Green v Mineral Resources
[2025] WADC 33
•2 JULY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GREEN -v- MINERAL RESOURCES [2025] WADC 33
CORAM: CORMANN DCJ
HEARD: 17 APRIL 2025
DELIVERED : 2 JULY 2025
FILE NO/S: APP 66 of 2024
BETWEEN: MARK NORTON GREEN
Appellant
AND
MINERAL RESOURCES
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATON ARBITRATION SERVICE
Coram: ARBITRATOR GUSTAVINO
File Number : A132388
Catchwords:
Rule 46 list of documents - Orders to produce medical records - Appeal from interlocutory decision of arbitrator - Relevant documents - Duty of disclosure - Causation of injury - No error of law in orders for production - Appeal dismissed
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers Compensation and Injury Management Act 2023 (WA)
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA)
Result:
Leave to appeal denied
Arbitrator's decision affirmed and appeal dismissed
Appellant to pay respondent's costs of appeal
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J B Salkilld-Campbell |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Barry Nilsson Lawyers (WA) |
Case(s) referred to in decision(s):
Arvind Pty Ltd v Lamers [2020] WASCA 47
Blakers v South Metropolitan Health Service [2023] WADC 143
Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200
Marks v Coles Supermarkets [2021] WASCA 176
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
RLA Morgans v Vrebac [2022] WADC 86
Singh v Friedman [2013] WASC 78
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161
Zaghloul v Woodside Energy Ltd [2019] WASCA 187
CORMANN DCJ:
Introduction
This is an appeal from an interlocutory decision of an arbitrator in the Workers Compensation Arbitration Service (WCAS) delivered on 2 August 2024. The arbitrator made orders requiring the appellant to produce a list of documents and for production by several medical clinics of various of the appellant's medical records.
The substantive proceeding involves the appellant's application for a determination of liability, weekly payments for partial incapacity, and statutory expenses (including medical) relating to an injury alleged to have been sustained to his right shoulder in a workplace accident on 7 December 2023.
In the notice of appeal filed on 28 August 2024, the appellant identified three 'questions of law' alleged to arise, and five 'grounds' of appeal alleging error by the arbitrator. Despite ample opportunity and orders requiring the same, the appellant thereafter failed to file any further materials nor any written submissions in support of his appeal. On 3 April 2025, the respondent filed written submissions addressing, to the extent possible, the merits of the grounds set out in the notice.
At the hearing on 17 April 2025, neither party applied for adjournment; the respondent was content for the court to hear orally from the appellant. The appellant made clear he had no further written materials that he wished to put before the court. The appeal hearing thereafter proceeded before me. At the end of the hearing, I refused leave to appeal and dismissed the appeal with costs. I indicated written reasons would follow. These are those written reasons.
The substantive proceeding
The appellant was employed as a light vehicle fitter by the respondent. He alleges that he injured his right shoulder on or about 7 December 2023 in the course of his employment.
The appellant lodged an application in WCAS on 14 March 2024, alleging: 'shoulder muscle strain right shoulder. working [sic] as light vehicle fitter on MRL's minesite Wodgina'.[1]
[1] WCAS application lodged 14 March 2024.
In a reply lodged on 24 April 2024, the respondent admitted the appellant's employment and that he was a 'worker' for the purposes of the relevant WCAS legislative regime. The respondent otherwise denied liability for the alleged injury including because, it contended:
(a)the appellant did not sustain injury by an accident arising out of, or in the course of, employment; and
(b)any right shoulder symptoms or alleged incapacity suffered by the appellant did not arise from any workplace incident nor gradual onset from on or around 7 December 2023.
By its reply, the respondent put in issue whether the alleged incident or accident had occurred, whether the appellant suffered a shoulder injury as alleged, and whether, if the appellant did suffer injury or any incapacity for work, this was caused by the incident or accident, or, whether it was caused or contributed to by another injury or condition.
