Barkla v G4S Custodial Services
[2012] WADC 67
•1 MAY 2012
`
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BARKLA -v- G4S CUSTODIAL SERVICES [2012] WADC 67
CORAM: COMMISSIONER GETHING
HEARD: 1 MAY 2012
DELIVERED : 1 MAY 2012
FILE NO/S: APP 6 of 2012
BETWEEN: GEOFF BARKLA
Appellant
AND
G4S CUSTODIAL SERVICES
Respondent
Catchwords:
WorkCover appeal - Application for leave to adduce evidence and examine witnesses
Legislation:
District Court Rules 2005
Rules of the Supreme Court 1971 (WA)
Workers Compensation and Injury Management Act 1981 (WA)
Workers Compensation and Injury Management Regulations 1982 (WA)
Result:
Application dismissed
Representation:
Counsel:
Appellant: In person
Respondent: Mr M J Civitella
Solicitors:
Appellant: Not applicable
Respondent: CCS Insurance Law
Case(s) referred to in judgment(s):
Nil
COMMISSIONER GETHING:
[This judgment has been delivered extemporaneously on 1 May 2012 and has been edited from the transcript.]
Introduction
By appeal notice dated 25 January 2012, the appellant commenced an appeal from a decision of Arbitrator Melville on 20 January 2012. The appellant contends that the arbitrator 'Erred in Judgement of Law', failed to address the appellant's submissions and 'failed to address the Act and Regulations'.
On 28 February 2012, the respondent lodged a notice of respondent's intention in which it stated that it would argue that the arbitrator's decision should be upheld on the grounds relied by the arbitrator.
On 13 March 2012, the registrar directed that the appeal and the issue of leave to appeal be listed before a judge for hearing. The hearing of the appeal has been listed for 21 May 2012.
On 16 April 2012, the appellant filed an application in the appeal seeking orders that the following people give evidence at the hearing of the appeal: Robb Moffat, Elisha Alker, Jaqui Clark, Joe Isherwood, Mr York, Ross Paprone and Paul Brooks. The first three of these people appear to be employees of Allianz. Allianz is the respondent's insurer. The remaining four people appear to be employees of WorkCover Western Australia.
Background
By interlocutory application dated 5 January 2012, the appellant sought orders that the respondent make weekly payments due to an alleged failure to comply with Workers Compensation and Injury Management Act 1981 (WCIMA) s 57A(3). WCIMA s 57A sets out the claims procedure to be used when the employer is insured, as in the present case.
It is not in dispute that the appellant made a claim for compensation by way of weekly payments for a total or partial incapacity in compliance with WCIMA s 57A(1), s 57A(2A) and s 57A(2). The dispute centres on the adequacy of the reasons provided by the respondent as required by WCIMA s 57A(3). That subsection provides:
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
WCIMA s 57A(3a) is also relevant, and provides:
(3a)If within 10 days after the Director is notified under subsection 3(c) that a decision is not able to be made, the insurer has not —
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
By notice dated 8 November 2010, the respondent gave the appellant notice pursuant to WCIMA s 57A(3)(c). This notice was in the form of Workers Compensation and Injury Management Regulations 1982 WA (WCIMR) Form 3C.
In response to a section in the form headed 'the reasons why the decision was not able to be made are as follows', the respondent stated:
Further medical and factual information is required to ascertain if the claimant has sustained an injury in the course of his employment or whilst acting under the employer’s instructions.
The respondent also stated in the Form 3C that a 'full report has been requested from the treating GP' and that '[p]revious wage earnings to be provided by the Insured'.
It is not in dispute that the respondent has not given the appellant a notice pursuant to WCIMA s 57A(3)(b).
The appellant's contention is that, in certain circumstances as arise in the present case, an employer who has given a notice under s 57A(3)(c) is also obliged to give a notice under s 57A(3)(b).
This issue was argued before Arbitrator Melville. In reasons delivered on 20 January 2012, the arbitrator disagreed with the appellant's interpretation. It is that decision that is the subject of the substantive appeal.
Determination of the application
The present appeal is pursuant to WCIMA s 247. In broad terms that section allows for an appeal where a question of law is involved. WCIMA s 247(6) provides that '[e]vidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court'.
