Kezic v St John of God Health Care Inc
[2014] WADC 169
•22 DECEMBER 2014
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : STONE DCJ | ||
| HEARD |
| ||
| DELIVERED |
| ||
FILE NO/S |
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| BETWEEN | : ROSARIA KEZIC |
Appellant
AND
ST JOHN OF GOD HEALTH CARE INC
Respondent
ON APPEAL FROM:
| Jurisdiction | : WORKCOVER WA | ||
| Coram | : ARBITRATOR POWLES | ||
| File No |
| ||
| Jurisdiction | : WORKCOVER WA | ||
| Coram | : ARBITRATOR RUTHERFORD | ||
| File No |
|
[2014] WADC 169
Catchwords:
Workers' compensation - Appeal against interlocutory order of Arbitrator
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Rules 2011
Workers' Compensation (DRD) Rules 2005
Result:
Appeal allowed in part
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr R D McCabe |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Kott Gunning Lawyers |
Case(s) referred to in judgment(s):
Catholic Education Office of WA v Granito [2012] WASCA 266
Cooks Construction Pty Ltd v Jurek [2008] C7– 008, delivered 23 May 2008
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Moondancer Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250
St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37
St John of God Health Care Inc v Kezic [2013] WADC 156
Wilson v Metaxas [1989] WAR 285
[2014] WADC 169
STONE DCJ
STONE DCJ:
Introduction
1 In these four appeals the appellant, Ms Rosaria Kezic appeals against
interlocutory orders made by Arbitrator Powles on 10 March 2014 and 27 March 2014 respectively and Arbitrator Rutherford on 9 April 2014 and 4 June 2014 respectively. Ms Kezic applies for the quashing of orders refusing her leave to adduce documentary evidence at the arbitration hearing; the quashing of orders granting leave to the respondent St John of God Health Care Inc (SJOGH) to adduce documentary evidence; orders that solicitors for SJOGH be disciplined; the quashing of orders that the jurisdictional issue be heard at the same time as the substantive issues; orders that the substantive issues be listed for hearing before a new arbitrator and the jurisdictional issue dispensed with; the quashing of orders permitting Ms Hudson who was instructing solicitors for SJOGH to attend (pre-trial) proceedings; orders that the police investigate various documents; orders that SJOGH produce various documents; the quashing of orders granting leave to SJOGH to file its reply out of time; the quashing of orders that arbitration application A11258 and arbitration application A1539 be heard together; orders that arbitration application A11258 be remitted to a new arbitrator and not Arbitrator Powles to be determined on the papers, alternatively, arbitration application A11258 be heard separately to arbitration application A1539 by a new arbitrator. Ms Kezic also applies for this court to address issues in correspondence between Arbitrator Powles and Ms Kezic.
Background
2 Ms Kezic was employed by SJOGH as a coffee shop attendant when
she suffered bilateral wrist injuries on 22 May 2009. SJOGH accepted Ms Kezic workers' compensation claim and she received weekly payments and statutory entitlements (the first claim).
3 Ms Kezic was placed on a Return to Work Program as a menu
monitor. On or about 8 September 2010, Ms Kezic suffered a recurrence of the bilateral wrist injuries with pains extending to the upper arm/shoulder and neck region and a subsequent left/arm shoulder injury. On 14 September 2010, Ms Kezic completed a Recurrence of Disability Claim Form for the recurrence of the bilateral wrist injuries with pains extending to the upper arm/shoulder and neck region.
4 In December 2010 and February 2011 SJOGH served notices on
Ms Kezic pursuant to s 61 of the Workers' Compensation and Injury
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Management Act 1981 (WA) (WC&IMA), denying Ms Kezic ongoing entitlement to weekly payments of workers' compensation on the grounds that she had a full capacity for work. Ms Kezic opposed the applications.
5 On 23 August 2011 Arbitrator McCahon heard the two s 61 notices
(SD47/11 and SD325/11T) and found that Ms Kezic retained a capacity for full time work as a menu monitor. Ms Kezic's weekly payments of workers' compensation ceased with effect from 23 August 2011.
