| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAWKER PACIFIC PTY LTD -v- LANG [2013] WADC 117 CORAM : KEEN DCJ HEARD : 6 MARCH 2013 DELIVERED : 29 JULY 2013 FILE NO/S : APP 87 of 2012 BETWEEN : HAWKER PACIFIC PTY LTD Appellant
AND
MARY COLLEEN LANG
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram : ARBITRATOR MENGLER Citation : A1186 of 2012 Catchwords: Workers' compensation - Leave to appeal from preliminary issue on s 61 application - Subsequent dismissal of worker's substantive application - Whether appeal futile
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Legislation: Nil Result: Application for leave dismissed
Representation: Counsel:
Appellant : Mr D W Williams
Respondent : Mr B L Nugawela
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Shine Lawyers
Case(s) referred to in judgment(s):
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
MTI v Sul [2008] WASCA 261
MTI v Sul [2009] WASCA 70
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1 KEEN DCJ: This is an application for leave to appeal from decisions of Arbitrator Mengler in WorkCover WA.
2 On or about 3 April 2012 Mrs Lang (worker) applied for conciliation to WorkCover WA. I use the expression 'on or about' as a neutral term as the timing of events was a crucial issue in this case. 3 The worker's application for conciliation followed an injury sustained by her in the employ of the respondent (employer) on 4 October 2007. She made a claim for compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act) on 2 November 2009. On 4 February 2010 the employer's insurer (insurer) accepted liability to make payments under the Act and commenced making payments under the Act. 4 By letter dated 8 March 2012 the insurer sent by prepaid post a notice in Form 5 of its intention to discontinue the worker's weekly payments on the ground that a medical report from Dr Ecker stated that she was fit to return to full-time administrative work. A copy of that letter with the accompanying medical report was also sent to the worker's legal representative, Shine Lawyers (Shine). 5 By application dated 27 March 2012 the worker applied for conciliation on the basis that the worker disputed the employer's right to cease making weekly payments. 6 That application was received by WorkCover and date stamped as having been received on 3 April 2012. 7 On 4 April 2012 the insurer ceased making weekly payments. 8 By application dated 8 May 2012 the worker applied for arbitration of the dispute as to the weekly payments being discontinued and for orders that weekly payments should recommence. 9 Issues arose as to whether the worker's application seeking conciliation was out of time and the employer applied to dismiss the application on that basis. I will come to the arbitrator's reasons shortly, but he dismissed the employer's application. The arbitrator gave his decision and published his reasons on 19 October 2012. 10 By application filed in WorkCover WA on 1 November 2012 the employer requested the arbitrator to correct or reconsider his decision on the basis that the arbitrator had not considered the provisions of (Page 4)
reg 7(3)(b) of the Workers' Compensation and Injury Management Regulations 1982 (reg 7). That application was heard on 8 November 2012 and determined on 12 November 2012 and was dismissed. 11 The employer now appeals against both of those decisions of the arbitrator. 12 To complete the history, it is necessary to record that on 16 November 2012 the substantive hearing of the worker's application for arbitration took place and the arbitrator published his reasons for decision on 18 December 2012 (the December decision). The arbitrator dismissed the worker's application. There is no appeal against that decision.
The appeal 13 The appeal raises two questions of law: 1. Whether the arbitrator erred in law in his interpretation of s 61(3) of the Act and reg 7 and the term 'apply for an order of an arbitrator'. 2. Whether the arbitrator erred in law in failing to make another decision or, alternatively, correct or reconsider his earlier decision dated 19 October 2012 in the light of 'new information' or correct mistakes. 14 The grounds of appeal are: Ground 1: The arbitrator erred in fact and in law, by making a finding that the application for conciliation was sent to the Conciliation and Arbitration Service within the prescribed 21-clear day period when there was no evidence to support that finding. Ground 2: The arbitrator erred in law in misconstruing s 61(3) of the Act and reg 7 and should have found that the application for arbitration was filed outside the 21-day period. Ground 3: The arbitrator erred in law by failing to reconsider or correct his earlier decision dated 19 October 2012 in light of 'new information' being presented or, alternatively, correct his earlier decision and find that the application for arbitration was filed outside the 21-day time period. 15 The employer seeks an order that the worker's application for conciliation was out of time and that the application should be dismissed (Page 5)
and, alternatively, that the worker's application for arbitration was out of time, given reg 7, and should be dismissed.