Also in its reply, the respondent listed various documents and information that it lodged with its reply. The respondent then identified a list of materials which it referred to as 'foreshadowed documents and information', and which included:
(a)medical records from various service providers and any X-ray, MRI, CT scan or other radiological imaging reports to be obtained via orders for production or consent;
(b)independent medical examination reports from an orthopaedic surgeon, an occupational physician, and a neurosurgeon, with reviews to be arranged 'once disclosure of medical records was complete'; and
(c)income tax returns/income statements (Centrelink), to be obtained via orders for production or consent.
Orders issued by the arbitrator following a directions hearing on 3 May 2024 reflect, among other things, that the respondent's representative had foreshadowed that the respondent intended to:
(a)issue a r 46[2] notice to the appellant in relation to any documents or other evidence in his possession, including rehabilitation documents and employment documents and records;
(b)confer with the appellant in relation to order/s for production to the appellant's treating medical practitioners to 'close any gaps' in the medical evidence; and
(c)obtain a report from an orthopaedic surgeon but that it had not yet booked an appointment because it was waiting to ensure it had all necessary medical records.
[2] Rule 46 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA).
By letter dated 13 May 2024, the respondent's representatives requested the appellant provide a list of documents pursuant to r 46. The letter also set out the issues that the respondent contended arose in the proceeding, consistent with those identified in its reply. It further stated that, having regard to those issues, the following was relevant and attracted the duty of disclosure:
1.All documents related to the incident and injury sustained on 7 December 2023.
2.Documents relevant to the appellant's shoulder, neck and back, as well as treatment and rehabilitation.
3.Any medical reports, medical documents, rehabilitation documents, patient health summaries or medical certificates since 2018.
4.The appellant's tax records and ATO income statements since 2022.
5.Reports or correspondence with rehabilitation providers.
6.Vocational rehabilitation assessments.
7.Any previous worker's compensation claim records.
8.Any other relevant documents.
In the letter, the respondent's representatives also:
(a)noted that the respondent intended to obtain relevant medical records;
(b)contended that the opinion of medical experts would carry little to no weight if the factual foundation on which the expert provided an opinion was not established by a background of facts and medical records;
(c)requested that the appellant produce the records of Modern Medical Clinics, Perth Radiological Clinic and SKG Radiology; and
(d)enclosed a proposed 'Orders for production of Documents or Material' (Form 158).
Orders issued by the arbitrator following a directions hearing on 30 May 2024 reflect that during the hearing, among other things, and in relation to conferral between the parties and progress towards disclosure and production of medical records, the appellant had contended that:
(a)the request for the medical file from his treating general practitioner was beyond the scope of the information that the respondent required to progress the matter;
(b)a letter had been provided by his general practitioner stating that there were no records at that clinic of him being treated for a shoulder injury; and
(c)the respondent had a copy of his Medicare claims history, and that he had told the respondent, repeatedly, that 'if a particular report was requested, and it was relevant to his application', then he would be prepared to produce that report.
The directions orders also reflect that, given the appellant's stated position at the hearing, the respondent's representative indicated that the respondent would take steps to prepare an interlocutory application for production of the requested materials.
The interlocutory application and decision
By application lodged on 21 June 2024, the respondent then applied for orders:
(a)pursuant to r 46 and r 47 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (Rules) compelling the appellant to produce the requested list of documents; and
(b)pursuant to s 193 of the Workers' Compensation and Injury Management Act 1981 (WA) (former Act) for production of a complete copy of the appellant's medical file relating to treatment for any right shoulder, cervical spine or acromioclavicular joint in the period commencing January 2018, and for medical records from the period from January 2018 until the date of the orders, from SKG Radiology, Perth Radiological Clinic, and Modern Medical Clinics (Medical Files).
