did not attribute responsibility to Mr Narula for SBL's negligence. Nor did the primary judge attribute responsibility to Mr Narula for the appellant's failure to satisfy the criteria to make an election under s 93K(4). The primary judge simply recorded that there were important gaps in the evidence as a result of the appellant declining to adduce evidence from Mr Narula. Those gaps in the evidence were critical so far as the appellant bore the burden of proof in establishing that SBL's breach of duty, as found, caused the loss as claimed. In the absence of evidence from Mr Narula, and taking into account the various other facts as found, the primary judge was not satisfied that the appellant had discharged his burden of proving that SBL's negligence caused him to lose a reasonable opportunity to make his s 93K(4) election by the extended termination day of 12 February 2017.[133]
[133] Primary reasons [728] - [729] (see esp [729](xii) - (xvi)), [730] - [731], [734] - [736]).
The ground as advanced by the appellant does not address the substance of the primary judge's reasoning and her Honour's finding in the absence of any evidence from Mr Narula. The relevant finding did not attribute responsibility to Mr Narula. Ground 4 par 2 and par 2(c) is misconceived and must be dismissed.
Ground 1 par 1: alleged error in finding that SBL's breach of its duty of care in relation to the extension of the termination day was not a cause of the loss
Ground 1 par 1 states:
(At [44], [731]) The DCJ erred in fact and law (and misapplied the applicable principle of equality before the law) when deciding that SBL's negligences, Mr Trigg's breach of duty of care in relation to the extension of the termination day, were not the cause (causation) responsible for the effect of [the appellant's] failure to pursue an action for damages against [CFC].
Ground 1 par 1 has been left to the end in case any of the appellant's other grounds are established. Success on one of more of the appellant's grounds may assist his case on causation. However, as it happens, none of the other grounds have succeeded. Accordingly, ground 1 par 1 falls to be determined on the facts as found by the primary judge - specifically, ground 1 par 1 is to be evaluated on the basis that SBL's continuing failure until 13 July 2016 to inform the appellant of the extension of the termination day is the sole established breach of SBL's duty to the appellant.
The appellant's particulars in support of this aspect of ground 1 overlap to an extent with the particulars in support of ground 1 par 2. The appellant says that:
1.The primary judge misapprehended the time lost of the 12 months extension to the termination day (here referring to primary reasons [28]) (particulars 1E, 1G).
2.The primary judge misapprehended the time prescribed under the Workers' Compensation and Injury Management Act to pursue an action for common law damages against an employer in respect of a workplace injury (here again referring to primary reasons [28]) (particular 1F).
3.The primary judge failed to consider and accept the two 'consecutive compressions' of time due to SBL's negligence to be the 'only' causal reason for the appellant's failure to exercise his s 93K(4) election to seek common law damages against CFC (here referring to primary reasons [99], [100] and [731]) (particular 1H).
There is no substance in the second and third of the particularised matters. In relation to the third matter the suggestion that there were two relevant compressions of time relies on the appellant making good the proposition that SBL applied prematurely to extend the termination date. That contention has been considered and rejected in the context of ground 1 par 2. Otherwise the third particularised matter adds nothing to the general complaint made by ground 1 par 1 as to the primary judge's causation finding.
As to the second matter, the primary judge referred, correctly, to the legislative regime under the Workers' Compensation and Injury Management Act for an injured worker to pursue a claim for common law damages in respect of a workplace injury.[134] There was mention of the preclusionary effect of s 93L(4) of the Act thereby highlighting the importance of the termination day.[135] Her Honour was under no misapprehension as to the general effect of SBL failing to inform the appellant of the extension to the termination day in a timely way. The primary judge stated, correctly, that by the time the appellant was informed of the extension to the termination day 'time was running on the time in which he [the appellant] had to lodge his election for common law damages'.[136]
[134] Primary reasons [136] - [142].
[135] Primary reasons [137.4].
[136] Primary reasons [27].