Relevant law 16 The appeal 17 The Act requires the appellant to apply for leave to appeal and relevantly provides: 247. Appeal against arbitrator's decision made under Part XI (Page 6)
Conciliation and arbitration 18 Section 61 provides: 61. Discontinuing or reducing weekly payments without order (Page 7)
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19 The relevant notice in Form 5 is contained within the regulations to the Act and is in the following form: (Page 9)
NOTICE TO WORKER OF INTENTION TO DISCONTINUE OR REDUCE PAYMENTS (Section 61(1) and (2)) TO: (Name and address of worker) TAKE NOTICE that your employer (name of employer) intends, after 21 clear days from the date of service upon you of this notice, to *discontinue the weekly payments of compensation/reduce the weekly payments on the following basis — (1) this notice is based upon the medical certificates or report(s) of ………………………………………………………………………………………………........................................... dated ......................................... 20… (names of medical practitioners and dates of reports) sent with this notice, in which it is said that (state concisely the ground relied upon by the employer); (2) you may, if you dispute the employer’s right to discontinue or reduce the weekly payments within the 21 days referred to in this notice apply for an order of an arbitrator that the weekly payments shall not be discontinued or reduced; (3) if you do not so apply, weekly payments may be lawfully discontinued or reduced; [(4) deleted] (5) you may obtain information from WorkCover WA situated at ......................................................... as to the ways and means available to you to establish or protect your rights in respect of your injury. Dated the … day of ………….. 2…….. ............................................................... Signed on behalf of the employer. __________________________________________________________
* Delete whichever is inapplicable. (Page 10)
20 Dispute resolution is provided for in pt XI of the Act. Relevantly, it is provided: 176. Exclusive jurisdiction of arbitrators 21 Division 3 of pt XI deals with and provides for conciliation and s 181 establishes the Worker's Compensation and Conciliation Service. Relevantly, the division goes on to provide: 182E. Application for conciliation (Page 11)
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(3) The terms of an agreement reached by the parties are not to be included in the conciliation officer's certificate unless they are terms that — 22 Division 4 of pt XI deals with arbitration proceedings and by s 182ZO establishes the Worker's Compensation Arbitration Service. Relevantly, it is provided: 182ZT. Application for arbitration If a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with this Act and the arbitration rules for determination of the dispute by arbitration. 23 It is appropriate to interpose r 23 Workers' Compensation and Injury Management Arbitration Rules 2011 (Arbitration Rules) which provides: 23. Time limit for lodging application for arbitration (1) An application for determination of a dispute by arbitration may be lodged within 28 days after the day on which — (2) If an application for arbitration lodged within the period of time allowed under this rule or rule 24 is rejected by the Registrar under rule 13, the applicant may, within the 28 day period referred to in subrule (1), rectify the application and lodge it again. 24 Division 4 of pt XI goes on to provide: 182ZU. Acceptance of application by Registrar (1) An application for arbitration cannot be accepted by the Registrar unless it is accompanied by — (Page 13)
25 Subdivision (4) of div 4 deals with the decisions of an arbitrator and relevantly provides: 211. Decisions generally … 216. Correcting mistakes An arbitrator may correct a decision an arbitrator gives or a statement of the reasons an arbitrator has given for the decision to the extent necessary to rectify — (a) a clerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or (d) a defect of form. 217A. Arbitrator may reconsider decision if new information (1) In this section — new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the (Page 14)
opinion of the arbitrator, justifies reconsideration of the matter. (2) If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and — (a) vary or revoke the decision previously made; or (b) make any further decision, as the arbitrator considers appropriate having regard to the new information. 26 I have referred to reg 7. That regulation provides: Discontinuance or reduction of weekly payments (1) The medical certificate required by section 61 of the Act, before discontinuance of weekly payments, shall be in the form of Form 4 in Appendix I, or in the form of Form 3 in Appendix I if that form has been marked to indicate that it is to be regarded as both a first and final medical certificate. (2) Notice to the worker referred to in section 61 of the Act shall be in the form of Form 5 in Appendix I. (3) The period commencing on the making of an application for conciliation of a dispute about the intention of an employer to discontinue or reduce weekly payments to a worker and ending when a certificate under section 182H or 182O is issued in respect of the dispute is to be disregarded for the following purposes — The arbitrator's decision
