BHP Billiton Iron Ore Pty Ltd v Walls
[2015] WADC 113
•21 SEPTEMBER 2015
BHP BILLITON IRON ORE PTY LTD -v- WALLS [2015] WADC 113
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 113 | |
| 25/09/2015 | |||
| Case No: | APP:53/2015 | 21 SEPTEMBER 2015 | |
| Coram: | MCCANN DCJ | 21/09/15 | |
| PERTH | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal be granted pursuant to s 247(2)(b) of the Act The appeal be allowed The decision of the arbitrator made on 18 June 2015 varied | ||
| PDF Version |
| Parties: | BHP BILLITON IRON ORE PTY LTD DAVID WALLS |
Catchwords: | Appeal Workers' Compensation and Injury Management Act 1981 Directions under s 190(1) Meaning of 'speedy and fair conduct of the proceeding' |
Legislation: | Workers' Compensation and Injury Management Act 1981 s 3(d), s 188(2)(b), s 190(1), s 247(2)(b), s 247(7)(a) |
Case References: | Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009 Dawood Aziz v Tempo Services Ltd [2009] WACC C6-2009 Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] WACC C14–2009 Legal Professional Complaints Committee v Gandini [2012] WASAT 162 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DAVID WALLS
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR NUNN
File No : A 7058 of 2013
Catchwords:
Appeal - Workers' Compensation and Injury Management Act 1981 - Directions under s 190(1) - Meaning of 'speedy and fair conduct of the proceeding'
Legislation:
Workers' Compensation and Injury Management Act 1981 s 3(d), s 188(2)(b), s 190(1), s 247(2)(b), s 247(7)(a)
Result:
Leave to appeal be granted pursuant to s 247(2)(b) of the Act
The appeal be allowed
The decision of the arbitrator made on 18 June 2015 varied
Representation:
Counsel:
Appellant : Mr D M G Burton
Respondent : No appearance
Solicitors:
Appellant : SRB Legal
Respondent : Not applicable
Case(s) referred to in judgment(s):
Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009
Dawood Aziz v Tempo Services Ltd [2009] WACC C6-2009
Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] WACC C14–2009
Legal Professional Complaints Committee v Gandini [2012] WASAT 162
- MCCANN DCJ:
Introduction
1 This is an application for leave to appeal from an interlocutory decision of the Workers' Compensation Arbitration Service made on 18 June 2015 whereby Arbitrator Nunn dismissed the appellant's application for interlocutory orders intended to restrain the respondent's contact with two potential witnesses.
2 The respondent is self-represented. He has taken no part in the application for leave to appeal. He did not comply with programming orders made by the court on 4 August 2015 and was thereby prohibited from participating in the appeal. He did not attend the hearing.
Background
3 The respondent made a workers' compensation claim against the appellant claiming weekly payments and medical and other statutory expenses as a result of an alleged psychiatric injury allegedly sustained in the course of his employment with the respondent between November 2012 and May 2013.
4 The appellant denied liability for the claim.
5 On 16 July 2013, the respondent commenced arbitration proceedings in the Workers' Compensation Arbitration Service seeking a determination of liability in his favour.
6 The matter has been scheduled for hearing by arbitration from 19 - 23 October 2015.
7 On 16 October 2013 Arbitrator Sharp made orders that the respondent:
1. Cease and immediately desist from communicating with and/or contacting the appellant's witnesses without the leave of the arbitrator;
2. Immediately cease and desist from interfering with or attempting to influence the evidence to be given by the appellant's witnesses at the hearing;
3. No contact or communicate in any way with the family or friends of the appellant's witnesses without the leave of the arbitrator.
8 Subsequently, the appellant was apprised of the identity of two potential witnesses whose evidence could support the appellant's defence, namely Ms Felicity Waldron and Mr Barry Waldron of East Coast Pipelines. Ms Waldron has supplied the appellant's lawyers with an email which suggests that either or both of the Waldrons could testify that the respondent was gainfully employed by East Coast Pipelines for at least part of the claimed period of incapacity.
