Cape Australia Holdings Pty Ltd v Burridge
[2019] WADC 105
•30 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: CAPE AUSTRALIA HOLDINGS PTY LTD -v- BURRIDGE [2019] WADC 105
CORAM: GETHING DCJ
HEARD: 26 JUNE 2019
DELIVERED : 30 JULY 2019
FILE NO/S: APP 120 of 2018
BETWEEN: CAPE AUSTRALIA HOLDINGS PTY LTD
Appellant
AND
LENNARD ANTHONY BURRIDGE
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATOR SERVICE (WA)
Coram: ARBITRATOR POWELS
File Number : AS1123
Catchwords:
Workers' compensation - Appeal from arbitration- Whether leave required for cross-appeal - Whether the principles in Jones v Dunkel are part of the rules of evidence - Whether arbitrator made an error of law in the exercise of the discretion in Workers' Compensation Injury Management Act 1981 - Whether failure to set out factual basis in an expert opinion involved an error of law
Legislation:
Workers' Compensation Injury Management Act 1981 (WA), s 71, s 188
Result:
Leave to appeal granted, but appeal dismissed
Leave to cross-appeal denied
Representation:
Counsel:
| Appellant | : | Mr G R Hancy |
| Respondent | : | Mr B L Nugawela |
Solicitors:
| Appellant | : | DWL Legal |
| Respondent | : | Eureka Lawyers |
Case(s) referred to in decision(s):
Atanasoka v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180
Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
D'Orsogna Ltd v Zhang [2019] WADC 73
East Metropolitan Health Service v Martin [2017] WASCA 7
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fitzgerald v Smorgon Steel Pty Ltd [2004] WASCA 185
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Hasic v Delmere Holdings Pty Ltd t/as DTMT Construction [2010] C8-2010
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hewett v Medical Board of Western Australia [2004] WASCA 170
House v The King [1936] HCA 40; (1936) 55 CLR 499
Inghams Enterprises Pty Ltd v Beyene [2009] C14-2009
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kalbasi v The State of Western Australia [2013] WASCA 241
Kuhl v Zurich Financial Services Ltd [2011] HCA 11; (2011) 243 CLR 316
Leighton Contractors Pty Ltd v Withers [2011] C19-2011
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Manonai v Burns [2011] WASCA 165
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Pollock v Wellington (1996) 15 WAR 1
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Town of Mosman Park v Tait [2005] WASCA 124
Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300
WHW v Commissioner of Police [2014] WASCA 153
Woodley v Woodley [2018] WASCA 149
GETHING DCJ:
On 3 June 2017, whilst the respondent, Lennard Anthony Burridge, was employed as a fireproofer with the appellant, Cape Australia Holdings Pty Ltd (Cape), he injured his lower back and right knee. He made a claim under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). Cape accepted liability and commenced weekly compensation payments to Mr Burridge.
On 26 April 2018, Cape filed an application for arbitration (Arbitration) seeking two orders in relation to Mr Burridge's weekly compensation payments. The first was an order pursuant to WCIMA s 62 discontinuing weekly payments on the basis that he was fit for his pre-accident duties as a fireproofer. The second was an order for recovery of the weekly compensation payments pursuant to WCIMA s 71 from the date Mr Burridge was deemed fit for his pre-injury duties. By decision dated 20 November 2018, a WorkCover arbitrator (Arbitrator) ordered the weekly compensation payments to Mr Burridge be discontinued, but dismissed Cape's application for recovery of weekly compensation payments (Decision).
Cape appealed the Decision. In essence, Cape's case is that the Arbitrator erred in law in failing to apply the principles in Jones v Dunkel,[1] erred in law in applying the test in WCIMA s 71 and the Arbitrator erred in the exercise of the discretion in WCIMA s 71.
[1] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Mr Burridge cross-appealed in essence on the basis that there was no factual foundation for the conclusion that he was fit to perform all pre‑accident duties of a fireproofer.
For the reasons which follow, I grant leave to bring the appeal, but dismiss it, and decline to grant leave to cross-appeal. The net effect is that the Decision stands.
Background facts
The background facts were set out by the Arbitrator in the written reasons for the Decision,[2] and were not in issue in the appeal or cross‑appeal:[3]
[2] The appellant filed an Appeal Book on 14 June 2019. I will refer to pages of the Appeal Book by the reference 'AB' and the page number. The Decision is at AB 4 – 42. I will refer to the Decision by paragraph numbers.
[3] Decision, par 29.
Mr Burridge was born on 6 October 1967 and is now 51 years old.
He has previously worked in roles such as Concreter and Ceiling Fixer.
Prior to commencing employment with Cape as a fireproofer in August 2016, Mr Burridge underwent a pre-employment medical assessment and was certified to be suitable for the position of fireproofer without restriction.
Mr Burridge worked on a fly in/fly out, four weeks on and one week off basis, working 10 hours per day.
Mr Burridge suffered an injury on 3 June 2017 when he slipped on the bottom step of a bus and jarred both legs and his back when he landed.
His injury was diagnosed as a lower back pain and jarred knee. As a result of the injury he was certified as having capacity to work modified or alternative duties.
His injury was initially managed by Cape which instituted a graduated return to work program. The program commenced on 10 August 2017 and covered the period to 31 August 2017 and restricted the activities Mr Burridge was to perform while continuing with his work for full‑time hours. The restrictions were: no squatting or ladders; limit stairs; limit uneven ground; alternate sitting/standing/walking as tolerated; avoid pushing and pulling; no lifting greater than 5 kg.
In September 2017 Mr Burridge's graduated return to work program was discontinued and he left the work site. He has not returned to work since that date. He resides in South Australia.
On 19 and 20 October 2017 Mr Burridge was the subject of covert surveillance.
On 30 October 2017 he underwent medical examination by General Practitioner, Dr Evan Jenkins. On 31 October 2017 he underwent medical examination by Occupational Physician, Dr Phillip Meyerkort. On 11 December 2017 he underwent medical examination by Orthopaedic Surgeon, Mr Fredrick Phillips. At the time of those examinations, none of the doctors had viewed the surveillance DVD.
Decision of the Arbitrator
As I have indicated, Cape sought two orders. The first was an order pursuant to WCIMA s 62 discontinuing Mr Burridge's weekly payments of compensation on the basis that he was fit for his pre-accident duties as a fireproofer. That section provides:
62. Reviewing and discontinuing, suspending or changing weekly payments
(1)Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
(2)An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.
The second order sought was for recovery of the weekly compensation payments pursuant to WCIMA s 71, which relevantly provides:
71. Payments to unentitled person, recovery of
(1)Where WorkCover WA, the employer, or the insurer has paid compensation or expenses to a worker or dependant and that person was not lawfully entitled to that payment or to any part of the amount of that payment, WorkCover WA, the employer, or the insurer, as the case may be, may apply for an order of an arbitrator that compensation or expenses so paid be refunded, and an arbitrator has jurisdiction to hear and determine such an application and, … to make any order in relation thereto or any part thereof as the arbitrator considers appropriate in the circumstances.
Mr Burridge did not give evidence at the Arbitration hearing. The Arbitrator declined the invitation by Cape to apply the principles in Jones v Dunkel. The Arbitrator ruled that his decision not to give evidence was not fatal to his defence of the Arbitration.[4]
[4] Decision, pars 21, 27.
The Arbitrator set out the medical evidence around the time of the surveillance, finding:[5]
From these reports I find that Mr Burridge reported his symptoms to doctors who examined him shortly after the surveillance occurred as comprising: constant low back pain, inability to sit comfortably, difficulty walking more than a short distance, discomfort standing for more than a short period, limitations bending and lifting because of pain, inability to lean forward. Clinical findings made at this time were that Mr Burridge had a limited range of movement as a result of back pain and would lean to the left when sitting and walking.
[5] Decision, par 36.