In the application, the respondent identified the issues in the proceeding to include whether the appellant:
(a)was involved in a workplace accident on or around 7 December 2023;
(b)had sustained a right shoulder injury, and if so, whether that injury was caused by the workplace accident and/or whether the appellant had a pre‑existing right shoulder injury; and
(c)had sustained any incapacity for work and if so, whether that was the result of the workplace accident or whether it was caused by a pre‑existing or unrelated condition/s suffered or sustained by the appellant.
The respondent contended that evidence that was available indicated that any incapacity suffered arose by reason of an unrelated degenerative disease and/or significant pre‑existing cervical spinal conditions. It further submitted that the issues arising needed to be resolved having regard to medical evidence including as to the cause of any right shoulder condition or injury. Among other things, in support of its contentions, the respondent pointed to radiological evidence that it said demonstrated an unrelated condition, and a background of existing radiology for spinal compression.
On 8 July 2024, the appellant filed a notice indicating that he opposed the making of the interlocutory orders sought.
A telephone hearing was convened on 25 July 2024 before the arbitrator. Written reasons of the decision ultimately made were produced on 2 August 2024, as required by the 2023 Act.
The list of documents
The arbitrator found that there had been a valid request by the appellant under r 46 for a list of documents and further, that there had been a lack of response or implied declination of the appellant to provide the same.[3]
[3] Interlocutory decision, page 4.
The arbitrator concluded that it was necessary for 'the fair, just economical [sic], informal and quick resolution of the dispute' to order that he comply with the respondent's request, being a 'cards on the table' jurisdiction and that provision of a list was not an 'onerous impost on parties' to aid in transparency.[4] The arbitrator further noted the list was not required to be on oath, set a time for compliance by the appellant with the order and noted it would then be up to the respondent to make any request for production of any document on the list pursuant to r 46(4).
The Medical Files
[4] Interlocutory decision, page 4.
As regards the order for production of the Medical Files, the arbitrator noted that the documents were fully particularised and limited to the period commencing January 2018 to the then date of the orders. The arbitrator concluded that the material sought was relevant to the issues in dispute.
The arbitrator noted that orders for production are routinely sought in the jurisdiction often to include sensitive medical information but that it would be available only to the parties to the proceeding.[5] The arbitrator concluded there was a legitimate forensic purpose to the employer obtaining the Medical Files in view of its argument that any current incapacity, if established, was attributable to a degenerative disease.
[5] Interlocutory decision, pages 5 - 6.
The appeal
The appeal notice was filed on 28 August 2024 under s 247 of the former Act. However, the former Act was repealed on 1 July 2024 and the Workers Compensation and Injury Management Act 2023 (WA) (2023 Act) was enacted.
The substantive proceeding was commenced prior to the enactment of the 2023 Act. It therefore is a 'pending dispute' proceeding within the meaning of that term in s 571 of the 2023 Act. Section 575 of the 2023 Act provides that the proceeding be dealt with under the 2023 Act, but, in accordance with the Rules. This was done by the arbitrator.
The appeal of the arbitrator's decision in this matter is therefore taken as being brought under s 391(1) of the 2023 Act.
The appeal is to be conducted in accordance with the rules of the District Court,[6] and on the evidence before the arbitrator.[7] It is to be by way of a review of the decision appealed against,[8] by rehearing.[9]
[6] 2023 Act, s 391(5).
[7] 2023 Act, s 391(6).
[8] 2023 Act, s 391(5).
[9] Marks v Coles Supermarkets [2021] WASCA 176 [124].
The decision under appeal is an interlocutory order, and does not finally dispose of the rights of the parties in the substantive proceeding.[10] In an appeal to this court from the WCAS, and in considering the interests of justice, the fact that the decision under appeal is an interlocutory one is particularly relevant.[11] The following principles apply:[12]
The principles applicable to interlocutory appeals and the requirements for the granting of leave are in addition to those specified in (the former) s 247. The principles which apply to an interlocutory appeal are well settled. Generally, the appellant must show that the original decision was wrong or at least attended by sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not however inviolable and leave may be granted whenever the interests of justice require it: SMEC Australia Pty Ltd v Valentine Falls Estates Pty Ltd [2011] WASCA 138.
