Hall v Telstra SNP Monitoring Pty Ltd
[2018] WADC 92
•28 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HALL -v- TELSTRA SNP MONITORING PTY LTD [2018] WADC 92
CORAM: GETHING DCJ
HEARD: 29 JUNE 2018
DELIVERED : 28 AUGUST 2018
FILE NO/S: APP 82 of 2017
BETWEEN: DAVID MICHAEL HALL
Appellant
AND
TELSTRA SNP MONITORING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram: ARBITRATOR MOSS
File Number : A37461 of 2016
Catchwords:
WorkCover appeal - Costs where application discontinued with no hearing on the merits - Whether Arbitrator failed to take into account a mandatory consideration
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 61, s 213, s 247, s 264
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Ms K Melville |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | SRB Legal |
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
Aziz v Tempo Services Ltd [2010] WASCA 39
Bennett v Carruthers [2010] WASCA 131
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd (No 3) [2010] WASC 2
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
House v The King [1936] HCA 40; (1936) 55 CLR 499
Indoor Holdings Pty Ltd v Bennett (No 2) [2010] WASC 307
Inghams Enterprises Pty Ltd v Beyene (WorkCover WA Commissioner Decisions) C14-2009, 28 May 2009
Manonai v Burns [2011] WASCA 165
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
One.Tel v Deputy Commissioner of Taxation [2000] FCA 270
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Purtell v Westfield Whitfords City (WorkCover WA Commissioner Decisions) C46-2007, 14 November 2007
Re Minister for Immigration and Ethnic Affairs Ex Parte Lai Qin [1997] HCA 6, (1992) 186 CLR 622
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Velez Pty Ltd v Tudor [2011] WASCA 218
GETHING DCJ:
Overview
In July 2015 the appellant, David Hall, was injured in an accident in the course of his employment with the respondent, Telstra SNP Monitoring Pty Ltd. He claimed, and was paid, weekly payments, medical expenses and rehabilitation expenses under the regime in the Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA). In August 2016 his employer formed the view that he was capable of returning to work and invoked the procedure in the WCIMA to terminate the weekly payments. Mr Hall in turn invoked the procedure in the WCIMA to challenge that position. However, before the application he commenced was determined, Mr Hall returned to work with full capacity. Consequently, he discontinued his application.
The appellant then sought orders in the WorkCover jurisdiction that the respondent pay the costs of his WCIMA application. On 4 August 2017 a Workers' Compensation Arbitration Service Arbitrator (Arbitrator) dismissed his application, with the effect that each party was to bear their own costs. The Arbitrator also ordered the appellant to pay the respondent's costs incurred in resisting the appellant's claim for the costs of his WCIMA application.
The appellant commenced an appeal to the District Court in relation to the decisions in the preceding paragraph. The appellant asserts that the Arbitrator erred in refusing to order the respondent to pay him costs and also erred in failing to provide written reasons or, alternatively, adequate written reasons.
For the reasons that follow, the appeal should be dismissed.
Background facts
On 17 July 2015 the appellant was involved in an accident in the course of his employment with the respondent. The work car he was sitting in, which was stationary, was hit by a truck on the front right side. His car was dragged for some distance. In anticipation of the impact, he threw his body to the left hand side of the car to avoid his legs being crushed by the impact. He was restrained by a seat belt, and the air bags did not deploy. He reported symptoms on the left side of his body and his neck and back, as well as stress and anxiety.[1]
[1] See generally: Appeal Book (AB) 62, 68, 89, 94, 104, 133 - 139.
The appellant claimed worker's compensation from the respondent which claim was accepted.[2] Pursuant to this claim, he received weekly payments, medical expenses and rehabilitation expenses.[3] It is apparent that there were some disagreements between the appellant and the respondent's insurers as to extent of the medical and rehabilitation expenses the appellant was entitled to. However, these disagreements were resolved without the need for any formal determination in the WorkCover jurisdiction.
[2] AB 163 - 166.
[3] AB 15
On or shortly after 23 August 2016, the respondent served on the appellant a notice of that date pursuant to WCIMA s 61(1) in the form of a Form 5.[4] The subsection provides that 'where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an Arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker' (Form 5 Notice).
[4] Workers' Compensation and Injury Management Regulations (WA) 1982, r 7(2); AB 1, 61
The appellant, through his lawyers, then initiated the conciliation processes provided for in the WCIMA. A conciliation conference took place on 20 October 2016. From the Certificate of Outcome for this conference it is apparent that the parties did not reach an agreement. The Conciliation Officer recorded that there was minimal prospect of resolution.[5]
[5] AB 168 - 169.
There is a further exception to the position set out in WCIMA s 61(1) where the worker has made an application under WCIMA s 61(3), which empowers a worker to dispute a Form 5 notice. The exception provides:
A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.
Upon the hearing of the application pursuant to WCIMA s 61(3) the Arbitrator is to do one of three things:[6]
(a)adjourn the application on such terms as the arbitrator thinks fit; or
(b)dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or
(c)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.
[6] WCIMA s 61(4).
