BHP Billiton Iron Ore Pty Ltd v Treby - [2017] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BHP BILLITON IRON ORE PTY LTD -v- TREBY [2017] WADC 6

CORAM: HERRON DCJ

HEARD: 3 JUNE & 6 OCTOBER 2016

DELIVERED : 20 JANUARY 2017

FILE NO/S: APP 88 of 2015

BETWEEN: BHP BILLITON IRON ORE PTY LTD
Appellant
AND
LEE DIANE TREBY
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR NUGAWELA
File No  :A 17006 of 2015

Catchwords:

Worker's compensation - Appeal - Section 247 Workers' Compensation and Injury Management Act 1981 - Question of law - Meaning of error of law or expression 'a question of law is involved' - Whether meaning has been broadened - Whether medical opinion has no probative force - Whether arbitrator's decision involves a question of law because unreasonable or irrational

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Application for leave to appeal refused

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Mr G T Stubbs

Solicitors:

Appellant: HWL Ebsworth Lawyers
Respondent: Perth City Legal

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Beale v GIO of NSW (1997) 48 NSWLR 450
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Craig v South Australia (1995) 184 CLR 163
Health Department of Western Australia v Prosser [2004] WASCA 83
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 12 CLR 24
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Migration and Citizenship v Li (2013) 249 CLR 332
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459
Summit Homes v Lucev (1996) 16 WAR 566
Velez Pty Ltd v Tudor [2007] WASCA 218

HERRON DCJ:

Introduction

By an application dated 8 September 2014 the respondent, Lee Diane Treby (Ms Treby), claimed worker's compensation payments, being weekly payments and payment of statutory allowances, for a back injury described as 'L4 endplate fracture, left L4 nerve root impingement, L4/5 degeneration and foraminal disc protrusion'. The application alleges the injury occurred through truck driving involving 'repetitious bouncing and rocking whilst driving, being jolted back and forward and shuddering of truck'. Despite the application claiming the injury was sustained by the repetitive actions of truck driving, the injury was described as occurring on a specific date, 21 March 2013. Ms Treby claimed weekly payments of compensation for total incapacity from 3 April 2014.
The appellant employer, BHP Billiton Iron Ore Pty Ltd (BHP Billiton), denied liability for the claim and the dispute proceeded to a hearing before an arbitrator, Mr Nugawela, on 6 February 2015. On 21 October 2015 the arbitrator published written reasons for decision upholding Ms Treby's claim and ordering that BHP Billiton pay weekly payments of compensation for total incapacity from 3 April 2014 and continuing together with payment of statutory allowances.
By an amended notice of appeal (pursuant to leave granted on 15 August 2016) BHP Billiton, pursuant to s 247 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), seeks leave to appeal against the arbitrator's decision.

The amended notice of appeal

The appeal initially came on for hearing before me on 3 June 2016. On 2 June 2016 BHP Billiton filed a supplementary list of authorities which substantially added to the list of authorities filed with its written outline of submissions on 26 May 2016. At the hearing on 3 June 2016 counsel for BHP Billiton submitted the notice of appeal raised three questions of law as follows:
1.The arbitrator misdirected himself as to the nature of his task by failing to have regard to the onus of proof being on Ms Treby to prove on the balance of probabilities she had suffered a work related injury.
2.The arbitrator erred in law in relying upon the evidence of Mr Wong (a medical report dated 31 July 2014) which had no probative force or basis.
3.The arbitrator's reasoning was unreasonable in the Wednesbury sense, that is, that it was so unreasonable that no reasonable arbitrator could have made it.
In relation to the third question of law said to arise, counsel referred to the judgment of the High Court in Minister for Migration and Citizenship v Li (2013) 249 CLR 332 which he submitted extends the scope of what is an error of law as explained by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
Counsel submitted that the report of Mr Wong which was relied upon by the arbitrator for his findings that Ms Treby suffered an endplate fracture at the L4/5 level in 2013, and whose opinion he preferred to the opinion of Dr Flahive, whose report was relied upon by the appellant at the hearing before the arbitrator, was of no probative force because there was no analysis in the report to support the conclusions. There was no proper, or any, explanation for the conclusions arrived at. Therefore, so the submission proceeded, the report of Mr Wong was unable to be relied upon by the arbitrator but because he did rely upon the report, his reliance was so unreasonable because no reasonable arbitrator would have relied upon the report.
Counsel referred to the well-known passage of Mason CJ in Australian Broadcasting Tribunal v Bond (355 – 357):
(4)Review of the Findings of Fact
(a)Grounds of Review
….
The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (46); Australian Gas Light Co. v. Valuer-General (47). Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light (47); Hope v. Bathurst City Council (48). This is because, before the inference is drawn, there is the pre1iminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. (49). So,. in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden (50). But it is said that '[t]here is no error of law simply in making a wrong finding of fact': Waterford v. The Commonwealth (51), per Brennan J. Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White (52):
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
Counsel also referred to the paragraph which followed in which Mason CJ observed:
On the other hand, there are statements in the English cases which support a 'no sufficient evidence' test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah (53). It remains to be seen whether these statements convey any more than a 'no probative evidence' test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow (54); Cooper v. Stubbs (55); British Launderers' Research Association v. Borough of Hendon Rating Authority (56); Ashbridge Investments Ltd. v. Minister of Housing and Local Government (57). Further, in Mahon v. Air New Zealand (58) the Judicial Committee stated that natural justice requires that 'the decision to make [a] finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory'. These statements may be traced back to the observations of Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (59); see also Minister for Immigration and Ethnic Affairs v. Pochi (60), per Deane J. (an appeal from a decision of the Administrative Appeals Tribunal under the AA.T. Act). The approach adopted in these cases has not so far been accepted by this Court. [emphasis added]
By reference to the concluding sentence counsel submitted that the law has moved on since Australian Broadcasting Tribunal v Bond such that an issue whether there was probative evidence before a statutory tribunal does give rise to a question of law and further, that a decision based on evidence which has no probative value can be so unreasonable or irrational as to be an error of law. It was submitted the approach of the English cases is now favoured or accepted by the High Court.
These submissions raised issues which went beyond the grounds of appeal in the notice of appeal and beyond the written submissions filed. They gave rise to issues of which Ms Treby's counsel had been given no notice and to which he required more time to respond. Therefore it was necessary to adjourn the hearing and I made orders directing the appellant to file a minute of proposed amended notice of appeal and supplementary submissions addressing these new issues. The respondent was also ordered to file supplementary submissions.
The appellant filed a minute of proposed amended notice of appeal on 7 June 2016. The respondent did not consent to the appellant being given leave to amend its notice of appeal in accordance with the minute. Accordingly, it was necessary for a hearing to determine the matter. After hearing argument from counsel on 15 August 2016, I gave the appellant leave to amend its notice of appeal in terms of the minute.

