Francis v Publications & Exhibitions Pty Ltd

[2023] WADC 129

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   FRANCIS -v- PUBLICATIONS & EXHIBITIONS PTY LTD [2023] WADC 129

CORAM:   PALMER DCJ

HEARD:   31 OCTOBER 2023

DELIVERED          :   2 NOVEMBER 2023

FILE NO/S:   APP 61 of 2022

BETWEEN:   BRADLEY WILLIAM FRANCIS

Appellant

AND

PUBLICATIONS & EXHIBITIONS PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE

Coram:   ARBITRATOR RUTHERFORD

File Number            :   A63791

Catchwords:

Workers' compensation - Appeal - Appeal does not involve a question of law - Leave to appeal refused

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal refused
Appeal dismissed
Costs ordered

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	Mr T H Offer

Solicitors:

Appellant	:	Not applicable
Respondent	:	Hall & Wilcox (Perth)

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

Catholic Education Office of WA v Granitto [2012] WASCA 266

Department of Education v Azmitia [2014] WADC 85

Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55

Mokta v Metro Meat International Ltd [2005] WASCA 143

O'Leary v Edith Cowan University (Unreported, CM 108/02, 20 February 2004)

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

PALMER DCJ:

Introduction

1. At the hearing of this appeal, I refused leave to appeal, dismissed the appeal and ordered that the Appellant (Mr Francis) pay the costs of the appeal of the Respondent (Publications) to be taxed, if not agreed.  I indicated that I would give written reasons for my decision later.  These are those reasons.

2. Mr Francis appeals from a decision of an arbitrator in the Workers' Compensation Arbitration Service (Mr Rutherford (Arbitrator)), made on 21 September 2022 to dismiss Mr Francis's application (Application) for weekly payments of compensation for total incapacity and statutory expenses alleged to be due under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

3. Before the Arbitrator, Mr Francis contended that he had developed a psychiatric illness during the course of his employment with Publications.

4. The Application was heard over eight days between 8 December 2020 and 18 December 2020.  Both parties were represented by counsel.  Eight witnesses gave evidence and were cross-examined, some extensively.  A large volume of documents were tendered, including reports from expert medical witnesses who were not required to appear to give evidence.  The parties prepared detailed written closing submissions.  The Arbitrator reserved his decision.  He delivered lengthy written reasons for his decision on 21 September 2022.[1]

   [1] Arbitrator's Decision A63791 (Arbitrator's Reasons).

5. Ultimately, while the Arbitrator considered that Mr Francis developed a psychiatric illness during the course of his employment with Publications, the Arbitrator was not satisfied that Mr Francis had established that the illness was an 'injury' within the definition in s 5(1) of the Act.  The Arbitrator therefore concluded that Mr Francis was not entitled to workers' compensation under the Act and he dismissed the Application.

6. The Arbitrator was not satisfied that Mr Francis had established that his psychiatric illness was an 'injury' within the definition in s 5(1) of the Act because the Arbitrator found that Mr Francis's illness was caused by stress arising from a matter mentioned in s 5(4) of the Act.[2]  Such illnesses are excluded from the definition of injury in s 5(1).

   [2] Arbitrator's Reasons [438] - [444], [471].

7. Section 5(1) of the Act provides that the definition of 'injury' does not include a disease caused by stress, if the stress wholly or predominantly arises from a matter mentioned in s 5(4) of the Act.  The matters in s 5(4) of the Act include a worker's expectation of a decision in relation to a demotion, or a benefit in relation to employment.

8. The Arbitrator found that Mr Francis's psychiatric illness was caused by stress arising from a matter mentioned in s 5(4), namely an expectation that Mr Francis was to be demoted and receive a pay cut.  In making this finding the Arbitrator relied upon contemporaneous documentary evidence[3] and rejected evidence given by Mr Francis.[4]  When rejecting Mr Francis's evidence, the Arbitrator said that Mr Francis's evidence smacked of 'embellishment and exaggeration', Mr Francis was 'not a particularly persuasive witness on this issue' and his evidence was inconsistent with Mr Francis's own contemporaneous emails.[5]

   [3] Arbitrator's Reasons [438] - [444].