On 25 November 2016, the appellant filed an application pursuant to WCIMA s 61(3) dated 17 November 2016 (Section 61 Application). He sought an order that his weekly payments not cease or be reduced.[7]
[7] AB 8, 77 - 169.
After some directions hearings, the Section 61 Application was listed for a one day arbitration on 11 May 2017.[8]
[8] AB 255 - 256.
On 21 April 2017 the appellant's medical practitioner certified him as being fit to return to his pre-accident role, carrying out his full pre‑accident hours.[9] The respondent had not been able to accommodate the appellant in any role less than his pre-accident role on a full time basis.
[9] AB 38.
By letter dated 1 May 2017, the appellant's lawyers wrote to the lawyers for the respondent's insurer and put a proposal to discontinue the Section 61 Application, the proposal being marked 'without prejudice save as to costs'. The salient part of this letter is a request in the following terms:[10]
… would you urgently advise as to whether your client will agree to have the WorkCover application discontinued on the basis that the employer continues to pay our client's weekly compensation payments until such time as it allows him to fully return to work, and on the basis that the employer agrees to pay the Plaintiff's costs of the application, to be assessed if not agreed.
[10] AB 38 – 39.
On 9 May 2017, the appellant returned to his pre-accident role with the respondent.[11] In the week or so prior he had undertaken some induction as well as an independent medical examination.[12] From that date (or perhaps slightly earlier), he was in receipt of wages from the respondent.[13] Up until that point he had been in receipt of weekly payments under the WCIMA regime. Those payments ceased when his wages recommenced.
[11] AB 43 (counsel for the appellant advised at the hearing of the appeal that the reference in the 10 May 2017 letter to the appellant having returned to work ‘today’ was in error).
[12] AB 59 - 60.
[13] AB 44, 53.
By letter of 10 May 2017, the appellant's lawyers repeated the offer that the Section 61 Application be discontinued on the basis that the respondent pay the appellant's costs to be assessed if not agreed.[14] Apparently that offer was not accepted as later on 10 May 2017 the appellant filed a notice of discontinuance in relation to the Section 61 Application.[15]
[14] AB 43.
[15] AB 42.
There was then further correspondence between the appellant's lawyers and the lawyers acting for the respondent's insurer on the issue of the costs of the Section 61 Application.[16]
[16] AB 44 - 47.
On 22 June 2017, the appellant filed an application dated 14 June 2017 for an order for the costs of the Section 61 Application (Section 61 Costs Application).[17] The Section 61 Costs Application contained a bill of costs.
[17] AB 307 - 309.
By notice dated 7 July 2017, and filed 10 July 2017, the respondent advised the appellant and WorkCover that it opposed the order for costs and the order for the assessment of costs. The respondent also claimed the costs of defending the Section 61 Costs Application. [18]
[18] AB 311 - 315.
Decision of the Arbitrator
The Section 61 Costs Application was heard on 4 August 2017 by the Arbitrator.
At the commencement of the hearing the Arbitrator confirmed that:
(a)the appellant sought the costs of the Section 61 Application, to be quantified by the Arbitrator; and
(b)the respondent opposed the appellant receiving his costs, and sought its costs for defending the Section 61 Costs Application.
The transcript of the hearing is in the Appeal Book. Both the appellant and the respondent were represented. The Arbitrator identified that 'the heart of [the] matter … goes really to the merits of an application for costs having been made in circumstances where there was a discontinuance'.[19]
[19] AB 323 (ts 3).
Counsel for the appellant relevantly contended that:
(a)save for WCIMA s 264(5) considerations, the broad rule is that a successful party is entitled to its costs;
(b)the appellant was successful in the Section 61 Application, notwithstanding that it was formally discontinued;
(c)specifically, the appellant was successful in that he avoided cessation of weekly payments by order, that is, he avoided the negative outcome of the process commenced by the respondent's Form 5 Notice;[20]
(d)he was further successful in being able to return to work so that he did not require further weekly payments;[21]
(e)prior to the notice of discontinuance being filed, the appellant's treating doctor certified him as being fit to resume his full range of pre-injury duties, following which his employer resumed his wages, weekly payments ceased and a fortnight or so later he returned to work;[22]
(f)a notice of discontinuance was issued because the dispute had fallen away with the appellant's recovery of capacity;[23]
(g)the issue inherent in the Form 5 Notice – whether there was no link between the appellant's incapacity and the injury of 17 July 2015 - was never determined, and moreover was never determined adversely to the appellant;[24]
(h)there was no prospect on the evidence of the respondent establishing that the appellant's incapacity was not causally related to the 17 July 2015 injury;[25] and
(g)the fact that the appellant was successful in terms set out in the preceding paragraphs meant that it cannot be said that the application was frivolous, vexatious or made without proper justification for the purposes of WCIMA s 264.
[20] AB 328 (ts 8), 334 (ts 14).
[21] AB 328 (ts 8).
[22] AB 328 - 329 (ts 8, 9).
[23] AB 331 (ts 11).
[24] AB 330 - 331 (ts 10 - 11).
[25] AB 333 (ts 13).
