Kezic v St John of God Health Care Inc - [2015] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KEZIC -v- ST JOHN OF GOD HEALTH CARE INC [2015] WASCA 182

CORAM: NEWNES JA
MURPHY JA

HEARD: 23 APRIL 2015

DELIVERED : 4 SEPTEMBER 2015

FILE NO/S: CACV 18 of 2015
CACV 19 of 2015
CACV 20 of 2015
CACV 21 of 2015

BETWEEN: ROSARIA KEZIC
Appellant
AND
ST JOHN OF GOD HEALTH CARE INC
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :KEZIC -v- ST JOHN OF GOD HEALTH CARE INC [2014] WADC 169
File No  :APP 42 of 2014, APP 43 of 2014, APP 44 of 2014, APP 55 of 2014

Catchwords:

Workers' compensation claims - Dismissal by District Court of appeal against interlocutory decisions of arbitrators - Leave to appeal - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 3(d), s 61, s 177, s 178, s 185(1), s 188(5), s 190(1), s 267

Result:

Applications for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr R D McCabe

Solicitors:

Appellant: In person
Respondent: Kott Gunning

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

All Saints College v Bendotti [2009] WACC C18‑2009
Allmark v Mossensons (A Firm) [2006] WASCA 127
Cook's Construction Pty Ltd v Jurek [2008] C7‑ 008
Dodds v Kennedy [2011] WASCA 32
Espanol Holdings Pty Ltd v Banning [2000] WASC 192
Kezic v St John of God Health Care Inc [2014] WADC 169
McMahen v Alcoa World Alumina [2009] WACC C26‑2009
Moondancer Holdings Pty Ltd v Narvac Pty Ltd [2011] WASC 250
Saker v Creative Land Management Pty Ltd [2000] WASC 44
St John of God Health Care Inc v Kezic [2013] WADC 156

REASONS OF THE COURT:

Introduction

The appellant applies for leave to appeal in four matters: CACV 18 of 2015, CACV 19 of 2015, CACV 20 of 2015 and CACV 21 of 2015. Leave is sought pursuant to s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) to appeal from a decision of Stone DCJ dismissing (in part) four separate appeals in the District Court. The four appeals in the District Court (Appeal 42 of 2014, Appeal 43 of 2014, Appeal 44 of 2014 and Appeal 55 of 2014) arose from interlocutory decisions of arbitrators in relation to workers' compensation claims that are yet to reach arbitration and a final decision. Under s 254 of the Act, an appeal to the Court of Appeal from the District Court must relate to a question of law.
On 14 April 2015, the Court of Appeal registrar issued a notice to attend on 23 April 2015 to consider the appellant's application for leave to appeal in each matter.

Reasons and findings of Stone DCJ

The four District Court appeals were heard together over the course of three days on 30 July 2014 and 27 ‑ 28 November 2014. Stone DCJ delivered his reasons for decision in each of the appeals in one judgment: Kezic v St John of God Health Care Inc [2014] WADC 169 (District Court reasons).
There was some confusion on the first day of the District Court hearing as to the content of the appellant's grounds of appeal.[1] The appellant made oral submissions on 30 July 2014 on amended grounds of appeal in Appeal 42 of 2014, which had not been filed but which appeared in the appellant's submissions dated 15 July 2014. Leave was granted by Stone DCJ for the appellant to amend her grounds of appeal in Appeal 42 of 2014 in terms of the appellant's submissions.[2] Leave was also granted to amend the grounds of appeal in Appeal 43 of 2014. Then, prior to the hearings on 27 and 28 November 2014, the appellant filed amended grounds of appeal in all four matters on 28 August 2014. At the beginning of the hearing on 27 November 2014 the appellant was granted leave to amend her grounds of appeal in terms of her filed amended grounds. The appeal in the District Court therefore proceeded on the amended grounds of appeal filed on 28 August 2014.
[1] Transcript 26, 30/07/14.
[2] Transcript 81, 30/07/14.
The primary judge made the following observations and findings. In his reasons, his Honour referred to the respondent as 'SJOGH'.
(All references to paragraph numbers below are references to the District Court reasons, unless stated otherwise.)