   [4] Arbitrator's Reasons [449] - [458], [463].

   [5] Arbitrator's Reasons [463].

9. The Arbitrator also accepted evidence from a psychiatrist (relied on by Publications) Dr Victor Cheng that Mr Francis's psychiatric illness was caused by stress arising from an expectation of a decision to demote Mr Francis and reduce his pay.  The Arbitrator preferred Dr Cheng's evidence to the evidence of other medical experts relied upon by Mr Francis because Dr Cheng's evidence was based on the facts as the Arbitrator had found them.[6]

   [6] Arbitrator's Reasons [467], [470].

10. Mr Francis's appeal was made pursuant to s 247 of the Act.  Leave to appeal is required[7] and leave can only be granted if 'a question of law is involved'.[8]  The Notice of Appeal identified two grounds of appeal that were asserted to involve a question of law:

    (a)the Arbitrator erred in finding that the whole or predominant cause of Mr Francis's psychiatric illness was an expectation of demotion or loss of benefit; and

    (b)the Arbitrator erred in failing to find that Mr Francis's psychiatric condition was caused by the cumulative factors of his employment predating and including the events of 8 March 2019.

    [7] See s 247(1) of the Act.

    [8] See s 247(2) of the Act.

11. The Notice of Appeal referred to Mr Francis 'reserving his right' to provide further particulars of his grounds of appeal but no particulars were subsequently provided.

12. Publications opposed the grant of leave to appeal on the basis that the grounds of appeal failed to identify any error of law, or any mixed error of law and fact.

13. Despite being ordered to do so, Mr Francis failed to file any submissions in support of the appeal.  There was no appearance on behalf of Mr Francis at the hearing of the appeal.

14. As I explain in greater detail below, the grounds of appeal seemed to me to allege errors of fact, rather than errors of law, or mixed errors of fact and law.  Mr Francis elected to not make any submissions to explain how the grounds of appeal could be construed so as to involve a question of law.  It was not apparent to me (without any explanation from Mr Francis) that the grounds of appeal were amenable to being construed so as to involve a question of law.  Ultimately, I concluded that leave to appeal should be refused and I made the orders I made.

The relevant provisions of the Act

1. Section 18(1) of the Act provides that an employer is liable to pay compensation in accordance with sch 1 of the Act, if 'an injury of a worker occurs'.  Section 21 of the Act provides that an employer is liable to pay compensation under the Act from the date of incapacity resulting from the injury.

2. The term 'injury' is defined in s 5(1) of the Act to relevantly include:

   …

   (c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or

   (d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree …

   …

   but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;

3. The term 'disease' is defined in s 5(1) of the Act to include any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development.

4. The matters referred to in s 5(4) of the Act are as follows:

   For purposes of the definition of injury, the matters are as follows -

   (a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and

   (b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and

   (c)the worker's expectation of -

   (i)a matter; or

   (ii)a decision by the employer in relation to a matter,

   referred to in paragraph (a) or (b).

5. Section 5(5) of the Act is also relevant.  That section provides that:

   In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment, the following shall be taken into account -

   (a)the duration of the employment; and

   (b)the nature of, and particular tasks involved in, the employment; and

   (c)the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and

   (d)the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and

   (e)matters affecting the worker's health generally; and

   (f)activities of the worker not related to the employment.

The Arbitrator's decision

The issues identified by the Arbitrator

1. The Arbitrator begun by summarising the background to the Application[9] and identifying the issues requiring determination.[10]

Legislative framework and principles

[9] Arbitrator's Reasons [1] - [10].

[10] Arbitrator's Reasons [11].

1. The Arbitrator then discussed the relevant provisions of the Act[11] and observed that Mr Francis bore the legal onus of proof and must prove his case on the balance of probabilities.[12]

   [11] Arbitrator's Reasons [15] - [26].

   [12] Arbitrator's Reasons [16].