Counsel for the respondent relevantly contended that:
(a)the appellant had been unsuccessful in the Section 61 Application;[26]
(b)the respondent having issued a Form 5 Notice, the appellant had a choice as to whether to accept that notice or dispute it;[27]
(c)to the extent that the appellant has remained in receipt of weekly payments pending determination of the Section 61 Application, this was because of the timeframes and the way in which the WCIMA and s 61 operates; [28]
(d) the appellant was not successful in the Section 61 Application in attaining any order of the nature specified in WCIMA s 61(4), that is, an order that weekly payments not be discontinued or reduced;[29]
(e)it was the respondent who was the successful party in the Section 61 Application;[30]
(f)the Section 61 Application was commenced without proper justification and was frivolous, and was discontinued with no arbitration on the issues; and[31]
(g)there had been no disentitling conduct on the part of the respondent. [32]
[26] AB 340 (ts 20).
[27] AB 341 (ts 21).
[28] AB 341 (ts 21).
[29] AB 341 (ts 21).
[30] AB 342 (ts 22).
[31] AB 342 (ts 22).
[32] AB 342 (ts 22).
The Arbitrator adjourned for 12 minutes[33] and when the hearing resumed delivered reasons for decision. As there is a challenge to the adequacy of the Arbitrator's reasons, it is appropriate that I quote them in some detail:[34]
So I will now provide you with my decision and my reasons in relation to the application for costs. So this is the worker's application for an order and assessment of costs dated 14 June 2017. It is opposed by the employer. The background to the matter is that the worker's application for arbitration, dated 17 November 2016, was made pursuant to s 61(3) of the Act, whereby he disputed the right of the employer to discontinue or reduce his weekly payments in respect of injuries he sustained on 17 July 2015.
Further, the worker did not concede that the form 5 notice served on him by the employer was a valid notice pursuant to section 61(1) of the Act. The matter was listed for a one-day arbitration on 11 May 2017. The day prior to the arbitration the worker filed a notice of discontinuance, indicating on the notice that the parties had not agreed to the terms of discontinuance. What I am asked to consider is the merits of this application for costs, in circumstances where the worker's claim has been discontinued in these circumstances and without there being any determination as to its merits.
Mr Lourey contends that notwithstanding the discontinuance his client is entitled to costs. He contends that his client has been successful. The employer takes issue with this. In effect, Mr Lourey is inviting me to consider that his client's claim is meritorious and that therefore his client is entitled to costs. Section 264 of the Workers' Compensation and Injury Management Act of 1981 provides that the costs are in the discretion of the relevant dispute resolution authority. In this case the costs are in my discretion.
In considering the merits of an application for costs where a claim has been discontinued, based on the authorities I deduce the following propositions: Firstly, where an application terminates without a hearing on the merits the usual approach to costs is that there is no order as to costs unless and to the extent a party acted unreasonably in relation to obtaining or continuing or resisting the making of orders. Secondly, in a particular case it might be appropriate to consider the conduct of the respondent prior to the commencement of the proceedings, where such conduct may have precipitated the litigation.
Thirdly, where neither party desires to proceed with litigation the court or tribunal should be ready to facilitate the conclusion of the proceedings by making a costs order. Fourthly, it will rarely be appropriate where there has been no trial on the merits for a court or tribunal determining how the costs of the proceeding should be borne, to endeavour to determine for itself the case on the merits or to determine the outcome of a hypothetical trial, even where the parties have acted reasonably. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.
Even where the parties have acted reasonably a court or tribunal may feel confident that one party was almost certain to have succeeded had the matter been fully tried but such cases are likely to be rare.
[33] AB 347 (ts 27).
[34] AB 347 - 348 (ts 27 - 28)
The Arbitrator then referred to a number of authorities in support of these propositions[35], culminating in quoting the following passage from the decision of Burchett J in One.Tel v Deputy Commissioner of Taxation:[36]
In my opinion it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other and cases where some intervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of cases there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs to the successful party.
It is the latter type of case which more often creates problems, since there may be difficulty in discerning a clear reason why one party rather than the other should bear the costs.
[35] Indoor Holdings Pty Ltd v Bennett(No 2) [2010] WASC 307; Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd(No 3) [2010] WASC 2; Re Minister for Immigration and Ethnic Affairs Ex Parte Lai Qin [1997] HCA 6; (1992) 186 CLR 622 (quoting a passage from the judgment of McHugh J (624) - ( 625)).
[36] One.Tel v Deputy Commissioner of Taxation [2000] FCA 270 [6] (Burchett J).
The Arbitrator then continued:[37]
In my view, this case falls into the latter type of case as referred to by his Honour Burchett J. This application was terminated without any determination on the merits. It was discontinued with no determination as to the validity of the form 5 notice having been made. It was discontinued without any determination as to the merits of the form 5 notice. In the section 61(3) application I find no evidence to suggest that the employer took unreasonable or unnecessary steps in its defence nor unduly delayed proceedings or was such contended by Mr Lourey.
I also find that there is no evidence to suggest the employer has acted unreasonably prior to proceedings being commenced, nor was such contended by Mr Lourey. It follows from my findings and the authorities that the appropriate order I must make this afternoon is that there be no order as to costs unless this is one of the rare cases referred to in the authorities. As to what amounts to rare, I take that to be akin to inevitability as to the success of the application or as his Honour Simmons J put it in par 76 in Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd:
- - - that one party was almost certain to have succeeded.
