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
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…
Continue reading Armet v Stephen Browne
Sign in free to access the full text
- AGLC
- Armet v Stephen Browne [2024] WASCA 44
- Case
- [2024] WASCA 44
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to address included whether the application to extend time for making the election was made prematurely, the appropriateness of the referral to a specific medical specialist, and whether the delay in advice caused the appellant's failure to elect on time. The court also needed to consider the appellant's claims of procedural unfairness and potential bias by the trial judge, along with the reliability and credibility of the solicitor's evidence. The appellant's grounds of appeal included concerns about the trial judge's handling of the case, particularly in relation to procedural fairness and perceived bias.
The court found that the amended written plea filed after the conclusion of the appeal hearing was not considered due to procedural rules. It proceeded to evaluate the grounds of appeal, starting with the allegation of bias and procedural fairness. The court noted that the primary judge had a duty to ensure a fair hearing for the self-represented litigant but was not obligated to advise on the exercise of legal rights. The court concluded that the trial judge had not erred in law or fact in treating the appellant fairly and impartially. It dismissed the appeal on the grounds that the appellant had not demonstrated that the trial judge's conduct was prejudicial or unfair, nor that there was any actual or apprehended bias. The court also upheld the reliability of the solicitor's evidence.
The final orders of the court were to dismiss the appeal, affirming the decision of the trial judge. The court held that the appellant's grievances regarding procedural fairness and bias were unfounded and that the trial judge had appropriately managed the case within the legal framework. The court did not find merit in the appellant's claims and thus upheld the lower court's decision.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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]. 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].