By combination of the WCIMA s 247, the District Court Rules2005 (WA) and the Rules of the Supreme Court 1971 (WA), the court has the power to make an order that, firstly fresh, additional or substitutionary evidence may be received and, secondly, that it is received by the calling of witnesses to give oral evidence and be cross‑examined. The issue in the present case is whether that discretion ought to be exercised.
The witnesses, as I have mentioned, fall into two broad categories. The first three, Mr Moffat, Ms Alker and Ms Clark, are employees of Allianz. The evidence that the appellant wishes to lead from those witnesses is set out in letters to the three of them dated 20 March 2012. The letters ask three common questions, as follows:
1.Are you aware that No Regulations Form 3B INSURERS NOTICE THAT LIABILITY IS DISPUTED has been lodged with WorkCover WA, by Allianz in respect of my claim, where Allianz say, that liability is in dispute?
2.Is it company policy and procedure (Allianz Policy and procedure) to lodge the Regulations form 3B INSURER'S NOTICE THAT LIABILITY IS DISPUTED, where the Insurer says there is a dispute?
3.Are Allianz obligated under the Workers Compensation and Injury Management Act 1981 and Regulations to lodge the Regulations form 3B INSURERS NOTICE THAT LIABILITY IS DISPUTED where the Insurer (Allianz) says there is a dispute?
As I understand the appellant's submissions, the appellant would like the three representatives of Allianz to attend and give oral evidence, essentially answering these three questions.
In relation to WorkCover, it is convenient to start with the evidence sought to be led from Mr York. In the materials before me, it appears that on or about 21 February 2012, the appellant spoke to a 'Mr York' at WorkCover on their telephone advisory service. The appellant in the material before me states that the information he received from Mr York is to the effect that once any outstanding issues in the Form 3C (that is the document filed pursuant to WCIMA s 57A(3)(c)) have been met by the applicant, the insurer has to then go back and either accept liability or dispute liability. The materials provided by the applicant are in essence that Mr York's answer was that the insurer has an obligation under the WCIMA to lodge a Form 3B pursuant to WICMA s 57A(3)(b) if it wishes to dispute liability.
In relation to Mr Isherwood, the appellant sent Mr Isherwood a letter dated 27 February 2012, which is in the materials on the court file. In the letter the appellant stated that WCIMR Form 2B, Form 3 and Form 3C had been complied with in the present case. He then asked:
Sir, can you please advise why you say there is NO REQUIREMENT/ OBLIGATION by the Insurer (Allianz) to comply with the Act and Regulations Form 3(b) – INSURERS NOTICE THAT LIABILITY IS DISPUTED….
There was then a letter dated 1 March 2012 to Ms Reynolds (the WorkCover CEO), Mr Paprone (who is described as the WorkCover WA Acting Case Management Co‑ordinator), Mr Brooks (who is described as the WorkCover WA Standards and Monitoring Manager) and Mr Isherwood (who is described as the WorkCover WA Advisory Manager). This letter attached a copy of the letter to Mr Isherwood dated 27 February 2012. In this letter, the appellant asked the question as to how three different WorkCover WA advisory staff have advised the appellant one thing and then Mr Paprone has advised something totally different.
It is apparent to me that the evidence sought to be led from the WorkCover offices is on the information they provided to the appellant and on whether or not they are of the view that in the circumstances of the present case there is an obligation on an employer to file a Form 3B pursuant to WCIMA s 57A(3)(b).
The key issue before me is whether or not the evidence that I have described has any relevance to the issues the subject of the appeal. In my view, it does not. Whether or not an officer of Allianz or an officer of WorkCover holds a particular view as to the interpretation of WCIMA s 57A is entirely irrelevant to the proceedings before the District Court judge.
The issue for the District Court judge is a question of law. It is a question on which the judge will receive submissions from the appellant and respondent and then determine.
The appellant in submissions before me stated that he believed that he would be at a disadvantage if this evidence is not placed before the court. That is not the case. The evidence is as I have said of no relevance, therefore, there is no disadvantage to the appellant. The issue is purely a question of law being the proper interpretation of WCIMA s57A.
For those reasons, the application for leave to adduce further evidence is declined. I will hear from the parties as to any orders that I need to make.
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