Bowles v Department of Justice
[2005] WASCA 28
•25 FEBRUARY 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: BOWLES -v- DEPARTMENT OF JUSTICE [2005] WASCA 28
CORAM: MURRAY J
MCKECHNIE J
MCLURE J
HEARD: 23 NOVEMBER 2004
DELIVERED : 25 FEBRUARY 2005
FILE NO/S: FUL 15 of 2004
BETWEEN: BLANCHE BOWLES
Appellant
AND
DEPARTMENT OF JUSTICE
Respondent
ON APPEAL FROM:
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram :BROWN SM
File No :CM 134 of 2002
Catchwords:
Workers' compensation - Whether findings made by Compensation Magistrate within the scope of the grounds of appeal or litigated in the appeal - Scope of s 116 - Application of the rules of natural justice - Turns on own facts
Legislation:
Workers' Compensation (Compensation Magistrate's Court) Rules 1994 (WA), r 4
Workers' Compensation and Rehabilitation Act 1981 (WA), s 115, s 116, s 84ZN
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms H E Prince
Respondent: Mr I R Freeman
Solicitors:
Appellant: Ilberys
Respondent: Phillips Fox
Case(s) referred to in judgment(s):
Annetts v McCann (1990) 170 CLR 596
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Garrett v Nicholson (1999) 21 WAR 226
Kioa v West (1985) 159 CLR 550
SGIC v Johnson (1997) 77 WAIG 2169
Summit Homes v Lucev (1996) 16 WAR 569
Water Board v Moustakas (1988) 180 CLR 491
Western Australian Planning Commission v Mount Lawley Pty Ltd [2004] WASCA 149
Case(s) also cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Charleston v Smith [1999] WASCA 261
Hastie v Iluka Midwest Ltd [2004] WASCA 129
Health Department of Western Australia v Prosser [2004] WASCA 83
Hewitt v Benale Pty Ltd (2002) 27 WAR 91
Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292
McNair v Press Offshore Ltd (1997) 17 WAR 191
Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Ory v Betamore Pty Ltd (1993) 60 SASR 393
Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd (1978) 139 CLR 231
York Civil Pty Ltd v Workers Rehabilitation and Compensation Corporation [1998] SAWCT 30
MURRAY J: I have had the advantage of reading in draft the reasons of McLure J. I agree with them and have nothing to add. I would dismiss the appeal.
MCKECHNIE J: For the reasons given by McLure J, with which I agree, I would dismiss the appeal and uphold the notice of contention.
MCLURE J: The appellant appeals from the decision of Compensation Magistrate Brown dismissing an appeal from the decision of Review Officer Cocker dismissing an application by the appellant for orders that the respondent accept liability for the appellant's workers' compensation claim pursuant to the Workers' Compensation and Rehabilitation Act 1981 (WA) (as it was then known) ("the Act'). The appellant's claim related to a stress condition suffered in the course of her employment with the respondent as a prison officer at the Broome Regional Prison. The primary cause of the stress was said to be ongoing sexual harassment of the appellant by another prison officer. The Review Officer dismissed the claim. The appellant appealed to the Compensation Magistrate's Court pursuant to s 84ZN of the Act. Both parties were legally represented. The Compensation Magistrate dismissed the appeal. The appellant obtained leave to appeal to this Court in accordance with s 84ZW of the Act.
Although the Compensation Magistrate dismissed the appeal, he said in his reasons that the inadequacy of the Review Officer's reasons and his failure to make certain findings of fact "would have been sufficient to quash the original decision if there had been a ground of appeal which enlivened that question of law. Inexplicably the grounds do not raise concern as to the adequacy of reasons". He returned to this matter later in his reasons and said (at par 24):
"Notwithstanding the terms of s 116 [of the Act] I have reached the view that in proceedings brought before the court pursuant to s 84ZN the appellant is limited to the grounds of appeal nominated and accordingly, even where the court feels that other appeal grounds may have been successful, it is not open to rely on the terms of s 116 to make orders which would otherwise be just. Indeed it would be an error of law on my part to quash a decision on grounds which were not raised in the Notice of Appeal and not argued before this court."