2. The Arbitrator referred[13] to the definition of 'injury' in s 5(1) of the Act where it requires employment to be a contributing factor to the contraction of a disease 'to a significant degree'.  The Arbitrator observed that 'significant' means material.  He said that a contribution is 'material' if it is not negligible and he referred to the judgment of Pullin JA in Mokta vMetro Meat International Ltd.[14]

   [13] Arbitrator's Reasons [19].

   [14] Mokta vMetro Meat International Ltd [2005] WASCA 143 [39].

3. The Arbitrator referred[15] to the judgment of McCann DCJ in Department of Education v Azmitia,[16] where he observed that a stress claim is compensable if it is caused by a worker's subjective reaction to objectively proven facts and it is not necessary for a worker to prove that their subjective perception of proven facts was reasonable.

   [15] Arbitrator's Reasons [20].

   [16] Department of Education v Azmitia [2014] WADC 85 [16].

4. The Arbitrator referred[17] to the exclusion from the definition of 'injury' in s 5(1) of the Act, of a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in s 5(4) of the Act.  The Arbitrator observed that the onus of proving that a potentially excluded matter is not the whole or predominant cause of a stress‑related illness lies with Mr Francis and he referred to the decisions of Packington CM in O'Leary v Edith Cowan University[18] and Murphy JA in Catholic Education Office of WA v Granitto.[19]

The evidence

[17] Arbitrator's Reasons [21].

[18] O'Leary v Edith Cowan University (Unreported, CM 108/02, 20 February 2004) [13] - [15].

[19] Catholic Education Office of WA v Granitto [2012] WASCA 266 [70].

1. After giving an overview of the arbitration,[20] the Arbitrator proceeded to summarise the evidence.[21]  The Arbitrator summarised the evidence of the following witnesses who gave evidence before him:

   (a)Mr Francis;[22]

   (b)Ms BettyJo Francis, Mr Francis's wife;[23]

   (c)Ms Ellen Wachmer, Mr Francis's mother;[24]

   (d)Mr Darren West, a psychologist who examined Mr Francis;[25]

   (e)Mr Boulos, a director of Publications;[26]

   (f)Mr Trevor Pickett, general manager of Publications;[27]

   (g)Mr Graham McCorry, an industrial relations consultant;[28] and

   (h)Ms Teresa Sabatino, accounts/payroll manager at Publications's.[29]

   [20] Arbitrator's Reasons [27] - [34].

   [21] Arbitrator's Reasons [35] - [131].

   [22] Arbitrator's Reasons [39] - [68].

   [23] Arbitrator's Reasons [69] - [75].

   [24] Arbitrator's Reasons [76] - [81].

   [25] Arbitrator's Reasons [82] - [86].

   [26] Arbitrator's Reasons [88] - [115].

   [27] Arbitrator's Reasons [116] - [118].

   [28] Arbitrator's Reasons [119] - [126].

   [29] Arbitrator's Reasons [127] - [131].

2. The Arbitrator then summarised the documentary evidence before him.[30]

   [30] Arbitrator's Reasons [132] - [168].

3. Next the Arbitrator considered the psychiatric evidence.[31]  The Arbitrator summarised the evidence in reports given by:

   (a)Dr Ghazala Watt;[32]

   (b)Dr Anthony Mander;[33] and

   (c)Dr Victor Cheng.[34]

   [31] Arbitrator's Reasons [169] - [171].

   [32] Arbitrator's Reasons [172] - [193].

   [33] Arbitrator's Reasons [194] - [211].

   [34] Arbitrator's Reasons [212] - [227].

4. The Arbitrator then summarised the other health related and medical evidence.[35]  Then, after making findings in relation to the factors required by s 5(5) of the Act[36] and summarising the parties closing submissions,[37] the Arbitrator turned to address the issues.

Issue 1: Did Mr Francis contract or have a recurrence of a mental ailment such as to fall within s 5(c) or s 5(d) of the Act?

[35] Arbitrator's Reasons [228] - [256].

[36] Arbitrator's Reasons [257].

[37] Arbitrator's Reasons [258] - [380].

