| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BONNEY -v- COMPASS GROUP LTD [2013] WADC 199 CORAM : MCCANN DCJ HEARD : 22 OCTOBER 2013 DELIVERED : 20 DECEMBER 2013 FILE NO/S : APP 644 of 2013 BETWEEN : JENNIFER BONNEY Appellant
AND
COMPASS GROUP LTD
Respondent
Catchwords: Practice and procedure - Application for leave to appeal under the Workers' Compensation and Injury Management Act (1981) - Objection to competency - Validity of application Legislation: District Court Rules (2005) r 51, r 56
Workers' Compensation and Injury Management Act (1981) s 274(2), (4) Result: Objection to competency dismissed
(Page 2)
</Order> Representation: Counsel:
Appellant : In person
Respondent : Mr G W Nutt
Solicitors:
Appellant : Not applicable
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Gallin v Central West College of TAFE; CM-121/03
Jacqueline Pedley v West Coast College of TAFE, C21/2006
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wiegand v Comcare Australia [2002] FCA 1464
(Page 3)
Introduction and factual background 1 The applicant, Ms Bonney, has applied for leave to appeal from a decision of an arbitrator of the WorkCover Arbitration Service made on 20 June 2013 in which her claim for weekly payments of compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (the WCIMA) was substantially dismissed. 2 The respondent has raised an objection to the competency of the application for leave to appeal. 3 The respondent provides various domestic services to mining companies in Western Australia. Ms Bonney was employed by them at Peninsula Palms from September 2009 until the end of 2010 and at Cape Lambert in 2011 until early March. 4 On 8 August 2012 Ms Bonney filed an application under the WCIMA for a determination of the liability of the respondent to pay her medical expenses and weekly payments of compensation from 21 March 2011 as for total incapacity for work resulting from two injuries allegedly suffered on 1 March 2011 and 5 March 2011. 5 The first injury was to her left thumb and both knees and was caused by a fall in a carpark at the Cape Lambert site on 1 March 2011. 6 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. 7 The arbitrator gave his decision with reasons on 20 June 2013. He upheld Ms Bonney's claim in respect of the first injury but dismissed her claim in respect of the stress-related injury. His orders were: 8 Ms Bonney seeks leave to appeal from order (2). (Page 4)
9 The arbitrator's reasons for decision ran to 97 pages and included a very detailed analysis of the evidence in the arbitration. For present purposes it is not necessary to set out the evidence and issues in detail. It suffices to say that Ms Bonney contended that at various times during the course of her employment she was bullied, harassed and unfairly treated by her superiors. She contended that this caused her to suffer from intermittent depression and anxiety which eventually became chronic following the events of March 2011. 10 The respondent contended that Ms Bonney was a difficult employee who responded badly to any form of supervision or intervention from her superiors. They contended that they always tried to treat her reasonably and fairly and that she was the person that did the bullying and harassing. They adduced evidence from a number of employees to support that contention. 11 It was common ground that matters came to a head on 5 and 6 March 2011. There was an unpleasant interview between Ms Bonney and her supervisor (for which each held the other responsible). She was issued with a final written warning which she refused to accept or acknowledge, although it was read aloud to her. As a result, she was ordered from the site and departed on a one way ticket to Perth. 12 The arbitrator found (par 103) that Ms Bonney suffered from a chronic adjustment disorder with mixed anxiety and depressed mood from no later than 21 March 2011 which, to some extent, may have been attributable to heightened vulnerability to stress which accrued prior to 2011. 13 However, the arbitrator also held that Ms Bonney's disease was not a 'compensable injury' within the meaning of that term in s 5 of the WCIMA. He did so for two basic reasons. 14 First, he rejected her version of the alleged stressful events which occurred in the workplace and accepted the respondent's version. He found (par 102) that the relevant stressful events 'were all precipitated by her own unprovoked, unreasonable, angry and aggressive attitude and behaviour'. 15 As such, he held that her claim failed on the issue of causation because, as a matter of law, a worker's subjective perception of, or reaction to, the alleged workplace stressors must be informed by objectively proven facts and events (stressors). See: Gallin v Central West College of TAFE; CM-121/03, delivered 17 February 2004; (Page 5)
Jacqueline Pedley v West Coast College of TAFE, C21/2006 and Wiegand v Comcare Australia [2002] FCA 1464. The arbitrator said (par 89): As regards to medical evidence, it is my view that all of it, as regards to the cause of the applicant's disease, is fundamentally flawed because the history provided by the applicant and on which it is based is factually incorrect. That is, she was not in fact treated at work the way she claimed to the doctors to have been treated … the result is, in my view, that to the extent that the medical opinion attributes the cause of the applicant's disease to her perception of being abused, bullied, harassed, discriminated against or victimised at work, it is undermined in that such did not actually occur. … 16 Second, the arbitrator found (par 108(d) and (e)) that, in the alternative to the first ground, if Ms Bonney's employment did contribute to a significant degree to the onset of her psychiatric disease, he was satisfied that it was caused by stress and anxiety which arose predominantly from an excluded matter mentioned in sub-section 5(4) of the WCIMA, being the disciplinary events on 5 March 2011 and subsequently and a fear or expectation on her part of dismissal. He further found that any pre-existing vulnerability arose almost entirely from stress and anxiety in respect of disciplinary matters. He further found that none of the disciplinary actions taken by the respondent were unreasonable or harsh.