In July 2012 Ms Kezic lodged application for arbitration A1539 claiming weekly payments of workers' compensation and statutory entitlements from 23 August 2011 for a right shoulder injury which occurred during her employment on or about 22 May 2009, a subsequent left shoulder injury caused by the over use and reliance of her left arm; exacerbation/recurrence of her shoulder injuries in September 2010; the recurrence of her bilateral wrist injuries in September 2010 (the second claim).
7 SJOGH disputes A1539 on the grounds that WorkCover lacks
jurisdiction to determine Ms Kezic's shoulder injuries claim because she failed to lodge her claim within 12 months of the injury and SJOGH has suffered irreparable prejudice because of delay; WorkCover lacks jurisdiction to determine Ms Kezic's bilateral wrist injuries claim because she had not lodged a claim for a recurrence that resulted in an incapacity for work from 23 August 2011; the substantial issues that Ms Kezic seeks to agitate in support of her claim(s) have been determined by Arbitrator McCahon in SD47/11 and SD325/11T and she is estopped from seeking a further determination; Ms Kezic did not suffer any shoulder injuries or recurrence of bilateral wrist injuries; Ms Kezic's shoulder injuries, if any are not work related; and Ms Kezic is not incapacitated for work.
8 On 11 February 2013 Registrar Melville determined that he had
jurisdiction to hear the second claim. SJOGH appealed against the decision. On 17 October 2013 Curthoys DCJ in St John of God Health Care Inc v Kezic [2013] WADC 156 found that Registrar Melville dealt only with the recurrence of bilateral wrist injuries jurisdictional issue but if the Registrar dealt with the shoulder injuries jurisdictional issue he failed to give any or sufficient reasons. Curthoys DCJ granted leave to appeal to SJOGH, quashed the order of Registrar Melville of 11 February 2013 and ordered that A1539 be relisted for hearing before a new arbitrator.
[2014] WADC 169
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In January 2014 Ms Kezic lodged application for arbitration A11258 claiming weekly payments of workers' compensation and statutory entitlements from 20 September 2011 for recurrence of the bilateral wrist injuries; aggravation of symptoms in the arm to neck (shoulder region) due to repetitive duties between 4 August 2010 and 8 September 2010; and psychological sequelae (the third claim).
10 SJOGH disputes A11258 on the grounds that it challenges
Ms Kezic's credibility as to her injuries and incapacity; denies Ms Kezic suffered a recurrence of the bilateral wrist injuries; denies Ms Kezic's injuries or incapacity, if any was work related; WorkCover lacks jurisdiction to determine Ms Kezic 's recurrence of shoulder injuries claim because she failed to lodge her claim within 12 months of the injury and SJOGH has suffered irreparable prejudice because of delay; WorkCover lacks jurisdiction to determine Ms Kezic's psychological sequelae claim because the claim was not the subject of conciliation; the substantial issues that Ms Kezic seeks to agitate in support of her claim(s) have been determined by Arbitrator McCahon in SD47/11 and SD325/11T and she is estopped from seeking a further determination; and Ms Kezic is not incapacitated for work.
A1539 and A11258 have not reached arbitration and no final decision has been made.
WorkCover WA arbitrator's powers
12 Part XI of the WC&IMA contains provisions relating to dispute
resolution by an arbitrator. Relevantly, under s 176 arbitrators retain exclusive jurisdiction to examine, hear and determine all disputes. The purpose of the dispute resolution arm of the WC&IMA is to provide for 'the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick': s 3(d) and s 177.
13 The Minister has prescribed arbitration rules to give effect to the
purposes of the WC&IMA: s 293B. The arbitrator is to determine disputes in accordance with the WC&IMA and the Workers' Compensation Arbitration Rules 2011 (the Rules): s 185(1).
