Kanar v A and S Sadak Pty Ltd [No 2] - [2015] WADC 43

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KANAR -v- A & S SADAK PTY LTD [No 2] [2015] WADC 43

CORAM: STEVENSON DCJ

HEARD: 25 MARCH 2015

DELIVERED : 23 APRIL 2015

FILE NO/S: APP 11 of 2013

BETWEEN: MUSTAFA KANAR
Appellant
AND
A & S SADAK PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR MELVILLE
Citation  :A112

Catchwords:

Statutory compensation - Preliminary question of law - Section 247(1) Workers' Compensation and Injury Management Act 1981 - Appeal to District Court of Western Australia from arbitrator's decision - Whether pre-condition to appeal that there be written reasons for the decision which it is sought to appeal - No jurisdiction to hear and determine appeal unless written reasons obtained from the arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

No jurisdiction
Appeal dismissed

Representation:

Counsel:

Appellant: Mr T J Hammond
Respondent: Mr A Vucak

Solicitors:

Appellant: Simon Walters
Respondent: Jarman McKenna

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

A & S Sadak Pty Ltd v Kanar [2013] WADC 180
Kidd v The State of Western Australia [2014] WASC 99
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Royal Perth Hospital v Morris [2012] WADC 82
St John Ambulance (WA) Inc v Annesley [2013] WADC 37
WCM v The State of Western Australia [2015] WASCA 55
Wright v McMurchy [2012] WASCA 257

STEVENSON DCJ:

Introduction

This is an appeal pursuant to pt XIII of the Workers' Compensation and Injury Management Act 1981 (the Act).
The appellant seeks an order to set aside the decision of Registrar Melville made on 16 May 2012 dismissing the appellant's application to be paid weekly payments from 18 September 2009 for injuries allegedly arising out of a work accident on 1 November 2007. If the appeal is successful, the appellant seeks to have the matter remitted to WorkCover WA for re-hearing by a different registrar.
The respondent has raised a preliminary issue involving a question of law. The issue is whether the court has jurisdiction to hear and determine the appeal. The question of the jurisdiction and power of the court to hear the appeal must be resolved before the substantive issues raised by the appeal can be heard by this court.
In short, the respondent contends the District Court of Western Australia does not have the jurisdiction or power or to entertain the appeal because Registrar Melville did not provide 'written reasons' for his decision on 16 May 2012. It is submitted that if there are no 'written reasons' for decision, the statutory right of appeal conferred by s 247(1) of the Act is not enlivened.
At the hearing on 25 March 2015, both parties agreed the court should first determine the jurisdictional issue. This is a question of statutory interpretation. If this court does not have jurisdiction to entertain the appeal then there is no utility and, in any event, no lawful basis for it to consider the substantive appeal. The substantive appeal raises the issue whether the dismissal by Registrar Melville of the appellant's application on 16 May 2012 on jurisdictional grounds involved an error of law.
For the reasons which follow, in my opinion, the District Court of Western Australia does not have jurisdiction to hear and determine the appeal.
Accordingly, the appeal must be dismissed.