In my view this is not a rare case in that I am not satisfied that the worker was almost certain to have succeeded, had the matter proceeded to arbitration. In all the circumstances I consider that I would be embarking on a hypothetical trial involving an unsatisfactory and undesirable degree of speculation. That being the case, the only costs order which is appropriate is that there is no order as to costs. I therefore dismiss the worker's application for costs. I now turn to the employer's application for the costs of the worker's costs application.
[37] AB 349-350 (ts 29-30).
The Arbitrator then proceeded to consider the respondent's application for the costs of opposing the Section 61 Costs Application. The Arbitrator's reasons for decision on this application are as follows:
The employer seeks an order pursuant to s 264(5) of the Act for the payment of the respondent's costs of defending the application for costs in circumstances where the applicant was not the successful party and until today had not put forward reasons in support of the application for costs. Section 264 of the Act provides that a dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.
In my view, given that the application for arbitration was discontinued by the worker on the basis that the parties had not agreed to the terms of discontinuance, there is no proper justification for the worker seeking to have the employer pay his costs of the application for arbitration. Objectively, the worker was not successful in his application for arbitration for this reason. In my view, there is no basis for the worker to have brought this application for costs. Accordingly, pursuant to s 264(5) of the Act I order the worker to pay the employer's costs of defending this costs application on grounds that it was brought without proper justification.
The Arbitrator went on to assess and fix the respondent's costs in the amount of $2,849.[38]
[38] AB 350 - 352 (ts 31 - 32).
In the formal orders issued on 8 August 2017, there were two orders. The first was that the 'worker's application for an order and assessment of costs dated 14 June 2017 is dismissed' (Section 61 Costs Decision). The second was that pursuant to 's 264(5) of the Act the worker pay the employer's costs of defending the application for costs in the sum of $2,849' (Costs Hearing Decision).[39] The Arbitrator noted in this document that she had provided oral reasons.
[39] AB 316 - 317.
By letter dated 7 August 2017, the appellant's lawyers requested the Arbitrator to provide reasons for the Section 61 Costs Decision and the Costs Hearing Decision in writing pursuant WCIMA s 213.[40]
[40] AB 49.
By notice dated 31 August 2017, the Arbitrator notified the parties that the transcript of hearing on 4 August 2017 would stand as her decision and reasons pursuant to WCIMA s 213(5).[41]
[41] AB 318 - 319.
The District Court Appeal
By an Appeal Notice dated 31 August 2017, the appellant appealed from the decisions of the Arbitrator (Appeal Notice). The appellant seeks to have the Section 61 Costs Decision quashed and his application for the costs of the Section 61 Application referred back to a different arbitrator for determination.
The appellant filed submissions in support of the appeal dated 21 May 2018 (Appellant's Submissions). The respondent filed submissions in opposition to the appeal dated 5 June 2018 (Respondent's Submissions).
If written reasons for an Arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by WCIMA s 213(3) or otherwise), a party may, with the leave of the District Court, appeal to the District Court against the decision.[42] As the Arbitrator has purported to have given written reasons for her decisions, this is sufficient to found the appeal jurisdiction even if, on appeal, those reasons are found to be inadequate.
[42] WCIMA s 247(1).
The present appeal is not one in which an amount of compensation is in issue. Accordingly, the relevant restriction on the grant of leave is that 'the District Court is not to grant leave to appeal unless … a question of law is involved'.[43]
[43] WCIMA s 247(2)(b).
The question of law identified in the Appeal Notice is the 'proper interpretation and application of s.264 of the Workers' Compensation and Injury Management Act 1981, and the adequacy of reasons for decision'.
The parities were content to have the issue of whether the appellant should be granted leave to appeal determined with the substantive hearing.[44]
[44] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14] (Pullin JA, with who Buss & Wheeler JJA agreed).The present appeal was commenced within 28 days after the day on which the written reasons for the decision appealed against were given to the appellant, as required by WCIMA s 249(4).
Except as provided by WCIMA Part XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of court of the District Court. [45] As no leave had been granted otherwise, the appeal is to be conducted on the basis of the evidence before the Arbitrator.[46]
[45] WCIMA s 247(5).
[46] WCIMA s 247(6).
The appeal is to be by way of review of the decision appealed against.[47] This is in contrast to the criminal injuries compensation appeal jurisdiction in which the court is to decide the application 'afresh.'[48] Nor is the appeal a hearing de novo.[49]Rather, if some question of law is 'involved' the whole decision appealed from is open to review and not merely the question of law.[50] The review is a 'real review'.[51] It is not limited to pure questions of law.[52] Correction of errors of law is the court's 'principal, but not only, task'.[53]
[47] WCIMA s 247(5).
[48] Criminal Injuries Compensation Act 2003 (WA) s 56(1).
[49] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (French CJ, Bell, Keane, Nettle & Gaudron JJ); Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Wheeler JA, with who Pullin & Buss JJA agreed).
[50] Pacific Industrial Co [18].