The Arbitrator reviewed what can be seen on the DVD of the surveillance footage, and then provided the following summary:[6]
67.Mr Burridge is seen bending over on many occasions. He bends forward from the waist while standing. He is also seen kneeling and bending forward from the hips. Whilst standing he also bends down to reach the ground. I find that Mr Burridge bends forward from the waist on repeated occasions over the period of surveillance.
68.Mr Burridge is seen standing and walking without any obvious difficulty or discomfort. I could not be sure of the distance he walked and whether it was more than 100 metres at any time. He is seen sitting relatively immobile in the passenger seat of the car at times when he could have got out of the car, stretched and moved about if he was in pain or uncomfortable.
69.Mr Burridge repeatedly steps up from the ground onto the wheel guard of the trailer, or the neck of the trailer, or a bar on the side of the trailer at wheel height. He demonstrated the ability to make a substantial step up off the ground and back down to the ground and to repeatedly perform this movement.
70.Mr Burridge lifts items that are often bulky or awkward to manoeuvre, but generally do not appear to be heavy. He pushes heavier items that are already on the trailer. He lifts one end of a wooden wardrobe that appears to be heavy.
71.My overall impression of Mr Burridge's activities in the footage is that he is sitting, standing, walking, bending, stepping up and down, reaching forward and sideways, and lifting household items without any apparent restriction or difficulty. I so find.
[6] Decision, pars 67 - 71.
No issue was taken in the appeal or cross-appeal with this summary by the Arbitrator.
The Arbitrator rejected a challenge made on behalf of Mr Burridge to the reliability of the DVD surveillance footage.[7] This aspect of the Decision was not challenged in the appeal or the cross-appeal.
[7] Decision, pars 93 - 129.
The Arbitrator then considered a submission made on behalf of Mr Burridge that, as there was no evidence as to the role of a fireproofer in the medical reports relied on by Cape, those reports were insufficient to establish a capacity for work. As this issue is central to the cross‑appeal, it is necessary to quote the relevant passage in full:[8]
[8] Decision, pars 130 - 138.
130.Mr Burridge submits there is no evidence as to the role of a fireproofer and the physical aspects of doing that work, the types of activities and movements involved, the duration of functional tasks and their repetitiveness. He submits that Cape has not adduced sufficient evidence to establish that Dr Meyerkort and Mr Phillips truly understand the physical requirements of the role of fireproofer.
131.Further, Mr Burridge submits that Cape has failed to adduce any admissible or persuasive evidence which shows that Mr Burridge was tested on his capacity for his pre-injury duties as a fireproofer or that he is capable of performing the inherent requirements of all his duties on a full-time basis.
132.For this reason, he submits the medical opinions of Dr Meyerkort and Mr Phillips must carry no weight because their opinions on work capacity are proffered without having demonstrated knowledge of the particular occupational requirements of the position of fireproofer.
133.I do not accept that there has to be testing of a worker's capacity to perform each of the tasks and activities involved in a pre-injury role in order to establish that such capacity for a pre-injury role exists. Medical practitioners gather information during medical examination from the history given, report of symptoms, outcome of radiological investigations, clinical findings, enquiry about activities and restrictions, and relevance of such information to the physical requirements of a particular occupation. The medical practitioner assesses this information by applying his or her knowledge and experience to provide an opinion as to diagnosis, prognosis, and capacity for work.
134.The question for me to determine is whether the medical practitioners who have formed the opinion that Mr Burridge is fit for his pre-injury duties as a fireproofer, namely Mr Phillips and Dr Meyerkort, have shown they have adequate understanding of the activities involved and physical requirements of the pre-injury role.
135.I find Mr Phillips' reports do not contain any description of the physical activities involved in Mr Burridge's pre-injury role and I find I am not satisfied he has demonstrated he has a full understanding of the activities involved and physical requirements of Mr Burridge's pre-injury role.
136.Dr Meyerkort provides only a brief written summary of the nature of Mr Burridge's pre-injury role. However, he has been provided with the Wheatstone project pre-employment medical assessment dated 31 August 2016 which incorporates the preplacement medical assessment from Jobfit dated 2 September 2016. He was aware of the restrictions previously in place for Mr Burridge in relation to his pre-injury role and had formed the opinion based on his medical examination on 31 October 2017 that some of those restrictions should apply for the next 12 weeks.
137. Dr Meyerkort is an experienced occupational physician, which means that he has particular expertise with respect to occupational requirements. I am satisfied that Dr Meyerkort had sufficient information and professional experience to fully understand the physical aspects and demands of a role as a fireproofer.
138.I find that Dr Meyerkort understood the role of a fireproofer, including the tasks, activities and physical demands involved in such an occupation.
The Arbitrator determined that it was fit to order that Mr Burridge's weekly payments of compensation cease:[9]
157.I am satisfied that Dr Meyerkort considered the surveillance footage and recorded his observations, which are consistent with my own, and compared the activities shown on the surveillance with his earlier clinical findings and Mr Burridge's report of significant symptoms and incapacity as a result of his condition and that this was the basis upon which Dr Meyerkort concluded that Mr Burridge is fit for his pre-injury duties.
158.After considering the opinions of the three medical practitioners and the reasoning by which they arrive at those opinions, I find I prefer the opinion of Dr Meyerkort.
…
159. I am required to determine whether, having regard to Mr Burridge's past or present condition, I consider it fit to discontinue his weekly payments and if so from what date.
160.I have considered and make findings in respect of the surveillance evidence relied on by Cape, and the challenges to that evidence by Mr Burridge. I have considered the medical opinions relied on by the parties and have found I prefer the opinion of Dr Meyerkort, who has concluded that Mr Burridge is fit for his pre-injury duties. I have made findings regarding Mr Burridge's past or present condition and I am satisfied on the balance of probabilities that Mr Burridge is fit for his pre-injury duties as a fireproofer.
[9] Decision, pars 157 – 160.
The Arbitrator took the view that it was reasonable to allow Mr Burridge to view the surveillance and consider the medical reports before replying to Cape's request that he consent to discontinuance of weekly payments. This did not occur until 23 February 2018, when he gave notice to Cape that he did not so consent. Weekly payments were ordered to be discontinued from that date.[10]
[10] Decision, pars 162 – 169.
The Arbitrator went on to determine that Cape could not recover the weekly compensation payments prior to 23 February 2018 pursuant to WCIMA s 71. In doing so, the Arbitrator relied on decisions by Commissioner McCann in Hasic v Delmere Holdings Pty Ltd t/as DTMT Construction[11] and Leighton Contractors Pty Ltd v Withers,[12] concluding:[13]
[11] Hasic v Delmere Holdings Pty Ltd t/as DTMT Construction [2010] C8-2010.
[12] Leighton Contractors Pty Ltd v Withers [2011] C19-2011.
[13] Decision, pars 175 – 183.
175.In exercising the discretion under s 71, the absence of entitlement to weekly payment is paramount (but not the pre-eminent) consideration. This consideration can be displaced in importance by compassionate or other such considerations: Withers at [9]. It was also noted in Withers at [10] that the employer's own conduct is a relevant consideration.
176.In this case, there is no evidence of bad faith on the part of Cape.
177.I do not have before me all the information that would enable me to have regard to the totality of the circumstances in this case. Mr Burridge has not adduced evidence of his financial circumstances. I have no information before me as to whether hardship would result from an order for repayment or whether there are other compassionate grounds I ought to consider.
178.I turn to the relevant criteria enunciated in Hasic.
179.There is no evidence before me that Mr Burridge obtained other, paid employment whilst unlawfully receiving weekly payments.
180.The evidence does not establish that Mr Burridge has acted fraudulently. I have found that the surveillance footage showed Mr Burridge to be undertaking activities that were inconsistent with his reported symptoms. However, the activities were not of such a strenuous nature as to establish his presentation to the reporting medical practitioners was fraudulent.
181.I am not satisfied that Mr Burridge went out of his way to maximise the effects of his injury. Nor am I satisfied there has been malingering.
182.These criteria were described by Commissioner McCann in Hasic as predicating some degree of bad faith on the part of the worker. None of these criteria is established in this case. The evidence does not establish any bad faith on the part of Mr Burridge.
