Dhu v Royal Perth Hospital - [2022] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DHU -v- ROYAL PERTH HOSPITAL [2022] WADC 89
CORAM:   FLYNN DCJ
HEARD:   1 JUNE 2022
DELIVERED          :   21 OCTOBER 2022
FILE NO/S:   APP 94 of 2021
BETWEEN:   JODIE MARGARET DHU
Appellant
AND
ROYAL PERTH HOSPITAL
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKCOVER WA ARBITRATION SERVICE
Coram:   ARBITRATOR NUNN
File Number            :   A98392

Catchwords:

Workers compensation - Appeal - Section 156B Arbitrators' powers as to return to work programs - Whether arbitrator erred in law in finding that an arbitrator is not empowered to order that an employer establish a return to work program

Legislation:

Workers' Code of Practice (Injury Management) 2005 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)

Result:

Leave to appeal granted.
Appeal allowed.
Order of arbitrator dated 19 November 2021 is set aside.
The case is remitted to the Workers' Compensation Arbitration Service for re-determination in conformity with these reasons.

Representation:

Counsel:

Appellant	:	Mr M J Lourey
Respondent	:	Mr J I Wilcox

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	Moray & Agnew Lawyers

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

Avel Pty Ltd v Multicoin Amusements Pty Ltd [1990] HCA 58; (1990) 171 CLR 88
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478
Marks v Coles Supermarkets [2021] WASCA 176
National Foods Ltd v Green [2005] WASCA 180
Oshlack v Richmond River Council [1993] HCA 11; (1993) 193 CLR 72
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paterson v The Minister for Mines and Petroleum [2018] WASC 200
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Total Marine Services Pty Ltd v Rohan Phillip Hutchinson (Unreported, C7‑2009 (McCann PP) 9 March 2009)
WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137

FLYNN DCJ:

Overview

In December 2012, the appellant (Ms Dhu), suffered an injury to her left shoulder (the Shoulder Injury) while working as a registered nurse for the respondent (RPH) in a position that required her to attend to patients in a hospital ward (Ward Duties). Section 155C of the Workers' Compensation and Injury Management Act 1981 (WA)[1] provides for the establishment of a 'return to work program' by an employer for a worker who has suffered an injury. RPH established a 'return to work program' for Ms Dhu with the result that, by March 2018, she was again working as a registered nurse for RPH. However, Ms Dhu was no longer doing Ward Duties.…

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 Dhu v Royal Perth Hospital 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: [2022] WADC 89
Decision Date: 21 OCTOBER 2022

CaseChat Overview and Summary

In the case of Dhu v Royal Perth Hospital, the dispute centred on the interpretation and application of statutory provisions within the Workers Rehabilitation and Compensation Act 1986 (WA). Specifically, the case involved the power of an arbitrator to order an employer to establish a return-to-work program. The matter was brought before the Supreme Court of Western Australia, which was required to determine whether the arbitrator had erred in finding that they lacked the authority to mandate the employer to create such a program.

The primary legal issue before the court was whether the statutory provisions concerning return-to-work programs limited the arbitrator's jurisdiction in a manner that precluded them from ordering an employer to establish such a program. The court was tasked with interpreting sections 156B, 155C, 179, and 211 of the Act to ascertain whether these sections, when read together, imposed any restrictions on the arbitrator's power to make orders regarding employer obligations under section 155C.

The court's reasoning was grounded in the textual analysis and contextual understanding of the relevant statutory provisions. It determined that the natural and ordinary meaning of the provisions did not restrict the arbitrator's jurisdiction to order the establishment of a return-to-work program by an employer. The court emphasised that the obligations on workers and employers concerning return-to-work programs were distinct, with separate statutory foundations. It found that the powers of an arbitrator to make orders in connection with employer obligations were not limited by the conditions specified for ordering worker participation in such programs. Consequently, the court concluded that the arbitrator had the authority to order an employer to establish a return-to-work program, as this fell within the scope of their jurisdiction under the Act.

The final orders of the court were that the appeal was allowed, and the decision of the arbitrator was set aside. The matter was remitted to the arbitrator for reconsideration in light of the court's determination regarding the scope of their jurisdiction.

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

In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14], Kiefel CJ, Nettle and Gordon JJ observed:The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. My view is that the natural and ordinary meaning of s 156B, concerned with conditions that must be satisfied before an arbitrator makes an order that a worker participate in a 'return to work program', does not otherwise qualify the jurisdiction of an arbitrator, found in s 179, to make an order in connection with an obligation imposed upon an employer in s 155C, namely, an order that an employer establish a 'return to work program'. Worker participation in a program and employer establishment of a program are separate and distinct statutory obligations. A worker's obligation is found in the complementary provisions of s 156B(2) concerning the power of an arbitrator to make an order and s 72B concerning the circumstances when an arbitrator may, by order, suspend compensation. An employer's obligation is found in s 155C. The context and purpose in which s 179 and s 156B are to be construed include that the purpose of the Act is to provide for the resolution of disputes under the Act in a manner that is 'informal and quick' (s 3). The terms in which jurisdiction ('in connection with' in s 179) and power ('such directions as thinks fit' in s 211) are wide. There exists a mechanism for enforcement of non-money orders insofar as s 225 provides that it is an offence to fail to comply with an order of an arbitrator. These provisions favour a construction of the Act that results in an arbitrator having the jurisdiction and power to make an order, on the application of a worker, to enforce the statutory obligation of an employer found in s 155C. The jurisdiction (s 176(3)) and powers of an arbitrator (s 211(1)) are each expressed to be 'subject to this Act':(a)Section 156B(1), making provision for an application by an employer or worker, is not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). In any event, s 156B(1) is concerned with an application for an order that a worker participate in a program. Ms Dhu's application is that RPH establish a program. If Ms Dhu's application is characterised as an application under s 156B(1) by a worker for a worker to participate in a program, it may be conceded that the result is, phonologically, awkward. However, this fact is not sufficient to displace the jurisdiction (s 176) and powers (s 211) of an arbitrator to determine a dispute concerning s 155C and to order, if appropriate, the establishment of a 'return to work program' in accordance with s 155C.(b)Section 156B(2), concerned with the conditions to be satisfied before an arbitrator makes an order that a worker participate in a program, is also not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). It is 'nonsensical'[35] to speak (in terms of s 156B(2)(b)) of an arbitrator being satisfied of a worker refusing to participate in a program as a condition for making an order, on the application of a worker, that the worker participate in a program. However, this nonsensical result is avoided if s 156B(2) is construed so as not to apply to applications for an order that an employer establish a program. Such as construction is consistent with the opening words of s 156B(2) ('an arbitrator may require the worker to participate in a program if …') and s 72B on suspension of compensation.(c)Section 156B(3), empowering an arbitrator to require a worker to participate in a 'return to work program' other than one proposed by a party to an application, for the same reasons as apply to s 156B(1), is also not inconsistent with an arbitrator having jurisdiction and power to make an order enforcing an employer's obligation to establish a 'return to work program' in accordance with s 155C(1). Section 156B(3) is concerned with an order to require a worker to participate in a program. Ms Dhu's application is that RPH establish a program. Section 156B(3), anticipating an arbitrator making an order on the content of a 'return to work program' for the purpose of making an order for a worker participating in that program, is not inconsistent with an arbitrator having the power to order that an employer, in accordance with s 155C, establish a program.(d)Nothing in any other provision of Part XI (Dispute resolution) or Part IX (Injury management) suggest any qualification to the natural and ordinary meaning of s 176 and s 211 other than that found in s 156B(2) (discussed above).[35] Arbitrator's Decision [125].