Background and chronology of events

At the commencement of the hearing counsel for the appellant provided the court with a chronology of relevant events dated 25 March 2015.
A brief history of the matter is as follows.
On 1 November 2007, the appellant injured his left Achilles tendon and heel as a result of a work accident involving a steel trolley. The appellant was pulling the trolley and a work colleague was pushing it. At the time the appellant was employed by the respondent as a baker's assistant. He was admitted to Armadale hospital for treatment before being transferred to Fremantle Hospital. The appellant sustained a laceration to his left Achilles tendon.
At the outset, the respondent made weekly payments to the appellant on the basis of the injury to his left Achilles tendon and heel. However, as a result of an application by the respondent, heard on 18 September 2009, Registrar Waring made a finding that the appellant was fit to undertake his pre‑injury occupation. On this basis, the weekly payments being made by the respondent were ceased.
On 27 February 2012, the appellant filed an application for arbitration which was sealed by WorkCover WA on 28 February 2012. By the application, the appellant sought:
… a determination pursuant to s.58 of the Workers' Compensation and Injury Management Act 1981 that the injuries sustained to his left hamstring, left buttock, left foot, left ankle, left elbow, left forearm and left knee are now involved as well as psychological injuries, the onset of which have been caused materially by the original physical injury sustained by his work accident on 1 November 2007.
The Applicant seeks weekly payments from 18 September 2009 until the current date.
The Applicant seeks statutory expenses details of which will be provided in due course.
During submissions in this court, the appellant's counsel confirmed the 'original physical injury' referred to in the application is a reference to the laceration to the appellant's left Achilles tendon and heel as a result of the work accident on 1 November 2007.
The appellant's arbitration application was heard and determined by Registrar Melville on 16 May 2012. I understand the parties filed written submissions and, on the day of the hearing, the written submissions were supplemented by oral submissions from counsel.
After hearing submissions and engaging counsel, I infer Registrar Melville advised the parties of his decision, namely that 'there is no jurisdiction to deal with this application'. Based on this finding, Registrar Melville made an order on 16 May 2012 dismissing the appellant's application.
The order issued by Registrar Melville on 16 May 2012 under the heading 'Arbitration Service Directions Orders' dismissing the appellant's application for weekly payments stated under the heading 'Current Position' – 'There is a finding that there is no jurisdiction to deal with this application'. I interpolate that this was the part of the order made, as opposed to written reasons for the order made. It is not contended by the appellant otherwise.
The order of 16 May 2012 goes on to record under the heading 'Orders' – '1. The Application is dismissed'.
The order of 16 May 2012 signed by Registrar Melville also contained a notation of the legal rights of both parties as follows:
Appeal Rights
•A party to a dispute may, with leave of the District Court appeal to the District Court against a decision of a Registrar made under Part XI.
•An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
•Section 247 of the Act contains further provisions relevant to the process for appeals.
Note: Enquiries should be made to the Arbitration Service, Case Management Team on 08 9388 5644. (emphasis added)
I note the statement of appeal rights does not include any reference to the right of either party to request written reasons for decision within 14 days, if none were provided at the time of the making of the decision and consequent orders: s 213 of the Act.
The appellant and respondent were represented by their current firms of solicitors on 16 May 2012, but the record shows that the appellant was represented by different counsel. Mr Vucak, counsel for the respondent in this appeal, also appeared before Registrar Melville on 16 May 2012.
It is not known whether any recording or transcript of the hearing by Registrar Melville was made or is in existence. For present purposes, it is sufficient to note it is not contended by either party that a transcript of the proceedings does or does not constitute 'written reasons' of the registrar's decision for the purpose of s 247(1) of the Act.
In any event, it is common ground that neither party exercised the right contained in s 213(3) of the Act to request, within 14 days, Registrar Melville to provide reasons for decision in writing for his decision which resulted in the order made by him on 16 May 2012.
I was also informed by counsel that it is common ground that the arbitration rules referred to in s 213(3) of the Act did not require Registrar Melville to provide the parties with written reasons for the decision he made on 16 May 2012.
As counsel for the appellant put it in his oral submissions, Registrar Melville did the 'heavy lifting' by the unsolicited provision of his subsequent written reasons for decision. These written reasons arose out of the respondent's costs application following dismissal of the appellant's application on 16 May 2012. The import of this submission is dealt with later in these reasons. In short, even with the benefit of hindsight, this characterisation of what happened cannot, overcome the fact that Registrar Melville has not, and never has, prepared or published written reasons for the decision he made on 16 May 2012.
Nevertheless, both parties accept, for the purpose of this appeal, that neither of them exercised the statutory right to request Registrar Melville to provide written reasons for his decision on 16 May 2012, whereby he dismissed the appellant's substantive application for weekly payments. However, it is not known if this was a deliberate forensic decision by the respondent.
Some months later, on 6 August 2012, the respondent filed an application for an order for costs against the appellant, together with a bill of costs for taxation. The costs application is dated 3 August 2012 and was sealed by WorkCover WA Arbitration Service (the Arbitration Service) on 6 August 2012.