The availability of an avenue to an appeal from interlocutory decisions subject to the grant of leave, should not be seen as providing an unrestricted opportunity for the lengthy reventilating of arguments which failed at first instance. The determination of whether the decision from which leave to appeal is sought was wrong or attended with sufficient doubt to justify the grant of leave to appeal, should not ordinarily require or involve argument of a complexity and duration of the arguments presented at first instance. Ordinarily the court determining whether or not to grant leave to appeal would take a broad approach to that question: Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113; Amana Living v Soliven [2013] WADC 118 (Stavrianou DCJ).
[10] Zaghloul v Woodside Energy Ltd [2019] WASCA 187 [57].
[11] Blakers v South Metropolitan Health Service [2023] WADC 143 [19] (Blakers).
[12] As summarised in RLA Morgans v Vrebac [2022] WADC 86 [20] - [21] (Bowden DCJ). See also NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [44] (Murhpy JA), [117] (Beech & Vaughan JJA) (NRW Contracting); Arvind Pty Ltd v Lamers [2020] WASCA 47 [15] - [17] (Arvind).
Appellate courts are to exercise 'particular caution' or 'special restraint' or 'a tight rein' in reviewing interlocutory decisions on matters of practice and procedure.[13] In Arvind, the Court of Appeal observed:[14]
The reasons why there must be a tight rein on interlocutory appeals against the exercise of discretion on a point of practice and procedure are well-established. As was said by Jordan CJ in Re the Will of FB Gilbert (Dec) [(1946) 46 SR (NSW) 318, 323]:
[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
[13] NRW Contracting [117]; Arvind [17].
[14] Arvind [17].
The observation in Arvind applies with particular force to interlocutory decisions of an arbitrator in the WCAS.[15] That includes because one of that jurisdiction's stated purposes is to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties in a manner that is fair, just, economical, informal and quick.[16]
The grounds of appeal
[15] Blakers [19].
[16] Former Act s 3(d).
The errors alleged in the grounds in the notice of appeal are that:
(a)the arbitrator erred in making the orders because all relevant documents requested had already been produced by him;
(b)the arbitrator incorrectly interpreted the legal rights and duties of a self-represented litigant;
(c)the arbitrator incorrectly applied r 50;
(d)the arbitrator erred by 'assisting' the respondent by introducing new evidence against a self-represented litigant; and
(e)the arbitrator erred in failing to enforce 'insurer and self‑insurer principles and standards of practice'.
Leave to appeal
By s 391(1) of the 2023 Act, this appeal can only be brought with leave. Pursuant to s 391(2) of the 2023 Act, as no amount of compensation is in issue, the only prerequisite for the grant of leave is that 'a question of law is involved'.
Even if a question of law is involved, the grant still lies in the discretion of the court. If the court forms the view that, although a question of law is involved but there has not been a relevant error of law, this is a factor which the court may consider relevant to the question of whether leave should be granted.[17]
[17] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17], [25].
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.[18] Among the matters relevant to whether that is so are whether the decision was wrong or attended with sufficient doubt as to justify leave, and whether substantial injustice would be done by leaving the decision unreversed.[19]
[18] Johnson v Denwest Nominees Pty Ltdt/as Cunderdin Roadhouse [2017] WASCA 200 [30].
[19] Johnson v Denwest Nominees Pty Ltd [31].
Analysis and disposition
Leave to appeal
In my view, and for the reasons in [36] - [60] below, none of the appellant's grounds have sufficient merit to sustain a grant of leave to appeal. While grounds 2 - 5 might be thought to involve questions of law, none of the grounds nor the arguments advanced by the appellant demonstrate any error by the arbitrator. Therefore, I decline leave to appeal in respect of any of the grounds.