183.These criteria are not exhaustive, however, in my view they are sufficient for me to determine that I am not satisfied that an order for recovery of weekly payments ought to be made. Having regard to the considerations relevant to the exercise of my discretion, I find they weigh in favour of declining to make an order for repayment.
The result was that the Arbitrator allowed the application to discontinue the weekly compensation payments, but dismissed the application to recover the weekly compensation payments Mr Burridge was not lawfully entitled to.
The District Court Appeal
By appeal notice filed 14 December 2018, the appellant appealed from the Decision. The appeal notice was filed within 28 days after the day on which the written reasons for the Decision were given to the appellant, as required by WCIMA s 249(4).
On 28 March 2019 Cape filed an Amended Appeal Notice. Orders were made in chambers on 23 April 2019 that the Amended Appeal Notice stand as the appeal notice. In the Amended Appeal Notice Cape says that the orders which ought to have been made are that weekly payments be discontinued from 22 November 2017 and that Mr Burridge repay the amount of weekly payments made on or after 22 November 2017 to be assessed and fixed in amount.
On 20 December 2018 Mr Burridge filed a Notice of Respondent's Intention in which he advised that he intended to take part in the appeal and would argue that the Decision be upheld on the grounds relied on by the Arbitrator. At the hearing on 23 April 2019 Mr Burridge was given leave to file an amended notice of respondent's intention, including a cross-appeal. On 6 May 2019, Mr Burridge filed an Amended Notice of Respondent's Intention in which he added a cross-appeal. In the Amended Notice of Respondent's Intention, Mr Burridge seeks an order that the Decision be quashed or, in the alternative, that the appeal be dismissed.
Cape filed submissions in support of the appeal dated 19 June 2019 (Appellant's Submissions), and submissions in the cross-appeal on 25 June 2019 (Appellant's CA Submissions). Mr Burridge filed submissions in the cross-appeal dated 19 June 2019 (Respondent's CA Submissions) and submissions in opposition to the appeal dated 24 June 2019 (Respondent's Submissions).
If, as is the case here, written reasons for an Arbitrator's decision under WICMA pt XI in respect of a dispute are given to a party to the dispute, a party may, with the leave of the District Court, appeal to the District Court against the decision.[14]
[14] WCIMA s 247(1).
The present appeal is not one in which an amount of compensation is in issue. Accordingly, the relevant restriction on the grant of leave is that 'the District Court is not to grant leave to appeal unless … a question of law is involved'.[15] A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[16] Further, an appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved.[17] 'An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence'.[18] An error of fact alone is insufficient.[19]
[15] WCIMA s 247(2)(b).
[16] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15] (Pullin JA, with whom Buss & Wheeler JJA agreed) (Brady).
[17] BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [36] (judgment of the court) (Treby); Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [31] (judgment of the court); Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [15]; Brady [3].
[18] Erceg [31]; Brady [5].
[19] Erceg [31]; Brady [5].
The position in the present appeal is in contrast to an appeal in which an amount of compensation is in issue where the prerequisites are more detailed:[20]
[20] WCIMA s 247(2)(a).
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie…
This suggests that in the present appeal, it is sufficient for there to be a question of law involved, and there is no specific additional requirement based either on the financial significance of the amount in issue or the public interest. However, these matters will still be of general relevance to the exercise of the discretion to grant leave.[21]
[21] Inghams Enterprises Pty Ltd v Beyene [2009] C14-2009, page 33 (Commissioner McCann).
There is thus no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[22]
[22] Brady [20]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16] (Buss JA, with whom Wheeler and Pullin JJA agreed).
The parities were content to have the issue of whether Cape should be granted leave to appeal determined with the substantive hearing. Where this occurs, the appropriate approach is to deal with the question of leave after considering the merits of the proposed grounds of appeal. The court will then be in a position to either grant leave and uphold or dismiss the appeal, or refuse leave to appeal.[23]
[23] Brady [14].
Except as provided by WCIMA pt XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of court of the District Court.[24] As no leave has been granted otherwise, the appeal is to be conducted on the basis of the evidence before the Arbitrator.[25]
[24] WCIMA s 247(5).
[25] WCIMA s 247(6).
The appeal is to be by way of review of the decision appealed against.[26] This is in contrast to the criminal injuries compensation appeal jurisdiction in which the court is to decide the application 'afresh'.[27] Nor is the appeal a hearing de novo.[28] An 'appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator'.[29] It is not a necessary precondition to the conduct of a review that the error of law has been held to have occurred.[30] Rather, if some question of law is 'involved', the whole decision appealed from is open to review and not merely the question of law.[31] The review is to be a 'real review'.[32] It is not limited to pure questions of law.[33] Correction of errors of law is the court's 'principal, but not only, task'.[34] However, the appellant must show a 'proper basis' for disturbing the decision such as error of 'fact, law or logic'.[35] Unless the 'review' persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[36]
[26] WCIMA s 247(5).
[27] Criminal Injuries Compensation Act 2003 (WA) s 56(1).
[28] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Wheeler JA, with whom Pullin & Buss JJA agreed).
[29] Erceg [33]; Pacific IndustrialCo [20], [26].
[30] Pacific Industrial Co [25].
[31] Pacific Industrial Co [18].
[32] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (French CJ, Bell, Keane, Nettle & Gordon JJ); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ); Pacific Industrial [21] – [25]; Sotico Pty Ltd v Wilson [2007] WASCA 112 [46] (Pullin JA).
[33] Pacific Industrial Co [18].
[34] Pacific Industrial Co [25].
[35] Erceg [33]; Pacific IndustrialCo [26].
[36] Pacific Industrial Co [20] – [26].
What issues arise for determination?
The Amended Appeal Notice sets out three grounds of appeal:
1.The Arbitrator erred in law in failing to apply the principles in Jones v Dunkel.
2.The Arbitrator erred in law in applying as a legal principle that whether the respondent had acted fraudulently could only (as opposed to could) be established if, in the case of inconsistency between observed activities and reported symptoms, the observed activities were of such a strenuous nature as to establish fraudulent presentation to medical practitioners.
3.The Arbitrator erred in law by not exercising, or as a matter of law properly exercising, the discretion under s71(1) by weighing and balancing all relevant factual factors in that she applied one relevant factual factor erroneously as a legal principle (proof of fraud), applied a factor that was not relevant (the date of commencement of the dispute), and failed to give weight to and then evaluate and balance all relevant factors.
The grounds of appeal are developed in the Amended Appeal Notice under the heading in that notice, 'Decision Sought', which I will consider later in these reasons.
Ground three in the Appeal Notice is that the Arbitrator erred in the exercise of the discretion in WCIMA s 71(1). 'Properly analysed',[37] ground two is also an assertion that the Arbitrator erred in the exercise of the discretion in WCIMA s 71(1), by improperly fettering the discretion in that subsection.
[37] Atanasoka v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA, with whom Wheeler and Pullin JJA agreed); Treby [54].
The Amended Notice of Respondent's Intention sets out two grounds of the cross-appeal:
1.In concluding that the respondent was fit to perform all the pre-injury duties of a fireproofer, and to do so full-time, the learned Arbitrator made errors of law in:
(a)failing to make any findings as to what each of those duties actually were;
(b)failing to provide any or adequate reasons in respect of (a) above; and/or
(c)in the circumstances, such a conclusion was legally unreasonable, or not reasonably open on the evidence.
2.In relying upon Dr Meyerkort's expert evidence for the conclusion that the respondent was fit to perform all the pre-injury duties of a fireproofer, and to do so on a full-time basis, the learned Arbitrator made errors of law in:
(a)failing to make any findings as to what each of those duties actually were;
(b)failing to assess both the 'foundational' and 'reasoning' sufficiencies (in accordance with Makita (Australia) Pty Ltd v Spowles (2001) 52 NSWLR 705), or otherwise, of Dr Meyerkort's evidence that was tendered in support of the appellant's submission that the respondent was fully fit to perform all the duties in (a) above, and to do so full-time; and/or
(c)failing to provide any reasons in respect of (a) above, or adequate reasons in respect of (b) above.
