Bonney v Compass Group (Australia) Pty Ltd
[2015] WASCA 6
•16 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BONNEY -v- COMPASS GROUP (AUSTRALIA) PTY LTD [2015] WASCA 6
CORAM: NEWNES JA
MURPHY JA
HEARD: 3 DECEMBER 2014
DELIVERED : 16 JANUARY 2015
FILE NO/S: CACV 58 of 2014
BETWEEN: JENNIFER BONNEY
Appellant
AND
COMPASS GROUP (AUSTRALIA) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :APP 64 of 2013
Catchwords:
Practice and procedure - Whether grounds of appeal have reasonable prospect of succeeding - Whether primary judge erred in finding that no question of law involved in appeal against decision of arbitrator - Workers' Compensation and Injury Management Act 1981 (WA), s 247 - Whether appellant denied procedural fairness - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 188(2), s 247, s 254
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms H J Osborne
Solicitors:
Appellant: In person
Respondent: Jarman McKenna
Case(s) referred to in judgment(s):
Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
JUDGMENT OF THE COURT: This is an application by the respondent for an order that the appeal be dismissed on the ground that none of the grounds of appeal has any reasonable prospect of succeeding or, alternatively, that the appellant (Ms Bonney) provide particulars of grounds 1 and 3 of her grounds of appeal.
At the hearing of the application on 3 December 2014, Ms Bonney was given leave to file further written submissions by 17 December 2014 and the respondent was to file any submissions in response by 24 December 2014. Each party subsequently filed further written submissions. Those submissions do not add anything of substance.
For the following reasons, we would dismiss the appeal.
Background
Ms Bonney was employed by the respondent from September 2009 until early March 2011.
On 8 August 2012, Ms Bonney filed an application under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) for a determination of the liability of the respondent to pay her medical expenses and weekly payments of compensation from 21 March 2011 for total incapacity for work. The claim related to two injuries allegedly suffered by Ms Bonney, one on 1 March 2011 and the other on 5 March 2011.
The first injury was to Ms Bonney's left thumb and both knees and was caused by a fall in a carpark at the respondent's Cape Lambert site on 1 March 2011. The second injury was stress‑related. Ms Bonney claimed that she suffered a psychiatric disorder as a result of an incident at work on 5 March 2011, or earlier incidents from in or about September 2009 and culminating with the incident on 5 March 2011, or on 21 March 2011.
The arbitrator upheld Ms Bonney's claim in respect of the first injury but dismissed her claim in respect of the stress‑related injury. He gave detailed reasons, running to 97 pages, which included an extensive analysis of the evidence.
In relation to Ms Bonney's claim for the stress‑related injury, the arbitrator rejected Ms Bonney's version of the stressful events that had occurred in the workplace and accepted the respondent's version. He found that the stressful events 'were all precipitated by [Ms Bonney's] own unprovoked, unreasonable, angry and aggressive attitude and behaviour' [102]. In the alternative, the arbitrator found that the injury was caused by stress and anxiety which arose predominantly from an excluded matter in s 5(4) of the Act, being disciplinary matters which occurred on 5 March 2011 and subsequently, and a fear or expectation on Ms Bonney's part of dismissal [105]. He further found that any pre‑existing vulnerability arose almost entirely from stress and anxiety in respect of disciplinary matters [108(d)]. In addition, the arbitrator found that none of the disciplinary actions taken by the respondent were unreasonable or harsh [108(e)].
The arbitrator ordered that the respondent pay Ms Bonney weekly payments at the pre‑accident contract rate, plus statutory allowances, for the period 4 April to 2 May 2011 for total incapacity for work, and otherwise dismissed her claim.
Ms Bonney applied to the District Court for leave to appeal against the dismissal of her claim for the stress‑related injury. Under s 247 of the Act, an appeal lies to the District Court only if a question of law is involved.
It is unnecessary to trace the somewhat convoluted course of the appeal proceedings in the District Court. Suffice it to say that the grounds of appeal initially relied upon by Ms Bonney were subsequently amended. Both the original and the amended grounds were lengthy and difficult to understand. The written submissions tended to add to rather than overcome the difficulty. However, in an endeavour to bring some clarity to the appeal the primary judge asked Ms Bonney in the course of the hearing to identify, and Ms Bonney did identify, the questions of law which she said the appeal raised (ts 71 ‑ 72). They were, in effect:
1.the arbitrator relied upon evidence that was not admissible under the Evidence Act 1906 (WA);
2.the arbitrator had a conflict of interest because the respondent's insurer was required under the Act to provide funds for WorkCover and investigators instructed by the insurer had prepared witness statement put before the arbitrator as evidence for the respondent; and
3.the arbitrator had failed to consider Ms Bonney's evidence.