No merit in any of the grounds
Grounds 1 and 3 - 'Relevance' and application of r 50
In oral submissions, the appellant indicated that in arguing ground 1, he intended also to address ground 3, being that the arbitrator had incorrectly applied r 50.[20]
[20] ts 17.
The appellant submitted that the main basis for his appeal went to whether or not a document is 'relevant'.[21] He contended that he had been ordered to present documents which were not relevant.[22] Based on the appellant's submissions and arguments at the hearing, I understood the thrust of his appeal to be, in essence, that the arbitrator erred in making orders for production of the Medical Files because they were not relevant to any fact in issue in the proceeding. His position was that anything that he considered relevant to his application in WCAS had already been provided to the respondent. He stated that some of those documents had come from himself, some had come from Perth Radiological Clinic, and some had come from SKG Radiology.[23]
[21] ts 17.
[22] ts 21.
[23] ts 17 - ts 18.
The issues in the substantive proceeding include whether the appellant sustained injury in a workplace accident in December 2023, and whether, if he does suffer any incapacity for work, the cause of that incapacity is injury or disability other than by reason of an alleged workplace injury sustained in December 2023.
After the alleged injury, the appellant underwent an MRI scan of his right shoulder. In support of its reply and interlocutory application, the respondent places reliance on a conclusion in the corresponding report that the 'cause' of the appellant's shoulder pain was 'not clearly shown' and that otherwise, there was 'mild acromioclavicular joint [osteoarthritis]'.[24] A Workcover WA Progress Certificate of Capacity dated 8 March 2024 notes the MRI report as showing an '[acromioclavicular joint]' issue and some cervical spine osteoarthritis.
[24] Interlocutory Application filed 21 June 2024, document 14.
Also filed in support of the interlocutory application was the appellant's pre‑employment medical history form dated 3 February 2022. In the form, it notes the appellant was reported as having previous 'injury' or 'pain/discomfort', in his neck, lower back, hip, knee as well as in his ankle or foot.[25] Reference is also made therein to an accident in 1988 (whiplash to neck, nil ongoing pain reported), lower back and hip pain related to past hip break 'self‑managed' and other injuries and histories. In answers to questions about whether the appellant has or had ever experienced symptoms, it was indicated that he reported 'yes' to cervical (neck) aches and pains, lower back aches and pains and sciatica.
[25] Interlocutory Application filed 21 June 2024, document 10.
The appellant's Medicare claims history between 19 February 2021 and 19 February 2024 demonstrate various specialist attendances, including with orthopaedic surgeon, Mr Michael Anderson, in 2022 and 2023, attendances with radiologist Dr Peter Leaver in relation to the appellant's hip joint in 2022, and an MRI scan of the hip in 2023 with Dr Gerard O'Sullivan.
During oral submissions, the appellant focused on the arbitrator's consideration of the test of 'relevance' in the context of the orders for production in a WCAS proceeding. In that respect, the appellant referred me to two cases in the arbitrator's reasons, Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd[26] and Blakers. The distinction made by the arbitrator is that the test of 'relevance' in a case like Youlden was construed in the context of orders for discovery. Blakers, however, a case not dissimilar to that presently under consideration, concluded that orders for production of documents in a WCAS proceeding is more analogous to an application to issue orders for subpoena, rather than for discovery. As set out in Blakers:[27]
… That test concerns the phrase 'relate to any matter in question' in the context of discovery. Under that test, a document is discoverable if it is reasonable to suppose that it contains information which may either directly or indirectly enable the party seeking discovery to either advance their case or damage their adversary's case (which includes documents which may fairly lead to a train on inquiry which may have either of these two consequences).
However, in my view, the closer analogy in the Supreme Court regime is for subpoenas to produce, rather than discovery. The power to issue a subpoena to produce documents is not subject to a test of relevance. Rather, relevance is considered on an application to set aside the subpoena. The central issue is whether there is a legitimate forensic purpose for the issue of the subpoena. …
[26] Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161.