By letter dated 7 August 2012, Registrar Melville wrote to the parties informing them that 'a costs hearing' had been set down for 3 September 2012. The letter advised the parties that they were required to attend the costs hearing unless otherwise notified by the Arbitration Service.
By reference to the record of the costs orders made by Registrar Melville on 3 September 2012, I infer the appellant and the respondent attended the costs hearing, and were represented by the same solicitors involved in this appeal, but by different counsel.
The orders made by Registrar Melville on 3 September 2012 are recorded in a document headed 'Arbitration Service Costs Orders'. The orders made by Registrar Melville were as follows:
1.Within 14 days the respondent file and serve submissions on how I should exercise my discretion pursuant to s. 264(1).
2.Within a further 14 days the Applicant file and serve his submissions.
The order also contained notice of the 'Appeal Rights' which were set out in the order issued by Registrar Melville on 16 May 2012 (see above).
Interestingly, the programming order for the costs hearing made on 3 September 2012 under the heading 'Current position' contains the following notation:
The parties are to file submissions on whether the decision of Commissioner Gething in Royal Perth Hospital v Morris [2012] WADC 82 conflicts on the decision of Commissioner Nisbet in Monopack Pty Ltd v Nguyen C1-2007 insofar an application under s.57A might be pursued in circumstances where the jurisdictional prerequisites have not been met, by having recourse to s.178, and if so whether this is a factor that should be taken into account in the exercise of my discretion under s.264(1).
On 21 January 2013, Registrar Melville published written reasons for decision dismissing the respondent's costs application. Registrar Melville's reasons for decision are 18 pages in length and consist of 41 paragraphs. At the end of the written judgment, Registrar Melville set out again the appeal rights referred to above.
I interpose, as will be seen, that the appellant filed his notice of appeal in this court, in person, on 18 February 2013 (the last day of the 28‑day period permitted by s 247(4) of the Act).
I also note, for the record, that Registrar Melville is now the principal registrar of this court.
As a result of the decision of his Honour Fenbury DCJ in A & S Sadak Pty Ltd v Kanar [2013] WADC 180 on 27 November 2013, this appeal has proceeded on the basis of a substituted appeal notice dated 8 May 2013. This decision arose out of a number of procedural orders made by registrars (not the principal registrar) of this court which, in part, appear to have been made in the absence of the respondent. On this basis, the respondent complained about a lack of procedural fairness.
His Honour Fenbury DCJ was not persuaded that the substituted notice of appeal was controversial and held 'upon analysis, no great harm has been done in the lack of procedural fairness that appears to exist to date': [28]. His Honour was not minded 'to interfere with the orders that were in fact made. As described, they are fairly uncontroversial and procedural in their nature': [28]. Ironically, and not presciently, his Honour's final paragraph was 'that of course leaves the issue of a substantive appeal which is for another day' ([29]). Unfortunately for the appellant, this is not the case because of the conclusion I have reached.
For present purposes, it is instructive to note the findings of Fenbury DCJ at [7] to [12]:
Nearly four months after dismissing the application, and on 3 September 2012, the learned Registrar heard an application on behalf of Mr Kanar's employer, A & S Sadak Pty Ltd t/as Efe's Baker Pty Ltd seeking an order for costs pursuant to s 264 of the WCIMA.
On 21 January 2013, another four months later, the employer's costs application was dismissed.
In amongst the reasons published by the registrar for the dismissal of the employer's costs application, in pars 35 – 39 he indicated that he felt his decision to dismiss Mr Kanar's application for arbitration on 16 May 2012 eight months earlier may have been wrong and why this might be so.
In other words the learned registrar's reasons for exercising his discretion in dismissing the employer's costs application were, in part, because he felt his original decision for which he had not ever been asked to give reasons might have been wrong.
Pausing there it is to be observed that these reasons published on 21 January 2013 were published by the registrar to explain why he was dismissing the costs application on May 2012. They were not his reasons for dismissing the original application. They merely revealed his hindsight view, eight months later that his original decision might have been wrong. I doubt they can be treated as the registrar's reasons for dismissing Mr Kanar's claim for weekly payments. However, that issue is not before me.
Be that as it may on 18 February 2013, Mr Kanar, acting in person, sought to appeal the registrar's decision delivered some eight months before.
The original appeal notice in this court was filed on 18 February 2013, the last day of the 28‑day period after Registrar Melville published his reasons for decision on 21 January 2013 in relation to the respondent's application for costs.
The respondent's application for costs was dismissed by Registrar Melville in the exercise of his discretion in the circumstances of the case.
It is beyond doubt that the catalyst for this appeal is the publication by Registrar Melville of his reasons for decision on 21 January 2013. But for this event, the appellant accepts the appeal is out of time because the only reason for the appeal is to set aside the decision of Registrar Melville made on 16 May 2012 (several months earlier). This purported appeal does not seek to displace Registrar Melville's decision as to costs on 21 January 2013, because this decision was in favour of the appellant.
I will comment further on the content of the substituted appeal notice dated 8 May 2013 later in these reasons. It is interesting to note the date of the decision of the primary court in respect of the appeal is stated as '21 January 2013 and/or 16 May 2012'. With respect, this obfuscation does not assist or cure the appellant's difficulty.