1. The Arbitrator considered that the evidence established that Mr Francis contracted a mental ailment, so as to fall within s 5(c) of the Act but the Arbitrator was not satisfied that he suffered a recurrence of a prior psychological condition.[38]

   [38] Arbitrator's Reasons [383].

2. The Arbitrator noted that Mr Francis contended that he experienced various stressors during the period May 2018 to March 2019 and that he suffered various mental ailments caused by stress, such being evidenced by lying on the floor curled up in the foetal position.  The Arbitrator noted however, that even though Mr Francis attended his doctors for various health conditions in October 2018, there was no evidence of a diagnosis of a psychological condition made by any of the treating medical practitioners, nor any reference to such conditions or even work 'stress', until after 8 March 2019.[39]

   [39] Arbitrator's Reasons [385].

3. The Arbitrator considered that there was insufficient evidence to connect Mr Francis's earlier depression suffered in about 2015 to the events of 8 March 2019 nor its mental health consequences.  The Arbitrator said that this earlier condition appeared comparatively mild and there was no evidence that that condition was causing any work incapacity.[40]  He said that by comparison the psychological condition suffered by Mr Francis from about March 2019 was more severe and the various diagnoses emphasised anxiety, not depression.[41]  The Arbitrator said that given this, the evidence did not establish on the balance of probabilities that there was a recurrence of any earlier condition.[42]

Issue 2: Whether the events/circumstances/state of affairs as described by Mr Francis during the period 2018/2019 occurred

[40] Arbitrator's Reasons [386].

[41] Arbitrator's Reasons [387].

[42] Arbitrator's Reasons [388].

1. The Arbitrator identified 13 events that Mr Francis alleged had occurred and that were stressors[43] and then proceeded to consider whether Mr Francis had established that these events occurred.[44]  The Arbitrator found that five of the events alleged had been established:[45]

   (a)the threat of a pay cut without notice in March 2019;[46]

   (b)a worsening professional relationship during early 2019;[47]

   (c)failed negotiations to sell Mr Francis the business in 2018/2019;[48]

   (d)the adverse financial position of Publications;[49] and

   (e)a lack of support for Mr Francis in late 2018.[50]

   [43] Arbitrator's Reasons [397].

   [44] Arbitrator's Reasons [398] - [429].

   [45] Arbitrator's Reasons [430].

   [46] Arbitrator's Reasons [408] - [415].

   [47] Arbitrator's Reasons [429].

   [48] Arbitrator's Reasons [426].

   [49] Arbitrator's Reasons [421].

   [50] Arbitrator's Reasons [424].

2. The Arbitrator considered that of these the significant factor was the threat of a pay cut without notice in March 2019.[51]

Issue 3: Did his employment contribute to the development of the condition?

[51] Arbitrator's Reasons [431].

1. The Arbitrator accepted that the evidence established that Mr Francis's employment contributed to the development of his condition.[52] 

Issue 4: Did his employment contribute to a significant degree?

[52] Arbitrator's Reasons [433] - [434].

1. The Arbitrator also accepted that the evidence established that Mr Francis's employment contributed to a significant degree.[53]

Issue 5: Was the condition caused by a matter within s 5(4) of the Act?

[53] Arbitrator's Reasons [435] - [437].

1. The Arbitrator considered that the condition was caused by a matter within s 5(4) of the Act.[54]

   [54] Arbitrator's Reasons [438].

2. The Arbitrator noted that the First Certificate of Capacity, where Mr Francis for the first time was described as having symptoms such as 'depressed mood, anxiety, stress, fatigue' was based on Mr Francis's reaction to the sudden events of 8 March 2019.[55]  The Arbitrator also referred to clinical notes made by Mr Francis's general practitioner of his first medical attendance after 8 March 2019 that referred to him feeling 'stressed ++' after being told by his boss the previous Friday that he was being demoted and receiving a pay cut.[56]

   [55] Arbitrator's Reasons [439].

   [56] Arbitrator's Reasons [440].

3. The Arbitrator considered that it was the events of 8 March 2019 that cause Mr Francis's stress and prompted him to seek medical assistance.  The Arbitrator noted that threatened and expected demotion is a relevant matter in s 5(4) of the Act.[57]

   [57] Arbitrator's Reasons [443].