9 However, the Waldrons are concerned about becoming involved because of threatening and abusive overtures that have been made to them by the respondent. In that respect, the arbitrator made findings of fact as follows:
(i) Text messages received by Ms Waldron from the respondent 'are now more than vaguely threatening, although no express threat is evident, and by their tone and content can be considered abusive' (Reasons [16]).
(ii) Correspondence between Ms Waldron and the respondent's lawyers 'suggest that Ms Waldron does not want to appear as a witness absent orders being made in her favour and has requested that' the lawyers attend to this on her behalf (Reasons [37]).
10 Against that background the appellant sought the following directions pursuant to s 190(1) of the Act:
(i) The respondent cease and immediately desist from communicating and/or contacting Ms Felicity Waldron and/or Mr Barry Waldron of East Coast Pipelines, without leave of the arbitrator;
(ii) The respondent immediately cease and desist from interfering with or attempting to influence the evidence to be given by the appellant's witnesses at the hearing;
(iii) The respondent do not contact or communicate in any way with the colleagues, family or friends of the respondent's witnesses without leave of the arbitrator; and
(iv) Any further orders which the arbitrator deems appropriate in the circumstances.
11 Orders (ii) and (iii) partially overlapped with the orders of Arbitrator Sharp. The application was supported by affidavit evidence and written submissions.
12 The arbitrator decided to determine the matter on the papers without hearing from either party. He gave his decision dismissing the application on 18 June 2015.
13 He accepted ([17]) 'that directions to cease harassing witnesses may be necessary for the fair conduct of a proceeding'. Having regard to his findings of fact and the earlier orders of Arbitrator Sharp, I infer that he was satisfied of the same as regards (at least) Ms Waldron.
14 However, the arbitrator proceeded to dismiss the application on the ground that, having regard to s 190(1) of the Act, the appellant had failed to satisfy him that the making of the directions was required for the 'speedy' conduct of the proceedings.
15 Indeed, he held that 'there was nothing in the application' (my emphasis) which addressed whether the proposed directions were necessary for the 'speedy' conduct of this proceeding. He said ([42]) that there 'is no evidence the orders sought are necessary for the "speedy and fair" progress of the hearing' and therefore considered ([43]) that he lacked 'any discretionary power … to make orders pursuant to s 190 of the Act' of the kind sought by the appellant. In other words, the arbitrator proceeded on the basis that it was not sufficient for the appellant to establish that the proposed directions were necessary for the fair progress of the proceeding. It was also absolutely necessary for the applicant to affirmatively establish that the directions were necessary for the 'speedy' conduct of the proceedings, failing which there was no jurisdiction to make directions.
16 The appellant sought leave to appeal from the arbitrator's decision on numerous grounds, but it is not necessary to set them out. It suffices to say that the appellant contends that the arbitrator denied it procedural fairness, misconstrued the phrase 'speedy and fair' and, in any event, overlooked evidence (and failed to make findings) which established that the making of the orders sought would indeed promote the speedy progress of the matter.
17 After reading the arbitrator's reasons and Mr Burton's written submissions I came to the conclusion that the errors contended for were made out, that the application for directions had miscarried, and that the appeal should succeed. As such, it was only necessary to hear from Mr Burton in relation to the nature of the orders to be made. I then made the orders set out herein and said that I would publish my reasons later.
Reasons
18 Pursuant to s 3(d) of the Act, the purposes of the Act include making 'provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick'.
19 Section 188(2)(b) provides that:
An arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
20 As I have said, the arbitrator's decision turned on his construction of the phrase 'speedy and fair' in s 190(1) which provides that:
An arbitrator may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
21 The arbitrator began his reasons by considering whether the words 'speedy and fair … ought to be construed in the disjunctive rather than the conjunctive' such that both needed to be made out in an application for directions.