Appeal 42 of 2014 (A1539)

Appeal 42 of 2014 concerned interlocutory orders made by Arbitrator Powles on 10 March 2014 dismissing the appellant's application in A1539 dated 19 February 2014 for leave to file the following documents as late evidence and previously unspecified evidence:[3]
•a copy of the SJOGH Alesco Payrun Sheets for Ms Kezic from 1 July 2009 to 3 October 2012;
•a copy of pages 16 and 17 of SJOGH's written submissions in St John of God Health Care Inc v Kezic [2013] WADC 156 (St John of God v Kezic);
•a copy of the District Court transcript of the proceedings before Curthoys DCJ (as his Honour then was) on 17 October 2013 in St John of God v Kezic; and
•a copy of a letter from the solicitors for SJOGH to Ms Maria Brown dated 26 November 2013 (the letter to Ms Brown).
[3] District Court reasons [21].
Stone DCJ addressed the key complaints that went to the substance of the appeal - that is whether Arbitrator Powles should have given leave for certain evidence to be filed late. Stone DCJ found that SJOGH's counsel properly conceded that Ms Kezic should be permitted to adduce evidence of the SJOGH Alesco Payrun Sheets for Ms Kezic 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.[4] His Honour held that it was in the interests of justice that leave to appeal be granted and the appeal be allowed to that extent.
[4] District Court reasons [22].
His Honour found there was no error of law in Arbitrator Powles' decision to refuse leave to file the remaining documents.
Accordingly, the appeal was upheld in relation to the Alesco Payrun Sheets, but not otherwise.

Appeal 43 of 2014 (A1539)

Appeal 43 of 2014 was in relation to:
(a) interlocutory orders made by Arbitrator Powles on 27 March 2014 dismissing the appellant's application in A1539 dated 4 March 2014 for leave to file the following documents as late evidence:[5]
•copies of letters dated 24 January 2014 and 25 February 2014 from Ms Kezic to Arbitrator Powles (Ms Kezic's letters);
•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; and
•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).
(b)Arbitrator Powles' decision to refuse Ms Kezic's interlocutory application in A1539 dated 13 March 2014 for leave to file as late, and previously unspecified, evidence a copy of the SJOGH pay advice slips for Ms Kezic from 28 June 2009 to 19 September 2010; and
(c)the directions made on 27 March 2014 by Arbitrator Powles granting leave to Ms Hudson to attend the directions hearing and granting leave to SJOGH to file an affidavit of Ms Hudson out of time. Ms Hudson was the head of insurance for SJOGH.
[5] District Court reasons [25].
At the hearing before Stone DCJ, Ms Kezic abandoned the grounds that concerned the SJOGH Pay Advice slips for her from 28 June 2009 ‑ 19 September 2010, as the contents of the documents were incorporated in the Alesco Payrun Sheets for which leave to file as late evidence had been granted in Appeal 42 of 2014.[6]
[6] District Court reasons [26].
SJOGH's counsel 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.[7] His Honour found that, in the circumstances, it was in the interests of justice that leave to appeal be granted and the appeal be allowed, insofar as it related to Arbitrator Powles' refusing Ms Kezic leave to file as late evidence a copy of the Freshstart Progress Report. Accordingly, Stone DCJ ordered that Ms Kezic have leave to file the Freshstart Progress Report.[8]
[7] District Court reasons [26].
[8] District Court reasons [27].
Stone DCJ found there was no error on the part of Arbitrator Powles in refusing leave to file, as late evidence, the remaining documents, as the documents were 'not evidence for the purpose of arbitration'.[9]
[9] District Court reasons [28].
Stone DCJ also said that the appellant's request that he 'address' Ms Kezic's letters, or that he direct Arbitrator Powles to 'address' Ms Kezic's letters, was 'incompetent, without merit and beyond the scope of the appeal'.[10]
[10] District Court reasons [28].
Stone DCJ further found no error of law disclosed in the arbitrator's orders made at the directions hearing on 27 March 2014 that:
•leave be given to Ms Hudson to attend the directions hearing; and
•leave be given to file an affidavit of Ms Hudson addressing certain issues regarding compliance with an earlier order for production of documents.
His Honour found that it 'was not an unreasonable or plainly unjust exercise of discretion to permit Ms Hudson to attend the directions hearing to give instructions to the solicitors', and that Arbitrator Powles gave adequate reasons for the decision.[11]
[11] District Court reasons [33].
Accordingly, leave to appeal on amended grounds 1, 5, 6 and 7 was refused and the appeal dismissed, insofar as it concerned the matters in relation to the directions hearing.[12]
[12] District Court reasons [33].
Stone DCJ further found that it was 'incompetent, without merit and beyond the scope of appeal' for the appellant to contend that the District Court should determine the jurisdictional issue before there has been a hearing by an arbitrator on that matter.[13]

Appeal 44 of 2014 (A11258)

[13] District Court reasons [33].

