Kamath v National Hire Group Ltd (Allight Sykes)
[2019] WASCA 128
•23 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAMATH -v- NATIONAL HIRE GROUP LTD (ALLIGHT SYKES) [2019] WASCA 128
CORAM: MURPHY JA
MITCHELL JA
HEARD: 23 AUGUST 2019
DELIVERED : 23 AUGUST 2019
PUBLISHED : 23 AUGUST 2019
FILE NO/S: CACV 61 of 2019
BETWEEN: RAGHAVENDRA SHIMOGA DAMODARA KAMATH
Appellant
AND
NATIONAL HIRE GROUP LTD (ALLIGHT SYKES)
Respondent
FILE NO/S: CACV 62 of 2019
BETWEEN: RAGHAVENDRA SHIMOGA DAMODARA KAMATH
Appellant
AND
NATIONAL HIRE GROUP LTD (ALLIGHT SYKES)
Respondent
FILE NO/S: CACV 63 of 2019
BETWEEN: RAGHAVENDRA SHIMOGA DAMODARA KAMATH
Appellant
AND
NATIONAL HIRE GROUP LTD (ALLIGHT SYKES)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
Citation: KAMATH -v- NATIONAL HIRE GROUP LTD (ALLIGHT SYKES) [2019] WADC 55
File Number : APP 83 of 2018, APP 121 of 2017, APP 79 of 2018
Catchwords:
Practice and procedure - Failure to file appellant's case - Springing order - Application for extension of time for compliance - Whether further extension of time should be granted - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
CACV 61 of 2019
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr T Passmore |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Kott Gunning |
CACV 62 of 2019
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr T Passmore |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Kott Gunning |
CACV 63 of 2019
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr T Passmore |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
Hunter v City of Joondalup [2018] WASCA 166
Kamath v National Hire Group Ltd (Allight Sykes) [2019] WADC 55
REASONS OF THE COURT:
Introduction
On 23 August 2019, we heard and dismissed the appellant's (Mr Kamath's) application filed 7 August 2019 for (amongst other things) an extension of time in which to file an appellant's case. The result is that the appeal stood dismissed, pursuant to this court's earlier order dated 26 July 2019. We said we would publish reasons, and these are our reasons.
Background
Mr Kamath has three appeals to this court: CACV 61 of 2019, CACV 62 of 2019 and CACV 63 of 2019. Each appeal is from an ex tempore decision of Stevenson DCJ dated 17 April 2019 (primary decision).
The primary decision itself concerned three appeals to the District Court by Mr Kamath against decisions by an arbitrator in workers' compensation proceedings. In general terms, the three appeals to the District Court concerned the following matters.
First, a decision by an arbitrator on 9 November 2017 with written reasons provided on 29 November 2017 dismissing Mr Kamath's claim for workers' compensation in respect of an alleged work‑related injury in June 2012. The arbitrator found, in effect, that the claim was brought outside of the 12‑month period provided for in relation to s 178(1)(a) and (b) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), and that Mr Kamath had not established the criteria for making a claim out of time and in any event, that the claim had no underlying merit.[1] Mr Kamath appealed that decision on 27 December 2017, which became APP 121 of 2017 in the District Court.
[1] Kamath v National Hire Group Ltd (Allight Sykes) [2019] WADC 55 [10], [12], [15] ‑ [21].
The second matter the subject of the primary decision was an appeal by Mr Kamath against the arbitrator's decision to dismiss his application for a reconsideration of the arbitrator's decision with reasons on 29 November 2017. The arbitrator's dismissal of that application, dated 4 April 2018, became the subject of appeal APP 83 of 2018 in the District Court.[2]
[2] Kamath [24], [26].
The third matter the subject of the primary decision concerned Mr Kamath's appeal against cost orders made against him by the arbitrator on 22 May 2018. The appeal in that regard became appeal APP 79 of 2018 in the District Court.[3]
[3] Kamath [30] - [31].
Mr Kamath required leave to bring the three appeals pursuant to s 247 of the Act. On 12 September 2018, McCann DCJ ordered that the three appeals be heard together.
The matters originally came on for hearing before Stevenson DCJ in the context of an application by Mr Kamath to adduce additional evidence on the hearing of the appeals. Stevenson DCJ dismissed that application on 18 January 2019, and subsequently published reasons of his ex tempore decision: Kamath v National Hire Group Ltd (Allight Sykes).[4]
[4] Kamath [4].