[51] Robinson Helicopter [43]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ); Aziz v Tempo Services Ltd [2010] WASCA 39 [40], [42] (Pullin JA with whom Newnes JA agreed); Sotico Pty Ltd v Wilson [2007] WASCA 112 [46] (Pullin JA); Pacific Industrial [22] – [24].
[52] Pacific Industrial Co [18].
[53] Pacific Industrial Co [25].
The appellant must show 'proper basis' for disturbing the decision such as error of 'fact, law or logic.'[54] It is not sufficient that the court undertaking the review would have come to a different conclusion on the facts to that of the Arbitrator.[55] Unless the 'review' persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[56]
[54] Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [33] (judgment of the court); Pacific Industrial Co [26].
[55] Erceg [33]; Pacific Industrial Co [26].
[56] Pacific Industrial Co [20] – [26].
What issues arise for determination?
The Appeal Notice identifies two specific grounds of appeal:
(1)The Arbitrator erred in law in incorrectly interpreting s 264 of the Workers' Compensation and Injury Management Act 1981.
(2)The Arbitrator further erred in law by failing to provide written reasons for decision pursuant to s.213 of the WCIMA or alternatively, failed to provide adequate reasons for decision.
At the hearing on 29 June 2018, counsel for the appellant did not press the ground of appeal that the Arbitrator failed to provide written reasons for decision pursuant to WCIMA s 213. Rather, the appeal was limited to the adequacy of those reasons.
Based on the Appeal Notice, the written submissions filed and the submissions at the hearing, five issues arise for determination:
•Should the appellant be given leave to commence the appeal?
•Is there a proper basis for disturbing the Section 61 Costs Decision?
•Is there a proper basis for disturbing the Costs Hearing Decision?
•Did the Arbitrator fail to provide adequate reasons pursuant to WCIMA s 213?
•What final orders are appropriate?
Should the appellant be given leave to commence the appeal?
The pre-requisite to the District Court being able to grant leave in the present appeal is that 'a question of law in involved'.[57] A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[58] Further, an appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved.[59] 'An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence'.[60] An error of fact alone is insufficient.[61]
[57] WCIMA s 247(2)(b).
[58] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton [15].
[59] Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [36] (Buss P, Murphy JA, Chaney J); Erceg [31]; Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [15]; BHP Billiton [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
[60] Erceg [31]; BHP Billiton [5].
[61] Erceg [31]; BHP Billiton [5].
The position in the present appeal is in contrast to an appeal in which an amount of compensation is in issue where the prerequisites are more detailed:[62]
[62] WCIMA s 247(2)(a).
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
This suggests that in the present appeal, it is sufficient for there to be a question of law involved, and there is no specific additional requirement based either on the financial significance of the amount in issue or the public interest. However, these matters will still be of general relevance to the exercise of the discretion to grant leave.[63]
[63] Inghams Enterprises Pty Ltd v Beyene (WorkCover WA Commissioner Decisions) C14-2009, 28 May 2009, page 33 (Commissioner McCann).
There is thus no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law. If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[64]
[64] BHP Billiton [20] (Buss JA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16].
In relation to ground 1, the error of law identified by counsel for the appellant is that the Arbitrator failed to consider the wider context in which the substantive dispute arose and incorrectly focused on trying to identify the party who would have been successful in the Section 61 Application had the matter proceeded to determination. More specifically, the Arbitrator failed to take into account the fact the employee had incurred costs to protect his entitlement to weekly compensation prior to returning to work while the Act worked as intended. This, it is submitted, cannot have been the intention of Parliament.
The failure to take into account a discretionary consideration which the legislation requires the decision maker to take into account constitutes an error of law.[65]
[65] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 – 505 (Dixon, Evatt & McTiernan JJ); Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 – 519 (Mason & Deane JJ).
In relation to ground 2, a failure to provide adequate reasons will constitute a denial of procedural fairness and thus an error of law.[66]
[66]Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 – 367 (Deane J).
The present appeal thus involves questions of law. The potential significance of the policy position sought to be advanced in relation to ground 1 is such that it is in the interests of justice that leave to appeal be granted.
Is there proper basis for disturbing the Section 61 Costs Decision?
The Arbitrator's reasoning in the Section 61 Costs Decision is quoted above ([25] – [27]). The Arbitrator applied well-established principles, distilled into four propositions. Counsel for the appellant did not contend on appeal that the four propositions identified by the Arbitrator as representing the law where a claim has been discontinued were either incorrect or incomplete. Applying these propositions, the Arbitrator's reasoning in summary terms was (using my abbreviations):
(a)the Section 61 Application was discontinued without any determination on the merits;
(b)the case was one in which an intervening event occurred which removed or modified the subject matter on the dispute such that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs;
(c)there was no evidence to suggest that the respondent took unreasonable or unnecessary steps in its defence nor that it unduly delayed proceedings (nor was this contended by counsel for the appellant);
(d)there was no evidence to suggest that the respondent acted unreasonably prior to proceedings being commenced (again not a point contended by counsel for the appellant);
(e)it follows that the appropriate order for costs is that there be no order as to costs, unless the case falls into the rare class of case in which the appellant was almost certain to have succeeded had there been a determination on the merits;
(f)the case was not one where the Arbitrator could be satisfied that the appellant was almost certain to have succeeded, so was not in this rare class; and
(g) the appropriate costs order was that there be no order as to costs, a position given effect to by dismissing the appellant's application for costs.