Section 116 of the Act materially provides:
"In the hearing and determination of matters referred to in section 115 … a compensation magistrate's court is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms and is not bound by legal precedent or its own decisions and rulings in any other matter nor by any rules of evidence but may inform its mind on any matter in such a way as it regards as just."
The appellant has not at any stage applied to amend the grounds of appeal.
The appellant's grounds of appeal to this Court, for which leave was granted by Murray and Steytler JJ on 21 July 2003, are in terms that the Compensation Magistrate erred in law:
"(a)in finding that he could not determine the Appeal before him on the substantial merits pursuant to s 116 of the [Act];
(b)by limiting the Appellant to the grounds of Appeal nominated in the Notice of Appeal rather than determining the appeal pursuant to the substantial merits under s 116 of the [Act]."
The appellant seeks orders that the orders made by the Compensation Magistrate be set aside and in lieu thereof the decision of Review Officer Cocker be quashed.
The appellant's contentions to this Court were not clearly foreshadowed in the grounds of appeal. In essence, the appellant contended that the (alleged) inadequacy of the Review Officer's reasons was impliedly raised in the grounds of appeal to the Compensation Magistrate's Court or, alternatively, was raised in and argued by both parties in their submissions to the Compensation Magistrate.
The respondent filed a notice of contention seeking an order that the appeal be affirmed on the ground that the Compensation Magistrate erred in law in considering whether the Review Officer provided adequate reasons for his decision and in reaching a conclusion on that question when there was no ground of appeal that raised it; the appellant declined to apply to amend the grounds of appeal to raise it; and the Compensation Magistrate denied the respondent natural justice in failing to afford it the opportunity to make submissions on that question.
Background
The review hearing before the Review Officer lasted 14 days. The appellant gave evidence that a fellow prison officer, Mr Charles Madaffari, sexually harassed her on an ongoing basis from the time the appellant commenced employment with the respondent in December 1996 and that he sexually assaulted her during a staff function on 15 October 1998. Mr Madaffari denied the allegations of harassment and assault. The Review Officer preferred the appellant's evidence where it was in conflict with that of Mr Madaffari. In particular, the Review Officer found that Mr Madaffari engaged in conversations with, and made comments to, the appellant of a sexual nature and sexually assaulted the appellant on 15 October 1998.
The appellant also gave evidence that her stress condition was primarily caused by Mr Madaffari's misbehaviour. However, the Review Officer concluded that he was not satisfied that Mr Madaffari's conduct relevantly caused or contributed to her stress condition. The Review Officer accepted evidence that the appellant engaged in sexual banter with other prison officers, acted flirtatiously on occasions and made no complaint about Mr Madaffari's behaviour until May 1999, from which he concluded that Mr Madaffari's conduct was not at the time distressing to the appellant.
The transcript of the evidence before the Review Officer was not included in the appeal books. Accordingly, it is necessary to rely on the evidence referred to in the reasons for the decisions below. Based on the Review Officer's summary, the appellant's evidence was that, from the outset and at various times thereafter, she advised a number of her superiors of Mr Madaffari's conduct. The superiors she referred to included Superintendent Harkin, Acting Superintendent Jefferies, Acting Superintendent Gittos, her supervisor, Sandra Evans, and her manager, Mr Glenn Ross. Although not entirely clear from the Review Officer's reasons, it appears the appellant advised Mr Gary Fitzpatrick of Mr Madaffari's conduct, including the assault.
The Review Officer's discussion leading to his finding that the appellant did not complain until May 1999 is short. He stated that the appellant made a written complaint of sexual harassment on 14 May 1999. He then referred to Mr Fitzpatrick's evidence that he could not recall the appellant reporting any complaint about Mr Madaffari prior to February 1999 which, he noted, was consistent with his evidence to an earlier inquiry and that the appellant was not complaining, but merely pointing out that she considered Mr Madaffari's conduct as confirmation that she was an attractive woman. The Review Officer then concludes:
"The evidence supports a finding that the worker did not make a complaint regarding sexual harassment until 14 May 1999."