Leave to appeal to the District Court from an interlocutory decision
14 Relevantly, s 247 of the WC&IMA provides that a party aggrieved
by an arbitrator's decision may appeal to the District Court against that
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decision. Leave to appeal is required and the court is not to grant leave to
appeal unless a question of law is involved.15 What is meant by an appeal 'involving a question of law' was
explained by Murphy JA in Catholic Education Office of WA v Granito
[2012] WASCA 266 at [53] – [57] and [65]:53 An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17. (An appeal of this kind is accordingly broader than an appeal 'on a question of law' - as to which, see [65] below.)
54 If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the commissioner to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]. That was a case involving s 247(3) but the point plainly applies to s 247(2) which uses the word 'unless'. It is unnecessary for present purposes to consider whether there are any differences in relation to the operation of the grant of leave contemplated under s 247(2) and s 247(3).
55 Further, in Atanasoska Buss JA (Wheeler and Pullin JJA agreeing) said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
Later in Atanasoska [32], the court referred with approval to the observations of Pullin JA in BHP Billiton Iron Ore Pty Ltd v Brady [14]:
In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of
[2014] WADC 169
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the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either:
(a) grant leave and uphold or dismiss the appeal, or (b) refuse leave to appeal. Pullin JA also said in that case [15] that the 'commissioner was not bound to accept that questions of law were involved merely because the appellant asserted there were such questions'.
56 It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that the commissioner, within the constraints marked out by the nature of the appellate process, must conduct a 'real review': Pacific Industrial Co v Jakovljevic [20], [24].
57 Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator: Pacific Industrial v Jakovljevic [20], [26].
65 An appeal 'on a question of law' is not an appeal by way of rehearing; it is in the nature of judicial review, which challenges the legal correctness of what the lower court has done. See Osland v Secretary, the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] - [21]; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 [15]; Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 [43]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27].
As to the requirement of leave to appeal, Malcolm CJ stated in
Wilson v Metaxas [1989] WAR 285, 294:
The object of the requirement that an appeal lies from an interlocutory order only by leave is to reduce appeals from these orders as much as possible: Perry v Smith (1901) 27 VLR 66 ; Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 408. The jurisdiction to hear the appeal is founded upon the grant of leave. The grant of leave lies in the discretion of the court. In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed: Perry v Smith; Niemann v Electronic Industries
[2014] WADC 169
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Ltd [1978] VR 431 ; Stanley-Hill v Kool [1982] 1 NSWLR 460 ; Monash University v Burg [1984] VR 383 ; BHP Petroleum Pty Ltd v Oil Basin Ltd [1985] VR 756 . The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad discretion to grant or withhold leave. What is substantial injustice must depend on all the circumstances of the case: BHP Petroleum Pty Ltd v Oil Basin Ltd at 759, per Fullagar J.
17 In St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37 [49] Schoombee DCJ accepted 'that the common law principles pertaining to the grant of leave to appeal against an interlocutory order apply to appeals brought under s 247 of the (WC&IMA), but that the issue whether substantial injustice would be caused to the appellant if the decision was left unreversed is not a requirement but only a guideline for the court to consider in the exercise of its discretion. The court should grant leave if, in all the circumstances, it is in the interests of justice that leave to appeal be granted.'
The proper approach to an appeal against a discretionary decision was stated by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504, 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Leave to amend grounds of appeal
19 At the hearing of the appeals Ms Kezic sought leave to amend the
grounds of appeal in each appeal to reflect the grounds set out in her written submissions. Counsel for SJOGH, Mr McCabe, quite properly in my view, did not oppose the application for leave to amend the grounds of
[2014] WADC 169
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appeal. Accordingly, leave was granted to Ms Kezic to amend the grounds of appeal to reflect the grounds set out in her written submissions.
20 Ms Kezic's written submissions raise a multitude of issues which
makes it difficult to relate them to specific grounds of appeal. In dealing with each appeal I have endeavoured to deal with the main issues raised in that appeal by Ms Kezic at the hearing as some of the amended grounds or sub-grounds set out in Ms Kezic's written submissions were common to more than one of the appeals or find their way into more than one of the appeals.