4. The Arbitrator also said that the reduction in pay (and the restructuring of the basis of Mr Francis's income) was in the Arbitrator's view also a matter within s 5(4) of the Act, namely the loss of a benefit related to employment, being a reduced income arising from his employment duties, or at least an expectation of such a loss.[58]

Issue 6: Whether any mental ailment wholly or predominately arose from a matter within s 5(4) of the Act?

[58] Arbitrator's Reasons [444].

1. The Arbitrator considered that Mr Francis had not established on the balance of probabilities that his condition did not wholly or predominately arise from a matter within s 5(4) of the Act.[59]

   [59] Arbitrator's Reasons [445], [448].

2. The Arbitrator noted that Mr Francis contended that the events of 8 March 2019 were 'the straw that broke the camel's back' and that it was primarily the events of 2018 which led to his illness.  The Arbitrator also referred to evidence that Mr Francis gave during cross‑examination that Mr Francis considered the various 2018 events to be the most significant events.[60]

   [60] Arbitrator's Reasons [449].

3. The Arbitrator noted that there was an absence of written complaints on about May/June 2018 by Mr Francis, and/or during 2018, which is in stark contrast to his multiple emails after 8 March 2019.[61]  He noted that despite a number of health issues, there is no reference to work or work-related matters causing him stress.[62]

   [61] Arbitrator's Reasons [450].

   [62] Arbitrator's Reasons [451].

1. The Arbitrator said that while he accepted that the effect of Mr Boulos's long absence overseas and other vacations of a shorter duration may also have been unsettling and it was no doubt a difficult year, there was an absence of any emails of complaint or oral discussions either before or after the vacations, until October 2018, where Mr Francis requested the assistance of a personal assistant.[63]

   [63] Arbitrator's Reasons [452].

2. The Arbitrator noted that there was a 'surprising' lack of medical evidence supporting Mr Francis's contention that he was in significant mental distress in about October 2018.[64]  The Arbitrator noted that while the evidence established Mr Francis's attendance at his doctor with a number of complaints including struggling to put words together, there was no reference to this being connected in any way to work stress or any other connection with work.  The Arbitrator said this was surprising given Mr Francis's evidence that on one occasion he was so stressed he was lying on the floor in a foetal position.[65]

   [64] Arbitrator's Reasons [453].

   [65] Arbitrator's Reasons [454].

3. The Arbitrator referred to a report of Dr Mander in which Dr Mander mentioned that Mr Francis suffered from migraines associated with word finding issues.[66]  The Arbitrator noted that Dr Mander's report suggests that word finding issues that Mr Francis described happening in October 2018 may have been associated with his history of migraines and not his employment.[67]

   [66] Arbitrator's Reasons [455].

   [67] Arbitrator's Reasons [456].

4. The Arbitrator also considered it relevant that there is no evidence that he took any time off for sick leave in 2018 or that his earning ability was impacted.  The Arbitrator said that he would have expected such matters to have arisen in some form if 2018 was the year which was ultimately the predominant cause of Mr Francis's condition.[68]

   [68] Arbitrator's Reasons [457].

5. The Arbitrator then turned to consider the other events that the Arbitrator considered had been established (see Issue 2 above).  After considering each of those factors he concluded that although some of those factors had relevance, the effect of the relevant factors on the development of Mr Francis's mental ailment is, on the evidence, of marginal contribution.[69]

   [69] Arbitrator's Reasons [460].

6. The Arbitrator then considered the cumulative effect of these other events but said that there was insufficient evidence to persuade him that even considered on a cumulative basis the events of 8 March 2019 were not the whole or predominant cause of Mr Francis's illness.[70]

   [70] Arbitrator's Reasons [461].

7. The Arbitrator noted that Mr Francis's reaction to being told on 8 March 2019 of the impending reduction in pay and what he clearly saw as a demotion was stark and sudden and produced a strong emotional response, that immediately prompted an attendance with his doctor and also prompted him to stay away from the workplace.  The Arbitrator considered that there was no evidence that Mr Francis took such actions or had such a reaction to any or all of the earlier relevant stressor events or circumstances.[71]

   [71] Arbitrator's Reasons [462].