The respondent called 17 witnesses, a number of whom were prison officers. The Review Officer made a finding that the evidence of the prison officers tended to bias against the appellant and that on several important points their recollections were hazy, whereas on matters such as their recollection of her manner and dress and her conduct, their recollections were clear. He concluded that on particular issues the prison officers' evidence tended to exaggeration.
The Compensation Magistrate, in his reasons, refers to the "firm negative finding" by the Review Officer as to the reliability of the appellant in respect of the "stark conflict" between her evidence and that of Mr Fitzpatrick and continues:
"That conflict is quite dramatic in the sense that Fitzpatrick says he cannot recall the appellant at any time making an oral complaint about the many crude sexual suggestions and unwanted attentions of Madaffari until after February 1999; whereas the appellant says that she reported virtually every such incident to him, including Madaffari's outrageous conduct on her first day of duty at the prison and the serious assault … of 15 October 1998."
On the issue of the failure to give reasons, the Compensation Magistrate said (at par 14):
"Given that … the review officer effectively said that all of the prison staff were biased and unreliable it is my view that the inadequacy of reasons for preferring Fitzptrick's evidence over that of the appellant, and the failure to make findings of fact as to what happened on the various occasions when the appellant said she reported her concerns to him, would have been sufficient to quash the original decision if there had been a ground of appeal which enlivened that question of law."
That is, in effect, a determination that the Review Officer's reasons for preferring Mr Fitzpatrick's evidence on the subject of complaint were inadequate at law. Later the Compensation Magistrate said (par 18) that if there had been a ground of appeal relating to the adequacy of reasons as to why the Review Officer rejected the evidence of the appellant as to her oral complaints of sexual harassment, it would probably have been upheld. This tentative view relates to complaints to persons other than Mr Fitzpatrick.
Grounds of Appeal to the Compensation Magistrate's Court and Submissions.
The appellant provided written submissions prior to the commencement of the appeal to the Compensation Magistrate. However, they are confined to propositions of law. Paragraph 13 of the submissions states: "There is an error of law where a Review Officer failed to give reasons for accepting evidence of a witness whom he had otherwise found to be untruthful," citing SGIC v Johnson (1997) 77 WAIG 2169 (CM‑12/96 per Cockram CM, 11 June 1996) and Summit Homes v Lucev (1996) 16 WAR 569. A footnote to the proposition shows it relates to ground of appeal 10 which was abandoned by the appellant at the commencement of the hearing.
The appellant contended that the failure to give reasons was inferentially raised in grounds of appeal 8 and 9. Those grounds materially provide:
"(8)The Review Officer erred in law by finding, against the weight of the evidence, that the [appellant] failed to complain to the Respondent … about the sexual harassment until May 1999.
(9)The Review Officer erred in law in finding that it was necessary for the [appellant] to complain to the Respondent … (which she did) of sexual harassment in the workplace for her to have been sexually harassed on an ongoing basis."
Ground 9 has no direct or indirect connection with the adequacy of the Review Officer's reasons. Ground 8 does not expressly or impliedly raise the adequacy of the Review Officer's reasons. However, it is often the case that when considering the evidentiary basis of a finding, close attention is given to the decision‑maker's reasons which facilitates the identification of any gaps in the reasoning and the reasons. It was in the context of the appellant's submissions on ground 8 that the Compensation Magistrate raised the issue of the adequacy of the reasons. The following exchanges are relevant to the alternative contention that the adequacy of the reasons was litigated in the appeal.
In the course of submissions from counsel for the appellant on ground 8, the Compensation Magistrate said:
"Can I interrupt you there for a moment? - because, looking at these reasons, as I have done on this occasion, and also keeping one eye on the grounds of appeal, this case really, very much, hangs on the finding made by the review officer in preferring Mr Fitzpatrick to that of the appellant. I would have thought, if that finding, which turned out to be quite crucial, was to [sic] attacked, one would really be looking at the adequacy of his disclosed reasoning for that preference.
When I look through the reasons, he has nowhere said, expressly, that he prefers the evidence of Fitzpatrick to that of the applicant. … although you've referred to some of the authorities on inadequacy of reasons for decision, you haven't included that in the grounds, that I can see.
MS HAFFORD: That's correct.
