Cowell v South Metropolitan Health Service - Fiona Stanley Hospital
[2020] WADC 37
•27 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: COWELL -v- SOUTH METROPOLITAN HEALTH SERVICE - FIONA STANLEY HOSPITAL [2020] WADC 37
CORAM: PRIOR DCJ
HEARD: 3 FEBRUARY 2020
DELIVERED : 27 MARCH 2020
FILE NO/S: APP 81 of 2019
BETWEEN: MARGARET HELEN COWELL
Appellant
AND
SOUTH METROPOLITAN HEALTH SERVICE - FIONA STANLEY HOSPITAL
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA ARBITRATION SERVICE
Coram: ARBITRATOR NUNN
File Number : A64145
Catchwords:
Workers' compensation - Appeal - Leave to appeal - Interlocutory decision on practice and procedure - Substantial injustice required - Turns on own facts
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 188, s 190, s 198, s 213, s 247
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 4, r 24, r 25, r 42, r 43, r 57
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr A J Stewart |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756
Dodds v Kennedy [2011] WASCA 32
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Kezic v St John of God Health Care Inc [2015] WASCA 182
Morton Seed and Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182
Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009
Waller v Waller [2009] WASCA 61
PRIOR DCJ:
Introduction
The appellant on 26 September 2019 made an application pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) for compensation due to a personal injury suffered by her in the course of her employment at Fiona Stanley Hospital (the application).
The nature of the dispute and the orders sought by the appellant were described in the application as follows:
1.The Respondent pay the Applicant the monies outstanding from her 2018 injury.
2.Weekly payments of compensation as for total, or alternatively partial incapacity, from or about 15 June 2019 to the present and continuing.
3.Payment of outstanding incurred statutory allowances, details of which are known to the Respondent; and
4.Payment of the costs of this application and application C56022, to be determined pursuant to s.268 of the Act, or otherwise to be assessed.
This is an appeal from a decision of WorkCover WA Arbitrator Nunn (arbitrator) made on 3 October 2019 pursuant to s 247 of the Act.
The arbitrator ordered that 'by no later than 25 October 2019, the worker [the appellant] file and serve her signed witness statement' (the decision). Before making the decision the arbitrator noted the position at the time was as follows:
The worker's application has been received and contains a rule 57(2) notice which indicates that 'the rule 57(1) statement will be finalised, signed and lodged no later than 28 days prior to any hearing'.
To expedite proceedings and better assist in the case management of this dispute (including the ability to list for arbitration) an order is made in advance of first directions hearing requiring the worker to lodge her finalised witness statement.
This order is made pursuant to the operation of rule 4, s 198(3) and s 190 of the Act.
The decision was made on the papers, in chambers, in the absence of the parties. Neither party had made any application in relation to the arbitrator's decision.
The decision appealed was an interlocutory one. The decision was a discretionary judgment on practice and procedure. In a discretionary judgment on practice and procedure, an appeal court should exercise special restraint before interfering.[1]
[1] Dodds v Kennedy [2011] WASCA 32 [5], Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [49] and Morton Seed and Grain Pty Ltd v Corser & Corser [2006] WADC 90; (2006) 43 SR (WA) 182 [15].
The appellant lodged an application to appeal the decision on 22 October 2019.
The appellant's appeal is on two grounds:
1.The arbitrator erred in law in failing to provide the Appellant procedural fairness in breach of s 188(1) of the Act;
2.The arbitrator erred in law in acting in a manner ultra vires to the provisions of the Act and the Rules including but not limited to s 188, s 190 and s 198 if the Act and r 4, r 24, r 42, r 43 and r 57 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (the Rules).
The respondent filed a notice that it did not intend to take part in this appeal and will accept any order made by the court in the appeal other than as to costs.
The arbitrator's reasons
The reasons for the arbitrator's decision were provided in response to a request by the appellant on 15 October 2019. The reasons are as follows:
On 3 October 2019 I made orders of my own motion, without hearing from the parties, that the worker file and serve her statement. In making that order I relied on the operation of rule 4 of the Arbitration Rules, s 198(3) and s 190 of the Act.
The worker has written on 8 and 11 October 2019 requesting written reasons for decision. I set out below my reasons for decision which are neither elaborate nor complex in the circumstances. See s 213(4).
The worker indicated in her application that her 'rule 57(1) statement will be finalised, signed and lodged no later than 28 days prior to any hearing'.
The authority for that proposition must be rule 25(4). However, that is only the default position provided for by the rules. Rule 4 provides that 'an arbitrator may in a particular case, as the arbitrator thinks necessary in the interest of justice or otherwise to give effect to the Act extend or abridge a time limit for doing anything under these rules'.
Section 190 allows me to issue directions, including orders, for the speedy and fair progress of a matter.
Section 198(3) allows me to conduct all or part of a proceeding on the basis of documents without the parties or their representatives (or any witnesses) attending or participating in a hearing.
In the circumstances I saw fit to vary the default position relied on by the worker without hearing from either party on the basis of the worker's position set out in the documents contained in the application for arbitration, including the statement in the rule 57(2) notice filed by the worker that her statement would be 'finalised, signed and lodged no later than 28 days prior to any hearing'.