In relation to particulars 1E and 1G the appellant submitted that he lost 153 days of the 12-month termination day extension. He calculated the 153 days by considering the time that elapsed between 12 February 2016 and 13 July 2016. The appellant said that this was a loss of 5 months and 2 days which amounted to a 41.8% compression of the 12‑month extension. By contrast, as has been seen (refer to [28.3] above), the primary judge held that the practical effect of SBL's negligence was to compress the time for the appellant to meet the s 93K(4) election criteria by 30%.
We accept that the primary judge's arithmetic may be criticised. The primary judge said that on a simple arithmetic application there was a 30% compression of the time that the appellant had to meet the s 93K(4) election criteria.[137] To our mind this slightly understates the compression effect when expressed in percentage terms. The termination day was extended on 9 March 2016. SBL did not inform the appellant of the extension until four months later (ie on or about 13 July 2016). This left a little under seven months before the conclusion of the termination day. This, as we calculate it, involves a compression of the available period post‑9 March 2016 of approximately 37% (the appellant lost 126 days from 9 March 2016 to 13 July 2016 out of a total of 340 days from 9 March 2016 to 12 February 2017).
[137] Primary reasons [28]. See also [588].
The appellant's 41.8% is based on the earlier date of 12 February 2016 (being the date Dr Fairhurst examined the appellant and completed the report on the appellant's injuries). But SBL's failure to inform the appellant of the extension of the termination day is not to be measured from 12 February 2016. The extension was not granted until 9 March 2016. SBL could not inform the appellant of the extension to the termination day until there was an extension.
While, in our respectful view, there is an arithmetical error insofar as the primary judge characterised the compression effect as being 30% in percentage terms, we are not satisfied that the error was material. First, the difference is minor - 30% as against a true figure of approximately 37%. Second, and more importantly, the primary judge correctly stated the actual period that passed in which SBL's failure to notify the appellant subsisted. At primary reasons [28] her Honour refers to the appellant losing approximately four to four and a half months of the time he had to meet the s 93K(4) election criteria. At primary reasons [587] her Honour referred to a period of approximately four months (ie from the approximate date that SBL would have received the extension letter to 13 July 2016). The primary judge was under no misapprehension as to the effect of SBL's failure in absolute terms. Finally, reading the primary judge's reasons fairly and as a whole, the primary judge's arithmetical error was inconsequential to the primary judge's reasons for rejecting the appellant's case on causation.
In the latter respect, the primary judge relied on a combination of reasons in reaching her conclusion that the appellant had not discharged his onus of proving that SBL's breach caused the appellant's failure to make his s 93K(4) election on time.[138] The primary judge relied on the following matters:
[138] Primary reasons [729]. See also [728], [730] - [736].
(i)[The appellant] knew the importance of the termination date: it was, on his own evidence, 'the D‑Day'.
(ii)As at the end of the retainer with [SBL], 11 May 2016, [the appellant's] focus was evidently on his tinnitus claim, gathering supportive evidence and ensuring that the tinnitus conciliation application was filed. There is a plethora of correspondence up to 11 May that corroborates that conclusion.
(iii)Up until 11 May 2016 it would be difficult to see how [the appellant] would have been in a position to do any more than what he was doing with respect to his tinnitus claim.
(iv)There was little evidence led at trial as to what [the appellant] was focused on after the 11 May to 13 July 2016. This is not a criticism of [the appellant] but a mere observation of the focus of the evidence at trial.
(v)[The appellant's] evidence [was] that he had other issues he was dealing with during the period 13 July 2016 to 12 February 2017. These matters included attending medical appointments, having treatment for his plantar fasciitis, attending to his arbitration in respect of his tinnitus injury and the other matters about which the plaintiff gave evidence.
(vi)For the reasons given in section 24.2 [the appellant] did take the necessary steps to have all necessary investigations conducted in respect of his tinnitus injury by 13 September 2016. As such, [SBL's] negligence cannot [be] said to be causative of [the appellant's] failure to meet his election criteria in respect of that injury.
(vii)For the reasons given in sections 11.3 and 21.2 the hair loss injury is not an injury of which [SBL] knew or ought reasonably to have known during the period of the retainer was causally linked to [the appellant's] work. As such, [SBL's] negligence cannot be said to be causative of [the appellant's] failure to meet his election criteria in respect of that injury.