Amended notice of appeal

The amended notice of appeal identifies the following questions of law which are said to arise from the arbitrator's reasons for decision:
1. Whether the learned arbitrator erred in law in acting on material that lacked probative force, and the related questions whether the evidence in Mr Wong's report dated 21 July 2014 (Mr Wong's report) and the evidence in Dr Flahive's report dated 28 October 2014 (Dr Flahive's report) had any probative force on the following issues:
(a)as to whether the Respondent had suffered a fracture at the L4/5 level of her spine in 2013; and
(b)as to whether the Respondent's symptoms had been affected by the supposed fracture.
2.Whether sections 176, 185 and 188 of the Workers' Compensation and Injury Management Act 1981 (WA) detract from or alter the fundamental principle that a trier of fact should not act on expert evidence that lacks probative force because it does not demonstrate or examine the intellectual basis of the conclusions reached.
3.1Whether it is to be inferred from the learned arbitrator's reasons for decision, and especially from pars 14 - 17 of those reasons, that the learned arbitrator erred in law by misdirecting himself as to the question he was required to decide, which was not whether (without having any regard to questions of burden or standard of proof or the other evidence before the learned arbitrator) Mr Wong's report was better evidence than Dr Flahive's report, but, rather, whether, on the whole of the evidence before the learned arbitrator (including the evidence other than Mr Wong's report and Dr Flahive's report), the Respondent had discharged the legal burden of proof on her to establish, on the balance of probabilities, that she had an entitlement to be paid workers' compensation by the Appellant.
3.2Whether the learned arbitrator is to be held to have erred in law on the basis that his reasoning process, as disclosed by his reasons for decision, was unreasonable or irrational in the sense discussed in Wednesbury, Li, SZMDS and/or SZJSS.
4.Whether there was evidence, alternatively evidence having probative force, before the learned arbitrator to support the conclusion that the Respondent was totally incapacitated between 3 April 2014 and 4 May 2014.
5.Whether, in light of the evidence before the learned arbitrator, the Appellant had discharged its evidentiary burden on the question of partial incapacity by tendering Mr Flahive's report, such that it was therefore for the Respondent to persuade the learned arbitrator that she would not be able to return to radio announcing.
6Whether there was evidence, alternatively evidence having probative force, before the learned arbitrator to support the conclusion that the Respondent would not be able to return to radio announcing.
7.Whether, in light of the evidence before the learned arbitrator to the effect that the Respondent had lengthy experience in administrative work other than radio announcing (see the cv attached to Mr Flahive's report), it was necessary for the learned arbitrator to consider whether the Respondent had persuaded him that she would not be able to return to such administrative work;
8.Whether there was evidence, alternatively evidence having probative force, before the learned arbitrator to support the conclusion that the Respondent would not be able to return to such administrative work.
The amended notice of appeal also set out various grounds of appeal, which seem to largely repeat the same matters raised by the alleged questions of law, as follows:
1.The learned arbitrator erred in law and in fact in failing:
a.to consider whether Mr Wong's report had probative force;
b.to conclude that at least the relevant portions of Mr Wong's report did not have probative force, and therefore should be ignored;
c.to reject at least the relevant evidence in Mr Wong's report on that basis;
d.to consider whether Dr Flahive's report had probative force;
e.to conclude that at least the relevant portions of Dr Flahive's report had probative force, on the basis that it demonstrated and examined the intellectual basis of Dr Flahive's conclusion that the Respondent had not suffered a fracture at the L4/5 level of her spine in 2003 and that her symptoms were not work-related; and
f.to accept at least the relevant evidence in Dr Flahive's report on that basis.
2.The learned arbitrator should have held that in relation to the question whether the Respondent had suffered a fracture at the L4/5 level of her spine in 2013, Mr Wong's report lacked probative force, because it did not:
a.explain the basis for Mr Wong's statement that there had been such a fracture;
b.make clear whether that statement was actually Mr Wong's opinion, or merely Mr Wong's reciting of an opinion of Dr Michael Fallon set out in the MRI scan report of Dr Michael Fallon dated 19 March 2013 (MRI scan report);
c.analyse the reports of the more recent diagnostic scans, which revealed no fracture;
d.compare and/or contrast those reports with the MRI scan report; or
e.give any explanation as to why, taking into account the more recent diagnostic scans, the view expressed in the MRI scan report that there had been a fracture was still to be accepted.
3.The learned arbitrator should have held that in relation to the question whether the Respondent's symptoms had been affected by the supposed fracture at the L4/5 level of the Respondent's spine in 2013, Mr Wong's report lacked probative force, because it did not provide any explanation for the opinion it expressed to the effect that the Respondent's symptoms were work-related.
4.The learned arbitrator erred in law and in fact in accepting the conclusion of Mr Wong in preference to the opinion of Dr Flahive on the question whether the Respondent had suffered a fracture at the L4/5 level of her spine in 2013, and on the question whether the Respondent's symptoms were work-related, on the basis that:
a.Dr Flahive is an occupational physician who although possibly conversant with epidemiological studies, does not have the same degree of neurosurgical expertise as Mr Wong (pars 14, 17);
b.the epidemiological studies that Mr Flahive referred to had not been disclosed and required many assumptions to be made (pars 14, 17);
c.to the extent that Mr Flahive relied on epidemiological studies, the learned arbitrator was not persuaded upon a balance of probabilities that these would (if disclosed) carry more weight than the opinion of a trained and experienced neurosurgeon expressing a view within his area of specialisation (pars 14, 17); and
d.there are limitations in the utility of epidemiological evidence (pars 15, 17).
5.The learned arbitrator should have held that:
a.the question before him as to whether the Respondent had suffered a fracture at the L4/5 level of her spine in 2013 was essentially a question of analysis of diagnostic scans and conflicting diagnostic scan reports:
i.in respect of which a neurosurgeon was not necessarily any better equipped by qualifications or experience than an occupational physician to offer an opinion; and
ii.that did not require either Mr Wong or Dr Flahive to consider epidemiological evidence;
b.Mr Wong had not carried out any such analysis, and had given no reasons for his conclusion that the Respondent had suffered a fracture at the L4/5 level of her spine in 2013, and that her symptoms were work-related, with the consequence that Mr Wong's evidence on those issues lacked probative force, and should therefore be ignored, and/or rejected;
c.Dr Flahive had carried out such an analysis, in a manner demonstrating and examining the intellectual basis of Dr Flahive's conclusion that the Respondent had not suffered a fracture at the L4/5 level of her spine in 2013, and that her symptoms were not work-related, with the consequence that Dr Flahive's evidence on those issues had probative force, and should be accepted; and
d.the Respondent should therefore be held to have failed to discharge the burden of proof on her in relation to both the issue of whether there had been a fracture at the L4/5 level of her spine in 2013, and the issue of whether her symptoms were work-related.
6.Deleted
7.The learned arbitrator erred in law and in fact in holding that:
a.the evidence of Mr Wong that the Respondent could not return to work as a dump truck driver should be preferred over that of Mr Flahive (pars 14, 15, 21);
b.he was "not persuaded that the [Respondent] would be able to return to radio announcing" (par 22); and
c.Abandoned.
8.The learned arbitrator should have held that:
a.Abandoned.
b.Mr Wong's evidence as to whether the Respondent could return to work as a dump truck driver lacked probative force, due to Mr Wong's failure to explain the basis for that evidence, and that evidence should therefore be ignored, given little weight, and/or rejected;
c.in light of the evidence before the learned arbitrator, the Appellant had discharged its evidentiary burden on the question of partial incapacity by tendering Mr Flahive's report, and it was therefore for the Respondent to persuade the learned arbitrator that she would not be able to return to radio announcing;
d.there was no evidence, alternatively no evidence having probative force, before the learned arbitrator to support the view that the Respondent would not be able to return to radio announcing;
e.in light of the evidence before the learned arbitrator to the effect that the Respondent had lengthy experience in administrative work other than radio announcing (see the cv attached to Mr Flahive's report), it was also necessary for the learned arbitrator to consider whether the Respondent had persuaded him, on the balance of probabilities, that she would not be able to return to such administrative work;
f.there was no evidence, alternatively no evidence having probative force, before the learned arbitrator to support the conclusion that the Respondent would not be able to return to such administrative work; and
g.the Respondent's (alleged) certification that she was totally incapacitated with effect from 3 April 2014 and continuing should therefore not be accepted.