[27] Blakers [25], [26].
This seems to me to be the correct approach. For the purposes of disposing of the application for the orders sought by the respondent, the documents will be relevant to issues or an issue in dispute. If there is a reasonable possibility that the document will materially assist the application (or defence of the application). Alternatively, if it is relevant to an issue in the proceeding, and/or where it might lead to a train of inquiry relevant to the issues in dispute.
In the present application, I can find no error of the notion contended by the appellant in the arbitrator's consideration of the term 'relevant'. Her conclusion that there was a legitimate forensic purpose in the respondent obtaining material is correct.
Ground 5 - insurer and self-insurer principles and breach of privacy
During the appeal, the appellant submitted that the arbitrator had ordered production of documents 'in breach of [his] privacy.[28] This was argued in the context of the appellant's contention that the arbitrator had 'failed to enforce Insurer and self-insurer principles and standards of practice'. The appellant referred to and relied on the WorkcoverWA Insurer and Self-insurer Principles and Standards of Practice (Principles and Standards). These state that:
The confidence of a worker's personal and medical information is paramount. Identifying misuse or unauthorised disclosure will have consequences …
…
[28] ts 21.
The appellant also directed the court to priority 3 of the Principles and Standards, and item 3.5, in the context of injury management which provides that:
3.5Medical report requests
Insurers and self-insurers must only request medical reports and health information relevant to assessing the nature, cause and extent of an injury, and developing treatment and return to work plans.
The appellant's position was, in essence, that because his claim was for an employment-related injury to his right shoulder, and his general practitioner had never treated him for anything to do with his right shoulder, the clinic records were not relevant to his claim. He submitted there would be no relevant documents in that file as to whether he had a degenerative condition in that shoulder because, he said, he had not been treated there for that. He contended, in essence, that if his attendances or treatment at that clinic were not to do with his right shoulder, then the records could not be relevant.[29]
[29] ts 23.
However, I consider those submissions to be misconceived and fail to recognise the substantive issues in dispute. They also repeat earlier contentions and submissions which I have dealt with. In issue is whether the appellant has suffered any right shoulder injury; whether such injury, if suffered, was caused by a workplace incident, and, whether he suffers any incapacity for work. Finally, if he does suffer incapacity, what the cause of that is.
Furthermore, s 341 of the 2023 Act and s 193 of the former Act empower an arbitrator to make orders to produce sensitive, private and confidential medical records which otherwise fall within the scope of the power. It is inherent in determinations made in the WCAS regime that the employer and arbitrator will need to consider personal, private and potentially sensitive information of an injured worker, including medical information.[30]
[30] Blakers [22].
In analysing whether there was any error in the exercise of the arbitrator's powers to make orders for production of the Medical Files, for reasons already set out I consider that the question is whether there is a legitimate forensic purpose for the issue of the orders to produce. Either way, it does not concern any questions of breach of privacy or confidentiality.
In my view, there is a clear legitimate forensic purpose for the making of the orders. In the presence of evidence suggestive of a history of musculoskeletal injury or pain, as well as reports of neck or cervical injury, exploration and investigation of the history is reasonable, and relevant. The medical history sought was also limited to a period of not more than five years, and therefore not so wide ranging as to be reasonably considered outside the bounds of having a legitimate forensic purpose.
Against the history, it cannot be accepted that the production orders are a 'fishing expedition' nor lack a legitimate forensic purpose. I can see no breach of the insurer and self‑insurer principles given the legitimate forensic purpose in ordering the production of documents. The documents sought give rise to a reasonable line of investigation and are 'relevant' to issues in dispute. Further, I accept the proposition that in order for any appropriate medical practitioner/s to properly opine on any injury or incapacity and its potential cause/s, it is necessary for the specialist to be briefed with relevant materials relating to the appellant's physical history and management, including that of a treating general practitioner. That could include any reports (or lack of report) to his general practitioner about his alleged shoulder injury and any other symptoms and treatment undergone by him.