1. The decision of 19 October 2012 27 It will be remembered that this decision was in relation to whether the worker's application under s 61(3) of the Act was made within the 21-day period required by that section. 28 The arbitrator recited the facts relating to the despatch of the letter of 8 March 2012 enclosing the notice in Form 5. He noted that the envelope had been addressed to the worker at her last known address and also sent (Page 15)
to Shine. The arbitrator accepted that the worker had been in South Africa from 3 February to 8 April 2012 and this was known to the employer. 29 The arbitrator then summarised the provisions of s 61 of the Act and noted that on 28 March 2012 Shine sent the application for conciliation to WorkCover. The arbitrator noted that it was date stamped as having been received on 3 April 2012, 26 days after 8 March 2012 (being the date of the letter enclosing the Form 5) and six days after having been posted by Shine to WorkCover, such posting taking place in the Perth metropolitan area. 30 The arbitrator observed that the application for conciliation, rather than an application for arbitration, had been sent because the provisions of s 182E and s 182ZU of the Act require an application for conciliation to be made and processed to appropriate certification either under s 182H of the Act which provides 'The Director may, without allocating the dispute, determine that no matter in dispute is suitable for conciliation and issue a certificate to that effect', or by the conciliation officer under s 182O before an application for arbitration can proceed. The arbitrator reasoned that the first step in the application for an order of an arbitrator that weekly payments shall not be discontinued or reduced is to apply for conciliation to commence and then proceed through that process to appropriate certification. 31 The arbitrator took the view that the relevant period for considering the 21 clear days for the purpose of applying s 61(1) and s 61(3) was from 8 March 2012, when the notice was sent by post, to 3 April 2012, when the application for conciliation was date stamped as having been received by WorkCover. 32 The arbitrator observed that there was no evidence before him explaining the delay of six days between the sending of the application by Shine on 28 March and the application being date stamped as having been received on 3 April 2012 nor was there any evidence as to any period that elapsed between delivery to or receipt by WorkCover of the application and the date stamping of it. 33 In his reasons the arbitrator set out the submissions of the employer which included a reliance upon s 76 Interpretation Act 1984 which allows for service of a document by post. Sections 75(1) and s 76 provide: (Page 16)
Service of documents by post (1) Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post. Service of documents generally Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served — (a) by delivering the document to him personally; or (b) by post in accordance with section 75(1); or (c) by leaving it for him at his usual or last known place of abode, or if he is a principal of a business, at his usual or last known place of business; or (d) in the case of a corporation or of an association of persons (whether incorporated or not), by delivering or leaving the document or posting it as a letter, addressed in each case to the corporation or association, at its principal place of business or principal office in the State. 34 Further submissions were made by the employer in relation to matters relevant to the ordinary course of post and the general delivery practices of the postal service. On the basis that, in the metropolitan area, delivery is the next business day, the employer's submission was that service of the notice in Form 5 was effected on the worker on 9 March 2012. The arbitrator accepted that submission. 35 The arbitrator then went on to find that the 21-day clear period should be calculated in accordance with s 61(1)(f) Interpretation Act by excluding 9 March which was the day on which the event of deemed service occurred. Working from there the arbitrator then calculated the 21 clear days as commencing on 10 March 2012 and noted that the last day was Friday, 30 March 2012 and Saturday, 31 March 2012 was the last day on which the event of applying for an order of an arbitrator should have occurred. Because Saturdays and Sundays are excluded days under (Page 17)
s 61(2) of the Interpretation Act, the last day for the worker to relevantly apply was Monday, 2 April 2012. 36 The arbitrator then went on to consider the provisions of the Act dealing with conciliation and noted in particular s 182F(4) that the conciliation commences when the application for conciliation is accepted by the Director. 37 In order to place this in context the arbitrator then referred to the Workers' Compensation and Injury Management Conciliation Rules 2011 (the Conciliation Rules) which provided under r 26 that a document must be lodged with the Conciliation Service and that may take place in a number of ways such as by sending it to the office of the Conciliation Service by prepaid post. 38 It was the arbitrator's view that the requirement of a worker 'to apply for an order of an arbitrator' under s 61(3) of the Act is met when he or she 'lodges' the application for conciliation, or makes application for lodgement of it, by 'sending it to the office of the Conciliation Service by prepaid post'. 