The arbitrator's reasons

In summary, the notice of appeal challenges the finding of the arbitrator at [14] of his reasons for decision that Ms Treby suffered an endplate fracture of the L4/5 level in 2013 which was consistent with what was reported in a MRI report dated 19 March 2013 and was consistent with the opinion of Mr Wong, a neurosurgeon, whose opinion he preferred to the opinion of Dr Flahive, an occupational physician. In preferring the opinion of Mr Wong over Dr Flahive, the arbitrator found Dr Flahive did not have the same degree of neurosurgical expertise as Mr Wong. He also found that Dr Flahive's opinion that there was no endplate fracture, disagreeing with Mr Wong's opinion that there was an endplate fracture, and that a CT scan of 9 July 2013 and a bone scan of 10 July 2013 showed endplate degeneration rather than a fracture, was in part based on epidemiological studies which had not been disclosed and which required many assumptions to be made. The arbitrator was not persuaded that the reliance on epidemiological studies carried more weight than the opinion of a trained and experienced neurosurgeon expressing a view within his area of specialisation.
The arbitrator went on to find at [16] that Ms Treby's work with BHP Billiton as a truck driver caused a traumatic fracture of the L4 endplate and was an injury within the meaning of par (a) in the definition of 'injury' in s 5 of the Act.
Further, the arbitrator found [16] – [19], at least implicitly, that Ms Treby was suffering pre-existing but asymptomatic degeneration in her lumbar spine which made her susceptible to the type of fracture he found Ms Treby had suffered and that after the onset of back pain, the pain became progressively worse while Ms Treby continued to undertake her work duties as a truck driver. The arbitrator found, in the alternative, that Ms Treby was suffering from a degenerative disease which was aggravated or exacerbated to a significant degree by her employment within the meaning of par (d) of the definition of 'injury'.
At [20] – [24] the arbitrator made findings regarding Ms Treby's capacity for work, finding she was incapacitated for her pre-injury work as a truck driver. He rejected Dr Flahive's opinion, who was of the view Ms Treby had the capacity to work as either a truck driver or in alternative roles for which she had the necessary experience. He rejected Dr Flahive's opinion that the sole ongoing cause of Ms Treby's medical condition was improper medical advice, poor management and under treatment.
At [22] – [23] the arbitrator specifically considered whether Ms Treby was fit for alternative duties as a radio announcer which work she had undertaken in 1996. The arbitrator accepted Ms Treby could only sit for about 15 to 30 minutes which precluded her from being able to work as a radio announcer.

The medical evidence

Mr Wong's report dated 31 July 2014 is a relatively short report responding to specific questions asked of him by Ms Treby's solicitors. The report sets out the history Mr Wong obtained from Ms Treby regarding the timing of and the circumstances in which she experienced back pain during the course of her employment with BHP Billiton as a dump truck driver. He noted Ms Treby had been driving trucks since 2004 and since 2008 had been working at the Mount Whaleback Mine. He recorded the work entailed a lot of jarring in the dump truck and the floor of the mine was quite rough. He noted Ms Treby's view that the back pain was related to the jarring when she drove the truck.
Mr Wong referred to the MRI scan of the lumbar spine performed on 19 March 2013 and commented that it showed 'L4 inferior endplate fracture with adjacent marrow oedema. There is bilateral L4 pars defect'. Mr Wong also referred to a CT scan performed on 9 July 2013 noting that it showed similar changes of bilateral L4 pars defect and also irregularity of the inferior endplate of L4. He referred to bone scans performed on 10 July 2013 and 20 May 2014 which showed increased uptake of the L4 vertebral body and increased activity of the L4/5 endplate level.
Mr Wong diagnosed Ms Treby as suffering 'mechanical back pain most likely coming from the L4/5 level. In 2013 there was endplate fracture of L4'. He later stated:
I do believe her symptoms of back pain are likely related to the driving of the dump truck which she advises me as having a lot of jarring and vibration and that is when her back pain came on. Certainly driving the truck made her back pain worse.
Mr Wong did not believe Ms Treby was able to return to work as a dump truck driver.
Another neurosurgeon, Mr Bannan, in a report dated 9 July 2013 reported, in part, Ms Treby:
… does have a bulging disc on the left at L4/5 with some impingement of the L4 nerve and there is a possibility of an endplate fracture of L4.
Her work does involve driving trucks, bouncing on uneven ground and with a 12 month history of back pain it is possible she has a work related back injury.
I think at this stage we do need further investigation. I am going to organise a bone scan for Lee and a CT scan through L4/5. I want to look at the pars fractures and look to see if she does have an endplate fracture.
Although there is no further report from Mr Bannan confirming those further investigations were undertaken and commenting upon them, it would seem the CT scan performed on 9 July 2013 and a bone scan on 10 July 2013, referred to and commented upon by Mr Wong and which he took into account in his diagnosis of Ms Treby's medical condition, are the further investigations referred to and organised by Mr Bannan.
Dr Flahive in a detailed report dated 28 October 2014 concluded:
I note Mr Wong's report of 31 July 2014 indicating that there was an endplate fracture in 2013, however the initial MRI scan of 19 March 2013 only showed oedematous marrow in the inferior half of the L4 vertebral body with some focal depression suggestive of an endplate fracture (or endplate erosion). However subsequent CT scan of 9 July 2013 shows mild irregularity of the inferior endplate consistent with degenerative endplate erosion with associated reduction of height of the L4/5 vertebral disc and associated foci gas anteriorly within the disc space. The bone scan of 10 July 2013 shows increased uptake around the body of L4 in addition to L5 suggestive that the findings were related to degenerative disc disease with endplate degeneration and failure rather than endplate fracture in addition to a haemangioma which was demonstrated in all of these scans.
Thus this diagnosis of a fracture is unsupported and seems irrelevant to both her symptoms and management given that the findings are relate [sic – related] to the one pathological process, although given her fairly sedentary life and prior history, bone densitometry seems a reasonable screening option.
I do note she has some firm beliefs in relation to the cause of her symptoms and this has arisen as a result of advice from her treating practitioners. Unfortunately this is unlikely [sic – likely] to result in ongoing anxiety in relation to her symptoms.

Arbitrator's statutory powers

By pt XI of the Act a dispute resolution system is established. Arbitrators are designated or engaged by the chief executive officer pursuant to s 182ZP and s 182ZQ.
By s 176(3) arbitrators have exclusive jurisdiction to examine, hear and determine all disputes. By s 185 and s 188:
185. Duties of arbitrators
(1)The arbitrator to whom a dispute is allocated is to determine the matter or matters in dispute in accordance with this Act and the arbitration rules.
(2)The arbitrator is not to attempt to resolve any matter in dispute by conciliation.
(3)Subsection (2) applies even if there was no conciliation of any matter in dispute because the Director issued a certificate under section 182H.
188. Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)An arbitrator may —
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
By s 198 and s 203:
198. Ways of conducting arbitration proceedings
[(1)deleted]
(2)If an arbitrator thinks it appropriate, the arbitrator is to allow the parties and their representatives and any witnesses (or one or more of them) to participate in a hearing of a proceeding by means of telephones, video links, or any other system or method of communication.
(3)If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.
(4)An arbitrator may take into account a written submission prepared by a legal practitioner or registered agent acting for a party to a proceeding and submitted by or on behalf of the party, whether or not the party is represented by a legal practitioner or registered agent at any hearing of the proceeding.
(5)If an arbitrator conducts a proceeding in accordance with this section, the arbitrator is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the arbitrator with the attendance in person of all persons involved in the proceeding.
(6)Provisions of this Act applying to hearings apply with any necessary modifications in relation to a proceeding conducted in accordance with subsection (3).
203. Arbitrator’s powers as to witnesses
(1)In any proceeding before an arbitrator, the arbitrator may —
(a)call any person to give evidence; and
(b)examine any witness on oath or affirmation, or by use of a statutory declaration; and
(c)examine or cross‑examine any witness to such extent as the arbitrator thinks proper; and
(d)require any witness to answer questions put to the witness.
(2)Nothing in subsection (1) enables an arbitrator to require a witness to answer a question if the witness —
(a)is excused by section 206(1) from answering the question; or
(b)has a reasonable excuse (other than on the ground mentioned in section 204(1) or 205) for refusing to answer the question.
By s 213 arbitrators are required to provide written reasons for decision. By s 213(4):
213. Decisions and reasons, form and content of
…
(4)The reasons for an arbitrator’s decision —
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
…