The reasons of the primary judge
The primary judge gave brief ex tempore reasons. He found that the Evidence Act did not apply to the proceedings before the arbitrator, its operation being expressly excluded by s 188(2) of the Workers' Compensation and Injury Management Act. His Honour rejected a submission by Ms Bonney that s 188(2) was contrary to the Evidence Act and the Australian Constitution and thereby of no effect.
His Honour rejected Ms Bonney's contention that the arbitrator had a conflict of interest.
On the third issue, the primary judge observed that the arbitrator had analysed the evidence in the proceedings with great care and at great length. His Honour concluded that Ms Bonney's real complaint seemed to be simply that the arbitrator had made findings of fact adverse to her. The primary judge said he was not satisfied that any error of law had been identified by Ms Bonney. He concluded that the appeal had no prospect of success and ordered that it be dismissed.
Ms Bonney now appeals to this court against his Honour's decision. Under s 254 of the Act, an appeal to this court must relate to a question of law.
The grounds of appeal
The grounds of appeal upon which Ms Bonney relies are that the primary judge erred in law by:
1.failing to give adequate reasons for his decision;
2.failing to determine that the appeal involved a question of law, was of importance, and was in the best interest of the public; and
3.denying Ms Bonney procedural fairness.
The disposition of the application
Ground 1
For present purposes, the relevant legal principles can be shortly stated.
What is required by way of reasons in a particular case will vary according to the nature of the case and the issues raised by the parties. Reasons do not need to be lengthy and elaborate, nor do they need to refer to all of the evidence led in the proceedings or every submission advanced by the parties. The function of reasons is to provide procedural fairness to a litigant who is entitled to know why he or she has been successful or unsuccessful, and to allow an appeal court to determine whether the decision was based on an appealable error. Reasons will be sufficient if they disclose the reasoning process which led to the result with sufficient certainty to achieve those ends: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32]. In cases where no fact‑finding is involved, the reasons for decision may be sufficiently apparent from what was said by the judge in the course of argument: see Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58, 60 ‑ 61, 66.
In this case, there was no oral evidence and no issues of fact had to be resolved. The questions of law raised by Ms Bonney were straight‑forward and his Honour's reasons were delivered immediately following the conclusion of the oral argument. In the course of Ms Bonney's oral submissions, there had been a number of exchanges between Ms Bonney and the primary judge in which his Honour had attempted to clarify the points Ms Bonney sought to make and had pointed out the difficulties with them. His Honour's reasons must be read in the context of those exchanges.
There is no substance in the complaint about the primary judge's reasons in respect of the first issue of law identified by Ms Bonney. His Honour's reasoning is sufficiently explained. We might also note that his reasons are, in substance, a reiteration of what he had said to Ms Bonney in the course of argument.
On the second issue of law, the primary judge had difficulty in the course of argument in eliciting the basis of the alleged conflict of interest. Following a lengthy exchange with his Honour, Ms Bonney's ultimate contention, as we understand it, was that an insurer was entitled to engage a lawyer or investigator to investigate a claim but could not then use that person to prepare witness statements on the insurer's behalf. As an insurer was required by s 109 of the Act to contribute to the General Account in div 2 of pt 5 of the Act, to use the same person to investigate the claim and to prepare witness statements on the insurer's behalf would give rise to a conflict of interest on the part of the arbitrator (ts 70 ‑ 72). How it would give rise to a conflict of interest was not explained and it is evident that his Honour was, understandably, somewhat mystified by the submission. It was so obviously incoherent that no more needed to be said about it than, as his Honour concluded, it was without merit.
There is also no substance in the complaint about his Honour's reasons in respect of the third issue of law. His Honour's reasoning is sufficiently explained. Again, his reasons are, in substance, a reiteration of what he had said to Ms Bonney in the course of argument. We might add that his Honour had also pointed out to Ms Bonney in the course of argument that the arbitrator was not required to refer to all of the evidence or exhibits in his reasons, but only to such of the evidence and exhibits as was sufficient to explain his findings, which the primary judge considered the arbitrator had done (ts 73, 76 ‑ 77).
In our view, the primary judge's reasons, although brief, were adequate.
We would add that even if the reasons of the primary judge had been inadequate it does not follow that the appeal to this court must succeed. This court is entitled to consider the matter and, if it can do so, it may itself decide the matter: Mount Lawley [29]. In this case, the court is in as good a position as the primary judge to do so.
It is quite clear that none of the questions of law Ms Bonney sought to advance before the primary judge had any merit. The first question of law is dealt with under ground 2 of this appeal. The second is fallacious. No relevant conflict of interest or perception of bias on the part of the arbitrator was capable of arising as alleged. As to the third, it is evident from the transcript of the hearing before the primary judge that Ms Bonney's real complaint was that her evidence was not accepted. The arbitrator canvassed the evidence, including Ms Bonney's evidence, extensively in his reasons. Ms Bonney did not identify any material evidence that the arbitrator had overlooked but rather contended, in effect, that the arbitrator should not have preferred the respondent's evidence to her evidence. That does not involve a question of law.