Relevant provisions of the Act

Section 247 of the Act is contained within pt XIII – Appeals to District Court. It provides as follows:
Appeal against arbitrator's decision made under Part XI
(1)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 section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(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;
and
(b)in any other case, a question of law is involved.
(3)[Deleted]
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. (emphasis added)
Section 213(3) of the Act provides:
Decisions and reasons, form and content of
…
(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.
Section 213(1) of the Act is in precisely the same terms as s 213(3) except in s 213(3)(a) the reference to 'reasons' is a reference to 'the decision'. The distinction between the different subsections is subtle. The reason is to be discerned from the machinations of the Act and the arbitration rules and, not relevant for present purposes.
Nothing turns on the operation and effect of either subsection. It is common ground both the appellant and the respondent have never expressly or indirectly purported to request Registrar Melville to provide written reasons for the decision he made as an arbitrator on 16 May 2012 to dismiss the appellant's substantive application for weekly payments.

The respondent's submissions

The respondent's submission is that Registrar Melville did not, and has not ever, provided reasons for the substantive decision he made on 16 May 2012. Further, and in any event, putting aside any discussions on 16 May 2012 with counsel, he has, according to the respondent, never provided written reasons for his decision.

Further, the respondent says neither it or the appellant requested Registrar Melville to provide reasons in writing for his decision of 16 May 2012 within 14 days as required by s 213(3)(b) of the Act.
Consequently, the respondent says that because there are no written reasons for the decision of 16 May 2012, the statutory right of appeal contained in s 247(1) of the Act cannot be invoked to seek leave to appeal against the decision.
As mentioned, the respondent subsequently filed a separate application for costs which was heard on 3 September 2012, about three and a half months after the substantive decision was made on 16 May 2012.
The respondent contends Registrar Melville's written reasons of 21 January 2013 relate to his decision not to award costs to the respondent - the purpose of these written reasons is for the costs decision. It was not intended to provide reasons for the decision of 16 May 2012 to dismiss the appellant's substantive application.
As will be seen, Registrar Melville in his decision of 21 January 2013 was necessarily required to make reference to his decision of 16 May 2012, in relation to which the costs order was sought. To the extent that he referred to issues concerning his decision of 16 May 2012, the respondent says the primary purpose is to explain his reasons for dismissing the costs application.
In any event, the respondent says, properly characterised, the written reasons of 21 January 2013 is only 'comment' in respect to the costs issue and not reasons for decision in respect to the substantive application, the subject of the decision made on 16 May 2012. According to the respondent, reference to the decision of 16 May 2012 was necessary to explain why, in his decision of 21 January 2013, Registrar Melville did not exercise his discretion to award costs to the respondent.
Properly understood and properly characterised, the respondent says Registrar Melville's decision in writing on 21 January 2013 contained the reasons why its costs application was dismissed and was not an attempt by him at the same time to provide written reasons for his decision of 16 May 2012.
Further, by reference to, in particular, [34] and [39], Registrar Melville poses a question or expresses doubt in relation to his decision of 16 May 2012 as opposed to providing reasons in support of and justifying the decision he made. This is plain from [39] where Registrar Melville opines:
I am no longer so sure that the applicant was in fact precluded from pursuing his application under s 58 for weekly payments as a result of the laceration to the left Achilles tendon or, for that matter, the other injuries.
Registrar Melville makes this finding for the express purpose of determining the costs application and, in particular, whether his discretion to make an adverse costs order against the appellant is enlivened because such an order can only be made if he is satisfied the application was made 'frivolously or vexatiously, fraudulently or without proper justification'. It is important therefore, to appreciate the proper context of the comment or expressed doubt by Registrar Melville at [39].
In addition, it must also be remembered that the expressed uncertainty of Registrar Melville is in part as a result of a decision by Commissioner Gething in Royal Perth Hospital v Morris [2012] WADC 82. That decision was published on 11 June 2012, after Registrar Melville's decision of 16 May 2012. For present purposes it is not necessary to go into the jurisdictional findings of the decision of Registrar Melville on 16 May 2012 to dismiss the appellant's application. That question only arises if the court in fact has jurisdiction to entertain the appeal itself.
In passing, I note that the decision of Royal Perth Hospital v Morris was concerned with arguably a different situation involving a recurrence of an injury in order to obtain an order for weekly payments.
Counsel for the appellant in this appeal made the submission that this distinction is not on its own sufficient or determinative for a different result contended for by the appellant. In this regard, counsel for the appellant, was asked whether the substantive application, which was dismissed by Registrar Melville on 16 May 2012, was in respect of an alleged recurrence of an injury or in respect of alleged injuries. He preferred to categorise the appellant's claim as being in respect of 'secondary injuries'.
However it is categorised, the appellant's claim is said to arise out of injuries sustained as a direct result of the work accident on 1 November 2007.
The respondent says no written reasons for Registrar Melville's decision of 16 May 2012 exist and therefore the statutory appeal right in s 247(1) of the Act is not enlivened. In other words, the respondent says it is a condition precedent to an appeal to the District Court that there be written reasons of the arbitrator's decision before the appeal is commenced.
The respondent also submits that s 247(4) supports its construction of s 247 of the Act. It provides for the timing of an appeal being not later 'than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application'. As there are no written reasons, the respondent says there is no right of appeal.