The appellant's submissions

At the resumed hearing on 6 October 2016, the appellant's counsel refined or restated the issues raised by the amended notice of appeal as follows:
1(a).The arbitrator misdirected himself as to the issue to be resolved – grounds 4 and 5.
1(b).In resolving the conflict in the medical opinions between Mr Wong and Dr Flahive and the other medical evidence, including Mr Bannan, the arbitrator failed to have any, or any sufficient, regard to the onus of proof being on Ms Treby to prove that she had suffered an injury by accident.
2.The arbitrator erred in law by relying upon the report of Mr Wong when it was of no probative force and therefore could not be relied upon – grounds 1 to 3.
3.The arbitrator's reasoning, and his reliance upon and acceptance of Mr Wong's opinion, was unreasonable or irrational – Wednesbury or Li unreasonableness – ground 4.
The thrust of counsel's submissions was that since Bond, and in particular since 2010, the law as to what is an error of law has been broadened. Counsel referred to the observations of Mason CJ in Bond, at (355 – 357) earlier cited in those reasons, in which, after referring to the approach in a number of English cases and the judgment of Deane J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 [67] – [68] (in which Deane J said that findings of material fact must ordinarily be based upon logically probative material), he said that approach has not so far been accepted by the High Court. As I earlier explained, it was submitted that the case law has moved on since then and that the approach of the English courts, noted by Mason CJ not to have so far been accepted by the High Court, has since been accepted and the law as to what is a reviewable error of law has been broadened.
Counsel also submitted that the decision at first instance in Pochi v Minister for Immigration and Ethnic Affairs, a decision of Brennan J sitting as the President of the Administrative Appeals Tribunal, is authority for the proposition that a person exercising quasi-judicial functions would be committing an error of law if he or she had regard to evidence that had no probative force. It was submitted that at (492 – 493) Brennan J held that such a person must base his or her decision on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined and that the person may take into account any material which, as a matter of reason, has some rational probative force. Brennan J referred to the English decisions referred to by Mason CJ in Bond and also United States cases. His comments must be read in the context of a tribunal which is not bound by the rules of evidence, including the rule against hearsay. At (493) after observing that hearsay has a wide scale of reliability, Brennan J observed 'there is no reason why logically probative hearsay should not be given credence'. In my view, those observations do not establish any principle of law that a person exercising quasi-judicial functions commits an error of law if he or she has regard to evidence that had no probative force. Brennan J's observations must be read in the context of the specific circumstances which applied in that case. In the decision on appeal the Minister for Immigration and Ethnic Affairs v Pochi (60) (Deane J) said:
There is no general principle of law binding the tribunal either to the effect that 'the probative force' of information heard in confidential session … 'must be particularly cogent if that information is to be acted upon' …
At (61) he said that his reading of the reasons for decision made it clear that Brennan J was laying down not principles of law but what he saw as general principles of fairness and commonsense which he thought appropriate to the case before the tribunal. Later, at (62) Deane J said that in his view the tribunal was bound, as a matter of law, in the circumstances of that case to act on the basis of rationally probative evidence and not matters merely raised as a matter of suspicion or speculation. It also seems to me that the observations of Brennan J relied upon by counsel reflect the observations of Deane J, which as I noted above, reflect an approach which was not accepted by the High Court. Therefore I do not regard the observations of Brennan J as establishing any principle of law that a person such as an arbitrator must only have regard to evidence which has rational probative force and, if he or she does not, an error of law will be committed.

Unreasonable/irrational decision – jurisdictional error

In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 a majority of the High Court held that a decision of a tribunal will be infected with jurisdictional error when it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Crennan and Bell JJ said [123] – [127], [130]:
123.Judicial review has commonly been relied on to set aside a discretionary decision which 'is so unreasonable that no reasonable authority could ever have come to it' or decisions 'which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful'. As remarked by Gaudron J in Abebe v The Commonwealth:
'[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.'
This Court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
124.More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as 'Wednesbury unreasonableness'. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as 'illogical or unreasonable, or irrational' may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as 'irrational' might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.
125.Secondly, the word 'irrationality' is conventionally defined as 'the quality of being devoid of reason', 'illogicality' is conventionally defined as 'unreasonableness' and 'unreasonableness' is conventionally defined as 'irrationality'.
126.In reliance on a statement made by Sir Thomas Bingham MR in R v Secretary of State for the Home Department; Ex parte Onibiyo the authors of de Smith's Judicial Review have remarked:
'Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness.'
127.Thirdly, in England 'irrationality' as a basis for judicial review appeared to emerge first as a redefinition of Wednesbury unreasonableness. Whilst not material to this appeal, further developments in England have included reference to the principle of proportionality in administrative decision-making, being a component of administrative law in a number of European countries. The principles of reasonableness (as derived from Wednesbury) and proportionality are now said to 'cover a great deal of common ground'.
…
130.In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