8. The Arbitrator said that he considered Mr Francis to be not a particularly persuasive witness when he repeatedly gave nonresponsive answers to questions put to him during cross‑examination and said that the events of 8 March 2019 'was the straw that broke the camel's back'.  The Arbitrator thought that this evidence smacked of embellishment and exaggeration and he described the evidence given as not persuasive.[72]

   [72] Arbitrator's Reasons [463].

9. The Arbitrator then turned to consider the evidence of Dr Mander, Dr Watt and Dr Cheng.

10. The Arbitrator considered that Dr Mander's opinion was to be accorded less weight because the assumptions upon which the opinion had been expressed were not established by the evidence.[73]

    [73] Arbitrator's Reasons [464] - [465].

11. The Arbitrator noted that Dr Mander's opinion had been partly based on the fact that Mr Francis had been forced to take a pay cut in 2018, Mr Francis found he was mixing up his words and Mr Francis's relationship with the business owner deteriorated when he declined to buy the business and that he thought the owner was 'up to something'.[74]

    [74] Arbitrator's Reasons [464].

12. The Arbitrator noted that he did not consider the evidence established that Mr Francis was forced to take a pay cut in 2018 or that the mixing up of words had any work stress connection.  The Arbitrator said that Mr Francis's concern that the owner was 'up to something' is a perception and not one based on established facts.[75]

    [75] Arbitrator's Reasons [465].

13. The Arbitrator noted that Dr Watt did not consider that the income that Mr Francis had lost fell within s 5(4) of the Act.  The Arbitrator considered that the loss of income was clearly the loss of a benefit.[76]

    [76] Arbitrator's Reasons [467].

14. The Arbitrator also noted that Dr Watt attached significance to allegations of theft that had been made.  The Arbitrator said that he considered that these allegations had not been made until mid-April 2019 at the earliest.[77]

    [77] Arbitrator's Reasons [468].

15. The Arbitrator considered that the other factors referred to by Dr Watt appeared of little causative effect.  He expressed the view that the 'significant stress related to his employment' referred to by Dr Watt was primarily related to the events on 8 March 2019.  The Arbitrator also considered that the foreshadowed changes on 8 March 2019 also included demotion, which was a factor not considered by Dr Watt, who saw the matters as limited to financial loss.  The Arbitrator considered that less weight should therefore be accorded to the evidence of Dr Watt.[78]

    [78] Arbitrator's Reasons [469].

16. The Arbitrator considered that the evidence of Dr Cheng was more accurately based on facts as found in his determination and he accepted Dr Cheng's opinion that Mr Francis's illness was caused by the expectation of changes in both responsibilities and income.[79]

    [79] Arbitrator's Reasons [470].

The nature of an appeal under the Act

1. Section 247(1) of the Act provides that a party may, with leave of the District Court, appeal to the District Court from an arbitrator's decision.

2. Section 247(2)(b) provides leave can only be granted if 'a question of law is involved'.[80]  An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved.[81]  If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction to grant leave to appeal.[82]

   [80] Section 247(2)(a) has no application in this case as this is not a matter in which an amount of compensation is in issue.

   [81] Catholic Education Office of WAvGranitto [53] - [55] (Murphy JA, Pullin & Newnes JJA agreeing); BHP Billiton Iron Ore Pty LtdvBrady [2008] WASCA 250 [3]; AtanasoskavInghams Enterprises Pty Ltd [2009] WASCA 17.

   [82] Catholic Education Office of WAvGranitto [54]; Pacific Industrial CovJakovljevic [2008] WASCA 60 [17].

3. A ground of appeal that asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law.  Nor is there any error of law merely because a tribunal finds facts wrongly or upon a doubtful basis.  Such grounds of appeal are to be distinguished from a ground of appeal that a tribunal has made a finding that is manifestly unreasonable (in the sense that no reasonable tribunal could have made that finding) or that a tribunal has failed to take into account a consideration that it is bound to take into account.  Such grounds do allege errors of law.[83]

   [83] ParidisvSettlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [54] - [57] (Buss JA).

