Hawker Pacific Pty Ltd v Lang

[2015] WASCA 256 (S)

HAWKER PACIFIC PTY LTD -v- LANG [2015] WASCA 256 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASCA 256 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:102/2014	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MAZZA JA	Delivered:	1/03/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	HAWKER PACIFIC PTY LTD MARY COLLEEN LANG
Catchwords:	Practice and procedure Application for certificate under Suitors' Fund Act 1964 (WA) No question of law of general importance or application Turns on own facts
Legislation:	Suitors' Fund Act 1964 (WA), s 10
Case References:	Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 Richards v Faulls Pty Ltd [1971] WAR 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HAWKER PACIFIC PTY LTD -v- LANG [2015] WASCA 256 (S) CORAM : BUSS JA

NEWNES JA
MAZZA JA

HEARD : ON THE PAPERS DELIVERED : 1 MARCH 2016 FILE NO/S : CACV 102 of 2014 BETWEEN : HAWKER PACIFIC PTY LTD

Appellant

AND

MARY COLLEEN LANG
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : EATON DCJ

Citation : HAWKER PACIFIC PTY LTD -v- LANG [2014] WADC 104

File No : APP 6 of 2014

Catchwords:

Practice and procedure - Application for certificate under Suitors' Fund Act 1964 (WA) - No question of law of general importance or application - Turns on own facts

Legislation:

Suitors' Fund Act 1964 (WA), s 10

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : On the papers

Solicitors:

Appellant : WHL Legal Pty Ltd
Respondent : Shine Lawyers

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

Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Richards v Faulls Pty Ltd [1971] WAR 129



1 JUDGMENT OF THE COURT: On 22 December 2015, we upheld an appeal by the appellant from a decision of Eaton DCJ in the District Court, who had refused an application by the appellant for leave to appeal from a decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA): Hawker Pacific Pty Ltd v Lang [2015] WASCA 256.

2 We set aside the decisions of the primary judge and the arbitrator, and ordered that the respondent's application for an order under the Workers' Compensation and Injury Management Act that the appellant pay the respondent's expenses of left wrist fusion surgery be dismissed. We ordered the respondent to pay the appellant's costs of the appeal to this court.

3 The respondent has applied for a certificate under s 10(1) of the Suitors' Fund Act 1964 (WA) (the Act) in respect of both the proceedings in this court and the District Court.

4 Section 10(1) of the Act provides, relevantly, as follows:

(1) Where an appeal against a decision of a court in any proceedings -

(a) to the Supreme Court;

…


on a question of law succeeds, the Supreme Court may … grant to the respondent to the appeal … an indemnity certificate in respect of that appeal.

5 No order was made by this court that the respondent pay the appellant's costs of the District Court proceedings and no such order could be made by the District Court: Workers' Compensation and Injury Management Act, s 267(1). Moreover, neither s 10(1) nor any other provision of the Act would permit this court to grant an indemnity certificate in respect of the proceedings in the District Court. The only question therefore is whether a certificate should be granted in respect of the appeal to this court.

6 It is submitted on behalf of the respondent that the appeal involved two questions of law:

(a) the need for adequate explanation of medical terminology to be provided to a tribunal and during the hearing of the matter;

(b) the requirement of a primary judge to undertake a real review of the evidence before an arbitrator when conducting an appeal.

7 That is not correct. The substantive issue on the appeal was whether, as contended by the appellant, the primary judge had erred in rejecting the appellant's contention that there was no evidence to support the arbitrator's finding that the respondent's need for surgery was causally related to an injury the respondent had suffered in 2007. The appellant submitted that the primary judge had fallen into that error because he did not undertake a real review of the evidence before the arbitrator. The observation by the court that medical terminology needed to be sufficiently explained to be comprehensible to a layperson was no more than an observation.

8 We found there was no evidence that could support the arbitrator's finding and that the primary judge was in error in concluding to the contrary. The appeal therefore succeeded on a question of law, albeit not on either of the questions asserted by the respondent on this application.

9 It is not enough, however, that the appeal has succeeded on a question of law. An applicant for a certificate must show some ground calling for the exercise of the court's discretion under s 10 of the Act in his or her favour: Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139. A relevant consideration will be the degree to which the question of law involved was a question of general importance or application, rather than a question which turned on the facts of the particular case. It would appear that the person who formulated the questions of law which the respondent now asserts were determinative of the appeal had that firmly in mind.

10 In the present case, the appeal turned on the facts of the case and involved no question of general importance or application. There are no grounds beyond the fact that the appeal succeeded on a question of law that might call for the exercise of the court's discretion under the Act. In the circumstances, we are not persuaded that it is an appropriate case for the grant of a certificate. The application is therefore dismissed.