Further, they said [135]:
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the 'practice of homosexuality' in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
In Minister for Immigration and Citizenship v Li the High Court confirmed that a legislature will be taken to intend that a statutory power will be exercised reasonably and that an abuse of power (that is, an unreasonable exercise of that power) will be an error of law.
French CJ said [22] – [30]:
22.The refusal by the MRT to defer its decision was held by Greenwood and Logan JJ in the Full Court to be 'unreasonable' amounting to a failure to discharge the 'core statutory function of reviewing the decision.' The question of the 'unreasonableness' of the MRT's decision not to adjourn the review was agitated, independently of the question of its asserted failure to accord procedural fairness to the first respondent. This aspect of the case raises the question whether the decision of the MRT was unreasonable in the sense used by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that is to say so unreasonable that no reasonable tribunal could have made it. In approaching that question it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion. The distinction was made by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS when, referring to so-called 'Wednesbury unreasonableness' their Honours said:
The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.' (footnotes omitted)
Bearing that distinction in mind, it is appropriate to turn to the general question whether the MRT's decision not to defer its determination was so unreasonable as to constitute jurisdictional error.
Reasonableness
23.Every statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v The Commonwealth:
'[C]omplete freedom from legal control, is a quality which cannot ... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force.'
Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then:
'the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.'
That view, however, must be reached by a process of reasoning.
…
27.In Wednesbury Corporation, Lord Greene MR observed that the word 'unreasonable' in administrative law was used to encompass failure by a decision-maker to obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters:
'If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'.'
That kind of unreasonableness may be taken to encompass unreasonableness from which an undisclosed underlying error may be inferred.
28.Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider 'they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.' In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
…
30.The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.' As Professor Galligan wrote:
'The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision‑making may be employed.'
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.
Hayne, Kiefel and Bell JJ observed [63] – [64], [66] – [68]:
63.Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s 357A(3), but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
64.A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of 'Wednesbury unreasonableness' in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.
…
66.This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
67.In Klein v Domus Pty Ltd, Dixon CJ said that where discretions are ill-defined (as commonly they are) it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object. The ordinary approach to statutory construction, reiterated in Project Blue Sky Inc v Australian Broadcasting Authority, requires nothing less. The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
68.Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for 'circularity and vagueness', as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
Gageler J said [90]:
90.Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.
At [108] and following Gageler J noted the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of power could have so exercised the power and at [113] that judicial determination of Wednesbury unreasonableness in Australia has in practice been rare.
Relatively recently the Court of Appeal in A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [120] – [128] explained and followed Li. At [123] the majority (Martin CJ & Murphy JA), omitting case citations, observed:
It is trite to observe that the fact the court may emphatically disagree with a decision reached by a decision-maker does not lead to the conclusion that it is unreasonable, irrational or illogical. Applying a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of the decision-maker … In Li, French CJ noted that (at [30]):
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker [30].
At [125] – [128] the majority referred to the observations by Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 12 CLR 24 as to the guidance which can be found in the analogy between judicial review of administrative action and appellate review of a judicial discretion as follows:
125The plurality referred to Mason J's observation in Peko-Wallsend that guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion (Peko-Wallsend, 42 (Mason J)). They noted that in the context of appellate review of judicial discretion, it is not enough that an appellate court would have taken a different course to that which was taken by the primary judge; rather, error had to be found in the exercise of discretion. Hayne, Kiefel and Bell JJ cited the proposition in House v The King [1936] HCA 40; (1936) 55 CLR 499 to the effect that an appellate court was entitled to draw an inference of unreasonableness where the result, on the facts, was 'unreasonable or plainly unjust', on the basis that even if the nature of the error is not discoverable, the exercise of discretion is reviewed because a substantial wrong has in fact occurred.
126The plurality held that:
The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification [76]. (emphasis added)
127The observations of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS may also be relevant in this context:
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion [131].
128In Li, Gageler J agreed with the analogy between the approach to judicial and appellate review favoured by the plurality, but went on to note that it should not be taken to affect the high threshold that must be satisfied to establish unreasonableness in Australia:
Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case [113].
Virtually all of the authorities relied upon by BHP Billiton concern administrative law cases involving a decision made by an administrative person or body exercising statutory power. None of the authorities, as was conceded by counsel, deals with a tribunal exercising judicial power set up to resolve inter partes disputes and in particular disputes over entitlements to workers' compensation. However counsel, relying upon the observations of the High Court in Li as to the guidance which may be found in the analogy between judicial review of administrative action and appellate review of judicial discretion, submitted that the principles which emerge from the cases apply equally to arbitrators under the Act. It was submitted that by virtue of their statutory power arbitrators must exercise the judicial power reasonably and rationally in the sense discussed in Li. There is nothing in those provisions conferring powers upon arbitrators, s 176, s 185 and s 188, which contradict the principle that the exercise of an arbitrator's powers is conditioned upon the formation of a reasonable view by the arbitrator – compare [120] A v Corruption and Crime Commissioner. In essence it is submitted that an arbitrator must not act unreasonably, irrationally or illogically, and if he or she does, that will constitute a relevant error of law, or involve a question of law, for the purposes of an appeal pursuant to s 247(2).
Counsel also accepted he was unable to find any authority which refers to Mason CJ's observations in Bond and which expressly extends the principles or broadens the scope of what is and is not an error of law or involves a question of law for the purposes of a right of appeal under s 247. Counsel submitted that it is implicit from what is said in Li that the concept of what is an error of law has been broadened.

Error of law – question of law

Before Bond was decided, the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 considered the issue of what constitutes a question of law in the context of worker's compensation legislation. Glass JA, with whom Samuels JA agreed, said (155 – 156):
It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also B pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. (emphasis added)
A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer‑General (1940) 40 SR (NSW) 126 at 138; 57WN53 at 55. The decision here assailed is not of that character.

His Honour went on later to say:
Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer‑General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found. (emphasis added)
In Health Department of Western Australia v Prosser [2004] WASCA 83 Steytler J (Malcolm CJ and Jenkins J agreeing) referred to the passages from the judgment of Glass JA in Azzopardi I have set out above, and after, at [26] noting the different approach by Kirby P, referred [27], to the different approach in the English cases as to what is a reviewable error of law and noted the comments made by Mason CJ in Bond (357) in which he pointed out the approach adopted in the English cases had not been accepted by the High Court. Later Steytler J said [29]:
Perhaps the statement which most accurately reflects the position in Australia, at least for the present (see Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 at 492, where Callinan J mentioned that there has been controversy in Australia since the decision in Bond as to the meaning of "error of law" when there is a question whether an appropriate factual substratum exists or not to supply an ultimate legal construction), is that of Mason CJ (with whom Brennan J was in agreement) in Bond, at 355 - 356, as follows:
…
Steytler J then set out the well‑known passage from the judgment of Mason CJ which I have earlier set out at [7].
The passage in the judgment of Callinan J referred to in Steele v Deputy Commissioner of Taxation (1999) 197 CLR 459 [96] reads:
There has been controversy in Australia since the decision of the High Court in Australian Broadcasting Tribunal v Bondas to the meaning of 'error of law' when there is a question whether an appropriate factual substratum exists or not to support an ultimate legal conclusion. What may be accepted is that if there is no evidence at all to support a finding of fact and therefore the ultimate conclusion upon which that finding depends, then error of law will have occurred. Not the same certainty can be expressed about a proposition that if evidence is entirely one way, a Tribunal must make a finding of fact in accordance with that evidence, and reach its decision solely upon the basis of it. It is open to a Tribunal (in what may well be exceptional cases only) to reject such evidence or simply not to be satisfied by it. This is not a case which falls within that latter category. In my opinion, this is a case in which the necessary factual substratum and all necessary findings of fact based upon it have been made.
Other than noting the different approaches between the English cases and the Australian cases as to what constitutes an error of law, it was unnecessary for Stetyler J to consider that particular issue any further. At [31] he held that the compensation magistrate had not made any error in reliance upon Azzopadri because the compensation magistrate was satisfied there was evidence upon which the review officer could reasonably justify his finding of fact with the result that no question of law was involved in that finding of fact.
Although, Health Department v Prosser, which was decided in 2004, found it was unnecessary to consider whether Mason CJ's observations in Bond as to what constitutes an error of law had been broadened, the case certainly provides no support for counsel's submission that since Bond, the law as to what is an error of law has been broadened. If counsel's submission is correct I would have expected the position to have been considered by the Full Court in Prosser in 2004.