A cross-appeal from a decision of an arbitrator under the WCIMA is an appeal in its own right, which is being heard with the appeal for reasons of efficiency and to ensure that the decision in each is consistent. Accordingly, as with the appeal, Mr Burridge requires leave to bring the cross-appeal.
Based on the Appeal Notice, the written submissions filed and the submissions at the hearing on 26 June 2019, five issues arise for determination:
•Did the Arbitrator make an error of law in relation to failing to apply the principles in Jones v Dunkel?
•Did the Arbitrator make an error of law in the exercise of the discretion in WCIMA s 71?
•Should Cape be given leave to appeal?
•Should Mr Burridge be given leave to cross-appeal?
•What final orders are appropriate?
Did the Arbitrator make an error of law in relation to failing to apply the principles in Jones v Dunkel?
The first ground of appeal is that the Arbitrator erred in law in failing to apply the principles in Jones v Dunkel. In the Amended Appeal Notice, this ground expanded in the following terms:
The inference that was open on the evidence was that there is no innocent explanation for the found inconsistency between (1) the respondent's complaints and presentation to medical practitioners and (2) his condition as demonstrated on surveillance and by reference to expert medical opinion. The respondent was in a position to present evidence to the Arbitrator to contradict that available inference but did not do so. By the application of the principles in Jones v Dunkel the Arbitrator was entitled to more readily draw the inference that the inconsistency that she found had no innocent explanation. That inference should have been drawn.
The principles in Jones v Dunkel are set out in the decision of Menzies J, in the context of an appeal against the summing up to a jury in an action for negligence:[38]
In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant… as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
[38] Jones v Dunkel (312) (Menzies J).
Or as more recently outlined by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services:[39]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn …
…
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party … .
[39] Kuhl v Zurich Financial Services Ltd [2011] HCA 11; (2011) 243 CLR 316 [63] – [64] (Heydon, Crennan and Bell JJ) (footnotes omitted). See also: Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194 [128] – [130] (Martin CJ, with whom Newnes and Mazza JJA agreed).
Their Honours go on to make it clear that the failure to call a witness does not support a stronger inference that the party suppressed evidence that would have been damaging to that party.[40]
[40] Kuhl [64].
There is, however, a preliminary issue which is whether the Arbitrator was bound to apply the principles in Jones v Dunkel. This would not be the case if these principles were part of the 'rules of evidence'.[41] The scope of the rules of evidence is considered in Cross on Evidence:[42]
There is wide diversity among the rules of evidence. Some rules deal with essentially procedural matters, such as those relating to the ability to secure the disclosure of relevant evidence, and the validity of reasons for not doing so, or rules about the form in which questions may be put to a witness. Some deal with witnesses, such as the rules relating to their competency and the extent to which their evidence, requires corroboration. Some deal with the admissibility of particular sorts of evidence, such as evidence of the previous discreditable conduct of the accused or of potentially unreliable evidence such as hearsay or opinion. Some deal with questions of proof, such as rules about judicial notice or the amount of proof required. These various categories overlap and interlock. They can be fitted together into many different patterns.
[41] WCIMA s 188(2)(a).
[42] Cross on Evidence (11th Australian ed, J D Heydon) [1010].
The principles in Jones v Dunkel are within definition. To emphasise the point, there is the usual detailed commentary on the principles in Jones v Dunkel in Cross on Evidence.[43]
[43] Cross on Evidence (11th Australian ed, J D Heydon) [1215].
It could be argued that the phrase 'rules of evidence' in WCIMA s 188(2)(a) should be given a narrower meaning, confining it to the principles of law governing the admission of information which can be taken into account by a judicial decision maker. Even on this narrow definition, the rule in Jones v Dunkel would be part of the 'rules of evidence' as it governs the circumstances in which the failure of a party to give or call evidence can be taken into account as a relevant fact.
I am of the view that the principles in Jones v Dunkel are part of the 'rules of evidence' for the purposes of WCIMA s 188(2)(a). As the Arbitrator is not bound by the rules of evidence, the failure to apply the principles in Jones v Dunkel cannot constitute an error of law. Consequently, the first ground of appeal does not involve a question of law for the purposes of WCIMA s 247(2)(b).
Even if I am wrong in the view that the first ground of appeal does not involve a question of law, I would nonetheless have declined to set aside the Decision on this basis had I proceeded to review the Decision.
Cape asserts that the Arbitrator erred in failing to apply the principles in Jones v Dunkel. The relevant passage from the Decision is:[44]
25.Cape also refers to Jones v Dunkel [1959] HCA 8 and invites me to draw an inference against the credibility of Mr Burridge because he chose not to give evidence and thus avoided making himself available for cross-examination in opposition to the application. The inference I am being asked to draw is that Mr Burridge's evidence would not have assisted his case and would reveal him to be untruthful.
26.Having considered the matter I am not persuaded that I should draw such an inference. A valid explanation for Mr Burridge's decision not to give evidence was that Cape would thereby be compelled to prove its case with its own evidence and not with assistance from evidence given by Mr Burridge. This particularly applied in respect of the issue of whether Cape can prove Mr Burridge is fit for pre-injury duties.
27.It appears to me that Mr Burridge has made a strategic decision to defend the case against him by choosing not to give evidence. In this circumstance, I decline to draw an adverse inference about Mr Burridge's truthfulness on the basis that he has not given evidence and thereby not made himself available to be cross‑examined at arbitration.
[44] Decision, pars 25 – 27.
As the majority in Kuhl make clear, the principles in Jones v Dunkel are rules of inferential reasoning.[45] They define when a failure by a witness to give evidence can logically be used to support the drawing of an inference.
[45] See generally the discussion in Kuhl [63] – [64].
The principles 'in Jones v Dunkel will have no application if the failure to call a witness is explained, for example, by the absence of a witness, coupled with a reasonable explanation for not compelling attendance by subpoena, or where the failure to appear is explained by illness, or other unavailability, or by loss of memory'.[46]
[46] Hewett v Medical Board of Western Australia [2004] WASCA 170 [205] (Miller J).
I do not consider that the explanation set out by the Arbitrator, a 'strategic decision', provides a sufficient explanation to exclude the operation of the principles in Jones v Dunkel. Indeed, the same reason given could have been given by the defendant in Jones v Dunkel as the reason for not calling his employee who was the driver of the truck which crashed into the truck which the plaintiff's husband was driving; the driver's evidence may well have proven or assisted in proving the plaintiff's case. There was no sufficient explanation for the failure to call the driver, a witness 'whom counsel had deliberately chosen not to call'.[47]
[47] Jones v Dunkel (332) (Windeyer J), also (308) (Kitto J), (313) (Menzies J).
I consider that the failure by Mr Burridge to give evidence was unexplained for the purposes of the principles in Jones v Dunkel. So the Arbitrator could have used these principles to support an inference that his evidence would not have assisted his case, but not a stronger inference that Mr Burridge suppressed evidence that would have been damaging to his case.[48] The issue then becomes whether the failure to do so constitutes a sufficient error of law, fact or logic or fact to warrant the Decision being set aside. Any error of law must be material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[49]
[48] Kuhl [64].
[49] Australian Broadcasting Tribunal (353) (Mason CJ); Brady [15].
This is not a case in which Cape asserts that the Arbitrator made a logical error in applying the principles in Jones v Dunkel in the sense of using the fact that Mr Burridge did not give evidence to reason in an impermissible or illogical manner. Rather, the essence of this ground of appeal is that the Arbitrator failed to draw the inference 'that there was no innocent explanation for the inconsistency between Mr Burridge's complaints and presentation to medical practitioners and his condition as demonstrated on surveillance and by reference to expert medical opinion'. Cape submits that by application of the principles in Jones v Dunkel, the Arbitrator was 'entitled to more readily draw the inference that the inconsistency she found had no reasonable explanation'.[50] In more detail:[51]
The Arbitrator failed to carry out an analysis of the evidence, failed to determine what inference favourable to Cape was open (that the inconsistency that she found had not innocent explanation) and failed to find that the inference was more readily to be drawn by reason of the failure of Mr Burridge to give evidence.