This ground has no reasonable prospect of succeeding.
Ground 2
The essence of this ground was Ms Bonney's contention that the primary judge should have found that the Evidence Act applied to proceedings before the arbitrator. Ms Bonney submitted that the Evidence Act must prevail over s 188(2) of the Act because s 188(2) was inconsistent with s 3 and s 79B of the Evidence Act; s 57 and s 58 of the Constitution Act 1889 (WA); s 2 and s 16(2) of the Australia Act 1986 (Cth); and s 108 and cl 5 of the Australian Constitution.
It must be said that the argument advanced in support of that submission was not easy to follow. That is not surprising as the submission is, with respect, wholly misconceived.
As we apprehend it, however, the point sought to be made by Ms Bonney is as follows. Section 4 of the Evidence Act provides that the Evidence Act shall apply 'to every legal proceeding'. In s 3, 'legal proceeding' and 'proceeding' are defined to include 'an arbitration'. In s 79B, 'proceedings' for the purposes of that section and s 79C to s 79G includes 'arbitrations'. As the dispute resolution proceedings under the Act are described in the Act as an 'arbitration', the Evidence Act must apply to them.
That argument, however, proceeds upon a fundamental misconception. Contrary to what is implicit in Ms Bonney's contention, there is no doubt that the legislature may by a later Act limit or exclude the operation of an earlier Act. In this instance, the legislature has by s 188(2) of the Act expressly excluded the operation of the Evidence Act in arbitration proceedings under the Act. There is no inconsistency between s 188(2) of the Act and the Evidence Act. Nor is there any inconsistency with s 57 and s 58 of the Constitution Act 1889 (WA); s 2 and s 16(2) of the Australia Act 1986; and s 108 and cl 5 of the Australian Constitution.
This ground has no reasonable prospect of succeeding.
Ground 3
The gravamen of this ground, as we understand it, is that the primary judge erred in dismissing the appeal and should instead have given Ms Bonney leave to amend her grounds of appeal. There is no merit in that.
Ms Bonney's submissions appeared to assume that the respondent's application before the primary judge was to strike out the appeal on the ground that she had filed an amended appeal notice out of time without the leave of the court. That is not the case. The respondent applied to have the amended appeal notice struck out, and the appeal dismissed, on the basis that none of the grounds of appeal involved a question of law and the appeal had no reasonable prospect of success. As mentioned earlier, in the course of Ms Bonney's oral submissions the primary judge sought to elicit from Ms Bonney precisely what she alleged were the questions of law raised by the appeal. His Honour no doubt did so because on the material before him it did not appear that any question of law was raised. His Honour concluded, correctly in our view, that none of the questions of law identified by Ms Bonney had any reasonable prospect of success and he therefore dismissed the appeal.
In circumstances where, some nine months after the appeal had been commenced, Ms Bonney was unable to identify any question of law which had a reasonable prospect of success, and where none was evident, it was not incumbent upon the primary judge to provide her with a further opportunity to amend the grounds of appeal. His Honour was entitled to conclude, as he did, that the appeal should be dismissed.
For completeness, we should note that it is apparent from the material before us that the appellant was given every reasonable opportunity to put her case below. It was not from want of such an opportunity that she was unable to put before the primary judge any question of law which had a reasonable prospect of succeeding.
This ground of appeal has no reasonable prospect of succeeding.
Conclusion
None of the grounds of appeal has any reasonable prospect of succeeding and the appeal should therefore be dismissed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BONNEY -v- COMPASS GROUP (AUSTRALIA) PTY LTD [2015] WASCA 6 (S)
CORAM: NEWNES JA
MURPHY JA
HEARD: ON THE PAPERS
DELIVERED : 15 JULY 2015
FILE NO/S: CACV 58 of 2014
BETWEEN: JENNIFER BONNEY
Appellant
AND
COMPASS GROUP (AUSTRALIA) PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :APP 64 of 2013
Catchwords:
Practice and procedure - Costs - Appeal from District Court - Workers' Compensation and Injury Management Act 1981 (WA), s 254 - Appeal dismissed - Whether costs can be made against appellant
Legislation:
District Court Act 1969 (WA), s 79
Workers' Compensation and Injury Management Act 1981 (WA), s 254
Result:
Appellant to pay respondent's costs of appeal
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr G W Nutt
Solicitors:
Appellant: In person
Respondent: Jarman McKenna
Case(s) referred to in judgment(s):
Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6
JUDGMENT OF THE COURT: The respondent has applied for an order for costs consequent upon the dismissal of the appellant's appeal: Bonney v Compass Group (Australia) Pty Ltd [2015] WASCA 6. The appellant, however, contends that as the appeal arose out of proceedings under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), this court cannot make such an order. Pursuant to an order of the court, the parties have filed written submissions on the question of costs and that question is to be decided on the papers.