Analysis

Section 247

By s 247(2) of the Act the court may only grant leave to appeal from a decision of an arbitrator if 'a question of law is involved'. To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]. A court or tribunal does not make an error of law merely because the court or tribunal finds facts wrongly or upon a doubtful basis: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA (Wheeler and Pullin JJA agreeing)):
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
Where there is conflicting evidence on a matter of significance, an arbitrator should set out his or her findings as to why one set of evidence is preferred to another, however, it is unnecessary to make explicit findings on each disputed piece of evidence: Beale v GIO of NSW (1997) 48 NSWLR 450, 443 (Meagher JA); Velez Pty Ltd v Tudor [2007] WASCA 218 [64] (Murphy JA (Pullin and Newnes JJA agreeing)); s 213(4).
In Brady the arbitrator had to decide whether or not the worker's degree of disability as a result of the injury was not less than 16%. He had before him medical opinions from three different doctors expressing opinions regarding the worker's degree of disability. The arbitrator considered all of the reports and preferred the opinion of the doctor that the degree of disability was more than 16% over the opinions of the other two doctors to the effect that the degree of disability was less than 16%. At [5] Pullin JA, with whom Wheeler & Buss JJA agreed, found that the arbitrator's finding about the level of disability was a finding of fact based on an assessment of the weight to be given to the competing medical reports. On appeal the appellant, in effect, sought to demonstrate that the arbitrator's assessment of the weight to be given to the reports of the doctors he rejected was erroneous. Pullin JA went on to observe:
… If such an error were made, it was not an error of law. As Brennan J said in Waterford v The Commonwealth of Australia (1987) 163 CLR 54, 77 'There is no error of law simply in making a wrong finding of fact'. See also R v District Court; Ex parte White (1966) 116 CLR 644, 654. Both of those authorities were cited with approval by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 where Kirby P said:
If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.
To similar effect see Glass JA, 155 - 156, Samuels JA agreeing.
I observe that in neither Brady or Atanasoska, both of which considered what was a relevant error of law for the purposes of the then s 247(3) (now s 247(2)), did the Court of Appeal consider whether the law as to what constitutes a relevant error of law had been broadened. On the contrary, the Court of Appeal reiterated the correct approach as explained in Bond. Again, if counsel's submission that the principle of what is a relevant error of law has been broadened, I would have expected the position to have been considered by the Court of Appeal. The fact that the position was not considered by the Court of Appeal in either of those two cases, or the Full Court in Prosser, undermines counsel's submissions.
In my view the circumstances in Brady are similar to the circumstances of this case. In preferring the report of Mr Wong over the report of Dr Flahive and in reliance upon Mr Wong's report finding Ms Treby did suffer a work related injury, an end plate fracture at the L4/5 level, the arbitrator made findings of fact. The appellant, in effect, submits the arbitrator ought not to have given any weight to the opinion of Mr Wong because it did not sufficiently, or at all, set out any basis upon which Mr Wong reached his conclusion. That is, the appellant's submission is that the arbitrator's assessment and findings on the basis of Mr Wong's report was erroneous. In my view if such an error was made it was an error of fact not an error of law. Although it might be readily accepted that Mr Wong's report provides little detail or analysis in support of his opinion that Ms Treby did suffer an end plate fracture which was work caused, nevertheless I am satisfied a sufficient basis is set out so that his opinion can be understood and evaluated. However, even if I am wrong in that conclusion and the arbitrator erred in accepting Mr Wong's report because the report failed to provide a sufficient basis to support his opinion, the arbitrator's findings based upon Mr Wong's report was not an error of law. It is only an error of fact.
Counsel for BHP Billiton also submitted the arbitrator erred in law in relying upon Mr Wong's report when it had no probative force. In my view the submission is to the same effect as a submission that the report was inadmissible and therefore ought not to have been relied upon.
It is trite to observe that the factual basis upon which an expert's opinion is based must be established for the opinion to be admissible: Pollock v Wellington (1996) 15 WAR 1; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In effect, the appellant's submission is that Mr Wong's report ought to have been ruled inadmissible at the hearing because a proper factual basis for the opinion had not, on the evidence, been established. That is, Mr Wong in giving his opinion did not furnish the arbitrator with sufficient criteria to enable an evaluation of the validity of Mr Wong's conclusion: Makita (Australia) Pty Ltd v Sprowles [59] (Heydon JA).
The difficulty with that submission, as submitted by counsel for Ms Treby, is that the issue regarding the admissibility of Mr Wong's report, or whether it had any probative force, and therefore ought to have been ruled inadmissible or rejected, was not raised at first instance before the arbitrator. Addressing that difficulty, counsel for BHP Billiton put forward three contentions.
First, it is submitted the practice of the worker's compensation arbitration system is that the parties to proceedings file books of documentary evidence prior to the hearing before the arbitrator and then simply argue about weight rather than the admissibility of the evidence. The generally understood view, it was submitted, was that all evidence is admissible before an arbitrator and the arbitrator will therefore only consider what weight to give to any evidence. Therefore it would have been pointless and futile for the appellant to submit that Mr Wong's report was inadmissible or of no probative value because such a submission would have been rejected by the arbitrator.
Counsel further submitted that that generally understood view is not consistent with the case law which, properly understood, requires that an arbitrator not act upon evidence that is of no probative value in the sense that the evidence, as a matter of law, is not reasonably capable of supporting the existence or non-existence of facts relevant to the issue to be determined.
I reject counsel's submission. While I make no observation about whether arbitrators simply accept all evidence which is tendered without ruling upon its admissibility and only rule upon the weight to be given to evidence, I do not accept that objection to the admissibility of Mr Wong's report on the grounds now raised could not have been raised before the arbitrator. Nor do I accept that if objection to the admissibility of Mr Wong's report was raised it would necessarily have been rejected by the arbitrator. In my view the issue now raised by counsel on this appeal should have been raised at first instance before the arbitrator. Although an arbitrator is by s 188(2) not bound by the rules of evidence an arbitrator is required to conduct hearings fairly and, had an issue regarding the admissibility of Mr Wong's report being raised before the arbitrator, he would have been required to rule upon it. Indeed because of the requirement of an arbitrator to act in a manner that is fair, just, economical, informal and quick (s 3(d)) and to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 188(2)(b)) – it was only fair to both parties that the issue be raised at the hearing. It was in the interests of justice that all relevant issues be raised and addressed at the hearing before the arbitrator and be finally dealt with at the arbitration, which is the specialist dispute resolution body set up to resolve disputes about worker's compensation entitlements and from which there is only a limited right of appeal.
Had the issue regarding the admissibility of the report been raised at the hearing, Ms Treby may have been able to, or would have wanted to, adduce further evidence relevant to the admissibility of Mr Wong's opinion. She may have chosen to obtain a further report from Mr Wong, perhaps asking him to respond to Dr Flahive's report. She may have decided to further attempt to seek a further report from Mr Bannan.
In my view the appellant is bound by the way in which its case was conducted at the hearing before the arbitrator for the reasons explained in A v Corruption and Crime Commissioner [111] – [115]:
111It is only in the most exceptional circumstances that a party will be permitted to raise a new argument after the case has been decided against him when he or she has failed, either deliberately or inadvertently, to put the argument during the hearing when given the opportunity to do so - see Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481. The plurality in Coulton endorsed statements by the Court of Appeal of New South Wales in the same matter, recognising the importance of this principle in light of the public interest in the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance; keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8).
112These principles are not novel. In Rowe v Australian United Steam Navigation Company Ltd [1909] HCA 25; (1909) 9 CLR 1, Isaacs J observed:
'[I]t is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopt at the trial (24).'
113However, in some 'very exceptional cases', the failure of a plaintiff to put at trial a case formulated on appeal may not be conclusive against him - see Water Board v Moustakas (1988) 180 CLR 491, 498 (Mason CJ, Wilson, Brennan and Dawson JJ); Maloney v Commissioner for Railways (1978) 52 ALJR 292; (1978) 18 ALR 147, 152; Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [52].
114It has been established that the opportunity to assert a new case should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant (Water Board, 498; Rizhao [52]). As was noted in Rizhao [53], a court is highly unlikely to allow a new argument on appeal where the point, if taken below, might have resulted in additional or different evidence being led - see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438 - 439; Green v Sommerville [1979] HCA 60; (1979) 141 CLR 594, 608, 362; O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319.
115The probability of success of the new ground of appeal will be inherently linked to the assessment of whether it is in the interests of justice to allow the appellant the opportunity to assert a new case. However, in this case, any assessment of success must be weighed against the possible prejudice which may arise from denying the parties opposing the relief sought the opportunity to raise evidence which would have been relevant to assessment of the reasonableness of the impugned decision.
In my view the appellant, not having taken issue with the admissibility of Mr Wong's report at the hearing before the arbitrator, is now not permitted to object to the admissibility of the report on appeal. There are no exceptional circumstances which now permit the appellant to raise a new argument on appeal after the case was decided against it when the appellant failed to put that argument at the hearing before the arbitrator.
Further, and as I have already found, I reject the submission that Mr Wong's report was of no probative value because it was not reasonably capable of supporting the opinion. In my view, and although the report does not perhaps provide as much detail or analysis as it might, I am satisfied the report, largely for the reasons explained by the arbitrator at [14], [17], [18], does satisfactorily explain the basis upon which Mr Wong's opinion is reached to enable the arbitrator to understand and evaluate the basis upon which the opinion is reached. The report records the factual background related by Ms Treby, including the onset of lower back pain while performing her truck driving duties, which involved a lot of jarring while travelling on the floor of the mine which was quite rough. Mr Wong also personally reviewed and examined Ms Treby, and having examined the various scans including the MRI scan of the lumbar spine performed on 19 March 2013, which he said showed L4 inferior endplate fracture, he concluded that Ms Treby suffered mechanical back pain most likely coming from the L4/5 level, noting there was an endplate of L4 in 2013 and that the symptoms of her back pain were related to her truck driving duties. The basis upon which Mr Wong reached his conclusion is readily able to be understood and evaluated. The arbitrator accepted the factual background related by Ms Treby, which was relied upon by Mr Wong to support his opinion, was correct. The arbitrator also accepted that Mr Wong's opinion of what was shown on the MRI scan was correct.
Essentially, counsel submits that the MRI scan did not show an endplate fracture and therefore Mr Wong's opinion is in error and accordingly the arbitrator ought not to have accepted Mr Wong's opinion. It is submitted that Dr Flahive's opinion that the MRI scan did not show an endplate fracture was correct. Even if that is correct, for the reasons I have already explained, any error involves an error of fact not an error of law. The submission is to the effect that the finding was perverse, contrary to the overwhelming weight of the evidence, against the evidence and that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made. As was observed by Glass JA in Azzopardi [155] – [166], to which I have earlier referred [45] – [46] to make such a submission is to submit an error of fact was made. Therefore, if such an error has been made it does not disclose an error of law which gives rise to a right of appeal pursuant to s 247. The submission made by counsel for BHP Billiton is contrary to the law as explained in both Azzopardi and Bond.