[50] Appellant's Submissions, par 31.
[51] Appellant's Submissions, par 32.
So expressed, this is an error of fact. The error asserted is, in substance, that, on all the evidence, including the failure by Mr Burridge to give evidence, the Arbitrator erred in not finding as a fact (by drawing an inference) there was no innocent explanation for the inconsistency set out in the preceding paragraph. Rather, as set out above [17], the Arbitrator made a series of more specific factual findings as to Mr Burridge's culpability (or lack thereof) for the inconsistency found. Cape does not assert that the Arbitrator erred in law in making these findings or drawing these inferences on the basis that there was no evidence to support them.[52] The assertion is that, on all the evidence, the Arbitrator erred in not drawing a further inference, being that there was no innocent explanation for the inconsistency. To establish this error of fact, Cape must show that the failure to draw this inference was flawed by reference to incontrovertible facts or uncontested testimony, that it was glaringly improbable or contrary to compelling inferences, or that the Arbitrator has failed to use, or palpably misused, her advantage as the trier of fact.[53] I do not consider that Cape has done so. Whilst it was open to the Arbitrator to rely on the approach to inferential reasoning set out in Jones v Dunkel, it was equally open to the Arbitrator to not draw the inference contended. 'If there is evidence, or if there are available inferences which compete for the [arbitrator's] acceptance, no error of law occurs simply because the [arbitrator] prefers one version of the evidence to another or one set of inferences to another'.[54] Even if regard is had to the fact that Mr Burrridge's evidence would not have assisted his case (being all that can be drawn from his failure to give evidence), I do not consider that the inference that there was no innocent explanation for the inconsistency to have been compelling.
[52] Erceg [31]; Brady [5].
[53] Treby [53]; Fox v Percy [22], [23], [29], [31]; Robinson Helicopter [43]; Badran v Public Transport Authority of Western Australia [2017] WASCA 28 [65] (reasons of the court); Woodley v Woodley [2018] WASCA 149 [154] (judgment of the court); East Metropolitan Health Service v Martin [2017] WASCA 7 [99] (reasons of the court).
[54] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 (Kirby P), cited with approval in Brady [5].
For this reason, even if I am wrong in the view that the first ground of appeal does not involve an error of law, I would nonetheless have declined to set aside the Decision on this basis as I do not consider that this ground of appeal gives rise to an error of law, fact or logic that would justify the Decision being disturbed on an appeal by way of review.
Did the Arbitrator make an error of law in the exercise of the discretion in WCIMA s 71?
The second ground of appeal is that the Arbitrator erred in law in considering the only way to determine whether Mr Burridge had acted fraudulently was to establish if the observed activities in the DVD surveillance were of such a strenuous nature as to establish fraudulent presentation to medical practitioners. This ground is also developed in the Amended Appeal Notice:
The relevant criteria applied by the Arbitrator were not legal principles but were factual considerations to be taken into account and in particular it was not a legal principle that whether the respondent had acted fraudulently could only be established if his observed activities were of such a strenuous nature as to establish fraudulent presentation to the medical practitioners.
As I have already observed, the second ground of appeal is in substance an assertion that the Arbitrator erred in the exercise of the discretion in WCIMA s 71(1) by improperly fettering the discretion in that subsection.
The principles as to what constitutes an error in the exercise of a discretionary power are well established, and begin with the decision of Dixon, Evatt and McTiernan JJ in House v The King:[55]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[55] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 – 505 (Dixon, Evatt & McTiernan JJ).
In Norbis v Norbis Mason and Deane JJ added:[56]
The sense in which the terms 'discretion' and 'principle' are used in these remarks needs some explanation. 'Discretion' signifies a number of different legal concepts … Here the order is discretionary because it depends on the application of a very general standard — what is 'just and equitable' — which calls for an overall assessment in the light of the factors mentioned …, each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House v. The King …were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
[56] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 – 519 (Mason & Deane JJ).
Their Honours went on to observe that 'it does not follow that, because a discretion is expressed in general terms, Parliament intended that the courts should refrain from developing rules or guidelines affecting its exercise'.[57]
[57] Norbis (519).
The principles enunciated in House were recently applied in this court in the context of the discretion arising pursuant to WCIMA s 71(1).[58]
[58] D'Orsogna Ltd v Zhang [2019] WADC 73 [68] – [69], [73] (Davis DCJ).
The discretion in WCIMA s 71(1) is subject to the precondition (relevantly) that a worker has been paid compensation which the worker was not lawfully entitled to. The Arbitrator so found against Mr Burridge.[59] The only basis on which Mr Burridge challenges this finding is as set out in the cross-appeal. Once enlivened, the Arbitrator was empowered to 'make any order in relation thereto or any part thereof as the arbitrator considers appropriate in the circumstances'.[60]
[59] Decision, par 170.
[60] WCIMA s 71(1).
Any factors which an arbitrator is entitled or bound to consider or take into account, and any factors which the arbitrator is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of WCIMA s 71(1) as a whole.[61]
[61] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 – 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).
As to the relevant factors, the Arbitrator relied on the decision of Commissioner McCann in Hasic. The second ground of appeal challenges the extent of that reliance.
The Arbitrator makes it clear that, in her analysis, in exercising the discretion under WCIMA s 71(1), Commissioner McCann 'identified a number of non-exhaustive factors', being:[62]
(a)whether the worker was fraudulent'
(b)whether the worker maximised the effects of his disability;
(c)whether the worker was malingering;
(d)whether there are compassionate grounds, such as hardship to the worker;
(e)the prospect of recovery of the payments; and
(f)whether the worker acted in good faith.
[62] Decision, par 15.
The reference in the second ground of appeal to 'strenuous activities' is drawn from a passage in the decision in Hasic quoted by the Arbitrator:[63]
… The relevant criteria in relation to the exercise of the s 71 discretion include whether the worker obtained other, paid employment whilst unlawfully receiving weekly payments, whether the evidence revealed that the worker 'engaged in such strenuous activities as to establish his presentation to [the certifying] practitioners [was fraudulent], and whether the worker went 'out of his way to maximise the effects of his disability'…. These criteria predicate some degree of bad faith on the part of the worker. Basically, malingering is commonly accepted as a ground for orders pursuant to ss 61 and 71.
[63] Hasic [20].
The Arbitrator described this passage as providing 'valuable guidance as to relevant matters to be considered when exercising' the discretion in WCIMA s 71(1).[64] The Arbitrator expressly acknowledged that the criteria in Hasic are not exhaustive.[65]
[64] Decision, par 172.
[65] Decision, par 183.
I have quoted the conclusions reached by the Arbitrator above [17].
Properly analysed, the nature of the error of law asserted by Cape is that the Arbitrator construed the discretion in WCIMA s 71(1) to be fettered or limited by a requirement that a finding that Mr Burridge had acted fraudulently could only be established if, in the case of inconsistency between observed activities and reported symptoms, the observed activities were of such a strenuous nature as to establish fraudulent presentation to medical practitioners. An error of this kind, if made, would be within the House principles as it would involve the Arbitrator acting on a wrong principle by limiting the discretion in a manner which is not justified by either the express words of WCIMA s 71(1) or by implication from the subject matter, scope and purpose of that subsection as a whole.[66] However, I do not consider that the Arbitrator so limited the discretion. Specifically, I do not consider that the Arbitrator considered that the only way to determine whether Mr Burridge had acted fraudulently was to establish if the observed activities in the DVD surveillance were of such a strenuous nature as to establish fraudulent presentation to medical practitioners. Rather, all the Arbitrator found was that the observed activities in the DVD surveillance were not in this case of such a strenuous nature as to establish fraudulent presentation to medical practitioners. In my view, the Arbitrator correctly considered the factors identified by Commission McCann in Hasic as being relevant, but not exhaustive, factual considerations. Those factors are entirely consistent with the subject matter, scope and purpose of s 71(1) as a whole.[67] This includes whether the activities of Mr Burridge as observed in the surveillance DVD were of such a strenuous nature as to establish his presentation to the reporting medical practitioners as being fraudulent.