The respondent's objection to competency 17 The respondent contends that Ms Bonney has not filed a valid application for leave to appeal and is now foreclosed from doing so because the mandatory 28 day period stipulated by subsection 247(4) of the WCIMA has expired. 18 They contend that the initiating process which she utilised (a Form 6 Appeal Notice pursuant to r 51(1) of the District Court Rules 2005) was a nullity on two grounds. First, because she was required to use a Form 8 Notice of Application for Leave to Appeal as prescribed by r 51(4A). Second, because the document that she did use failed to set out the matters required by sub-rule 51(4B). 19 The objection was set down for hearing as a preliminary issue. At that hearing the respondent abandoned a third ground for the objection, namely that the Form 6 was filed more than 28 days after the giving of the arbitrator's reasons for decision. (Page 6)
20 I accept Ms Bonney's explanation that she used the Form 6 because she was informed to do so by Registry staff. 21 Pursuant to r 51(1), an appeal other than an appeal from a decision under the WCIMA 'must' be commenced by the filing of a Form 6 which sets out the grounds for the appeal. Pursuant to sub-rule (3), the grounds 'must' specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law, as the case may be. 22 Sub-rule (4A) provides that an application for leave to appeal under the WCIMA 'must' be commenced by the filing of a Form 8A which provides for certain matters referred to in sub-rule (4B) to be dealt with. Sub rule (4B) provides as follows: In Form 8A the appellant must state - (a) the question of law the subject of the appeal; and (b) the error alleged to have been made by the arbitrator; and (c) the decision that the appellant claims should be made in relation to that question of law. 23 Mr Nutt, who appeared for the respondent, submitted that the defects in the Notice that was filed by Ms Bonney involved matters of substance and not of mere form. In summary, he submitted that the word 'must' in sub-rules (4A) and (4B) is mandatory and conditions the validity of the making of the application for leave to appeal.
Determination 24 The question whether compliance with a requirement for the taking of a certain act which is expressed in mandatory terms pre-conditions the validity of the relevant act is a matter of statutory interpretation. It does not turn on a simple dichotomy between whether a provision is regarded as 'mandatory' or 'directory', nor does it turn on whether there is 'substantial compliance'. The preferred test is to ask whether it is the intention of the legislation that an act done contrary to the provision should be invalid. In so doing 'regard must be had to the language of the relevant provision and the scope and object' of the statute (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [91] - [93] McHugh, Gummow, Kirby and Hayne JJ). 25 I accept that sub-rule (4A) uses mandatory language ('must'), but so does sub-rule (1) which relates to non-WCIMA appeals and the use of (Page 7)
Form 6. I am not satisfied that strict compliance with sub-rules (1) and (4A) by the use of a Form 6 or an 8A (as the case may be) is intended to precondition the validity of the proceedings, in the same way that the use of a writ of summons rather than an originating summons (or vice versa) would not be fatal to proceedings commenced under the Supreme Court Rules. This is so because the purpose of each process is the same, namely to initiate a proceeding, and fundamentally the required contents are the same. 26 This finding dilutes any argument that the use of 'must' in sub-rules (3) and (4B) conditions validity because, as a starting point, I would proceed on the basis that 'must' should be construed consistently throughout r 51. 27 Nevertheless, in my opinion on their true construction sub-rules (1), (3), (4A) and (4B) contemplate that a measure of compliance conditions the validity of the relevant initiating process, because the purpose of those provisions is to ensure that the subject matter and issues in the appeal are identified. This is a particularly important consideration in the context of applications for leave to appeal under the WCIMA given the absolute time limit for the bringing of an application. 28 However, I am not satisfied that r 51 is to be construed in a technical and rigid way so as to confine an appellant or applicant for leave to appeal to the very words, or grounds of appeal, set out in the original Notice. This is consistent with r 56 which provides that a party may, with the leave of the court, amend grounds of appeal to add new grounds or seek new relief. In my opinion, this is so even if the 28 day period provided for in subsection 247(4) has expired, provided the application as amended is based on substantially the same proposed appeal as originally defined. (See, generally, Seaman, Civil Procedure in Western Australia, par 21.5.38A.) 29 Mr Nutt submitted that Ms Bonney's notice simply did not comply with sub-rules (4A) and (4B). He submitted that it did not set out the question of law involved in the proposed appeal (an essential requirement for the grant of leave: WCIMA subsection 247(2)), or the errors alleged to have been made by the arbitrator, or the decision which Ms Bonney contends should be made. 30 I am satisfied that Ms Bonney did comply with those provisions, remembering that a self-represented litigant cannot always be expected to (Page 8)
employ words, phrases and styles which would be expected of a competent lawyer. My reasons are as follows.