22 However, he gave the appellant's lawyers no notice that he intended to make an issue of this. He should have done so in order that they had an opportunity to be heard. As such, one of the appellant's grounds of appeal is made out, namely that it was denied procedural fairness.
23 The arbitrator then embarked ([18] – [34]) upon an analysis of the construction question. He referred to a number of authorities relating to statutory construction generally, as well as cases which have dealt with the phrase 'speedy and fair' in various contexts.
24 He asked himself ([19]) whether the phrase was a 'hendiadys where only one type of conduct is in fact being referred to by the use of two phrases', whether the word 'and' was to be given its plain and grammatical meaning ([20] and [34]), or whether the phrase should be used in the same sense that it has been considered and apparently used in previous decisions of the Commissioner of WorkCover or in decisions of the State Administrative Tribunal. In this third respect he referred to Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] WACC C14-2009 at [9], Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009 at [18] and Dawood Aziz v Tempo Services Ltd [2009] WACC C6-2009 at [51]. He said that in those cases the words 'speedy and fair' had apparently been used (in the arbitrator's view) 'as almost a shorthand for the overall objects of the Act'. The arbitrator referred to the Legal Professional Complaints Committee v Gandini [2012] WASAT 162 [19] - [21] in relation to the State Administrative Tribunal's similar approach to the same phrase.
25 Overall, no criticism can be made of the arbitrator's analysis in these paragraphs, although I suspect that he fell into error when he said ([29]) that 'the Act is remedial legislation and should be given a beneficial and wide interpretation' and that 'where two constructions are possible, that which is favourable to the worker should be preferred' (my emphasis). It must be remembered that 'the worker' referred to in that context is a hypothetical worker in the sense that the construction which is favourable to workers generally is that which should be favoured, and not the particular worker who happens to be before the judicial body at the time. This is so because, depending on the circumstances, what is beneficial to one worker may not be beneficial to another. To illustrate the point, the construction adopted by the arbitrator in this case might have been beneficial to the respondent, but it might not beneficial to another worker in another case.
26 The arbitrator's reasons in relation to the construction issue are summed up as follows ([34] and [35]; emphasis in the original]:
I am unable to consider that anything other than the plain and grammatical meaning of the words has been intended by Parliament in this situation and that the words mean what they say and that effect must be given to each of the words used; that the discretion to issue directions is only enlivened if necessary for the 'speedy and fair' progress of the proceeding.
There is no basis for me to conclude that the directions proposed by [the appellant] address issues of speed.
27 Mr Burton submitted that the arbitrator's construction was literal and pedantic and would lead to absurd results. I accept that submission. Having regard to the legislative scheme as a whole, and its long history of implementation in this state (it has been regularly reviewed and amended), it cannot be the intention of the legislature that an arbitrator is always required to be affirmatively satisfied that some 'speediness' will be achieved by proposed directions (in addition to fairness).
28 Mr Burton submitted (and I accept) that:
If no directions could ever be made which did not directly promote the 'speedy' conduct of proceedings … this would result in a complete inability to make programming orders deferring the hearing of a matter …
29 He submitted (and again I accept) that the legislative intention is that the words 'speedy and fair' direct that a 'balanced approach' be taken when making directions having regard to all the merits. As such, speed and fairness are to be balanced having regard to the circumstances of each case.
30 Mr Burton submitted that with a view to the statutory objectives and the express words of s 190(1), and as a guide, decisions ought to be made on the following basis:
(i) Orders should be made if they promote both fairness and speed;
(ii) Orders should be made if they promote fairness and do not impact speed;
(iii) Orders should be made if they promote speed and do not prejudice either party; and
(iv) An arbitrator should make orders which serve the interests of justice having regard to the particular factual circumstances of the case, even if they may cause a delay or prejudice one or more parties.
31 I accept these submissions, whilst noting that they are only guidelines intended to illustrate the purpose and role of the phrase 'speedy and fair' as an object of the legislative scheme.
