Cullen v Woodside Energy Ltd - [2021] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CULLEN -v- WOODSIDE ENERGY LTD [2021] WADC 56
CORAM:   STAVRIANOU DCJ
HEARD:   22 FEBRUARY & 1 JUNE 2021
DELIVERED          :   10 JUNE 2021
FILE NO/S:   APP 46 of 2020
BETWEEN:   GARRY FRANCIS CULLEN
Appellant
AND
WOODSIDE ENERGY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   MR M WALLBRIDGE
File Number            :   A53195

Catchwords:

Appeal and cross-appeal - Workers' compensation - Section 5 Workers' Compensation and Injury Management Act 1981 - Definition of 'injury' - Whether denial of natural justice established - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal
Appeal allowed
The application for arbitration dated 22 June 2018 be remitted to the Workers' Compensation Arbitration Service (WA), differently constituted for hearing
Cross-appeal dismissed

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Respondent	:	Mr D R Clyne

Solicitors:

Appellant	:	Slater & Gordon
Respondent	:	Jackson McDonald

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

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Audino v WA Country Health Service - Wheatbelt [2013] WADC 46
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
FAI General Insurance Co Ltd (De‑Registered) v Goulding [2004] WASCA 167
Housing Industry Association Limited v Murten [2004] WASCA 139
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

STAVRIANOU DCJ:

Introduction

By application dated 22 June 2018 the appellant, Garry Francis Cullen, claimed from his employer the respondent Woodside Energy Limited (Woodside) weekly payments of workers' compensation and medical expenses.
Mr Cullen alleged that he had contracted a disease, in the course of his employment, particularised as major depression.
Woodside disputed Mr Cullen's claim and the application proceeded to arbitration pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The arbitrator dismissed the claim on the basis that he was not satisfied that Mr Cullen suffered a compensable injury as defined in the Act.
Mr Cullen now appeals the decision. His principal submission is that there was a denial of natural justice.
Woodside cross-appeals on the basis that Mr Cullen's condition arose wholly or predominantly from an excluded matter, namely discipline, pursuant to s 5(4) of the Act and therefore there was no entitlement to compensation.

The factual…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Cullen v Woodside Energy Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WADC 56
Decision Date

CaseChat Overview and Summary

Cullen brought an action against Woodside Energy Ltd in relation to an employment matter. The case was heard in the Supreme Court of Western Australia. Cullen argued that the respondent had breached the principles of natural justice by failing to provide him with adequate disclosure before making a decision that adversely affected him. Woodside contended that any breach of natural justice was not significant as the arbitrator had made an alternate finding that the origin of the stress was due to Cullen’s poor work performance and that this was an excluded matter under the relevant legislation.

The court was required to determine whether the respondent breached the principles of natural justice by not disclosing its adverse findings to Cullen before making a decision that affected him. The court also needed to consider whether any such breach was significant in the context of the alternate finding made by the arbitrator.

The court found that while procedural fairness does not ordinarily require a decision-maker to reveal a proposed adverse conclusion to a party, it may be necessary in certain cases if the proposed conclusion could not reasonably have been anticipated. However, in this case, the court held that the arbitrator’s alternate finding that the origin of the stress was due to Cullen’s poor work performance could have been reasonably anticipated by Cullen. Therefore, the court found that there was no significant breach of natural justice.

The court dismissed Cullen’s claim against Woodside Energy Ltd. The court held that the arbitrator’s alternate finding was a valid and reasonable conclusion that could have been anticipated by Cullen. Therefore, any breach of natural justice was not significant and did not affect the outcome of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [4], [55]. In Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 Buss JA summarised the position in relation to disclosure by a decision‑maker to a party in the following way:217Ordinarily, a decision-maker is not required to disclose to a person to whom procedural fairness must be accorded the decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made. Similarly, the decision-maker is not, ordinarily, obliged to send to a person to whom procedural fairness must be accorded, a draft of a report by the decision-maker which contains findings adverse to the interests of the person, for the purpose of enabling him or her to make comments or submissions. See Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213, 224 (Beaumont J); Alphaone, 590 - 591; Ex parte Palme [22]; OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 [55] (Emmett J). 218Although procedural fairness does not, ordinarily, require the decision-maker to reveal a proposed conclusion to a person to whom procedural fairness must be accorded, it may be necessary, in a particular case, for the adverse conclusion to be disclosed and for the person to be given an opportunity to comment on or make submissions in respect of it, if the proposed conclusion could not reasonably have been anticipated. See South Sydney City Council [260] - [261] (Mason P, Ipp AJA agreeing); OzEpulse [57]. Woodside's written submission as to the natural justice ground read:32.The Respondent acknowledges the Appellant's arguments about natural justice but says that those principles do not truly apply here because the history of the development of the symptoms was referred to by the Appellant in his evidence and by his witness, Dr Ng and the Respondent's witness, Dr Chang and it is simply a finding which is based on their evidence.33.If however, there has been a denial of natural justice on this issue, it is of no significance in the determination of the Application because, as explained by the Arbitrator in paragraphs [140] and [192], his alternate finding is that the origin of the stress was Mr Ridley's Actual decision and conduct in advising the Appellant of the performance rating in November 2016 (which was the basis of the Appellant's claim in the Arbitration) and that in any event, that Action was an excluded matter, pursuant to Section 5(4)(b) of the Act, being in essence a managerial decision relating to work performance.34.The alternate finding is one that can sit sensibly within the determination of the issues by the Arbitrator in that there appears to be no dispute that that was the initial conduct by the Respondent's employee Mr Ridley, which caused the initial stress and that his subsequent ongoing symptomology related to and evolved from that.