Counsel for the appellant identified two specific errors in the Arbitrator's reasoning. The first error is the starting point in the analysis which I have summarised. The second error is the question of law I have identified above.
As to the first error, the appellant contends that the issue of costs should have been determined on the basis that the appellant was successful in the Section 61 Application. As he was the successful party, and there being no disentitling conduct, he was entitled to his costs as an application of the general rule that costs follow the event.[67]
[67] Appellant’s submissions, pars 19-20.
The appellant says he was successful as he succeeded in the object of the Section 61 Application being to ensure that his weekly payments continued until such time as he was able to return to work on a full-time basis. After summarising the regime in WCIMA s 61, the appellant submits as follows:[68]
The summary of the statutory provision discussed above, and those interpreted by numerous decisions of this Court and the Supreme Court of Western Australia, make it clear that not only is it the employer/insurer's onus to convince an Arbitrator that the payments should be ceased or reduced, but should they not be able to do so within the worker's application, then the worker is still clearly the 'successful' party. This is, in these circumstances, the employer is seeking the relief set out in s.61(4)(b) and is attempting to persuade an Arbitrator to dismiss the workers application so that those orders can be made. It is common sense that it is the employer/insurer who wants to cease the workers compensation payments, not the worker himself.
It follows that the circumstances such as these, where the weekly payments of compensation (it appears) were ceased by way of a different limb of s.61(1) (that is the worker returning to work) he was at all time until those payments were ceased as a consequence of him returning to work, the 'successful' party in the Conciliation and Arbitration proceedings. It is further common sense that if the worker had not made the application he did at the time when the Form 5 Notice was first served on him, his payments have been ceased or discontinued after 21 days. It therefore cannot be the case that the worker in these circumstances was the unsuccessful party and was somehow disentitled to his costs, and the mechanism of the Arbitration proceedings being finalised by way of a Notice of Discontinuance does not change that situation.
In this matter the Arbitrator has, for the above reasons, misinterpreted and misapplied s.264 and s.265 of the Act and took into account the fact that the Arbitration Proceedings were finalized by the appellant filing a Notice of Discontinuance following the practical reality he had returned to work and his payments ceasing when that Notice has no relevance whatsoever as to whether or not the worker was entitled, at least until he returned to work and his payments ceased, to a contribution towards his costs and disbursements by the respondent.
[68] Appellant’s submissions, pars 25-26.
However, this submission does not reflect the well-established case law. A convenient starting point is the decision of McHugh J in Re Minister for Immigration and Ethnic Affairs Ex Parte Lai Qui:[69]
In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs…. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order…. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties…. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action…
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried….
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases….
[69] Re Minister of Immigration and Ethnic Affairs Ex Parte Lai Qin (624 – 625) (references omitted).
Parts of this passage were quoted and relied on by Le Miere J in Indoor Holdings Pty Ltd v Bennett.[70]His Honour also referred to the passage from the decision of Burchett J in One.Telwhich I have quoted above ([26]). In Indoor Holdings the plaintiff achieved the practical outcome sought in the litigation being to restrain a pharmacist from conducting a pharmacy business under a specified business name without being licensed to do so. That practical outcome was achieved by the defendant entering into a partnership agreement with a third person who was licensed to use the business name. There being no further utility in the action, the plaintiff sought and obtained leave to discontinue. The defendant then sought the costs of the action. Le Miere J accepted the plaintiff's contention that there should be no order as to costs:[71]
I find that the plaintiff acted reasonably in commencing the proceedings and that the defendant acted reasonably in defending them. The appropriate order is that there be no order as to the costs of the action.
[70] Indoor Holdings Pty Ltd v Bennett [5] (Le Miere J).
[71] Indoor Holdings [27].
Although in a commercial context, the plaintiff in Indoor Holdings was in the same position as the appellant in this case of having achieved the practical outcome to which the litigation was directed without the need for there to be any final determination.
I do not accept the appellant's contention that he was successful in the Section 61 Application for costs purposes. He was not. No determination was made as to the merits of his assertion that his 'weekly payment shall not be discontinued or reduced'.[72] The issue of where the onus of proof lies on a determination of the merits is of no relevance to the decision as to the costs where there has been no determination on the merits.
[72] WCIMA s 61(3).
Another way in which this first error was argued is that the appellant is entitled to the benefit of a costs order in the Section 61 Application as the respondent was not successful in achieving the outcome it sought with the issuance of the Form 5 Notice, being to terminate the appellant's weekly payments. However, this does not detract from the conclusion that there was simply no determination on the merits.