32 Further, the arbitrator misdirected himself ([34] and [43]) that his jurisdiction to make directions was only enlivened if it could be found as a fact that the directions would redound towards making the proceedings 'speedy'. Having regard to s 3(d), s 188(2)(b) and s 190(1), it is clear that the words 'speedy and fair' are adjectival in nature (as is the word 'quick') and do not speak in any way to the arbitrator's jurisdiction to make directions. They are intended to inform the exercise of an arbitrator's discretion when making directions and, in particular, the need to have regard to the purposes or objects of the Act. The arbitrator should have heeded his understanding of Ingham's Enterprises, Suero and Dawood Aziz.
33 Finally and in any event, the arbitrator did not consider the application on its merits having regard to the evidence, insofar as he failed to perceive (as was open on the evidence) that the directions sought by the appellant would indeed promote the speedy disposition of the matter. That was so because the imposition of the proposed restraints on the respondent will better facilitate the co-operation of Felicity and Barry Waldron (including the making, filing and service of witness statements in accordance with the rules) or, at least, remove a hindrance to their co-operation, and thus better facilitate the speediness of the parties for the arbitration.
34 In conclusion, I am satisfied that the arbitrator erred in law as follows:
(i) He denied the appellant procedural fairness.
(ii) He misconstrued the phrase 'speedy and fair' as providing for jurisdictional facts rather than setting out the objects of a discretionary power, and wrongly failed to exercise the discretion conferred upon him.
(iii) He misconstrued the phrase by failing to appreciate that it predicates a balancing, discretionary exercise which did not require the objects of speed and fairness to be attained or attainable in every case.
(iv) He failed to have regard to relevant evidence and misconstrued evidence.
35 It is therefore appropriate for leave to appeal to be granted and the appeal should be allowed.
36 Before I turn to the disposition of the appeal, I should stress that I have not sought in these reasons to place a construction on the word 'speedy' itself (nor upon the word 'quick' for that matter). They are words of ordinary usage and should be applied as the circumstances of each case require.
Disposition of the appeal
37 As to the disposition of the matter, the options were to do nothing and not quash the arbitrator's orders (if they were justified on the merits), remit the matter to the arbitrator for further determination, or substitute my own discretionary decision (as permitted by s 247(7)(a)).
38 Having regard to the proximity of the arbitration hearing, and the arbitrator's findings of fact, and bearing in mind that acceding to the application simply adds the Waldrons to a class of persons who are already beneficiaries of similar restraints, I formed the view that an arbitrator should allow the appellant's application. In particular, the evidence shows that extending the existing restraints to apply to the Waldrons would give them comfort and security and better facilitate their co-operation in the arbitration (at the behest of the appellants as it happens). Such could not be unfair to the respondent (since he can still contact the Waldrons or any other of the appellant's witnesses with leave of the arbitrator), it would be fair to the appellant as it would better facilitate the presentation of its case, and it would reduce the risk of delay and therefore affirmatively promote the speedy progress of proceedings.
39 I also made some consequential amendments to the orders of Arbitrator Sharp which were countenanced by the application before the arbitrator and the notice of appeal.
Conclusion
40 For these reasons, at the conclusion of the hearing, I ordered that:
1. Leave to appeal be granted pursuant to s 247(2)(b) of the Act.
2. The appeal be allowed.
3. Paragraph 3 of the decision of the arbitrator made on 18 June 2015 be quashed and in lieu thereof it is ordered that:
The respondent (applicant in the arbitration) cease and immediately desist from communicating and/or contacting Ms Felicity Waldron and/or Mr Barry Waldron, of East Coast Pipelines, without leave of the arbitrator.
4. Paragraph 3 of the orders of Arbitrator Sharp made on 16 October 2013 be varied by adding the words 'or business associates' after 'family' and the words 'or the Waldrons' before the word 'without'.
5. Costs reserved.
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