Stevenson DCJ made orders in the following terms on 18 January 2019:[5]
1.[Mr Kamath's] application for leave pursuant to s 247(6) of the Workers['] Compensation and Injury Management Act 1981 to adduce additional evidence on the hearing of the appeals is dismissed;
2.The date fixed for the hearing of the appeals on 27 March 2019 is vacated;
3.On or before 26 March 2019, [Mr Kamath] file and serve a separate outline of submissions in each appeal, identifying with particularity the questions of law relied upon in that appeal, and submissions in respect to each question of law as to why the appeal should be granted;
4.On or before 2 April 2019, [National Hire Group] file and serve a separate outline of submissions in reply, in respect of each appeal;
5.On or before 9 April 2019, [Mr Kamath] file and serve separately in relation to each appeal any further submissions in reply to the respondent's submissions;
6.The appeal be listed for hearing before Judge Stevenson on 16 April 2019 at 10.30 am for two days;
7.The costs of the hearing today be in the cause of each appeal. (emphasis added)
[5] Orders of Stevenson DCJ dated 18 January 2019.
Primary decision
Mr Kamath's three appeals were listed to be heard on 16 April 2019 and 17 April 2019 before Stevenson DCJ.[6] On 16 April 2019, Mr Kamath did not appear. The associate to Stevenson DCJ emailed Mr Kamath on 16 April 2019 at 12.32 pm indicating that '[i]f you fail to appear tomorrow, there is a strong possibility that each appeal will be dismissed'.[7] Mr Kamath's response by email at 8.21 pm on 16 April 2019 included the following:[8]
You cannot consider appellant absence as non-attendance, as legally, appeal hearing is vacated. Appellant's application seeking orders to vacate appeal hearing has been listed for registrar Chamber for directions on 11 June 2019.
…
This should convince you that appeal hearing scheduled on 16 and 17 of April 2019 is legally vacated for directions before registrar Chamber on 11 June 2019.
…
You should be surprised that appellant received the hearing notification without any mention of purpose only on 14 April 2019. This provides the evidence of desperation by the court officer to convince the appellant that appeal hearing is not vacated.
…
Above facts and attached documents should convince you that the appeal hearing is vacated and hearing on 17 April 2019 is to be adjourned. Hence, the appellant cannot be forced or threatened to appear tomorrow, against his will.
[6] ts 121.
[7] ts 115.
[8] ts 116 - 117.
Mr Kamath did not appear on 17 April 2019. Stevenson DCJ proceeded 'to deal with the application for the dismissal of the appeals by the respondents and also on the initiative of the court given the unwillingness of Mr Kamath to appear in order to advocate the appeals'.[9]
[9] ts 121.
Stevenson DCJ said:[10]
[I]n my view the appellant by his conduct and actions has demonstrated an unwillingness to deal with his appeals and has not sought to identify a question of law in respect of each appeal, which is a precondition to the jurisdiction of this court to entertain the appeal.
Section 247(2) of the Workers' Compensation and Injury Management Act 1981 provides that this court cannot grant leave to Mr Kamath to appeal the learned arbitrator's decision, and there are three separate decisions, unless a question of law is involved. This is a jurisdictional precondition to this court dealing with the matters sought to be raised by Mr Kamath in each of his appeals.
If a question of law is not involved, then the appeals by Mr Kamath to this court are in effect rendered a nullity and the proceedings constitute an abuse of process.
[10] ts 121.
In considering Mr Kamath's compliance with the orders made on 18 January 2019, Stevenson DCJ said:[11]
It is plain from the court record that [Mr Kamath] did not comply with the third order, which was to file a separate outline of submissions in respect of each appeal identifying with particularity, the questions of law relied upon in that appeal. To date Mr Kamath has not complied with that order and therefore the respondent and the court has not been informed of the questions of law which he relies upon for the purpose of each appeal.
The immediate inference is that he is unable to identify any question of law involved and it therefore follows that the jurisdictional foundation for the appeal itself is not met.
...
Notwithstanding the failure of the appellant to comply with the procedural orders to ensure the orderly disposition of the appeals and to facilitate a proper and fair hearing, the appeals have at all times remained listed for hearing before this court yesterday and today. No order has been made by a registrar or a judge of this court vacating the hearing of the appeals. Mr Kamath is well aware of that fact notwithstanding the steps he has taken to abort the hearing of the appeals.