The Section 61 Costs Decision was an orthodox application of the well‑established principles which apply where proceedings are discontinued where there has been a supervening event which has removed the subject matter of the dispute. Here, as in Indoor Holdings, the fact that the litigation enabled the appellant to achieve a favourable practical outcome is no basis for a conclusion that he was in any way successful on the merits of the Section 61 Application. The appellant has not satisfied me that the Arbitrator erred in not finding that the appellant was entitled to the costs of the Section 61 Application based on common law principles on the ground that he was successful in the application. If there is to be a basis for this finding, it must be a principle arising from the WCIMA context. This is in effect what the appellant is asserting in the second error.
As to this second error, the error of law asserted is that the Arbitrator failed to consider the wider context in which the substantive dispute arose and incorrectly focused on trying to identify the party who would have been successful in the Section 61 Application had it proceeded to a determination on the merits. Specifically, the Arbitrator is said to have failed to take into account the fact that the employee had incurred costs to protect his entitlement to weekly compensation prior to returning to work while the WCIMA worked as intended. This, it is submitted, cannot have been the intention of Parliament. Rather, in the context of the WCIMA scheme as a whole, Parliament must have intended a worker to be able to recover costs incurred in protecting his entitlement to weekly payments whilst the WCIMA s 61 determination process takes it course.
The issue of costs is dealt with in WCIMA s 264:
(1)Subject to this Division, costs are in the discretion of the relevant dispute resolution authority.
(2)A dispute resolution authority may determine by whom, to whom and to what extent costs are to be paid.
(3) A dispute resolution authority may order costs to be assessed on the basis set out in the Legal Profession Act 2008 Part 10 Division 8 (or in relevant regulations under section 268) or on an indemnity basis.
(4)Any party to a proceeding may apply to a dispute resolution authority for an order as to costs.
(5)A dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.
(6)If a dispute resolution authority is satisfied that a part only of the application was frivolous or vexatious, fraudulent or made without proper justification, the dispute resolution authority may order the worker to pay the costs relating to that part of the application.
(7)Without limiting section 265, the regulations may make provision in relation to the making of orders for the payment by a party of the costs of another party so as to —
(a)promote the early settlement of issues and disputes by agreement; and
(b)discourage unnecessary delay, excessive attendances and excessive preparation of documentation.
This section contains one express policy departure from the usual costs regime for litigation. This is the caveat on the power of the dispute resolution authority to order payment of costs by a worker set out in WCIMA s 264(5).
Any other factors which an arbitrator is entitled or bound to consider or take into account, and any factors which the arbitrator is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of s 264 as a whole.[73]
[73] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 – 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).
The fact that Parliament expressly identified a policy departure from the usual costs regime for litigation in s 264 is a compelling factor indicating that there is no basis to imply any other policy departures which the Arbitrator was required to consider: if Parliament intended a worker to be able to recover costs incurred in protecting his entitlement to weekly payments whilst the WCIMA s 61 determination process takes its course as a departure from the usual costs regime it would have said so in a parallel provision to WCIMA s 264(5).
Counsel for the appellant did not draw my attention to any specific provision in the WCIMA which could be said to be the basis for the policy identified. Nor was I directed to any relevant explanatory material. Rather, counsel invited the court to imply the policy from the regime in WCIMA s 61, in the context of it being legislation generally beneficial to workers and in the context of the purposes of the legislation set out in WCIMA s 3. In particular, WCIMA s 3(d) identifies one purpose of the legislation as being 'to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick'.
The appellant has not satisfied me that there is a policy able to be discerned or implied from the provisions of the WCIMA to the effect that a worker should be able to recover costs incurred in protecting his entitlement to weekly payments whilst the WCIMA s 61 determination process takes it course. There is no policy fetter in these terms on the discretion of the Arbitrator granted pursuant to WCIMA s 264(1).
It follows that I am not satisfied that the Arbitrator made an error of fact, law or logic in the Section 61 Costs Decision.
Is there a proper basis for disturbing the Costs Hearing Decision?
The appellant queries whether the caveat in WCIMA s 264(5) can apply to an application for an assessment of costs.[74] The caveat applies 'to an application made by the worker'. An application for the costs of a substantive application under the WCIMA is still an application made by a worker for the purposes of WCIMA s 264(5).
[74] Appellant's submissions, par 30.
The Arbitrator's reasoning is in essence that given that the Section 61 Application was discontinued by the worker on the basis that the parties had not agreed to the terms of discontinuance, there was no proper justification for the worker seeking to have the employer pay his costs of that application (see [28] above).
The appellant submits that the phrase 'without proper justification' in WCIMA s 264(5) is 'an extremely high test to achieve and indicates some fault on behalf of the worker', which was not the case here.[75]
[75] Appellant's submissions, par 32.
In Purtell v Westfield Whitfords City Commissioner McCann opined that the words 'proper justification' in the phrase 'without proper justification' 'broaden the grounds upon which costs relief can be ordered so as to apply to a case which is not necessarily frivolous, vexatious or fraudulent but nevertheless serves no proper purpose'.[76]
[76] Purtell v Westfield Whitfords City (WorkCover WA Commissioner Decisions) C46-2007, 14 November 2007, page 4 [8] (Commissioner McCann).
I agree with this interpretation. It follows that I do not accept that the words indicate some fault on behalf of the worker. Rather, it is sufficient if, objectively the Arbitrator finds that the application was commenced without proper justification.
