Buckeridge Nominees Pty Ltd v Foxley - [2022] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BUCKERIDGE NOMINEES PTY LTD -v- FOXLEY [2022] WADC 118
CORAM:   STAVRIANOU DCJ
HEARD:   12 DECEMBER 2022
DELIVERED          :   20 DECEMBER 2022
FILE NO/S:   APP 57 of 2022
BETWEEN:   BUCKERIDGE NOMINEES PTY LTD
Appellant
AND
GRAHAM FOXLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATON ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR FLETCHER
File Number            :   A113134

Catchwords:

Workers' compensation - Weekly payments of compensation - Employer disputing liability to pay compensation - Employer applied under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) for order discontinuing payments - 'Genuine dispute' - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18, s 58, s 61, s 71, s 247

Result:

Leave to appeal granted
Appeal allowed
Orders of arbitrator set aside

Representation:

Counsel:

Appellant	:	Mr M L Greenland
Respondent	:	Mr J N Trigg

Solicitors:

Appellant	:	Greenland Legal Pty Ltd
Respondent	:	Stephen Browne Lawyers (South Perth)

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

Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321
Australian Institute of Management v Rossi [2004] WASCA 302
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Edgell Birds-Eye v Costello [1995] TASSC 10
Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210
Minniti & Son Builders v Luigi De Cinque [2008] WACC C26-2008
Osland v Secretary, The Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Rekabe v Foxline Logistics [2013] WADC 104
Schilter v South Australian Institute of Technology (1982) 31 SASR 316
State of South Australia v Wall (1980) 24 SASR 189
State of Western Australia v Bond Corporation Holdings Ltd (1991) 28 FCR 68; (1991) 5 WAR 40
Summit Homes v Lucev (1996) 16 WAR 566
Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992)
XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343

STAVRIANOU DCJ:

Introduction

On 13 July 2022, the respondent (Mr Foxley) was injured whilst engaged as a glazier for the appellant (Buckeridge Nominees).
Mr Foxley claimed weekly payments of workers compensation from Buckeridge Nominees. The claim was admitted and payments were made from the date of injury.
Buckeridge Nominees seeks leave to appeal against the decision of a WorkCover WA arbitrator, dismissing its application under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
Section 60 enables an arbitrator to make an order for discontinuance or reduction of weekly payments where the employer satisfies the arbitrator that there is a genuine dispute as to liability to pay compensation. Buckeridge Nominees contended that there was a genuine dispute as to liability to pay compensation. The s 60 application was based upon the contention that Mr Foxley was a subcontractor and not a worker as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WADC 118
Decision Date: 20 DECEMBER 2022

CaseChat Overview and Summary

The case of Buckeridge Nominees Pty Ltd v Foxley involved a dispute over workers' compensation payments. The employer, Buckeridge Nominees Pty Ltd, applied under section 60 of the Workers' Compensation and Injury Management Act 1981 (WA) to discontinue the weekly payments of compensation to the employee, Mr Foxley. The primary issue before the court was the interpretation of the phrase 'genuine dispute' as it appears in section 60 of the Act. The court was required to determine whether the employer's dispute was indeed genuine and, if so, whether this justified the cessation of compensation payments.

The court's reasoning focused on the interpretation of the term 'genuine dispute' and what it entails for an employer seeking to discontinue compensation payments. The court held that a genuine dispute must be sincere and serious, and it should be assessed based on the materials as a whole. The court noted that while an objective appraisal of the merits is not required, the dispute must not be frivolous or based on inadequate inquiry. The court also clarified that a genuine dispute could be based on an arguable case, whether of fact or law, but not on an obviously fallacious view of the law. The court further held that the assessment of a genuine dispute must be made at the time the determination is made and that the employer is not obligated to support its dispute with independent evidence.

The court ultimately concluded that the employer's dispute was not genuine, as it was based on inadequate consideration and inquiry. The employer's arguments were deemed to be without merit, and the court found that the employer had not satisfied the statutory criterion for a genuine dispute. As a result, the employer's application to discontinue the compensation payments was dismissed. The court's decision was based on the interpretation of the statutory provisions and the evidence presented regarding the employer's dispute.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Each ground is focused upon the interpretation of the words 'genuine dispute' contained in s 60. I am satisfied that each ground of appeal raises a question of law. At the appeal hearing, there were submissions as to whether the orders made by the arbitrator dismissing the s 60 application were interlocutory. It is unnecessary to consider that submission as I am satisfied that it is in the interests of justice and appropriate to grant leave: State of Western Australia v Bond Corporation Holdings Ltd (1991) 28 FCR 68; (1991) 5 WAR 40 [56] - [57]. To ground a s 60 application, an employer is required to show that it genuinely, that is, sincerely and seriously, disputes its liability or the amount of compensation to be paid. The words 'genuine dispute' should be given a plain and uncomplicated meaning. The requirement that a dispute be genuine is a safeguard against a colourable and insincere denial of liability which would frustrate the legislative policy: State of South Australia v Wall (1980) 24 SASR 189, 194. The sincerity and seriousness of the employer's attitude is a matter to be established on the materials as a whole: Wall (198). An objective appraisal of the merits dispute is not required, but a dispute may not be found to be genuine if it is frivolous, made without adequate inquiry, or based on a patently feeble legal argument or on unsupported factual assertions. A genuine dispute is one that is based on adequate consideration and enquiry: Wall (194). The application of s 60 is not confined to the employer's initial liability to pay compensation but can apply to a dispute as to ongoing liability which arises from changing circumstances and where the dispute is not amenable to review under s 61: Taylor v Star Broken Meats (Unreported, WASCA, Library No 920434, 26 August 1992). The time at which the assessment must be made as to the existence of a genuine dispute is at the time the determination is made. It is not obligatory for an employer to support its genuine dispute by calling independent evidence. An obviously fallacious view of the law would scarcely qualify as a genuine dispute but an arguable case whether of fact or law would meet the statutory criterion: Edgell Birds-Eye v Costello [1995] TASSC 10 [22], [23]; Schilter v South Australian Institute of Technology (1982) 31 SASR 316. It is accepted that Mr Foxley's entitlement to compensation under the Act is dependent upon whether he was, at the material time, a 'worker' within the extended definition. That determination necessarily involves a consideration as to whether his remuneration by whatever means was in substance for personal manual labour or services. In Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210, the High Court was required to consider the interpretation of a legislative provision which was not relevantly dissimilar to s 5 of the Act. In an oft cited passage, the majority (Kitto, Taylor, Menzies & Owen JJ) said (214):The words 'in substance' do not mean, as the Board appears to have thought 'to any substantial extent'. Their function is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour bestowed by a person upon the work in which he is engaged and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality, or as one might say to all intents and purposes, it is a return for manual labour so bestowed …