My finding in that regard is based on the history of the matter and in particular the steps taken by Mr Kamath since 18 January 2019, all of which point to an unwillingness on his part to allow the appeals to be heard and determined according to law and on their merits. He has by his actions attempted to frustrate the hearing of the appeals and that is borne out by his unwillingness and failure to appear today and yesterday on the hearing of the appeals.
I am completely satisfied that there is no reasonable basis upon which Mr Kamath can contend that he is mistaken as to his obligation to attend on the hearing of the appeals arising out of the steps that he has taken subsequently[.]
[11] ts 122 - 123.
Stevenson DCJ said that he was 'satisfied that there is no basis upon which Mr Kamath could reasonably contend that he was under the mistaken impression that the hearing of his appeals yesterday and today had been vacated by an order of the court' and that '[p]lainly, from his communications,[12] he understands and appreciates that the three appeals remain listed to be heard, the two days having been set aside solely for the purpose of dealing with his three appeals'.[13] The judge considered that National Hire Group's seeking of orders to dismiss the appeals was 'underpinned by the failure and conscious and deliberate refusal by [Mr Kamath] to comply with the programming directions to ensure the efficient and orderly disposition of his appeals'.[14]
[12] See, eg, the emails set out at ts 127 - 132.
[13] ts 134.
[14] ts 134.
Stevenson DCJ considered in the circumstances that he was satisfied that there was: [15]
[N]o basis upon which Mr Kamath could reasonably contend that he was under the mistaken impression that the hearing of his appeals yesterday and today had been vacated by an order of the court. Plainly, from his communications, he understands and appreciates that the three appeals remain listed to be heard, the two days having been set aside solely for the purpose of dealing with his three appeals.
Instead of complying with the programming orders made on 18 January 2019, Mr Kamath has since then, and only the day before he was required to file his outline of submissions, embarked upon a course of conduct which, on any view, is intended to frustrate and delay and to prevent the determination of these appeals. He has done so in a way where he has obfuscated and refused to take the opportunity that he had to be heard in the registrar's Chambers on 10 April 2019 with respect to the application which he filed in the hope that it would result in the adjournment of the final appeal hearings.
In order to progress his non-appearance and non-participation on that occasion, he has then filed a notice of appeal from that decision.
[15] ts 134.
Stevenson DCJ inferred that Mr Kamath was 'unable, because he had not done so, to identify with particularity any question of law involved in the decisions of the learned arbitrator that would enliven the jurisdiction of this court to entertain those appeals from the three separate decisions'.[16]
[16] ts, 134.
In dismissing Mr Kamath's appeals, Stevenson DCJ considered that there was 'serious injustice to the respondent if the appeals are not dismissed on this occasion and allowed to linger on to some indeterminate future date at the whim of the appellant'.[17] Stevenson DCJ said that 'in my view [Mr Kamath has] been given every opportunity to identify any questions of law involved in the decisions, which he seeks to rely upon … He has failed to do so. He has had more than ample opportunity to do so. Instead he has embarked upon a course of conduct and action in an attempt to frustrate the hearing of the appeals. He has obfuscated and delayed the determination of any issues arising in the appeals to the extent that in my view it is appropriate that the court dismiss each of the appeals'.[18]
[17] ts 136.
[18] ts 137.
Stevenson DCJ made orders in each appeal in the following terms:[19]
1.The Appeal be dismissed;
2.Unless the appellant, Mr Kamath, advises the court by 2 pm on Tuesday, 23 April 2019 that he wishes to be heard on costs at 9.30 am on Wednesday, 24 April 2019, there will be an order that the appellant pay the respondents costs of the appeal, including reserved costs to be taxed unless otherwise agreed.
[19] Order dated 17 April 2019.
Appeals
Failure to file an appellant's case and springing order
Mr Kamath filed an appeal notice on 22 May 2019 against the orders of Stevenson DCJ dated 17 April 2019, in relation to each of the three appeals to the District Court.
There had been serious delays in Mr Kamath filing an appellant's case. On 26 July 2019, in each of the appeals, the court made, relevantly, the following orders:
1.The time for filing an appellant's case is extended to 9 August 2019.
2.Unless on or before 4 pm, 9 August 2019 the appellant file and serve an appellant's case, the appeal is dismissed and the appellant is to pay the respondents' costs to be assessed if not agreed.