39 The arbitrator found that the relevant 'sending' occurred on 28 March 2012 and that was sufficient to satisfy the need of the applicant to relevantly 'apply' for an order of an arbitrator. 40 The arbitrator then went on to consider the position if actual receipt by WorkCover is what is required to satisfy the needs of the provisions. On that basis the arbitrator noted that the date of delivery of the application having been sent by Shine would have been 29 March 2012 unless the contrary is proved. He then went on to observe that in the absence of evidence, other than the date stamping, regarding delivery to or actual receipt by WorkCover and/or the Conciliation Service of the application at the relevant time he was not prepared to find that the necessary 'proof to the contrary' had been provided. 41 He went on to find that, even if the date stamp could be accepted as proof to the contrary, the position was that the worker took the first step in the process of applying for or making an application for an order of an arbitrator, when Shine sent the application on her behalf to WorkCover on Wednesday, 28 March 2012. He found that this would be so even though lodging of the document would not have been taken to have occurred or be completed until it had been received by the Conciliation Service under r 29 of the Conciliation Rules. (Page 18)
42 The arbitrator then went on to consider the submissions of the worker who sought, if necessary, to extend the 21 days provided in s 61(3). The arbitrator did not consider that a relevant power existed as the power to extend time only applies if the employer fails to give the notice required and discontinues or reduces the weekly payments. 43 The arbitrator also dealt with submissions relating to the worker being overseas at the relevant time and dismissed those submissions as being irrelevant. 44 A further submission was made that the notice should be deemed to have been served three working days after sending on 8 March, i.e. 13 March 2012, presumably by reference to r 20 of the Arbitration Rules. The arbitrator noted the provisions of the Act and rules for the practice and procedure but noted that these only applied to documents being served in arbitration proceedings. 45 Finally, the arbitrator found that the worker through her solicitors Shine did apply for an order of an arbitrator as required by s 61(3) on either 28 or 29 March 2012, either of which dates were within the 21 clear days of the deemed service of the notice on her on 9 March 2012 and therefore she was in time. That being the case he dismissed the employer's application to dismiss the worker's application.
2. The decision of 12 November 2012 46 Having failed on the application on 19 October 2012 the employer requested the arbitrator to correct his decision under s 216 or reconsider the matter under s 217A of the Act. 47 The basis of the application was reg 7(3) which it was said was not considered or applied by the arbitrator in dealing with his original decision. 48 The employer's submission on that occasion was that if the regulation had been taken into account the last day for the applicant to have filed an application for arbitration was 6 or possibly 7 May 2012 depending on whether the 28 or 29 March 2012 date was taken as the date when the worker applied for an order of an arbitrator by sending her application for conciliation. The subsequent application for arbitration was not filed until 21 May 2012 which was outside the 21-day clear period referred to in s 61(3) of the Act as extended by reg 7. (Page 19)
49 It was submitted to the arbitrator that s 61(3) was a two-stage process; firstly, an application for conciliation and, second, an application for arbitration. It was argued that the earlier decision of the arbitrator was limited to the first stage, that is, whether the application for conciliation was filed within 21 clear days from 9 March 2012. 50 The submission continued that, having found that the conciliation application was lodged within time, reg 7 came into play with regard to the lodging of an application for arbitration. The regulation had the effect of extending the 21-clear day period but the respondent was out of time in lodging her application for arbitration on 21 May 2012. 51 The arbitrator noted that the application for arbitration dated 8 May 2012 bore a receipt date stamp in WorkCover of 11 May 2012 but was rejected on 14 May 2012 and returned to the worker's solicitors. The application was finally made or accepted on 21 May 2012. 52 The arbitrator reasoned that the worker had lodged her application for conciliation on 28 March 2012 which satisfied the need to 'apply' for an order of an arbitrator. The next stage was to apply under s 182ZT to the registrar within the 28-day period specified in r 23 Arbitration Rules. The Certificate of Outcome of Conciliation was dated 3 May 2012. Accordingly, the worker having made her application on 21 May 2012 was within that period. 53 Section 217A relies upon new information becoming available to enliven the power of the arbitrator to reconsider the decision. The arbitrator took the view that reg 7 was available to him when making his decision, although it was not referred to, and was therefore not new information. 54 Even if it could be considered new information, the arbitrator took the view that it did not override the clear terms of s 61(3). He took the view that it was inconsistent with s 61(3) of the Act in that it purports to interrupt and extend the prescribed period of 21 clear days. 55 The arbitrator noted that the regulation was subsidiary legislation and having regard to s 5 and s 43(1) of the Interpretation Act 1984 and other provisions he took the view that the objects of the Act would best be promoted by complying with s 61(3) which prescribes and allows a 21-clear day period to run without interruption or extension. 56 The arbitrator concluded that the worker did take action to apply for an order of the arbitrator within the prescribed 21 clear days. All she (Page 20)