[66] Minister for Aboriginal Affairs (39 – 40); HAR [96].
[67] See also: D'Orsogna Ltd v Zhang [21] – [25], [73] (Davis DCJ).
The second ground of appeal has not been made out.
The third ground of appeal is that the Arbitrator erred in law by not exercising, or as a matter of law properly exercising, the discretion under s 71(1) by 'weighing and balancing all relevant factual factors in that she applied one relevant factual factor erroneously as a legal principle (proof of fraud), applied a factor that was not relevant (the date of commencement of the dispute), and failed to give weight to and then evaluate and balance all relevant factors'. This is developed in the Amended Appeal Notice:
The factors of fraud, maximising, malingering and bad faith by the worker are factors that favour making an order. The inconsistency that she found had no innocent explanation. Their absence is not a factor against making an order. There was a paramount and pre‑eminent factor of lack of lawful entitlement that supported making the order sought, and no relevant countervailing factor.
The third ground of appeal draws in the first and second grounds. Giving the findings I have made so far, the third ground of appeal is to be determined on the basis that:
(a)there was no finding to the effect that there was no innocent explanation for the inconsistency; and
(b)the Arbitrator did not err in limiting the way in which fraud may be proven.
Cape submitted that there 'was a paramount and pre-eminent factor of lack of lawful entitlement that supported making the order sought, and no relevant countervailing factor'.[68] In terms of the framework set out in House, this is a submission to the effect that the Decision on the facts is is so unreasonable or plainly unjust, that, on review, I may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Arbitrator.
[68] Appellant’s Submissions, par 35.
The reference to a paramount and pre-eminent factor is drawn from the decision of Commissioner McCann in Leighton Contractors where his Honour stated:[69]
The s 71 discretionary criteria… are not exhaustive. Other criteria have been canvassed in authorities dealing with similar provisions in other legislation. In Director-General of Social Services v Hales (1982) 47 ALR 281 the Full Court of the Federal Court of Australia considered s140 of the Social Security Act 1947 (Commonwealth) which dealt with the recovery of over-payments of social security and ruled that compassionate grounds, such as hardship to the respondent, and the scant chance of recovery are relevant factors. Sheppard J held, however, that compassionate considerations must be weighed against the fact that the respondent received money for which there was no entitlement. His Honour said (at 322-3):
'Also [it is necessary to] put into the scales the consideration the respondent had, for whatever reasons, received public monies to which she was not lawfully entitled. To me, notwithstanding considerations of hardship that must always be a paramount consideration. After all, the legislature has expressly provided for recovery of over-payments in the very legislation pursuant to which these benefits are paid. Thus it contemplated recovery from persons to whom over-payments of social service benefits had been made.'
The word paramount means pre-eminent. It is to be noted that the absence of entitlement was said to be a paramount consideration – his Honour did not elevate it to the paramount consideration and I do not understand him to have suggested that the lack of entitlement cannot be displaced in importance by compassionate and other considerations. He said (at p321) that it is plainly appropriate for compassionate considerations to be taken into account and agreed with what was said by Davies J in Re Gee and Director - General of of Social Services (No 2) (1981) 4 ALD 376 (at 383) namely, the decision-maker should have regard to the total circumstances of the case... .
[69] Leighton Contractors [9] (underlining in original).
The Arbitrator correctly paraphrased this passage, stating that the absence of entitlement to weekly payments is a paramount (but not the pre-eminent) consideration.[70]
[70] Decision, par 175.
It is convenient to analyse the exercise of the discretion by the Arbitrator by grouping the factors referred to in the Decision into three categories: factors in favour of an order, neutral (or absent factors) and factors against the making of an order.
The factors identified in favour of making an order were:
•The absence of an entitlement to weekly payments.
•That there was no evidence of bad faith on the part of Cape.
The neutral or absent factors were that there was no evidence:
•That Mr Burridge would suffer hardship if an order were made.
•Of any other compassionate grounds.
The factors against the making of an order were:
•There was no evidence that Mr Burridge obtained other paid employment whilst unlawfully receiving weekly payments.
•The evidence did not establish that Mr Burridge was acting fraudulently.
•The Arbitrator was not satisfied that Mr Burridge went out of his way to maximise the effects of his injury.
•The Arbitrator was not satisfied that Mr Burridge was malingering.
•The evidence did not establish any bad faith on the part of Mr Burridge.
On this analysis, Cape has not persuaded me that the conclusion that no order for recovery should be made was so unreasonable or plainly unjust, that, on review, I may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Arbitrator.
Cape has not established the third ground of appeal.
Should Cape be given leave to appeal?
As I have observed, it is not a necessary precondition to the conduct of a review that the error of law has been held to have occurred.[71] Rather, it is sufficient for there to be a grant of leave to appeal that the appeal 'involve a question of law'.
[71] Pacific Industrial Co [25].
A breach of the principles in House is an assertion that there was a failure properly to exercise the discretion which the law reposes in the Arbitrator.[72] A breach of this kind would be material as, but for the error, the decision would have been, or might have been, different.[73] In my view, the assertion of a breach of the principles in House in the present appeal means that it 'involves a question of law' for the purposes of WCIMA s 247(2).
[72] WHW v Commissioner of Police [2014] WASCA 153 [61] (reasons of the court); Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [36] (McLure JA, with whom Steytler P agreed).
[73] Brady [15].
It is in the interests of justice that the District Court exercise appellate oversight of the exercise of discretion by arbitrators under the WCIMA, so it is appropriate to grant leave to appeal in relation to the second and third grounds of appeal. Having so determined, I am required to conduct a real review of the Decision.[74] The effect of that review is that the Arbitrator did not err in the exercise of her discretion. If that review extended to the issues in the first ground of appeal, I would likewise have declined to set aside the Decision. It follows that the appeal must be dismissed.
[74] Pacific Industrial Co [18].
Should Mr Burridge be given leave to cross-appeal?
For ease of analysis, I will address the second ground of cross‑appeal first, being that in 'relying upon Dr Meyerkort's expert evidence for the conclusion that the respondent was fit to perform all the pre-injury duties of a fireproofer, and to do so on a full-time basis, the learned Arbitrator made errors of law'.
Dr Meyerkort is a Consultant Occupational Physician. He provided two reports on Mr Burridge at the request of Cape which were considered by the Arbitrator. The first was on 9 November 2017, and followed an interview with, and examination of, Mr Burridge.[75] The second was a supplementary report on 22 November 2017 following a review by Dr Meyerkort of the surveillance footage obtained on behalf of Cape.[76] In this second report, Dr Meyerkort concluded that, on the 'basis of the new information made available I am of the opinion that Mr Burridge does not have any significant injury or impediment for activity and would be able to return to work in a full-time unrestricted capacity'.[77] Specifically, Dr Meyerkort answered the questions posed on behalf of Cape in the following matter:[78]
[75] AB 180 – 188.
[76] AB 189 – 194.
[77] AB 192.
[78] AB 192 – 193.
1.Please confirm that the person depicted in the surveillance is the same person who attended for review at your rooms on 31 October 2017;
I confirm that the person depicted in the surveillance is Mr Burridge, the same individual I reviewed on 31 October 2017.
2. Please detail any discrepancies/inconsistencies as between the nature and extent of the claimant's demonstrated range of movement on surveillance, as compared to that reported (and/or demonstrated) by him on review;
Based upon the further information provided, Mr Burridge is not an accurate historian in respect to his subjective reporting to the nature and extent of his current symptoms, restrictions and incapacity.
3. In your opinion, is the claimant an accurate historian in respect of his subjective reporting as to the nature and extent of his past and/or current symptoms, restrictions and incapacity in relation to the alleged incident on 3 June 2017;
Based upon the further information provided, Mr Burridge is not an accurate historian in respect to his subjective reporting of the nature and extent of his current symptoms, restrictions and incapacity.