Such materials give rise to a line of relevant inquiry to the issues before the arbitrator, as to the establishment of injury and disability, any potential causes, and otherwise, cause of alleged incapacity for employment.
As regards the respondent's reliance on the finding in the CT scan that the 'cause' of the appellant's shoulder pain was 'not clearly shown' and that there was 'mild acromioclavicular joint [osteoarthritis]',[31] the appellant submitted that the only evidence of degenerative disease was in that scan. He stated there was 'no evidence beforehand of a degenerative disease and to insinuate that there is, is actually not factual'.[32] However, the finding reported from the scan, combined with the absence of a medical conclusion or evidence identifying the cause of alleged shoulder pain, properly raises the relevance of the appellant's medical history to the issues in dispute in the substantive proceeding.
Ground 2 - rights and responsibilities of a self‑represented litigant
[31] Interlocutory Application filed 21 June 2024, document 14.
[32] ts 24.
In the interlocutory application, and in the appeal, the appellant argued that the arbitrator's orders were a breach of s 373(3)(a) and s 374(1) of the 2023 Act (s 205(3)(a) and s 206 of the former Act). These sections, in essence, provide for the maintenance of legally privileged communications that might be contained within medical reports that are otherwise the subject of lawful orders for production.
The appellant submitted in the appeal that, if he was requested or ordered to produce documents, then, under s 373(3) he was allowed to 'deduct any non‑professional privilege before he supplies it', as he has a responsibility to the court. He contended that, the arbitrator erred in finding he had no 'legal professional privilege' because, in his submission as a self‑represented litigant he still had all the duties and responsibilities of a lawyer in the court.[33]
[33] ts 30.
There is no connection whatsoever between the duties and responsibilities owed by a person appearing in a court and the doctrine of legal professional privilege. The appellant's assertion that as a self‑represented litigant he can rely on the doctrine and s 373 and s 374 in that respect are wrong. Legal professional privilege only protects the confidentiality of communications between a lawyer and his or her client, and is simply of no application at all in this case. The doctrine cannot arise in the absence of a legal practitioner.
Ground 4 - arbitrator assisting respondent by introducing new evidence against a self‑represented litigant
It is understood that this ground of appeal arose by reason of the arbitrator's references to Singh v Friedman[34] and Blakers. The appellant contended that the arbitrator's reference to those two distinct cases was confusing, because on the one hand, Singh dealt with orders for discovery, whereas Blakers was a case in which decisions were made in the context of a psychological rather than 'single event' injury. In his letter, he submitted in that respect that it was 'very disturbing when an arbitrator interduces [sic] new evidence against a self‑represented litigant, …'.
[34] Singh v Friedman [2013] WASC 78.
The reference to the authorities relied upon or considered in the determination are not 'evidence'. Referring to case authorities in the arbitrator's reasons in this respect is not an error. If, to the contrary, the appellant's submission is that by referring to and relying on a case in which psychological injury was at issue, the arbitrator is bringing in evidence of psychological injury to his case, that is also not correct. That is not what referring to the case for precedential value does at all.
The appellant has failed to demonstrate or make out any meritorious ground of appeal in this respect.
Conclusion
Ultimately, no error contended for by the appellant in the arbitrator's decision to make orders for the preparation of the list of documents and the Medical Files has been established. The medical evidence and history of the appellant is relevant to questions of injury, of medical causation and of incapacity. So are the reports of that injury, and any treatment (or its absence) also relevant. Finally, to enable a properly qualified medical practitioner/s to assess and opine on whether any injury or incapacity arises from the work accident, or is pre‑existing, or caused by a degenerative condition or otherwise, it is necessary for such practitioner to have reference to that history.
I refuse leave to appeal and dismiss the appeal with costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
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