Appeal 44 of 2014 concerned interlocutory orders made by Arbitrator Rutherford on 9 April 2014 to the effect that:
•SJOGH's interlocutory application in A11258 dated 12 March 2014 for leave to file its reply late be granted, and the time by which SJOGH file and serve its reply be extended to 16 April 2014; and
•the appellant's interlocutory application seeking an order that SJOGH's failure to file its reply within time be dealt with summarily under r 28 of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (the Rules), be dismissed.
Stone DCJ found Arbitrator Rutherford had had regard to the relevant factors to be considered in the exercise of the discretion for an extension of time.[14] Stone DCJ considered the relevant provisions in the Rules (r 4, r 27(1), r 28, r 29(1) and r 29(6)) and noted the following legal principles:[15]
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.
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.
[14] District Court reasons [44].
[15] District Court reasons [42] - [43].
Stone DCJ also set out[16] the following findings from Arbitrator Rutherford's extempore reasons given on 9 April 2014, which explained the exercise of Arbitrator Rutherford's discretion to give leave for an extension of time, and his dismissal of the appellant's application to have the application determined pursuant to r 28:
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.
[16] District Court reasons [44].
Stone DCJ found that no error of law was disclosed in the exercise of Arbitrator Rutherford's discretion to give leave for the respondent to file a late reply.

Appeal 55 of 2014 (A11258)

Appeal 55 of 2014 concerned an interlocutory order made by Arbitrator Rutherford granting SJOGH's interlocutory application in A11258 dated 12 March 2014 to have matters A1539 and A11258 heard together.
Stone DCJ addressed what his Honour said was the primary issue of the appeal, the question of whether an arbitrator has the power to decide that two separate arbitration applications can be heard together.[17] His Honour held that the amended grounds of appeal disclosed no error in relation to Arbitrator Rutherford's exercise of discretion in ordering the matters to be heard concurrently.[18]
[17] District Court reasons [50].
[18] District Court reasons [59].
Stone DCJ agreed[19] with Arbitrator Rutherford's application of the relevant provisions of the Act (s 3(d), s 177, s188(5) and s 190(1)), and with Arbitrator Rutherford's conclusion that:[20]
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 of the objects of the Act. To my knowledge, such orders are made in other jurisdictions and I see no reason why that is not the case here.
[19] District Court reasons [56].
[20] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA, 04/06/14) [33].
Stone DCJ also considered the factors to be taken into account on an application for a consolidation order as they were summarised in Moondancer Holdings Pty Ltd v Narvac Pty Ltd,[21] and set out the following relevant factors that Arbitrator Rutherford had considered in reaching his decision. With respect to the common issues, his Honour referred to the following considerations of Arbitrator Rutherford:[22]
•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.
[21] Moondancer Holdings Pty Ltd v Narvac Pty Ltd [2011] WASC 250 [6].
[22] District Court reasons [58].
With respect to the differences, his Honour referred to the following considerations of Arbitrator Rutherford:
•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, his Honour referred to the following findings of Arbitrator Rutherford:
•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 the meaning of the orders made by Curthoys DCJ in St John of God 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'.
•'[I]f 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'.
•'[D]ue 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 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'.
His Honour referred[23] to the following findings by Arbitrator Rutherford:[24]
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.
[I]t 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.
[I]n all the circumstances, it is desirable the cases be heard together rather than be heard separately before different arbitrators.
[23] District Court reasons [58].
[24] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA, 04/06/14) [58] ‑ [61].
Stone DCJ concluded that the amended grounds of appeal disclosed no error, and his Honour refused leave to appeal and dismissed the appeal.[25]
[25] District Court reasons [59].

Ms Kezic's letters

As noted earlier, Appeal 43 of 2014 involved requests by the appellant for letters, dated 24 January, 25 February and 27 February 2014 between Arbitrator Powles and the appellant, to be addressed.[26] The letters from the appellant raised a number of complaints and issues regarding whether there was a jurisdictional issue involving prejudice to the respondent; as to advice sought from Arbitrator Powles; the interpretation of Curthoys DCJ's orders; whether jurisdictional issues should be determined at the final hearing; the 'intimidating' letter to Ms Brown; the allegation that the OSH/Investigation Report is a falsified document; and Ms Hudson's attendance at proceedings.