Mr Kamath's application of 7 August 2019
On 7 August 2019, in each appeal, Mr Kamath filed applications in each of the appeals seeking orders in the following terms:
1.Extension of time till [sic] 30-08-2019 for filing and serving Appellant's case for the Appellant.
2.Leave to file and serve Appeal documents by e‑lodge or email.
3.Cost for this Application in an Appeal and related costs to be paid by all Defendants.
4.Leave to include Workcover Arbitration Service WA as second defendant.[20]
5.Leave to Include District Court WA as third Defendant.[21]
[20] Note this order was not sought in CACV 63 of 2019.
[21] Note this order was sought in CACV 63 of 2019 for the District Court to be included as second Defendant.
Also, on 7 August 2019, in each appeal, Mr Kamath filed an affidavit, sworn 5 August 2019, in support of the application filed 7 August 2019. The affidavit in each appeal is to the effect that:
1.The Acting Principal Registrar did not respond to Mr Kamath's request to vacate the Appeal Hearing dates on 16 and 17 April 2019.
2.A hearing occurred on 17 April 2019 'to dismiss the Appeal' without Mr Kamath's participation. The orders in the matters APP 83, 79 of 2019 were not extracted by the District Court's Principal Registrar and that there is a fraud attempt to convince Mr Kamath that 'Appeal is dismissed'. Mr Kamath has contacted the Principal Registrar to extract the orders, to no response.
3.The documents filed 21 May 2018 and 4 September 2018 provide evidence of fraud and suppression of evidence by Workcover WA and Kott Gunning Lawyers. Mr Kamath has commenced action against Workcover WA and Kott Gunning Lawyers in CIV 4861 of 2018. They failed to enter appearances.
4.Mr Kamath filed and served 'the Outline of submissions to be filed before 26-03-2019'.
5.The court 'ordered to remove second respondent as party … by deliberately not connecting to Video link … to protect the fraud by below Court'. The removal of the second respondent is an error of law. Counsel for Workcover WA successfully influencing the Court of Appeal to remove the second respondent is against the written law.
6.The first respondent terminated Mr Kamath's position without providing information on workers compensation, and without disclosing the medical review by the employer conducted at care point industrial health services Malaga on 13 July 2012. He is seeking compensation on grounds of fraud and suppression of evidence.
Annexure A to Mr Kamath's affidavit annexes correspondence between Mr Kamath and the District Court regarding the orders made in the three appeals to that court, those orders themselves and a transcript of the hearing before Stevenson DCJ on 17 April 2019. Annexure B annexes a document titled 'Question of law not considered by Arbitrator'. Annexure C annexes that appellant's email to the District Court requesting the hearings on 16 April 2019 and 17 April 2019 be vacated. Annexure C also includes an appeal notice filed 15 April 2019 and a letter from the District Court that the appeal notice was listed for directions on 11 June 2019. Annexure D is the appellant's outline of submissions in APP 121 of 2017 and the orders of the Court of Appeal made 26 July 2019. Annexure E are the submissions of WorkCover Arbitration Services dated 25 July 2019 in CACV 61 of 2019, seeking to be removed as a party in the appeal, and orders of the District Court made on 12 September 2018 in APP 83 of 2018. Annexure F includes correspondence between Mr Kamath and the Principal Registrar of the District Court, where the Principal Registrar tells Mr Kamath the orders had been signed and sealed in the three appeals to the District Court.
Disposition
The general principles governing the application for an extension of time to comply with a springing order were summarised by the court in Hunter v City of Joondalup.[22]
[22] Hunter v City of Joondalup [2018] WASCA 166 [21] - [23].
There was no explanation, or at least no cogent explanation, for the failure to comply with this court's orders of 26 July 2019. Also, the material in support of Mr Kamath's application filed 7 August 2019 failed to disclose any arguable error in the primary decision, and failed to provide any basis upon which this court could conclude that, if a further extension was granted to 30 August 2019, an appellant's case disclosing arguable grounds of appeal might be filed.
Also, the application, insofar as it sought to add 'Workcover Arbitration Service WA' and 'District Court of WA' as 'defendants' was plainly misconceived. The application to join the former entity was also inconsistent with another order made by this court on 26 July 2019, in which that entity was removed as a party to the appeal.
There was no basis upon which this court could properly extend the time to file an appellant's case, or to make the other orders sought by Mr Kamath. For these reasons, we dismissed his application and the appeal stands dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
Associate to the Honourable Justice Murphy23 AUGUST 2019
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