31 Under the heading 'Primary court's decision' Ms Bonney's Notice set out details of the WorkCover matter including the case number, the parties, the date of the decision and the arbitrator's name. 32 Under the heading 'Decision details' she stated (inter alia; emphasis and intercalations added): Judgment against Appellant for [i.e. refusal of] – • Weekly wages (from date of incapacity to judgment) • Statutory allowance • Medical and travel expenses • Return to work program • Legal costs [the subject of her claim] 33 Under the heading 'Appeal details' she stated: The Appellant appeals to the District Court against Order 2 of the above decision [i.e. order (2) above]. 1. This appeal is against Order 2 only as it refers to second injury on 5/3/11 and is the subject of this appeal. 2. Order 1 refers to the first injury on 1/3/11, is not subject to this appeal but is relevant to this appeal. 3. Statute laws, rules, policies and procedures submitted by the Appellant were not considered. 4. Inadmissible (sic: admissible) evidence was not considered. 5. It appears common law was considered more in favour for the Respondent. 6. Equity was not applied. 7. Oral evidence is questionable. 34 The notice continued in pars 8, 9 and 10 to deal with matters which are not presently relevant. (Page 9)
35 Under the heading 'Act that allows appeal' Ms Bonney's Notice stated: Worker's Compensation and Injury Management Amendment Act (WA) Section: 247(1). 36 In my opinion, it is clear from the above information that Ms Bonney was bringing her application under WCIMA s 247(1) and that it was therefore a sub-rule (4A) or Form 8A matter. 37 Further, it is clear from the 'Decision details' and 'Appeal details' that the proposed appeal is against order (2) of the arbitrator's decision refusing weekly payments, statutory allowances and costs in respect of the stress-related injury suffered in March 2011. 38 It is also apparent what order is sought in lieu of the arbitrator's decision. 39 I am therefore satisfied that the Notice contained the information stipulated by or called for in the prescribed form itself and that sub-rule (4B)(c) has been complied with. 40 Which brings me to sub-rules (4B) (a) and (b), namely whether the questions of law involved in the appeal and the errors alleged to have been made by the arbitrator are adequately stated and, in particular, whether pars 3, 4, 5, 6 and 7 of the 'Appeal details' satisfy those requirements. (Ms Bonney should be given leave to amend to correct the obvious misprint in par 4.) 41 Obviously, none of those paragraphs (or 'grounds') condescends to any particulars and par 5 is untenable in its present form. Paragraph 7 clearly does not identify a question of law. So, the grounds are not helpfully stated and must be amended or particularised. 42 As I construe them, pars 3 and 4 (as corrected) contend that the arbitrator failed to take into account relevant considerations and evidence or, to put it slightly differently, they allege that the arbitrator's reasons for decision are inadequate. Paragraph 6 may be construed as a contention that the arbitrator failed to apply s 188(2)(b) of the Act which required him 'to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. In my opinion all of these contentions involve questions of law. Furthermore, they can be amended or expanded upon by particulars or written submissions. (Page 10)
43 In any event, I am not satisfied that it is the legislative intention that non-compliance with sub-rule (4B) (a) or (b) renders a Form 8 Notice void. In my opinion there is a body of essential information that must be provided, but in my opinion that is stipulated in, or called for by, the prescribed form itself and in sub-rule (4B)(c) which require the decision appealed to be identified. As I have said, Ms Bonney's Notice provided that information. 44 I am therefore satisfied that Ms Bonney's initiating process (the Form 6 Notice) was not a nullity and the application for leave to appeal was commenced within the mandatory 28 day period. Therefore, the respondent's objection to the competency of the application for leave to appeal should be dismissed. 45 I will hear from the parties as to the terms of orders providing for the better particularisation of pars 3, 4 and 6. Paragraphs 5 and 7 should be struck out in their present form with leave to make an application to re-draft them.
|