I made that case management order varying that position for, what I at least consider to be, the speedy and fair conduct of the proceeding so all relevant evidence could be identified at the earliest stage in order to accommodate, if possible, listing this matter at the earliest opportunity. In my view, the case management of a matter forms part of the relevant proceeding.
That order was intended to give effect to the objects of the Act of speed and justice so the respondent employer and the Arbitration Service may know the precise evidence to form the worker's evidence in chief.
The practical impact of the appellant succeeding on her appeal is she will not have to lodge her finalised and signed r 57(1) statement before her application is listed for hearing. It is accepted by counsel for the appellant that a final r 57(1) statement must be lodged by the appellant before the hearing of the application by an arbitrator and a draft r 57(1) statement has already been lodged by the appellant which is the substance of her evidence.[2] The draft r 57(1) statement was lodged with the appellant's application on 26 September 2019.
[2] Transcript of hearing, 3 February 2020, pages 4 and 6.
At present, due to the decision, the appellant's application cannot proceed to the first directions hearing until the appellant's finalised r 57(1) statement is lodged.
Principles on a workers' compensation appeal
Under s 247(1) of the Act, a party may, with the leave of the District Court, appeal against the decision of an arbitrator. This appeal is pursuant to s 247(2)(b) of the Act and the District Court is not to grant leave to appeal unless a question of law is involved.
Section 247 of the Act confers on appellants a conditional right to appeal to this court from decisions of an arbitrator. The right of appeal is conditional on this court granting leave.[3]
[3] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20] (Buss JA) and Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [18] (Buss JA).
If leave is granted, the appeal proceeds by way of review of the arbitrator's decision, and the court may affirm, vary or quash the decision, or make any decision that should have been made in the first instance: s 247(5) and s 247(7)(a) of the Act.
In some cases it may be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal. Generally in most cases, the application for leave to appeal and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds.[4] In this case, for the reasons which follow, I will deal with the application for leave to appeal first and separately.
[4] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14] (Pullin JA).
Granting of leave
The Act does not expressly provide for the criteria to be applied by this court when deciding to grant or withhold leave to appeal under s 247 of the Act other than the appeal must relate to a question of law.
The Court of Appeal (WA) in considering the requirement for leave to appeal from a judgment in the District Court pursuant to s 254 of the Act in Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 stated at [46]:
Apart from the requirement that the appeal relate to a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.40 Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed.41
(FN40 Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243 [73])
(FN41 Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200 [31])
In Kezic v St John of God Health Care Inc [2015] WASCA 182 [84] ‑ [86] the Court of Appeal (WA) summarised the principles to be applied in considering whether to grant leave to appeal under s 254 of the Act in the following terms:
The principles relevant to the grant of leave were summarised, sufficiently for present purposes, in Allmark v Mossensons (A Firm):
'Leave will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave, and if in addition substantial injustice would be done by leaving the decision unreversed. These are not rules but guidelines. The Court has a residual discretion to do justice in any case requiring leave even if the guidelines are not satisfied. (citations omitted)'
Further, it should be noted that the primary judge was dealing with applications for leave to appeal in respect of interlocutory decisions concerning practice and procedure in arbitration proceedings conducted by arbitrators under the Act. The courts have consistently stated that special restraint must be exercised when dealing with appeals in respect of interlocutory orders concerning practice and procedure: Dodds v Kennedy.
The need for appellate restraint applies equally, if not more so, to appeals from intermediate appellate decisions concerning practice and procedure.
In my view, the same principles that apply in common law should be considered by the District Court for the granting of leave to appeal from an interlocutory decision of an arbitrator pursuant to s 247(2)(b) of the Act. This was also the view of Commissioner McCann (as he then was) in Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009 [10], when he said:
As a general rule, leave to appeal will not be granted in respect of an interlocutory decision unless it is shown that the decision appealed from is wrong or at least attended by sufficient doubt to justify the grant of leave and, in addition, that a substantial injustice would be done by leaving the decision unreversed (Wilson v Metaxas [1989] WAR 285 at 294).
A relevant requirement in considering the application for leave to appeal is therefore; would a substantial injustice be done to the appellant by leaving the decision unreversed?
What is a substantial injustice must depend on all the circumstances of the case.[5]
[5] BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756 [759] (Fullagar J); Waller v Waller [2009] WASCA 61 [122].
The relevant circumstances of this case are:
(a)This is an appeal in respect of an interlocutory decision involving practice and procedure.
(b)A draft r 57(1) statement has already been provided by the appellant.
(c)Before the hearing of the application the appellant will file a final signed r 57(1) statement.
In this case, the practical result if the decision is unreversed is the appellant will be required to lodge her final r 57(1) statement at an earlier stage than suggested in her application.
Pursuant to r 30 even when the appellant has lodged her final r 57(1) statement she may apply to adduce further evidence with leave of the arbitrator.
The appellant in her written and oral submissions has not identified any specific injustice which she claims would result from leaving the decision, the subject of the appeal, unreversed.
The appellant has not satisfied me there would be an injustice to her if the decision is unreversed. A substantial injustice is required.
Given the appellant has not satisfied me she will suffer a substantial injustice if the decision is not reversed, it is unnecessary to deal with her two grounds of appeal.
Conclusion
For the reasons I have given, I would refuse leave to appeal because the decision, if left unreversed, would cause no substantial injustice to the appellant.
The appeal is dismissed.
I make no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior26 MARCH 2020
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