Appeal 42 of 2014
Essentially, the amended grounds of appeal concern Arbitrator Powles' decision to refuse Ms Kezic's interlocutory application in A1539 dated 19 February 2014 for leave to file as late evidence and previously unspecified evidence the documents as follows: a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012; a copy pages 16 and 17 of SJOGH's written submissions in St John of God Health Care Inc v Kezic; a copy of the District Court transcript of the proceedings before Curthoys DCJ on 17 October 2013 in St John of God Health Care Inc v Kezic; and a copy of a letter from the solicitors for SJOGH to Ms Maria Brown dated 26 November 2013.
22 At the hearing of the appeal, counsel for SJOGH, again quite
properly in my view, conceded that Ms Kezic should be permitted to adduce the evidence of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012 on the basis that a copy of that document was attached to the witness statement of a witness for SJOGH and there may be some probative value in the document for the parties at the arbitration hearing.
23 In the circumstances, I am of the view, it is in the interests of justice
that leave to appeal be granted and the appeal be allowed insofar as it relates to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012. Accordingly, I propose to quash the order of Arbitrator Powles to that extent and I propose to order that Ms Kezic has leave to file as late evidence a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012.
24 In my view, no error of law was involved in Arbitrator Powles'
decision to refuse Ms Kezic's application for leave to file as late evidence
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and previously unspecified evidence a copy pages 16 and 17 of SJOGH's written submissions in St John of God Health Care Inc v Kezic; a copy of the District Court transcript of the proceedings before Curthoys DCJ on 17 October 2013 in St John of God Health Care Inc v Kezic; and a copy of a letter from the solicitors for SJOGH to Ms Maria Brown dated 26 November 2013. None of these documents has any bearing on the arbitration hearing. If Ms Kezic requires Ms Brown to attend the arbitration hearing as a witness she could summons her. I am also of the view that the request by Ms Kezic for this court to take disciplinary action against the solicitors for SJOGH over their letter to Ms Brown is incompetent, without merit and beyond the scope of the appeal. Accordingly, I refuse leave to appeal and dismiss the appeal insofar as it concerns the aforementioned matters.
Appeal 43 of 2014
Essentially, the amended grounds of appeal concern Arbitrator Powles' decision to refuse Ms Kezic 's interlocutory application in A1539 dated 4 March 2014 for leave to file as late evidence copies of letters dated 24 January 2014 and 25 February 2014 from Ms Kezic to Arbitrator Powles; a copy of a letter dated 27 February 2014 from Arbitrator Powles to Ms Kezic ; a copy of page 22 of the transcript of proceedings before Arbitrator McCahon on 3 June 2011 in SD47/11 and SD325/11T; a copy of the Freshstart Progress Report dated 23 May 2011 with respect to Ms Kezic and (for Arbitrator Powles to) 'address issues' (in the correspondence); Arbitrator Powles' decision to refuse Ms Kezic's interlocutory application in A1539 dated 13 March 2014 for leave to file as late evidence and previously unspecified evidence a copy of the SJOGH pay advice slips for Ms Kezic from 28 June 2009 to 19 September 2010; and the directions orders made on 27 March 2014 by Arbitrator Powles concerning Ms Kezic's application for production of documents or material by SJOGH.
At the hearing of the appeal, Ms Kezic abandoned the grounds that concerned the SJOGH Pay Advice Slips for Ms Kezic from 28 June 2009 to 19 September 2010 as the contents of the document were incorporated in the copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012 for which leave to file as late evidence had been granted in Appeal 42 of 2014. Mr McCabe conceded that for the purposes of the arbitration hearing Ms Kezic may need to refer to a copy of the Freshstart Progress Report dated 23 May 2011 for Ms Kezic.