I do not accept counsel's submission that what constitutes an error of law for the purposes of s 247(2) has been broadened by the High Court in such cases as Li. I do not accept the line of authority ending with Li and followed by the Court of Appeal in A v Corruption and Crime Commissioner provides any guidance or is relevant to the proper construction of the expression 'a question of law is involved' for the purposes of s 247(2). Essentially counsel submits Bond is no longer good law because Li and the other cases have extended or broadened the understanding of what is an error of law. However, nowhere in those cases does the High Court consider Bond and hold that Bond is no longer good law. None of the cases say that the English line of authority should now be followed and that the approach of Mason CJ in Bond should no longer be followed.
Further, I am bound by the decisions of Prosser, Brady and Atanasoska which in my view do not support and indeed are contrary to, the submission made by counsel for BHP Billiton.
At the hearing before the arbitrator BHP Billiton also adduced the medical report of another neurosurgeon Mr Bannan, to which I have earlier referred, who by reference to the MRI said there was a possibility of an endplate fracture of L4 and that with Ms Treby's work involving driving trucks bouncing on uneven ground with a 12 month history of back pain, it was possible there was a work related injury. However, he went onto say that further investigation was needed and he was going to organise a bone scan and a CT scan through L4/5 so he could look at the pars fractures to see if Mr Treby did have an endplate fracture. No further report of Mr Bannan was apparently obtained. Certainly no further report of Mr Bannan was before the arbitrator.
Whether a further report from Mr Bannan be obtained was discussed between the arbitrator and the parties' representatives at the hearing (ts 32, 44). It seems Ms Treby's solicitors contacted Mr Bannan for a further report but he was not prepared to provide a medico legal report. The appellant did not seek a further report from Mr Bannan. The arbitrator was informed by BHP Billiton's representative that Ms Treby again saw Mr Bannan on 24 July (ts 45).
There was then a further discussion about the arbitrator obtaining another report from either Mr Bannan or Mr Wong pursuant to s 201 (ts 32, 53, 58 ‑ 60). Another report was not obtained so obviously the arbitrator felt it was unnecessary.
Although the arbitrator in his reasons for decision referred to Mr Bannan's report, he did not refer to the report when he made his findings about the nature of the injuries suffered by Ms Treby. Counsel submitted Mr Bannan's report is inconsistent with Mr Wong's opinion that there was an endplate fracture. I do not accept counsel's submission. In my view Mr Bannan's report is not inconsistent with Mr Wong's report. On the contrary, it is consistent with Mr Wong's report. While Mr Bannan's report is inconclusive as to whether Mr Treby suffers an endplate fracture at L4 and whether she suffers a work related lower back injury, he certainly accepts it was possible. Although of course on its own that report could not have established on the balance of probabilities that Ms Treby had suffered a work related injury, the fact that it raises the possibility of such an injury provides some, albeit limited, support for Mr Wong's opinion that there was an endplate fracture which was work related. Mr Wong's opinion also took into account the results of the CT scan of 9 July 2013 and the bone scan of 10 July 2013 which would seem to have been ordered by Mr Bannan.
In my view Mr Wong's report was reasonably capable of supporting his findings and the findings of the arbitrator. This is not a case of Mr Wong ignoring material evidence or medical investigations. Mr Wong has considered and taken into account the same medical investigations, that is, the same MRI scan, CT scan and bone scans which were also considered by Dr Flahive. He has interpreted the results of those investigations differently to Dr Flahive. The arbitrator was entitled to prefer Mr Wong's, a neurosurgeon, interpretation of the scans over the contrary interpretation of Dr Flahive.
I also reject the submission the arbitrator's reasons for decision were so unreasonable that no reasonable arbitrator could have made the decision or that the decision was illogical or irrational because it lacked an evident and intelligible justification: see Minister for Immigration and Citizenship v SZMDS [131] (Crennan and Bell JJ) and A v Corruption and Crime Commissioner [126], [127].
I am not satisfied this is one of those rare cases in which the arbitrator has made a decision which is so unreasonable that no reasonable arbitrator could have made it or was so unreasonable because it was illogical or rational: see Li [113] (Gageler J) and A v Corruption and Crime Commissioner [128]. In my view the arbitrator's decision was not unreasonable, irrational or illogical because he relied upon Mr Wong's report in making his decision. As I have just found, the arbitrator was entitled to prefer Mr Wong's opinion over that of Dr Flahive.
The second contention raised by counsel for BHP Billiton is that the arbitrator committed jurisdictional error by relying upon evidence lacking probative force. It was submitted a party cannot confer jurisdiction upon an arbitrator to commit jurisdictional error by not objecting to the evidence at the time it was put before the arbitrator. A party cannot, by action or inaction, confer jurisdiction where none exists and thereby validate a decision made in excess of jurisdiction. If the arbitrator relies upon such evidence the arbitrator, it was submitted, exceeds his or her jurisdiction and the party adversely affected by that jurisdictional error will be able to complain about that excess of jurisdiction regardless of whether objection was taken to the evidence at the hearing before the arbitrator.
I reject that submission. This is not a case involving jurisdictional error such as might be made by an administrative body exceeding its jurisdiction, by, for example, asking itself the wrong question or by making erroneous findings or ignoring relevant material. Counsel submits an arbitrator is not a court and therefore similar principles which govern how administrative bodies or tribunals must exercise their jurisdiction apply to an arbitrator. It was submitted that an arbitrator is in a very different position from that of a court. A court will not commit jurisdictional error merely by making erroneous findings of fact, identifying the wrong issue or asking itself a wrong question or ignoring relevant material. If such errors are made they will commonly involve errors of law or fact which are subject to any statutory right of appeal.
In my view an arbitrator is more akin to a court than an administrative body or tribunal. An arbitrator is required to make findings of fact and to decide questions of law, to resolve disputes about the facts and the law. An arbitrator resolves disputes between parties by conducting hearings at which the parties are represented by legal practitioners or lay advocates. An arbitrator receives and hears evidence including by witnesses being examined and cross-examined. He is involved in an adversarial process. Part XI div 4 of the Act provides for the powers of arbitrators, the types of disputes arbitrators are empowered to resolve and how arbitrators are required to resolve those disputes. Those provisions establish that arbitrators fulfil judicial functions and are, subject to the Act, bound to act judicially in the discharge of their duties. Compare Summit Homes v Lucev (1996) 16 WAR 566, 569 Ipp J, with whom Kennedy and Rowland JJ agreed, when he was referring to review officers in the context of the then dispute resolution system provided in the Act. The provisions dealing with review officers were later repealed and replaced with pt XI div 4. The role and powers of arbitrators reflect the role and powers of review officers.
I am satisfied the arbitrator had the jurisdiction to make the findings he did.
This submission is really just the same submission made in the first point of contention, which is the arbitrator erred in law by relying upon Mr Wong's report which was inadmissible or had no probative force.
What constitutes 'jurisdictional error' and the necessity to distinguish between courts and administrative tribunals exercising governmental or statutory powers was explained by the High Court in Craig v South Australia (1995) 184 CLR 163, 176 – 180:
In considering what constitutes 'jurisdictional error', it is necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ …
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers …
Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last‑mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (61).
…
In that regard. it is important to bear in mind a critical distinction which exists between administrative tribunals and courts of law.
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law …
…
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question to ignore relevant material, to rely on irrelevant material or, at least in some circumstances. to make an erroneous finding or to reach a mistaken conclusion. and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however. ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. [emphasis added]
…
In FTZK v Minister for Immigration and Border Protection [2014] HCA 28; (2014) 310 ALR 1 [34] Hayne J explained the significance of the difference between an administrative decision-maker and a court:
First, the relevant decision is to be made, in the first instance, by an administrative decision maker, not a court. It is, therefore, a decision which is to be made outside the adversarial processes of a court, in which issue is joined between parties. For a common lawyer, the notion of a 'standard of proof' marches hand in hand with onus of proof. Neither notion finds ready accommodation in administrative decision making, where no issue is joined between parties.
A District Court judge will fall into jurisdictional error if the judge misconstrues the statue which is the source of the court's jurisdiction and thereby misconceives a nature of the function which he or she is required to perform resulting in the court failing to discharge the jurisdiction conferred upon it: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45] – [46] (Martin CJ) (Newnes and Murphy JJ agreeing); see also Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 [118] (Martin CJ), [181] (McLure JA). This is not a case of the arbitrator misconstruing the Act which was the source of his jurisdiction leading him to misconceive the nature of the function he was required to perform and thereby failing to discharge the jurisdiction conferred upon him by the Act.
Therefore, the arbitrator, by determining an issue between parties in an adversarial process, was exercising a judicial function and not an administrative function. If he made any errors of fact, or failed to identify the relevant issue to be determined, or relied upon evidence which lacked probative force, or failed to take into account relevant evidence, that involved routine steps in the discharge of his ordinary jurisdiction. If any mistakes or errors were made by him they are able to be, and only able to be, corrected by the right of appeal to this court provided for in s 247, or to the Court of Appeal pursuant to s 254. If any errors were made by the arbitrator no question of 'jurisdictional error' arises. It follows that no error of law, based upon jurisdictional error, was made by the arbitrator in the exercise of his functions. Nor does any question of law arise based upon alleged jurisdictional error.
The third contention raised by counsel relies upon the observations of Heydon JA in Makita [99] that although attacks about the reliability of the expert's evidence where made at trial, the particular difficulties with the evidence raised at the appeal were not raised with the trial judge. For the reasons I have already explained it is unnecessary for me to deal with this submission. I have already found that Mr Wong's report was of probative force and the arbitrator was entitled to rely on it.