(viii)If I am wrong about that, [the appellant] had taken all necessary steps to investigate that injury by 13 September 2016. [The appellant] has failed to explain why the Form AMS 1 was not issued to Dr Gebauer until 22 March 2017. As such, [SBL's] negligence cannot be said to be causative of [the appellant's] failure to meet his election criteria in respect of that injury.
(ix)For the reasons given in section 11.3, the psychiatric injury was not an injury that I have concluded comprised a work‑related injury that [SBL] knew or reasonably knew [the appellant] was suffering during the period of the retainer.
(x)If I am wrong about that, [the appellant] did not first see Dr McCarthy until 9 October 2017, eight months after the termination date had expired. As such, [SBL's] negligence cannot be said to be causative of [the appellant's] failure to meet his election criteria in respect of that injury.
(xi)For the reasons given in section 24.3, in respect of the back, foot and neck injury, [the appellant] had issued the Form AMS 1 to Mr Narula on 5 October 2016.
(xii)There is no evidence before the Court from Mr Narula as to whether it was possible for Mr Narula to have prepared a whole of person impairment assessment for the back, neck and foot injuries prior to the termination date.
(xiii)There is no evidence led at trial from Mr Narula to explain why his report was completed 12 months after the termination date.
(xiv)[The appellant] did not lead evidence that he had impressed upon Mr Narula the need for the whole of person impairment assessments to be obtained prior to the termination date. [The appellant's] evidence positively was that it was 'not his place' to tell Mr Narula 'what to do and when to do it'.
(xv)The only evidence as to why Mr Narula did not finalise the overall whole of person impairment assessment until 12 February 2018 came from [the appellant].
(xvi)Even taking [the appellant's] explanation that Mr Narula's report was not able to be completed until 12 February 2018 because of the recommendation in the Guidelines that a lead assessor should be nominated, a recommendation in the Guidelines does not exempt [the appellant] from compliance with his statutory obligation of filing his election criteria prior to his termination date.
(xvii)[The appellant] had seen Dr Fairhurst in respect of his back and foot injuries. [The appellant] could have arranged for a further review by Dr Fairhurst in respect of the back and the foot injury in or around September 2016. [The appellant] could have issued a Form AMS 1 to Dr Fairhurst in respect of the neck injury. [The appellant] chose not to do so.[139]
[139] Primary reasons [729].
None of those reasons are based on her Honour's arithmetical calculation of the percentage figure by which SBL's breach brought about a consequential compression of time for any s 93K(4) election. Nor are those reasons impugned by the error in her Honour's arithmetical calculation.
There is in fact only one relevant challenge to the combination of reasons reproduced at [149] above. By particular 1I the appellant claims that the primary judge misapprehended the facts and evidence in relation to the injuries known or reasonably known by SBL during the retainer. In this respect the appellant mentions (ix) as reproduced at [149] above and the primary judge's conclusion that the psychiatric injury was not an injury that comprised a work‑related injury that SBL knew or reasonably knew the appellant was suffering during the period of the retainer. However, even if there be an error in this respect, it is immaterial to her Honour's overall causation conclusion. The primary judge went on to find that, even if SBL knew of the psychiatric injury, SBL's negligence could not be said to be causative of the appellant's loss in respect of his failure to meet the election criteria in circumstances when he did not seek medical assessment until eight months after the termination day had expired.[140] There is no challenge to that alternate finding.
[140] Primary reasons [729](x). See also [733].
The appellant has not demonstrated that the primary judge's causation finding was wrong. He is unable to do so in circumstances where the combination of reasons relied on by the primary judge are essentially unchallenged. Ground 4 par 1 fails.
Conclusion and orders
The appeal should be dismissed. Prima facie costs should follow the event, ie the appellant should pay SBL's costs of the appeal to be assessed if not agreed. The parties should be heard on the costs of the appeal if some other order is sought as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HQ
Associate to the Honourable Justice Vaughan
29 APRIL 2024
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