4. 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.  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.[84]

   [84] Engine Protection Equipment Pty LtdvMiller [2018] WASCA 55 [46].

The Appellant's submissions

1. Although Mr Francis was ordered to file written submissions by 17 October 2023, he failed to file any submissions.  There was also no appearance on behalf of Mr Francis at the hearing of the appeal.

The Respondent's submissions

1. The written submissions filed by Publications, submitted that the grounds of appeal did not identify either an error of law, or an error of mixed law and fact.[85]  Publications submitted that the grounds of appeal contended that the Arbitrator erred by not finding in Mr Francis's favour and the mere fact of an adverse finding falls well short of error, much less an error involving a question of law.[86]

   [85] 'Respondent's Submissions in respect to Appeal 61 of 2022 dated 24 October 2023' (Respondent's Submissions), par 18.

   [86] Respondent's Submissions, par 19.

2. Publications submitted that Mr Francis should be refused leave to appeal because he had failed to establish any basis upon which leave could be granted pursuant to s 247(2)(a) of the Act.[87]

   [87] Respondent's Submissions, par 23.

3. With regard to the merits of the appeal, Publications submitted that the mere fact of an adverse finding is not of itself suggestive of any error on the part of the Arbitrator.[88]

   [88] Respondent's Submissions, par 26.

Disposition

1. It is convenient to consider the grounds of appeal together.  The first ground of appeal was that the Arbitrator erred in finding that the whole, or predominant, cause of Mr Francis's psychiatric illness was an expectation of demotion or loss of benefit.  The second ground of appeal was that the Arbitrator erred in failing to find that Mr Francis's psychiatric condition was caused by the cumulative factors of his employment predating and including the events of 8 March 2019.

2. Together the grounds of appeal seem to allege that the Arbitrator erred because he decided the facts wrongly.  They assert that the Arbitrator should have made findings of fact consistent with the case advanced by Mr Francis, not the case advanced by Publications.

3. The grounds of appeal thus seem to concern the factual findings made by the Arbitrator and allege that he made errors of fact.  A tribunal does not commit an error of law merely because it finds facts wrongly, or upon a doubtful basis.  Nor does a ground of appeal that asserts that a decision is against the evidence, or the weight of the evidence, raise a question of law.[89]

   [89] ParidisvSettlement Agents Supervisory Board [54] - [55].

4. It might be that there is some degree of ambiguity (and deficiency) in the grounds of appeal because they address the allegedly incorrect finding made by the Arbitrator, without clearly identifying the precise nature of the error that allegedly caused the finding to be incorrect. 

5. In the grounds of appeal Mr Francis 'reserved the right' to provide further particulars.  No particulars were ever provided, however.

6. Nor were any submissions made either in writing, or orally, to explain how the grounds of appeal might be construed so as to involve a question of law.

7. It was not apparent to me (without any explanation from Mr Francis) that the grounds of appeal were amenable to being construed so as to involve a question of law.  The grounds do not allege the absence of any material upon which the Arbitrator could make the findings that he made, or that the Arbitrator's decision was so unreasonable that no reasonable decision maker could have made it, or identify any particular consideration that the Arbitrator failed to take into account.

8. Nor was it evident to me that the grounds were intended to raise any such matters when I considered those grounds in the context of the Arbitrator's Reasons.  The Arbitrator identified contemporaneous documentary material upon which he relied to make his findings and rejected Mr Francis's evidence on the basis of that material.  The Arbitrator therefore identified material upon which his findings were based and his process of reasoning appeared orthodox.  It did not appear to me that there was some obvious consideration that the Arbitrator was required to take into account but did not.

9. I therefore concluded that neither of the grounds of appeal involved a question of law and I refused leave to appeal and dismissed the appeal.  As Publications was successful in the appeal, I also ordered Mr Francis to pay Publications costs of the appeal to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

FN

Associate to Judge Palmer

2 NOVEMBER 2023