The appellant's submissions

The appellant contends the written reasons published by Registrar Melville on 21 January 2013 constitute the 'written reasons' required by s 247(1) of the Act, thereby enabling the appellant to seek leave of this court to appeal against the decision Registrar Melville made on 16 May 2012.
The appellant's counsel says he is not troubled by the fact that Registrar Melville's written reasons for decision dated 21 January 2013 are expressed to be in response to the respondent's application for a costs order as a result of his dismissal of the appellant's application on 16 May 2012. It is implicit in the appellant's contentions that, but for the respondent's application and the fact that Registrar Melville fortuitously published written reasons on this occasion, there could be no appeal.
As mentioned, the appellant accepts he did not require Registrar Melville to prepare reasons for decision in writing pursuant to s 213 of the Act as a result of a request made within 14 days of the decision on 16 May 2012.
The appellant submits it can in effect 'piggyback' (my words) on the written reasons for decision in relation to the respondent's costs application to, at the same time constitute written the reasons for the decision made on 16 May 2012 when Registrar Melville dismissed his substantive application.
In my view, the appellant's construction of s 247(1) of the Act does not properly deal with the express terms of s 247(4), which make it plain that the 'written reasons' referred to in s 247(1) are in respect of 'the decision appealed against'.
In my opinion, this is not a case where it can properly be said that the written reasons of Registrar Melville on 21 January 2013 properly serve a dual purpose, which is to provide reasons for (1) the substantive decision, and (2) the costs decision.
In part, I am of this view because the comment by Registrar Melville in his judgment of 21 January 2013 is inconclusive and, at its highest, merely expresses doubt as to the correctness of his initial decision.
In my view, this is a Catch‑22 for the appellant because it cannot properly be said that the judgment of 21 January 2013 contains within it an analysis of the reasons for the decision of 16 May 2012 in a framework and in a way expected of a primary decision‑maker. I make this finding, bearing in mind the limiting effect of s 213(4) of the Act in relation to an arbitrator's reasons for decision. In any event, the views expressed by Registrar Melville are not conclusive and are in contradistinction to the decision he made on 16 May 2012.
Objectively, and without criticism of the position adopted by the appellant, it would appear that he has sought to take advantage of the judgment of 21 January 2013 to attempt to re‑open by way of appeal the decision made by the registrar on 16 May 2012.
There is an element of retrospectivity and hindsight at play. But for the subsequent legal authority, it is likely the appellant would not now seek to revisit Registrar Melville's decision of 16 May 2012.
Finally, the appellant relies on [69] of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. In my view it is appropriate to have regard to [69] to [71] of the judgment of McHugh, Gummow, Kirby and Hayne JJ. The subheading to these paragraphs is 'Conflicting statutory provisions should be reconciled so far as is possible'.
For the reasons which follow, I am not persuaded there is in fact any conflict in the statutory provisions to be found in s 247. In my view, s 247(1) and s 247(4) have different work to do and both are pre‑conditions to the exercise of a statutory right of appeal to this court.
There is no inherent conflict between the two subsections. Plainly construed, s 247(1) requires 'written reasons' for the decision to be appealed against to be obtained. In my view, there are sensible and practical reasons for this requirement. It ensures that both the parties and the appeal court are not disadvantaged and, is critical to ensure there is no procedural unfairness.
On the other hand, s 247(4) provides a time limit for the commencement of any appeal which, importantly, is determined by reference to when 'the written reasons' for the decision appealed against are made available to the party seeking to appeal.
In this regard, the Act in s 213 contains express power for an aggrieved party to require the arbitrator, whose decision is sought to be challenged, to provide written reasons for the purpose of any proposed appeal.
In passing, I note her Honour Schoombee DCJ in St John Ambulance (WA) Inc v Annesley [2013] WADC 37 determined that there is no power or scope for this court to enlarge the 28‑day limitation period contained in s 247(4) of the Act. I am not aware of any authority to a contrary effect. This position, with respect, is consistent with my own view.