4. In your opinion, are the activities demonstrated by the claimant on surveillance consistent with your view that any physical injury(ies) allegedly suffered by him at work on 4 December 2012 and any incapacity arising from it have now resolved?
Based upon the surveillance footage provided I am of the opinion that Mr Burridge does not have any continuing physical injury and that he may have suffered has fully recovered and he does not have any incapacity.
5. Does the surveillance give you cause to reconsider and/or amend your previous conclusions or views in relation to the following:
a. The nature and extent of his physical injury;
Based upon the new information provided from the surveillance footage, I am of the opinion that Mr Burridge does not have any significant physical injury.
b. The claimant's capacity for his pre-accident employment as a fireproofer;
Based on the further information provided, I am of the opinion that Mr Burridge is able to return to his pre‑accident employment as a fireproofer in a full-time unrestricted capacity.
c. His capacity for alternative employment;
Based on the further information provided, I am of the opinion that Mr Burridge has the capacity to perform any alternative employment that he chooses to participate in a full time-unrestricted capacity.
d. The nature and/or extent of any restrictions in respect of that employment.
Based on the further information provided, Mr Burridge does not have any restriction in respect of further employment in regard to his physical report of symptoms.
Please detail, in respect of each, in what way your views have been impacted, and to what extent.
6. Does the surveillance footage alter your views in terms of the claimant's recovery from his alleged physical injury(ies)? Please detail the nature and extent of any recovery (if any)?
Based on the surveillance footage provided, I am of the opinion that Mr Burridge does not have any continuing physical injury and that any injury that he may have sustained has fully recovered.
7. In light of the surveillance footage, any additional comments you may have in regards to diagnosis, prognosis and/or recommendations as to future treatment or further investigations in relation to the claimant's alleged physical injury(ies)?
Based upon the surveillance footage provided, Mr Burridge does not require any further treatment for his condition. He does not have any current physical injury affecting his back or knee and he will be able to maintain this good level of function in the long‑term.
The Amended Notice of Respondent's Intention sets out three specific errors of law supporting the conclusion that the Arbitrator erred in law in relying upon Dr Meyerkort's expert evidence for the conclusion that Mr Burridge was fit to perform all the pre-injury duties of a fireproofer on a full-time basis:
(a)failing to make any findings as to what each of those duties actually were;
(b)failing to assess both the 'foundational' and 'reasoning' sufficiencies (in accordance with Makita (Australia) Pty Ltd v Spowles (2001) 52 NSWLR 705), or otherwise, of Dr Meyerkort's evidence that was tendered in support of the appellant's submission that the respondent was fully fit to perform all the duties in (a) above, and to do so full-time; and/or
(c)failing to provide any reasons in respect of (a) above, or adequate reasons in respect of (b) above.
The issue of whether there was any evidence as to the duties of a fireproofer was raised by counsel for Mr Burridge and directly considered by the Arbitrator in the passage I have quoted above [14]. For ease of reference, the portion of central relevance to the cross-appeal was:
136.Dr Meyerkort provides only a brief written summary of the nature of Mr Burridge's pre-injury role. However, he has been provided with the Wheatstone project pre-employment medical assessment dated 31 August 2016 which incorporates the preplacement medical assessment from Jobfit dated 2 September 2016. He was aware of the restrictions previously in place for Mr Burridge in relation to his pre-injury role and had formed the opinion based on his medical examination on 31 October 2017 that some of those restrictions should apply for the next 12 weeks.
137. Dr Meyerkort is an experienced occupational physician, which means that he has particular expertise with respect to occupational requirements. I am satisfied that Dr Meyerkort had sufficient information and professional experience to fully understand the physical aspects and demands of a role as a fireproofer.
138.I find that Dr Meyerkort understood the role of a fireproofer, including the tasks, activities and physical demands involved in such an occupation.
It is convenient to begin with the second specific error of law identified in the second ground of cross-appeal.
In Town of Mosman Park v Tait,[79] McLure JA identified four preconditions for the admissibility of expert evidence at common law:
Firstly, the subject matter must be of such a nature as to require a sufficient degree of specialised knowledge to render expert evidence admissible. Secondly, the witness must have relevant expertise in the area. Thirdly, the expert must either prove by admissible means the facts on which the opinion is based or explicitly state the assumptions as to the facts on which the opinion is based. Fourthly, the process of inference that leads to the opinion must be stated or revealed in a way that enables the conclusion to be tested and a judgment made about its reliability.
[79] Town of Mosman Park v Tait [2005] WASCA 124 [63] (McLure JA); Pollock v Wellington (1996) 15 WAR 1, 3 ‑ 4 (Anderson J); Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 390 (Anderson J); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743 – 744 (Heydon JA).
The third and fourth preconditions are salient to the present appeal. As to the third precondition, where the expert's opinion is based on assumptions, the assumptions must in turn be proven by admissible evidence.[80] Mr Burridge in substance contends that in not setting out the specific duties of a fireproofer, Dr Meyerkort failed to explicitly state the assumptions as to the facts on which his opinion was based, and that, in any event, there was no admissible evidence as to the specific duties of a fireproofer.
[80] Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 62 ALR 85, 87 ‑ 88 (Mason ACJ, Wilson, Brennan, Deane & Dawson JJ); Town of Mosman Park [63]; Pownall (387) (Anderson J).
As to the fourth pre‑condition, the expert must 'furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusion'.[81] In Makita (Australia) Pty Ltd v Sprowles, Heydon JA described this requirement as being that 'the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded'.[82] Heydon JA went on to state that if these matters were not made explicit, 'the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight'.[83] In Pollock v Wellington Anderson J observed that 'unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight'.[84]
[81] Birla Nifty Pty Ltd v International Mining Industry Underwriters Ltd [2014] WASCA 180 [70] (McLure P, Buss & Newnes JJA agreeing).
[82] Makita (743 ‑ 744 [85]); Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 604 [36] ‑ [37], 605 [41] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Kalbasi v The State of Western Australia [2013] WASCA 241 [88] (Mazza JA, Martin CJ & Buss J agreeing).
[83] Makita (744).
[84] Pollock (4).
In substance, Mr Burridge asserts that Dr Meyerkort's report failed to comply with the third and fourth preconditions with the effect that his report would have been inadmissible at common law and the Arbitrator thus erred in law in relying on it.
However, the framework of evidence being inadmissible at common law is not an appropriate one in the context of an arbitration under the WICMA.[85] This is because, even if Dr Meyerkort's expert evidence failed to set out specific facts relied on or the process of reasoning that led to his opinion (either at all or in a way that enabled his conclusions to be tested), the Arbitrator would not have erred in law in relying on his opinion. This is because the Arbitrator is not bound by the rules of evidence.[86] Rather, it was open to the Arbitrator to inform herself 'on any matter as the arbitrator thinks fit'.[87] This is subject to an obligation to comply with the rules of natural justice or procedural fairness, an issue to which I will return below.[88]
[85] Treby [73], [75].
[86] WICMA s 188(2)(a).
[87] WCIAM s 188(3).
[88] WCIMA s 188(1), 'except to the extent that [the WCIMA] authorises, whether expressly or by implication, a departure from those rules'.
Specifically, there was no legal obligation on the Arbitrator to ensure that the expert opinion of Dr Meyerkort complied with the rules governing the admissibility of expert evidence at common law. So there can be no error of law in failing to do so. It follows that the second specific error asserted in the second ground of cross-appeal does not involve a question of law for the purposes of a WCIMA appeal.
Rather, properly analysed,[89] the second specific error of law identified in the second ground of appeal goes no higher than an assertion that the facts found by the Arbitrator based on Dr Meyerkort's opinion were found wrongly or on a doubtful basis. That does not involve a question of law.[90]
[89] Atanasoka [21]; Treby [54].
[90] Atanasoka [21]; Treby [41], [54].
As to the first specific error of law identified in the second ground of two, there was no legal requirement for the Arbitrator to make a specific finding as to what each of the duties of a fireproofer actually was. Accordingly, no question of law is involved in failing to do so.