needed to do was to initiate the process by applying for an order of an arbitrator - however many stages that process may have - and that is consistent with the wording and purpose of s 61(3) unimpeded by reg 7. He took the view that that regulation was inconsistent with s 61 of the Act and therefore void. 57 The arbitrator dismissed the application for correction or review. 58 The December 2012 decision 59 I will deal with this decision in more detail shortly. At this stage it is sufficient to note that the arbitrator dismissed the workers application for arbitration following a substantive hearing.
Leave to appeal 60 The issue of whether leave should be granted is very much alive in this matter. 61 The appellant argues that s 247 of the Act is satisfied both in terms of a question of law being involved and the amount in issue. 62 As to the question of law it is said that the case involves the proper interpretation of the relevant statutory provisions, in particular in relation to s 61 of the Act and its relationship to the relevant rules and regulations governing the timing of applications for conciliation and arbitration following service of a notice pursuant to s 61. 63 Of more controversy is the question of the amount in issue. 64 It is said by the appellant that the amount in issue, being the weekly payments between 4 April 2012 and 18 December 2012 (the disputed period) would be in excess of $5,000. There does not appear to be much dispute about the calculation of the sum. 65 The real issue is whether those weekly payments in the disputed period which had been stopped by the employer could in fact still be claimed. 66 It is the employer's case that the December decision does not foreclose the worker from making such a claim in the future. 67 The submission on behalf of the worker is that the December decision does finally determine the worker's application in respect of the notice issued under s 61 of the Act. It was said at the hearing of the (Page 21)
appeal that the worker had no intention of making a claim in respect of disputed period and the December decision is not subject to an appeal. 68 Counsel on behalf of the worker stopped short of giving any undertaking that the worker would not prosecute a claim in respect of weekly payments due within the disputed period. This caused the employer concern and led to the appeal proceeding. 69 In St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37, Schoombee DCJ explored in detail the provisions of the Act in respect of appeals to this court and the principles that can be applied. 70 I do not propose, for the purposes of these reasons, to go through everything that her Honour had to say but to adopt generally her analysis of the law which, with respect, appears sound. 71 Of particular relevance to the present matter and particularly with regard to the amount in issue, is her Honour's reference to Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40 in which Malcolm CJ noted that the requirement of substantial injustice if the decision was left unreversed was only a guideline and did not lay down any rigid or exhaustive criteria for the grant or refusal of leave to appeal from an interlocutory order. 72 In considering whether or not a substantial injustice would be caused by refusing leave to appeal on this matter which is essentially interlocutory, it is necessary for me to consider the ultimate decision of the arbitrator (the December decision) to see whether or not it does foreclose any application by the worker for weekly payments during the disputed period and whether or not the current appeal is an exercise in futility as argued by the worker's counsel. 73 The December decision reasons for decision identify the subject matter of the decision as: Section 61(3) application that weekly payments not be discontinued pursuant to section 61(1); validity of certification of capacity for work; onus of proof of incapacity. (emphasis added) 74 The arbitrator identified the application in [1] of his reasons as being the application dated 18 May 2012 in which the worker disputed a notice of the employer's intention to cease her weekly payments pursuant to s 61(1) of the Act. In fact the application is dated 8 May 2012 but is stamped as having been received on 18 May 2012. The grounds that were set out in the application were: (Page 22)