Given the well‑established principles I have discussed above, there was a clear basis for the Arbitrator to conclude that the Section 61 Costs Application was made without proper justification. The appellant has not satisfied me that the Costs Hearing Decision was made as a result of an error of law, fact or logic.
Did the Arbitrator fail to provide adequate reasons pursuant to WCIMA s 213?
The second ground of appeal is that the Arbitrator erred in law by failing to provide adequate written reasons for each decision pursuant to WCIMA s 213.
The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission[77] are an appropriate and instructive starting point in considering this ground of appeal (references omitted):
The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process… That is because 'the duty is a function of due process, and therefore of justice'… Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment… The requirement also furthers judicial accountability…
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
[77] Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] – [27] (judgment of the court); See also: Velez Pty Ltd v Tudor [2011] WASCA 218 [59] – [67] (Murphy JA, with whom Pullin & Newnes JJA agreed).
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[78]
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised… The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose…
[78] Velez [63] (references omitted).
The common law position is subject to WCIMA s 213: [79]
[79] Velez [58].
(1)A decision of an arbitrator is to be given in writing to a party to a proceeding if —
(a)the arbitration rules state that the decision is to be given in writing to that party; or
(b) within 14 days after the arbitrator makes the decision, the party requests that the decision be given in writing.
(2)An arbitrator's decision in writing is to include information as to appeal rights that may be available to the parties under this Act.
(3)The reasons for a decision of an arbitrator are to be given in writing to a party to a proceeding if —
(a)the arbitration rules state that the reasons are to be given in writing to that party; or
(b)within 14 days after the arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.
(4)The reasons for an arbitrator's decision —
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(5)A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient compliance with the requirement for the decision or reasons to be in writing.
(6)The fact that a decision is, or reasons are, given orally or in accordance with subsection (4) or (5) is not of itself a ground for reversing or modifying the decision on an appeal.
There is a provision in identical terms to WCIMA s 213(4) in Magistrates Court Act 2004 (WA) s 31(1). In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the context of MCA s 31(1), which are apposite to WCIMA s 213:[80]
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[80] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).
His Honour went on to make the following observation about the realities of work pressure in the Magistrates Court which is again apposite to the present context:[81]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[81] Manonai [56]; Velez [69]; Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58 [107] (Schoombee DCJ).
The Arbitrator observed during the hearing that if she was able to determine which party was entitled to costs extemporaneously, she would do so, otherwise she would reserve the decision. Having determined which party was entitled to costs, she would then proceed to assess those costs. [82]
[82] AB 325 (ts 5).
The appellant does not specifically identify in what manner he asserts that the reasons for the Section 61 Costs Decision are inadequate.[83] Although the Arbitrator notes the appellant's contention that he was successful in the Section 61 Application, it is the case that the Arbitrator does not specifically address the appellant's detailed arguments supporting that contention. However, the Arbitrator 'need not canvass all the factual and legal arguments or issues in the case'.[84]
[83] See generally: Appellant’s submissions pars 8 ‑17.
[84] WCIMA s 213(4)(d).
In my view, as required by WCIMA s 213(4), in the Section 61 Decision the Arbitrator:
(a)identified the facts which she accepted in coming to her decision, and gave the reasons for doing so; and
(b)identified the law which she applied in coming to the decision, and gave the reasons for doing so.
Moreover, the Arbitrator did so in a manner that exposed her reasoning to an extent that made the basis of the decision clear and exposed for the purpose of appellate review. The reasons are more than sufficient for me, sitting as the appellate court, to determine whether any errors of law, fact or logic were made.
The appellant has not satisfied me that the reasons for the Section 61 Decision were inadequate.
Nor does the appellant specifically identify in what manner he asserts that the reasons for the Costs Hearing Decision are inadequate.[85]
[85] See generally: Appellant’s submissions pars 8 to17.
In my view, as required by WCIMA s 213(4), in the Costs Hearing Decision the Arbitrator:
(a)identified the facts which she accepted in coming to her decision, and gave the reasons for doing so; and
(b)identified the law which she applied in coming to the decision, and gave the reasons for doing so.
Moreover, the Arbitrator did so in a manner that exposed her reasoning to an extent that made the basis of the decision clear and exposed for the purpose of appellate review.
The appellant has not satisfied me that the reasons for the Costs Hearing Decision were inadequate.
The second ground of appeal has not been made out.
Even if I were of the view that the Arbitrator's reasons were inadequate, it would not automatically follow that the decisions of the Arbitrator under appeal would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[86] For the reasons set out above ([58] - [71]), even if I were of the view that the Arbitrator's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in relation to the Section 61 Costs Decision. For the reasons set out at [73] - [77], I am of the same view in relation to the Costs Hearing Decision.
[86] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P & Newnes JA agreed); Mount Lawley [29] (judgment of the court)
What final orders are appropriate?
For the reasons which I have articulated, the appropriate final orders are that:
1.The appellant have leave to appeal.
2.The appeal be and is hereby dismissed.
I will hear from counsel as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
ASSOCIATE TO JUDGE GLANCY27 AUGUST 2018
BHP Billiton [14],
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