Discussion

Before turning to the relevant provisions of the Act, it is necessary at the outset to bear in mind that a right of appeal is a creature of statute. It is not a common law remedy: Wright v McMurchy [2012] WASCA 257 [71] (Buss JA). Also see WCM v The State of Western Australia [2015] WASCA 55 [10]:
First, an appeal is entirely a creature of statute: Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47; Allbeury v The Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2], [80]. Accordingly, unless there is a relevant statutory power, this court has no power to hear or determine an appeal.
This court is required to determine an issue of statutory construction in order to decide if the purported appeal is competent. A useful summary of the principles of statutory construction are set in Kidd v The State of Western Australia [2014] WASC 99 by Beech J:
The principles of statutory construction are well known. I apply the statement of principles in Curtin University of Technology v Woods Bagot Pty Ltd and in Re Cock; Ex parte Diano. I repeat the latter summary:
'In broad summary, the search is for the intention of Parliament expressed and embodied in the legislation. The starting point is the text of the statute. The text is the surest guide to legislative intention. The language of the statute should be interpreted taking into account its context, including any general purpose or policy of the relevant provisions that may be discerned. The consequences of an interpretation, and any perceived improbability of result, may be capable of assisting in choosing between constructional choices that are open on the language of the statute. The statute should be construed as a whole.
In Commissioner of Taxation v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:
"This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.
Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself".'
Martin CJ recently made observations to like effect in The Wilderness Society of WA (Inc) v Minister for Environment. A legislative purpose, discerned from the text and extrinsic material, assists in choosing between constructional choices that are open on the language of the statute; it cannot sustain a construction that is not available as a meaning of the language of the text.
The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction.
A statute must be construed as a whole. So far as possible, a construction that gives a harmonious or coherent meaning to the various provisions is to be preferred. The construction of legislation should strive to give meaning and effect to every word and provision.
More recently, the Court of Appeal consisting of Buss JA, Newnes JA, and Murphy JA in a joint judgment in Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56, also reviewed the principles relevant to statutory construction and commented at [36] ‑ [38]:
The proper construction of the Act - principles
A number of the principles relevant to the proper construction of the Act were outlined in Attorney General (WA) v Her Honour Judge Schoombee [29] - [44]. It is unnecessary to repeat them here, other than to reiterate that with respect to limiting provisions of the Act (such as s 42(3)), the observations in [41] of that decision are pertinent:
In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:
'With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally…
In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation… In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] - [10].'
(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)
It is also significant, in light of the appellant's submissions, to recall here the observations of French CJ and Hayne J in Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [23] - [26]:
'It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy".'
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative 'intention' is to use a metaphor. Use of that metaphor must not mislead. '[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky:
'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
'Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted).'
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
'Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added.).'
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
'In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted.).'
(footnotes omitted)
See also City of Kwinana v Lamont [2014] WASCA 112 [47].
Further, statutes should generally be read in the ordinary way that a document is read, that is from the beginning onwards: Patman v Fletchers Fotographics Pty Ltd (1984) 6 IR 471, 474 – 475.