(a) the Form 5 was not properly served; (b) the applicant's application for conciliation was either served in time or the discretion of the arbitrator is sought under s 61(3) of the Act; (c) the weekly payments should not have been discontinued as the letter of Mr Jeff Ecker of 24 January 2012 (the report) was not a medical certificate pursuant to s 61(1); (d) the weekly payments should resume as the applicant is unfit for work; (emphasis added) (e) the applicant has now been certified fit to return to work with restrictions; (f) the applicant seeks rehabilitation to facilitate her return to the workplace. 75 The arbitrator noted that items (a) and (b) had been determined by him in his decisions dated 19 October and 12 November 2012 which were the subject of the notices of appeal to this court. 76 In order to place the hearing on 16 November 2012 leading to the December decision in context it is necessary to return to the application for arbitration dated 8 May 2012. That application was one that in the relevant section sought: 1. Weekly Payments – Worker's Applications 1.1 For commencement of payments from 04/04/2012 to ongoing. State reasons increase sought 77 There is no doubt that the notice referred to in section 1.5 above is the notice in Form 5 dated 8 March 2012 which is the genesis of this current appeal. 78 Accordingly, it is clear that when dealing with the matter on 16 November 2012 and giving the December decision the arbitrator was dealing with the same application as is the subject of this appeal. (Page 23)
79 Many of the matters referred for arbitration and before the arbitrator are not matters that I need deal with for the purposes of the present exercise, for example whether or not the report of Dr Ecker was a medical certificate for the purposes of the section. 80 The arbitrator considered in detail the onus of proof of incapacity. The arbitrator also explored in detail the medical evidence relevant to the worker. He set out in detail the relevant submissions made by the parties noting the difference of medical opinion between that of Dr Ecker and a Dr Kennedy as to the extent of any permanent impairment. He went on to say: … but I do not consider it necessary when deciding the capacity for work issue included in this arbitrationto determine the issue of the extent of any permanent impairment the applicant may have suffered. (emphasis added) 81 At [37] the arbitrator expressed his findings as follows: I therefore accept Mr Ecker's opinion as regards the applicant's work capacity as at 24 January and 12 May 2012 and consider that by not making any attempt to find full-time, or even part-time employment, involving administrative duties, the applicant has put herself in a position of not being able to meet the onus upon her to show that she has been, or is, either totally or partially incapacitated for work as a result of the injury on 4 October 2007 such as to be entitled to weekly payments on either basis as from the time when they were terminated on 4 April 2012 (emphasis added). 82 The arbitrator dismissed the worker's application that weekly payments should not be discontinued and, returning to the application for arbitration, it follows that she was not entitled to commencement of payments from 04/04/12 and ongoing. 83 Counsel for the worker argued that the December decision was a final order in favour of the employer and, given that that matter was determined in favour of the employer and there is no appeal against that decision, the appeal against the interlocutory decision about the validity of the application therefore became futile. It is said that there could be no miscarriage of justice and therefore an appeal does not lie to correct a wrong interlocutory ruling, assuming that it was incorrect: see, for example, comments in MTI v Sul [2008] WASCA 261; MTI v Sul [2009] WASCA 70; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22. 84 Counsel for the worker argued that the arbitrator having now delivered a final decision on the s 61 application which determined the capacity for work for the period from 4 April 2012 and onwards no party (Page 24)
was entitled to return to the arbitrator in respect of that issue unless a fresh application was made showing changed circumstances (s 62). It follows, according to counsel for the respondent, that the question of entitlement to weekly payments during this disputed period was foreclosed against the worker. 85 Counsel for the employer in supplementary submissions argued that at the hearing on 16 November 2012 the worker had sought weekly payments for the period from 4 April 2012. So much is clear from the transcript of that hearing. Counsel for the worker submitted on that day: … I am not sure whether you are able to deal with it today … as you have previously determined that the application before you today was made within time, the respondent should not have discontinued the weekly payments to the applicant in April and whatever decision you make today on her application before you, we would contend that those payments should be made up until that decision if not beyond and therefore we would be or we are asking an order that the payments to date are made forthwith. 86 Counsel for the employer argued that the arbitrator did not make any orders in respect of that period having noted that his decision as to the validity of the application was the subject of the current appeal. It is said that all that the arbitrator did was to dismiss the application. It was argued that he did not make any specific orders in relation to the period 4 April to 18 December 2012 and as a result it is still open to the worker to make a further application to seek payments for that disputed period. 