[2014] WADC 169
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27 In the circumstances, I am of the view, it is in the interests of justice
that leave to appeal be granted and the appeal be allowed insofar as it relates to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the Freshstart Progress Report dated 23 May 2011 with respect to Ms Kezic. Accordingly, I propose to quash the order of Arbitrator Powles to that extent and I propose to order that Ms Kezic has leave to file as late evidence a copy of the Freshstart Progress Report dated 23 May 2011 with respect to Ms Kezic.
28 In my view, no error of law was involved in Arbitrator Powles'
decision to refuse Ms Kezic's application for leave to file as late evidence copies of letters dated 24 January 2014 and 25 February 2014 from Ms Kezic to Arbitrator Powles; a copy of a letter dated 27 February 2014 from Arbitrator Powles to Ms Kezic; and a copy of page 22 of the transcript of proceedings before Arbitrator McCahon on 3 June 2011 in SD47/11 and SD325/11T. None of these documents, as such, is evidence for the purposes of the arbitration hearing. I am also of the view that the request by Ms Kezic for this court to address or request Arbitrator Powles to address the correspondence between Ms Kezic and Arbitrator Powles is incompetent, without merit and beyond the scope of the appeal. Accordingly, I refuse leave to appeal and dismiss the appeal insofar as it concerns the aforementioned matters.
29 The amended grounds 1, 5, 6 and 7 concern the orders made by
Arbitrator Powles at the directions hearing on 27 March 2014 concerning an application by Ms Kezic for production of documents or material by SJOGH.
30 The background to the directions hearing was that there had been
incomplete compliance by SJOGH with an order made on 11 February 2014 requiring SJOGH to produce documents: the 'July 2009 Hazard/Investigation Report' and 'Task description for position of menu monitor'.
31 At the directions hearing leave had been given to SJOGH to file the
affidavit of Ms Jennifer Hudson dated 12 March 2014 to address the issues regarding compliance with the order for production on 11 February 2014. Ms Kezic was provided with a copy of the affidavit. Ms Kezic claimed that emails annexed to Ms Hudson's affidavit appeared to be incomplete. SJOGH agreed to check whether complete copies of the emails could be obtained and to provide them to Ms Kezic by 4 April
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2014. Arbitrator Powles then made an order that by 4 April 2014 SJOGH
may file Ms Hudson's affidavit and other programming orders.32 In summary, Ms Kezic contended in amended grounds 1, 5, 6 and 7
that Ms Hudson should not have been permitted to attend the directions hearing as she was a witness for SJOGH; leave should not have been given to file Ms Hudson's affidavit out of time; there had been a failure to take into account Ms Kezic's concerns about the authenticity of the documents annexed to Ms Hudson's affidavit and the arbitrator failed to give adequate reasons for decision.
33 In my view the orders made by Arbitrator Powles at the directions
hearing do not disclose any error of law. It was not an unreasonable or plainly unjust exercise of discretion to permit Ms Hudson, who was the head of insurance for SJOGH, to attend the directions hearing to give instructions to the solicitors. Arbitrator Powles gave adequate reasons for decision. Leave to appeal on amended grounds 1, 5, 6 and 7 is refused and the appeal is dismissed insofar as it concerns the aforementioned matters. Further, Ms Kezic's contention that this court should determine the jurisdictional issue before there has been a hearing by an arbitrator on that issue is incompetent, without merit and beyond the scope of the appeal.
Appeal 44 of 2014
34 Essentially, the amended grounds of appeal concern Arbitrator
Rutherford's decision to grant SJOGH's interlocutory application in A11258 dated 12 March 2014 for leave to file its reply late and refuse Ms Kezic's interlocutory application in A11258 for SJOGH's failure to file its reply within time to be dealt with summarily under r 28.
35 In her submissions Ms Kezic contended Arbitrator Rutherford
'acted on a wrong principle by failing to understand the relevant law or by failing to apply the relevant law'; 'erred in law in granting leave to (SJOGH) to file [its] reply out of time despite the absence of copies of all documents, material and information pursuant to r 29(1)(a) and (b)'; 'erred in law in failing to take into account relevant considerations' (with respect to interpretation of the rules). Further, Arbitrator Rutherford's decisions 'constituted a denial of natural justice and breach of procedural fairness'.
