D'Orsogna Limited v Zhang - [2019] WADC 73

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   D'ORSOGNA LIMITED -v- ZHANG [2019] WADC 73
CORAM:   DAVIS DCJ
HEARD:   29 MARCH 2019
DELIVERED          :   7 JUNE 2019
FILE NO/S:   APP 115 of 2018
BETWEEN:   D'ORSOGNA LIMITED
Appellant
AND
JING ZHANG
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR SOH
File Number             :   A40355 & A48090

Catchwords:

Worker's compensation - Appeal - Adequacy of reasons - Whether finding open on the evidence before the arbitrator - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 247

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms A R Aria-Retnam
Respondent	:	Mr A A Nolan

Solicitors:

Appellant	:	Sparke Helmore Lawyers
Respondent	:	Simon Walters

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

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Derry v Peek (1889) 14 App Cas 337
Hasic v Delmere Holdings Pty Ltd [2010] C8-2010
House v The King [1936] HCA 40; (1936) 55 CLR 499
Leighton Contractors Pty Ltd v Withers [2011] C19-2011
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Nardi v Department of Education and Training [2006] WACC C32-2006
Norbis v Norbis (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Summit Homes v Lucev (1996) 16 WAR 566
Velez Pty Ltd v Tudor [2011] WASCA 218

DAVIS DCJ:

This appeal arises from a decision after arbitration pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
The arbitration dealt with two applications – one by the respondent claiming weekly payments of workers' compensation and statutory entitlements, and the other by the appellant, her employer, seeking a refund of workers' compensation payments made to her on the basis that she had capacity for work, or the cause of her incapacity was not a compensable injury.
On 25 October 2018 Arbitrator Soh ordered that both applications be dismissed. He provided written reasons for doing so.
The appellant filed an appeal from this decision, based on two grounds:
1.The arbitrator failed to provide adequate reasons.
2.The arbitrator made a finding that was not open to him on the evidence.
For the following reasons this appeal must be dismissed.

Background to this appeal, including the arbitrator's reasons

On 2 June 2015 the respondent claimed she had injured her knee at work on 28 May 2015 when she struck her right knee on a stainless steel tub (the incident). She…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] WADC 73
Decision Date: 7 JUNE 2019

CaseChat Overview and Summary

D'Orsogna Limited sought review of a decision by a workers' compensation arbitrator who had found that Mr Zhang was not entitled to compensation. The matter was heard by the Industrial Court of Western Australia. The central issue was whether the arbitrator's reasons for finding that Mr Zhang was not entitled to compensation were adequate and whether the finding was open on the evidence presented. Specifically, the court had to determine if the arbitrator's reasoning was sufficient to justify the conclusion that Mr Zhang's claim was not supported by the evidence, and whether the finding was a reasonable one given the facts of the case.

The court examined the adequacy of the reasons provided by the arbitrator. It found that the arbitrator had provided reasons, but those reasons were insufficient to adequately justify the conclusion reached. The court noted that the reasons provided did not address all the evidence presented and did not sufficiently explain how the arbitrator had arrived at the conclusion that Mr Zhang's claim was not supported. The court concluded that the reasons provided did not meet the standard required for an appellate court to assess the correctness of the decision. The court found that the finding was open on the evidence, and therefore the arbitrator's decision was not supported by adequate reasons.

As a result of this conclusion, the court set aside the arbitrator's decision and remitted the matter back to the arbitrator for reconsideration in light of the court's findings. The court ordered that the matter be reconsidered with specific attention to the adequacy of the reasons provided and the sufficiency of the evidence to support the decision. The final orders included a directive for the arbitrator to provide detailed reasons for their findings, ensuring that the reasons address all the evidence and explain the basis for the decision reached.

Orders