87 I do not agree. It is quite clear from the application for arbitration that the dispute before the arbitrator included the right to payments from 4 April 2012 and counsel in argument before the arbitrator specifically made that claim. The matters agitated before the arbitrator were clearly those which related to the application that weekly payments should not be discontinued as they had been. The decision of the arbitrator is unequivocal. The application was dismissed and encompassed any claim including the claim from 4 April 2012. As the arbitrator clearly put it, the worker had not met the onus of proof to show that she was totally or partially incapacitated such as to be entitled to weekly payments as from the time that they were terminated on 4 April 2012. 88 In the circumstances I find that there is no residual claim for this disputed period and therefore the appellant has failed to satisfy me pursuant to s 247 of the Act that the amount in issue is as required. (Page 25)
89 That however is not the end of the matter so far as s 247 is concerned. That section provides a number of pathways to the granting of leave to appeal. My reasoning so far disposes of the application under s 247(2)(a)(i). 90 Section 247(2)(a)(ii) is the provision by which leave may be granted where 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 would provide a pathway where there is an important point of law involved which in the public interest should be agitated but where the amount in issue does not reach the thresholds set out in s 247(2)(a)(i). Nevertheless for that pathway to be opened it is still necessary under s 247(2)(a) for there to be an amount of compensation in issue. 91 By reason of my findings in relation to the December decision there is no amount of compensation in issue. Accordingly, the appellant fails on the application under s 247(2)(a)(ii). 92 Finally, the last route to leave to appeal is under s 247(2)(b) which provides, 'In any other case, a question of law is involved'. 93 Clearly in this case questions of law are involved, as I have noted previously. They relate to the timing of the making of an application for arbitration and what steps are involved and how those steps and when those steps should be taken having regard to a proper construction of the Act and the rules and regulations. Issues also arise as to the impact of the rules and regulations upon the time prescribed in s 61. 94 The arbitrator found that reg 7(3) was, as subsidiary legislation, inconsistent with s 61 of the Act and void. Further, whilst it has not been specifically raised in this appeal, similar arguments might be raised in relation to r 23 Arbitration Rules which provides for the application for determination of a dispute by arbitration to be lodged within 28 days after the relevant certificate in respect of conciliation has been issued. Such an expansion of the time provided by s 61 might again create some difficulties in relation to inconsistency between the rules and the statutory provision. 95 Whilst these are questions of law that arise, in my view the present case is not a suitable vehicle in which to agitate them. It is a case where the respondent has successfully argued in respect of the futility of the appeal rather than directing detailed argument such as might come from a (Page 26)
contradictor in relation to the effects of these rules and regulations upon the statutory provisions. 96 In those circumstances I would not grant leave to appeal under s 247(2)(b). 97 In reaching this decision I have not found it necessary to determine these issues of law that arise. That is not to say that they are not important. It seems to me that the time limit for bringing an application for arbitration under s 61, whilst clear on its face, is beset with difficulties in its application. The Act sets out a procedure for arbitration. It would appear to be a two-stage process; first conciliation and then when that fails or is unsuitable it proceeds to arbitration. Clearly, there may well be difficulties facing a worker in bringing an application for an order that the employer not cease payments or reduce them when all of these steps need to be followed. 98 It seems that reg 7(3) and r 23 Arbitration Rules are recognition of those difficulties and an attempt to try to overcome them by expanding the relevant time limit. However as can be seen this of itself poses its own problems of inconsistencies between substantive and subsidiary legislation. 99 It is to be hoped that these apparent anomalies in the procedures can be rectified so that workers in need of continuing weekly payments will not be prejudiced. 100 However, the present case is one that involves what is essentially an interlocutory application where access to the necessary pathways to leave to appeal has not been proved. Given that the issues that arise in these sorts of applications under s 61 of the Act can ultimately be dealt with on a substantive hearing it may be that an applicant for leave to appeal would find himself or herself in some difficulty. Nevertheless, it is axiomatic that each case must be considered on its merits.
Conclusion 101 The appellant's application for leave to appeal is dismissed.
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