On 9 April 2014 Arbitrator Rutherford gave extempore reasons for
decision.
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37 SJOGH's attempt to lodge its reply to Ms Kezic's application for
arbitration in A11258 was six days after the time in which it should have been lodged and it was rejected by the registry. SJOGH then brought its interlocutory application in A11258 dated 12 March 2014 for leave to file its reply late. SJOGH's explanation for failing to lodge its reply in time was solicitor oversight.
38 A party who has been served with an application for arbitration must
lodge a reply to the application for arbitration within 14 days after the day
on which the application for arbitration is served on the party: r 27(1).39 A party who has been served with an application for arbitration must
lodge with its reply and serve on each party on whom a copy of the reply is served copies of all documents, material or information that the party proposes to adduce in evidence in the determination of the dispute not less than 14 days before the hearing of the proceeding: r 29(1) and r 29(6).
40 In circumstances where a party has not complied with the
requirement to lodge its reply to the application for arbitration within time, an arbitrator has discretion to grant an extension of time pursuant to r 4 or alternatively, determine the application for arbitration as if that party did not dispute any part of the application for arbitration pursuant to r 28.
41 An arbitrator may extend the time limit for a party who has been
served with an application for arbitration to lodge a reply to the application for arbitration, even though the time for compliance has passed, as the arbitrator thinks is necessary in the interests of justice or otherwise to give effect to the WC&IMA: r 4.
42 In Gallo v Dawson (1990) 93 ALR 479, 480 McHugh J stated that the grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. It is necessary to have regard to the history of the proceedings; the conduct of the parties; the nature of the litigation; and the consequences for the parties of the grant or refusal of the application for an extension of time to determine whether the rules will work an injustice. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 Kennedy J said the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the other party were the four major factors to be considered in the exercise of the discretion for an extension of time but there may be in a particular case additional factors.
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43 The relevant factors for an arbitrator to consider in the exercise of the
discretionary power to extend time under r 4 to a party who had not complied with the requirement to lodge its reply to the application for arbitration within time were considered by Commissioner McCann in Cooks Construction Pty Ltd v Jurek [2008] C7– 008, delivered 23 May 2008 in relation to r 7 of the now repealed Workers' Compensation (DRD) Rules 2005 as follows. Whether the proposed reply is arguable; whether there is an acceptable excuse for non-compliance with the prescribed time limit; the length of the delay; and any prejudice suffered by the parties in the grant or refusal of the application for an extension of time.
44 In his extempore reasons for decision Arbitrator Rutherford had
regard to the relevant factors to be considered in the exercise of the discretion for an extension of time. Arbitrator Rutherford made the following findings. 'The fact that the [R]eply was purported to be filed some six days after the deadline and the interlocutory application was filed shortly thereafter to cure this deficiency … is more consistent … with evidence of oversight than it is with any other more sinister reason'. The delay was short. SJOGH had raised arguable defence issues of jurisdiction, estoppel and incapacity in its [proposed] Reply. The prejudice to Ms Kezic in granting an extension of time to SJOGH to lodge its Reply and refusing her the opportunity to have the arbitration application dealt with summarily (is outweighed by the prejudice to SJOGH who, without an extension of time, would be left without an opportunity to defend the claim). '… [I]t is in the interests of justice … given there are issues between the parties, that this matter does not proceed to be dealt with on a procedural basis but rather, it is more appropriate that ultimately this matter be dealt with at arbitration. There are significant issues to be dealt with, there are issues raised by both parties that appear to require an arbitrator to make findings of fact and law'.
45 In my view the amended grounds of appeal disclose no error in
Arbitrator Rutherford's exercise of discretion. Leave to appeal is refused and the appeal is dismissed.
Appeal 55 of 2014
46 Essentially, the amended grounds of appeal concern Arbitrator
Rutherford's decision to grant SJOGH's interlocutory application in A11258 dated 12 March 2014 for A11258 to be heard together with A1539.