The canons of statutory construction are well understood. Bearing these in mind, and in particular that the Act is beneficial legislation, I find as follows.
In my view it is a pre‑condition of an appeal to this court for the appellant to obtain written reasons for the arbitrator's decision in respect of the decision proposed to be appealed against. This is the plain import and plain meaning of the construction of s 247(1) of the Act.
A pre-condition that leave to appeal to this court can only be sought if written reasons have been obtained is not onerous.
Section 213 of the Act imposes an obligation on an arbitrator to provide reasons in writing at the request of any interested party to facilitate, amongst other things, any appeal process. Plainly, an appeal court will require an outline of reasons for decision either in writing or by transcript so that the position sought to be overturned can be properly understood and the reasoning for the primary decision‑maker's conclusion exposed. Such a starting point is fundamental to any orderly appeal process and an essential requirement to ensure procedural fairness is accorded to all affected parties.
This pre-condition is reinforced and underlined by the time limitation provision for the commencement of an appeal. This is found in s 247(4) of the Act. The time limit is predicated on the provision of written reasons for the decision to be appealed against. This also fortifies the proper interpretation of s 247(1).
In my view, there is no need to call in any aids or canons of construction including the requirement to adopt a beneficial construction to facilitate the purpose of the relevant legislation. There is no ambiguity. The provisions mean what they say, nothing more and nothing less.
The relevant provision of the Act in question, s 247(1), in my view, is plain and the proper construction is not in doubt.
Further, and in any event, I am not persuaded that the written reasons or judgment of Registrar Melville dated 21 January 2013 can properly be construed as 'written reasons' for the purpose of s 247(1) of the Act to facilitate an appeal to this court from his decision to dismiss the appellant's substantive application, made some months earlier on 16 May 2012. The written reasons do not, on their proper construction, admit to such a conclusion. Plainly, the learned registrar, on reflection and in accordance with subsequent developments of the law in exercising his discretion as to costs, has reflected on the correctness of his initial decision.
Although the end-point might seem harsh to the appellant, the requirements of the Act are plain and all affected parties operate on the same basis. The party's legal rights are set out in the Act and there is no relevant ambiguity. Both parties were legally represented at all material times and therefore 'on a level playing field'.
In my view, for these reasons an essential pre-condition which enlivens the jurisdiction and power of this court to hear and determine the proposed appeal has not been complied with, in that there are no written reasons for the decision to be appealed against. Therefore, this court has no jurisdiction to entertain the proposed appeal.

Conclusion

For these reasons, the appeal is incompetent and must be dismissed.