HIS WORSHIP: So you're really seeking to attack it on the basis of the review officer, on the one hand, either giving inappropriate weight to some of the evidence, and that the conclusions he drew about Fitzpatrick and his evidence were not open to draw, because that's the only error of law that you could possibly succeed on."
That was confirmed by counsel for the appellant who concluded with the submission that:
"I guess what I'm getting at is Mr Fitzpatrick did not give evidence that the only complaint was in May 1999, so the review officer's finding that the complaint was in May 1999 was not open to him."
Other exchanges between bench and bar were also relied on. In the course of making submissions on ground 12, counsel for the appellant raised the absence of reasons. Ground 12 is in terms that the Review Officer erred in law by finding against the weight of the evidence that the applicant engaged in sexual banter in the workplace, and that she could therefore not be sexually harassed by another employee. The submission on reasons was dependent on acceptance of an assumption that the Review Officer found that the appellant engaged in sexual banter with Mr Madaffari, in which event, it was submitted:
"… there is an error of law because he's failed to give reasons for accepting the evidence of a witness, namely Mr Madaffari, who is otherwise found to be untruthful. I refer you, in this regard, to the authorities of SGIC v Johnson, and Summit Homes v Lucev."
However, the Compensation Magistrate's determination on the adequacy of the Review Officer's reasons relates to the resolution of the conflict in the evidence of the appellant and Mr Fitzpatrick on the question of complaint. Further, a reading of what follows illustrates that this was a short diversion from the point in issue which was whether it was open to find that, notwithstanding Mr Madaffari's conduct, the appellant could not have been sexually harassed because she engaged in sexual banter with other prison officers.
The Compensation Magistrate asked a question of the respondent's counsel concerning ground of appeal 2 relating to the expert evidence, which was based on information from the appellant as to the effect of Mr Madaffari's conduct on her. In the course of responding, counsel said the Review Officer could have been clearer in his reasons for rejecting the expert evidence, but noted they were not challenged in the grounds of appeal. When dealing with ground 8, counsel made the following statement:
"My friend has made some comments about Mr Fitzpatrick's evidence, and I think your Worship's already mentioned the review officer's failure to provide reasons to explain his preference for Mr Fitzpatrick's evidence, and once again, on that point, I'd submit that there is no ground of appeal alleging … that the reasons for decision were inadequate, and that an appeal, therefore, cannot be allowed on such a basis.
In any case, the comments made by the review officer about the prison officers' evidence being biased is quite clear, there, that he's not referring to Mr Fitzpatrick, who was not a prison officer, but was a superintendent of the prison, and the review officer does also make the comment, in his reasons for decision, that Mr Fitzpatrick's evidence given at the review hearing was consistent with the evidence that he gave to the independent inquiry, and I think it can be inferred from that comment that he found Mr Fitzpatrick's evidence to be credible because of its consistency."
The appellant relies on par 13 of her written submissions and the exchanges and submissions in closing in support of her submission that the issue of adequacy of reasons was joined or litigated in the appeal. Whether an issue has been fairly litigated must be considered by reference to the relevant legal principles to which I now turn.
Section 116 and Natural Justice
It is appropriate to begin by identifying what the rules of procedural fairness or natural justice would ordinarily require. Prior notice of the case put against a party and an opportunity to be heard are fundamental requirements of the rules of natural justice. In the case of an appeal, notice of the case by way of the grounds of appeal upon which a party intends to rely is not a mere procedural formality but a substantive right to know the case that has to be met. Further, a party must have a fair and reasonable opportunity to present its case; what is fair and reasonable will depend on the circumstances. In an appeal which is adversarial in nature, the decision‑maker's role is to determine only such claims as are properly before him or her. A claim can properly be before the decision‑maker even if the grounds of appeal are not formally amended provided the parties have adequate notice of the ground and a proper opportunity to meet it.