47 In her submissions Ms Kezic contended Arbitrator Rutherford erred
in law in failing to understand the relevant law or by failing to apply the
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relevant law; in failing to take into account relevant considerations such as Ms Kezic's medication and medical condition and the effect on her ability to manage both cases being heard together; in failing to consider Ms Kezic's complaint of bias against Arbitrator Powles; 'in failing to take into account that the two applications currently lodged relate to different occupations, different dates of injuries, different witnesses, different case numbers and reporting to different supervisors, hence the potential confusion which is highly likely to eventuate in having both cases heard together'; in failing to take into account that A11258 is more complex than A1539; in misunderstanding the facts as to Ms Kezic's injuries; in misunderstanding the orders made by Curthoys DCJ in St John of God Health Care Inc v Kezic. Further, Arbitrator Rutherford's decision 'constituted a denial of natural justice and breach of procedural fairness'.
48 In his reasons for decision Arbitrator Rutherford observed
'the dispute in application A1539 broadly concerns contentions about a claim for incapacity resulting from the original claimed wrists injury and a further alleged shoulder injury both said to have occurred on the same day in 2009. In A11258 the dispute broadly concerns contentions about a claim for incapacity resulting from Ms Kezic's work related duties as a menu monitor during her return to work program. Bar a few weeks, the disputed period of claimed total incapacity is the same'.
49 Arbitrator Rutherford understood SJOGH's interlocutory application
in A11258 was for A11258 and A1539 to be heard together before the same arbitrator rather than having two arbitration hearings before different arbitrators. Ms Kezic contested SJOGH's interlocutory application and contended 'that the two matters be heard and proceed separately, that is, that the arbitrations be heard at different times before different arbitrators'.
50 The primary issue in this appeal is whether an arbitrator has the
power to decide that two separate arbitration applications can be heard
together.
Arbitrator Rutherford considered that the effect of s 3(d), s 177, s 188(5) and s 190(1) of the WC&IMA provided an arbitrator with discretionary power to make orders that two separate arbitration applications be heard together.
52 The purpose of the WC&IMA is 'to make provision for the hearing
and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick': s 3(d) of the WC&IMA.
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Section 177(1) states the object of dispute resolution in Part XI of the
WC&IMA:
is to provide a fair and cost effective system for the resolution of disputes
under this Act that —
(a) is timely; and (b) is accessible, approachable and professional; and (c) minimises costs to parties to disputes; and (d) in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and (e) in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
54 Section 188(5) provides 'to the extent that the practice and procedure
of an arbitrator are not prescribed under this Act, they are to be as the
arbitrator determines'.55 Section 190(1) provides that 'an arbitrator may give directions at any
time in a proceeding and do whatever is necessary for the speedy and fair
conduct of the proceeding'.56 Arbitrator Rutherford considered that 'within these parameters, I am
satisfied that the scope of an arbitrator's procedural abilities extend to the making of an order for the hearing of two matters being heard concurrently. Nothing in that appears inherently improper or contrary to the purpose or objects of the Act. To my knowledge, such orders are made in other jurisdictions and I see no reasons why that is not the case here'. I agree.
57 Relevant factors to be taken into account on an application for a
consolidation order were summarised by Allanson J in Moondancer
Holdings Pty Ltd v Navarac Pty Ltd [2011] WASC 250 [6] as follows.1. are there common questions of law or fact, or a common transaction or series of transactions, of sufficient importance which render it desirable that the whole of the matters should be disposed of at the same time;
2. is it convenient that the actions be consolidated in order to avoid a multiplicity of actions and ensure savings of time and costs;
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3. is the court satisfied that the consolidation is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case;
4. will the consolidation be conducive to a just resolution of the issues between the parties;
5. the court should have regard to any relevant practical matters which may make it inexpedient to consolidate the proceedings.