For present purposes the background can be stated very briefly. The appellant filed an application under the Act for a determination of the liability of the respondent to pay her medical expenses and to make weekly payments of compensation from 21 March 2011 for total incapacity for work. The claim related to two injuries allegedly suffered by the appellant, a fall in the carpark at work on 1 March 2011 and a psychiatric disorder allegedly suffered as a result of incidents at work in early March 2011.
The appellant's claim went to arbitration, at which the respondent was ordered to make weekly payments of compensation to the appellant in relation to the physical injury but the application in relation to the psychiatric disorder was dismissed.
An appeal by the appellant to the District Court under s 247 of the Act was dismissed by Wisbey DCJ on the ground that, contrary to s 247(2), the appeal did not involve a question of law.
The appellant appealed to this Court under s 254 of the Act, contending, in substance, that the primary judge had failed to give adequate reasons for his decision, erred in finding that the appeal did not involve a question of law, and denied the appellant procedural fairness.
The respondent successfully applied for the appeal to be dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. The respondent applied for an order that the appellant pay the respondent’s costs of the appeal. The appellant resisted that application, submitting that the court had no power to make an order for the costs of the appeal.
In her written submissions, the appellant contended that the costs of the appeal are governed by pt XV of the Act, and in particular s 264, pursuant to which an order as to costs may only be made by a 'dispute resolution authority'. A 'dispute resolution authority' is defined in s 5 of the Act to mean 'the Director, the Registrar, a conciliation officer or an arbitrator'. Accordingly, it was submitted, this court has no power to make an order as to the costs of the appeal and any application by the respondent for such an order would have to be made to a dispute resolution authority.
In our view, that submission is misconceived. It is clear that pt XV of the Act has no application to the costs of the appeal to this court but is concerned simply with the costs of proceedings of which a 'dispute resolution authority' is seised under the Act, and the costs of an appeal from an arbitrator to the District Court under pt XIII of the Act.
The relevant substantive provisions are contained in div 2 of pt XV. Division 2 is comprised of s 264 to s 268 and is headed 'Costs of parties in proceedings and costs of proceedings'. There is no definition of 'proceedings', but 'costs of a proceeding' are defined in s 261 of the Act to mean 'costs of, or incidental to, a proceeding of a dispute resolution authority …'.
Section 264(1) provides that 'costs are in the discretion of the relevant dispute resolution authority'. Section 264(2) provides that a dispute resolution authority may determine by whom, to whom and to what extent costs are to be paid. Section 264(3) provides that a dispute resolution authority may order costs to be assessed under the Legal Profession Act 2008 (WA) or on an indemnity basis. Under s 264(4), a party to a proceeding may apply to a dispute resolution authority for an order as to costs, but, by virtue of s 264(5), an order for the payment of costs by a worker may not be made unless the dispute resolution authority is satisfied that the costs relate to 'an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification'.
Section s 265 deals with costs unreasonably incurred by a representative of a party 'in any proceeding before a dispute resolution authority or in any matter under [the] Act which is resolved by agreement', and s 266 provides, in effect, that a person acting as an agent is not entitled to any amount for acting in connection with a dispute under the Act unless registered as an agent.
Section 267 deals with the costs of an appeal from an arbitrator to the District Court, pursuant to pt XIII of the Act. It is unnecessary to canvass that provision.
Section 268 provides that where a dispute resolution authority makes an order for costs but does not fix the costs, the amount is to be assessed in accordance with regulations, and provides for the making of regulations for that purpose.
It is evident that pt XV does not have the effect contended for by the appellant. The Act is silent on the costs of an appeal from the District Court to this court. Such an appeal is provided for in pt XIII of the Act, by s 254, but is expressed to be an appeal under s 79 of the District Court Act 1969 (WA).
The costs of the appeal therefore fall to be determined on the basis that this was an appeal from a decision of the District Court under s 79 of the District Court Act; that is, the costs are in the discretion of this court: s 37 of the Supreme Court Act 1935 (WA). In the exercise of that discretion, the general rule is that the successful party is entitled to an order for costs: O 66 r 1, Rules of theSupreme Court Act 1971 (WA). There is nothing in the circumstances of this case which would justify a departure from that general rule.
Accordingly, there will be an order that the appellant pay the respondent's costs of the appeal, including the costs of the respondent's application to dismiss the appeal and any reserved costs, to be taxed.
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