The question in issue in this appeal is whether the rules of natural justice to which I have referred are ousted or modified by s 116 or any other provision of the Act. A legislative intention to exclude natural justice requires clear manifestation and plain words of necessary intendment: Kioa v West (1985) 159 CLR 550 at 584; Annetts v McCann (1990) 170 CLR 596 at 598. There is no express or implied intention in s 116 of the Act to exclude or modify the rules of natural justice. Indeed, it plainly emerges from the legislative scheme as a whole that the rules of natural justice are incorporated. An appeal under s 84ZN must be made in accordance with the regulations: s 84ZN(3). Regulation 4 of the Workers' Compensation (Compensation Magistrate Court) Rules 1994 (WA) requires that a notice of appeal with (inter alia) grounds be lodged and served on the respondent. The Compensation Magistrate's Court has the power to permit amendment of the notice (see s 115(3) of the Act).
The remaining question before this Court is whether, notwithstanding the absence of formal amendment, the relevant issue had emerged during the hearing and was in substance joined or litigated by the parties to the appeal: Water Board v Moustakas (1988) 180 CLR 491 at 496, 497. That will depend upon the nature and complexity of the issue in question.
It is not in dispute that the adequacy of reasons raises a question of law and that all relevant material necessary to determine the matter was before the Compensation Magistrate (but not before this Court, for reasons which will emerge).
A Review Officer has a duty to state his reasons for decision in order to preserve the integrity of the appeal process. Not all inadequacies in reasons amounts to appealable error; the inadequacies must give rise to a miscarriage of justice: Western Australian Planning Commission v Mount Lawley Pty Ltd [2004] WASCA 149 at [29].
In determining the sufficiency of reasons, it is necessary to look at the reasons as a whole and, if necessary, in the context of the evidence to see if they give the sense of what was intended in a way that achieves the required function and purpose of reasons: Garrett v Nicholson (1999) 21 WAR 226, per Owen J, at 248.
The content of the obligation to state reasons is not the same for every decision and no mechanical formula can be given for determining what reasons are required: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443. However, it is accepted that where there is conflicting evidence of a significant nature, the existence of both sets of evidence should be referred to and the judge should set out his findings as to how he comes to accept one set of conflicting evidence over the other: Western Australian Planning Commission v Mount Lawley Pty Ltd (supra) at [28].
The parties did not make submissions to this Court on whether the Compensation Magistrate was correct in his conclusion that the Review Officer's reasons were so inadequate as to give rise to appealable error. The appellant assumed its correctness and the respondent assumed that its correctness was irrelevant. I am not persuaded that either assumption is appropriate. In any event, an assessment of whether a matter has been substantially ligated will be affected by its merits.
I would not make a determination as to the adequacy of the Review Officer's reasons for accepting Mr Fitzpatrick's evidence without considering the evidence before the Review Officer and hearing from the parties as to what, if any, was the real extent of the conflict in the evidence of the appellant and Mr Fitzpatrick. This would enable the Court to assess whether the Review Officer's reasons give the sense of what was intended in a way that preserves the right of appeal to the Compensation Magistrate's Court. For example, the Review Officer and the Compensation Magistrate may use the word "complaint" in different senses. Having regard to its context, the Review Officer may have used the word "complaint" to mean the communication of a personally felt grievance as distinct from a report to supervisors of Mr Madaffari's objectively improper conduct. He was considering the issue of complaint in the context of determining the appellant's subjective response to the conduct, in particular, whether she was distressed by it. Further, I note from the Review Officer's summary of the appellant's evidence that he does not say she "complained" to her superiors of Mr Madaffari's conduct. The Compensation Magistrate describes the appellant's evidence quite differently.
It is implicit in par 24 of the Compensation Magistrate's reasons (set out earlier) that his assessment was that matters outside the grounds of appeal were not argued before him. I agree that the question of the adequacy of the Review Officer's reasons was not in substance joined or litigated in the course of the hearing of the appeal. The existing grounds did not raise the issue. It is apparent from the submissions of counsel for the respondent that she was proceeding on the assumption that it was not a ground of appeal with the result that her substantive submission was on its face abbreviated and incomplete. The assumption was entirely reasonable. Notwithstanding the Compensation Magistrate's remarks, the appellant did not adopt or develop the ground or apply to amend the grounds of appeal. In the circumstances as they stood at the end of the hearing, the adequacy of the reasons was not joined or in issue between the parties and should not have been determined by the Compensation Magistrate. Section 116 of the Act does not oust or modify the rules of natural justice.
For these reasons I would dismiss the appeal and uphold the notice of contention.
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