In determining that A11258 could be heard together with A1539, Arbitrator Rutherford had regard to these factors and observed that they were not exhaustive. With respect to the common issues: 'the parties are the same; other than about the first four week period claimed in A11258, the claimed period of total incapacity in both cases is the same; in both cases, Ms Kezic contends she is totally incapacitated; both applications require a determination, among other things, that any incapacity results from the wrist injuries, by recurrence or otherwise; and in both cases SJOGH raises issues of estoppel based in essence on the arbitrator's findings and the decision delivered 23 August 2011'. With respect to the differences: 'in A11258, Ms Kezic contends her incapacity results from her return to work duties in 2010' which is not a feature of A1539; 'the evidence in both matters … at least in part is about different circumstances'; Ms Kezic contends in A11258 there is a psychological sequelae component, which is not a feature of A1539. With respect to other relevant factors: Ms Kezic is self-represented and as a general proposition it is more difficult to be self-represented than legally represented; Ms Kezic's psychological/psychiatric issues may impact her ability to manage her cases, however that could not be determined in the absence of medical reports; SJOGH's evidence to date relates more to A1539 rather than the contentions in A11258; it was inappropriate to make a decision about Ms Kezic's perceived bias by Arbitrator Powles as it was subject to appeal; Ms Kezic's contention as to meaning of the orders made by Curthoys DCJ in St John of God Health Care Inc v Kezic misunderstood that 'to be listed for re-hearing nonetheless requires a consideration of many matters and the management of a case is within the discretion of an arbitrator'; 'if both matters are heard before different arbitrators there is a potential for different findings of fact and inconsistent determinations … as part of both cases may involve a consideration of the effect, if any, of the arbitrator's findings and decision handed down on 23 August 2011'; 'due to the complex nature of the injuries and the history … it may not be clear what injuries are the cause of any incapacity, if any … [and] lead to the possibility that if both cases are not heard together before the same arbitrator, who has then the
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opportunity to hear all the evidence, different arbitrators may reach different conclusions which has the distinct prospect that inconsistent orders may be made which is undesirable'. Arbitrator Rutherford made the following findings. 'On balance, taking into account the purposes of the Act, the objects of the dispute resolution part of the Act, the factors set out in Moondancer Holdings Pty Ltd v Navarac Pty Ltd and the circumstances of the two applications … the appropriate order is that matter A11258 should be heard together with A1539.' 'It is sensible to have both matters heard together based on economy and potential cost savings … [it] reduces the chances of inconsistency in decision making.' Although Ms Kezic 'may be disadvantaged because she is self-represented and may struggle with the complexities of managing both cases being heard together … that the hearing of the disputes may be case managed in a way to at least lessen that issue'. 'In all the circumstances, it is desirable the cases be heard together rather than be heard separately before different arbitrators.'
59 In my view the amended grounds of appeal disclose no error in
Arbitrator Rutherford's exercise of discretion. Leave to appeal is refused and the appeal is dismissed.
Conclusion
60 In Appeal 42 of 2014 leave to appeal is refused and the appeal is
dismissed save insofar as it relates to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012. Leave to appeal is granted with respect to the Alesco Payrun Sheets, the appeal is allowed and the order of Arbitrator Powles is quashed. I order that Ms Kezic has leave to file as late evidence a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012.
61 In Appeal 43 of 2014 leave to appeal is refused and the appeal is
dismissed save insofar as it relates to the decision by Arbitrator Powles to refuse Ms Kezic's interlocutory application for leave to file as late evidence a copy of the Freshstart Progress Report dated 23 May 2011 for Ms Kezic. Leave to appeal is granted with respect to the Freshstart Progress Report dated 23 May 2011, the appeal is allowed and the order of Arbitrator Powles is quashed. I order that Ms Kezic has leave to file as late evidence a copy of the Freshstart Progress Report dated 23 May 2011 for Ms Kezic.
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In Appeal 44 of 2014 leave to appeal is refused and the appeal is
dismissed.
In Appeal 55 of 2014 leave to appeal is refused and the appeal is
dismissed.
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