As to the third specific error of law identified in the second ground of appeal, a failure by an Arbitrator to provide any or any adequate reasons will constitute a denial of natural justice (or procedural fairness) and thus an error of law.[91] The Arbitrator was bound by the rules of natural justice, except to the extent the WCIMA expressly or by implication authorised a departure from those rules.[92] In that regard, WCIMA s 213(4) provides:
(4)The reasons for an arbitrator's decision —
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
[91]Summit Homes v Lucev (1996) 16 WAR 566, 569 (Ipp J, with whom Kennedy and Rowland JJ agreed); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 – 367 (Deane J).
[92] WCIMA s 188(1).
There is a provision in identical terms to WCIMA s 213(4) in Magistrates Court Act 2004 (WA) (MCA) s 31(1). In Manonai v Burns[93] Hall J made the following observations about the duty to give adequate reasons in the context of MCA s 31(1), which are apposite to WCIMA s 213:
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[93] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).
His Honour went on to make the following observations about the realities of work pressure in the Magistrates Court, which have been accepted by the Court of Appeal as being apposite to the present context:[94]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[94] Manonai [56]; Velez Pty Ltd v Tudor [2011] WASCA 218 [69] (Murphy JA, with whom Pullin and Newnes JJA agreed).
As I have noted, a decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[95] I do not consider that the assertion of an error of law by way of failure to provide reasons is a material error in the context of the cross‑appeal. This is because, in essence, this third specific error is being used as a backdoor way to argue the first and second specific errors. It cannot be a material error to fail to provide written reasons about matters the Arbitrator was under no legal obligation to address. Specifically, the Arbitrator was under no legal obligation to make a finding as to what each of the duties of a fireproofer were and no legal obligation to ensure that the expert opinion of Dr Meyerkort strictly complied with the rules of admissibility of expert evidence.
[95] Brady [15].
In any event, I do not consider that the Arbitrator failed to provide any, or any adequate reasons, for relying on the opinion of Dr Meyerkort. The Arbitrator identified the relevant fact which she accepted in coming to the Decision, being that Dr Meyerkort understood the role of a fireproofer, including the tasks, activities and physical demands involved in such occupation.[96] In the context which I have addressed in dealing with the first and second specific grounds of appeal, nothing more was required to comply with WCIMA s 213(4).
[96] Decision, par 138.
For these reasons, I am of the view that the second ground of appeal does not involve a question of law.
The first ground of the cross-appeal essentially reiterates the second ground of appeal in the context of the finding by the Arbitrator that Mr Burridge was fit to perform all the pre-injury duties of a fireproofer on a full time basis. This is evident from the three specific errors of law asserted:
(a)failing to make any findings as to what each of those duties actually were;
(b)failing to provide any or adequate reasons in respect of (a) above; and/or
(c)in the circumstances, such a conclusion was legally unreasonable, or not reasonably open on the evidence.
The reasoning at [88] to [95] applies equally. The Arbitrator was under no legal obligation to make specific findings as to what the duties of a fireproofer were. So the Arbitrator made no error of law in failing to do so. Accordingly, and in the context of WCIMA s 213(4), any assertion of a failure to provide adequate reasons as to the duties of a fireproofer is not an assertion of a material question of law for the purposes of WCIMA s 247(2)(b). To the extent that the third specific ground, properly analysed, is an assertion that the finding by the Arbitrator that the finding was wrong or on a doubtful basis, this likewise does not involve to a question of law.[97]
[97] Atanasoka [21]; Erceg [31]; Treby [41], [54].
There is one remaining basis on which the third specific error of law identified for first ground of cross-appeal may involve a question of law. This is that an 'error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them'.[98] However, in the present appeal, there was evidence to support the finding that Mr Burridge was fit to perform all the pre-injury duties of a fireproofer on a full time basis. This was the evidence of Dr Meyerkort. 'If the only question in the case is whether evidence ought to be accepted … no question of law is involved'.[99]
[98] Erceg [31]; Brady [5].
[99] Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300, 310 – 311 (McHugh JA), cited with approval in Erceg [32].
For these reasons, I am also of the view that the first ground of appeal does not involve a question of law.
The respondent should not be given leave to bring the cross-appeal.
Even if I am wrong in the view that Mr Burridge required leave to cross‑appeal or that the cross-appeal did not involve a question of law, had I proceeded to review the Decision based on the issues raised in the cross-appeal, I would nonetheless have dismissed the cross-appeal. This is because I can discern no error of fact or logic[100] in the approach of the Arbitrator in relying upon Dr Meyerkort's expert evidence and concluding that Mr Burridge was fit to perform all the pre-injury duties of a fireproofer on a full-time basis. Dr Meyerkort was a consultant occupational physician. He examined Mr Burridge and reviewed all relevant material. The proposition that the Arbitrator was precluded, as a matter of law, from giving Dr Meyerkort's opinion any weight is untenable.[101] Rather, it was a matter for the Arbitrator as to what weight she afforded the evidence of Dr Meyerkort in the context of all of the evidence.[102] There is nothing in the materials before me to suggest that the finding Mr Burridge was fit to perform all the pre-injury duties of a fireproofer on a full-time basis was flawed by reference to incontrovertible facts or uncontested testimony, that it was glaringly improbable or contrary to compelling inferences, or that the Arbitrator has failed to use, or palpably misused, her advantage as the trier of fact.[103]
[100] Erceg [33]; Pacific IndustrialCo [26].
[101] Treby [60]
[102] Treby [60].
[103] Treby [53]; Fox v Percy [22], [23], [29], [31]; Robinson Helicopter [43]; Badran [65]; Woodley [154]; East Metropolitan Health Service [99].
The legal onus was on Cape, as employer, to establish the matters necessary to bring its contention within the relevant definitions in WCIMA s 61.[104] This was in the context of a statutory regime in which the Arbitrator could inform herself on any matter as she saw fit and was required to act 'accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'.[105] In that context, it was open to the Arbitrator to rely on the opinion of a consultant occupational physician on the basis that, by virtue of the expertise generally of that particular medical practitioner, he knew sufficient about the nature of the work undertaken by the appellant to form an opinion. Consequently, it was open to the Arbitrator to conclude that the employer had discharged the onus of proof on the balance of probabilities. There was then an evidential onus on Mr Burridge to adduce evidence which would tend to displace this satisfaction on the balance of probabilities about the matters to be established by Cape. Specifically, if Mr Burridge wished to assert that there was a particular aspect of his work as a fireproofer that he could not undertake because of the continuing effects of his workplace injury, then he had an evidential onus to place that before the court. He placed no such evidence before the court. Consequently, there was no evidence tending to displace satisfaction on the balance of probabilities about the matters to be established by Cape. In proceeding in this way, the Arbitrator did not make an error of law, fact or logic that would warrant the Decision being set aside on appeal by way of review.
[104] See generally: Fitzgerald v Smorgon Steel Pty Ltd [2004] WASCA 185 [30] (Murray J, with whom Malcolm CJ agreed), [36] (McLure J); Treby [78]; Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [55], [80], [86] (Roberts-Smith J, with whom Sheppard AJA agreed and Templeman J generally agreed).
[105] WCIMA s 188(2), (3)(b).
Had I granted leave and proceeded to conduct a 'real review' of the Decision,[106] I would not have been persuaded by Mr Burridge that the Decision should be varied, discharged or otherwise disturbed on the grounds relied on in the cross-appeal, and would have allowed it to stand.[107]
[106] Robinson Helicopter [43]; Fox v Percy [25]; Pacific Industrial [21] – [25]; Sotico [46].
[107] Pacific Industrial Co [20] – [26].
What final orders are appropriate?
The appropriate final orders are:
1.The appellant have leave to appeal.
2.The appeal be and is hereby dismissed.
3.The respondent be denied leave to appeal.
My preliminary view is that there should be no order as to costs. However, I will hear from the parties on this issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate2 AUGUST 2019
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