Conclusion

In essence, the issues raised by the notice of appeal come down to the proposition that the report of Mr Wong was of no probative force or value and was inadmissible and therefore ought to have been rejected by the arbitrator and ought not to have been relied upon by the arbitrator. Therefore the arbitrator's acceptance of Mr Wong's report, and his decision based upon the report, are so unreasonable that no reasonable arbitrator could have ever have come to it or, in the terms explained in Li, the arbitrator's decision lacked an evident and intelligible justification. It was irrational. It follows, so it is submitted, the arbitrator erred in law.
For the reasons I have already explained I reject the submission that the arbitrator erred in relying upon Mr Wong's report. It follows therefore I do not accept the submission that the arbitrator's decision, significantly based upon Mr Wong's report, was in error. I reject the submission that the arbitrator's decision was so unreasonable that no reasonable arbitrator could have reached the same decision. I reject the submission that the arbitrator's decision lacked an evident and intelligible justification or that it was irrational. I am satisfied there was a sufficient basis set out in Mr Wong's report for his opinion to be understood and evaluated and to be accepted and relied upon. It was open to the arbitrator to accept Mr Wong's opinion and on the basis of that opinion make the findings he did.
Neither do I accept that the issues described as the questions of law, or the grounds of appeal, in the amended notice of appeal involve any question of law. The findings of the arbitrator with which issue is taken involve factual findings and do not give rise to any errors of law or involve questions of law.
In my view the grounds of appeal and the questions of law identified in the amended notice of appeal, properly analysed, merely assert that the arbitrator's decision is against the evidence or the weight of the evidence and that the arbitrator has found facts wrongly upon a doubtful basis which neither involves an error of law or a question of law: Atanasoska v Inghams Enterprises Pty Ltd [21]. Adopting the language from Azzopardi:
To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways.
Such errors do not give rise to an error of law because:
… the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will … never be vulnerable to attack as an error of law …
It follows from my findings that grounds 1 – 5 of the amended notice of appeal are not made out.
That then leaves the consideration of grounds 7 and 8.
Essentially grounds 7 and 8 attack the findings of the arbitrator on the same basis as grounds 1 – 5. Whereas grounds 1 – 5 challenge the arbitrator's findings that Ms Treby suffered a work related injury, grounds 7 and 8 challenge the findings regarding incapacity on much the same basis.
In light of my earlier findings concerning grounds 1 – 5 I am also not persuaded the arbitrator has made any relevant error of law, or that a question of law is involved, in relation to the arbitrator's findings, largely based upon Mr Wong's opinion, that Ms Treby was totally incapacitated for work from 3 April 2014. Nor am I persuaded the arbitrator erred by failing to consider whether Ms Treby had discharged the burden of proof upon her to prove her incapacity for work. I am satisfied the arbitrator had proper regard to the burden of proof being upon Ms Treby to prove both that she had suffered an injury and that as a result of that injury she was incapacitated for work. I am not persuaded the arbitrator has made any relevant error of law. His findings regarding Ms Treby's incapacity for work were factual findings. I am satisfied there was evidence to support those findings and that no question of law arises from those findings.
Accordingly, no question of law being involved, I refuse leave to appeal.
I will hear the parties as to costs.