Whether there is a jurisdictional issue involving prejudice to the respondent

[26] The letters were on the District Court file.

The appellant claimed 'abuse of process' and 'dilatory tactics' by the respondent's solicitors by maintaining claims of 'prejudice' in relation to the appellant's workers' compensation claim. The appellant argued that this is an abuse of process because the claims of prejudice are unsubstantiated and the arbitrator should therefore take disciplinary action and require the respondent to 'show precisely how they are prejudiced'.

Advice sought from arbitrator

The appellant requested that Arbitrator Powles advise whether estoppel existed and whether transcripts from June 2011 were admissible.

Interpretation of Curthoys DCJ's orders and whether jurisdictional issues should be determined at the final hearing

The appellant alleged that the orders of Curthoys DCJ had been misinterpreted and that the re‑listing for a rehearing of jurisdictional issues is in conflict with Curthoys DCJ'S order that the case be 'relisted for a hearing before a new arbitrator'. The appellant argued that having the jurisdictional issues determined in an arbitration will result in:
(a)the respondent's legal representatives being in contempt of the orders of Curthoys DCJ;
(b)the objective of 'having the matter resolved as quickly as possible' being defeated; and
(c)unnecessary cross‑examination on the jurisdictional issues in the case.
The appellant also alleged that 'inappropriate conditions [were] imposed on [the appellant] to accept the Respondent's witness statements unchallenged' for the purpose of resolving preliminary (jurisdictional) issues.

The 'intimidating' letter to Ms Brown

The appellant requested that Arbitrator Powles, where necessary, take 'appropriate action to … discipline the legal representative' in relation to the letter to Ms Brown.

Falsified document

The appellant complained that the OSH Hazard Investigation Report presented by the respondent's legal representatives was 'unauthenticated' and a 'falsified document' and that Arbitrator Powles should order production of a 'true copy of the original report' and refer the 'falsified document' to the Police for investigation.

Ms Hudson's attendance at hearings

The appellant argued Ms Hudson should not attend future directions hearings because, as a witness, she should be barred from attendance at direction hearings.

The question of costs

Stone DCJ's reasons were published on 22 December 2014, at which time the respondent raised the question of the costs of the appeals. Following a preliminary discussion on the question of costs, his Honour gave directions for the parties to file and serve written submissions on the question of costs, and adjourned the matter to 7 May 2015 for further hearing on that question.

Workers' compensation background

Before turning to the grounds of appeal to the Court of Appeal, it is convenient to review the background to the appellant's workers' compensation claims against the respondent.
Unless otherwise indicated, the following background at [43] ‑ [53] below is taken from the findings in the primary judge's reasons.

First compensation claim

The appellant worked for the respondent as a coffee shop attendant. She alleged that she made her first claim for workers' compensation in July 2009.[27] This claim was made on the basis of bilateral wrist injuries sustained on 22 May 2009. This first claim was accepted by the respondent and the appellant received weekly payments and statutory entitlements.
[27] Appellant's chronology.
The appellant was placed on a return to work program[28] performing duties as a menu monitor. From around 8 September 2010, the appellant allegedly suffered from a recurrence of her wrist injuries, with pains also extending to the right upper arm/shoulder and neck region and a subsequent left arm/shoulder injury.
[28] According to the appellant's chronology, allegedly from around October 2009.
On 8 September 2010,[29] the appellant's general practitioner allegedly recommended that the appellant's hours be reduced and that she be provided with a modified computer mouse. The appellant states the respondent refused to accommodate these recommendations and advised her 'not to return to work'.
[29] According to the appellant's chronology.
On 14 September 2010, the appellant completed a 'recurrence of disability claim form' claiming a recurrence of her wrist injuries with pains extending from her upper arm/shoulder and neck region. In St John of God v Kezic, Curthoys DCJ found that in this form the appellant alleged that since a new computer system had been implemented at work on 2 August 2010, the pain, especially in her right wrist and arm, was unbearable and she was only able to complete her work shifts by using her left hand.[30]
[30] St John of God v Kezic [8].
In December 2010 and February 2011, the respondent served notices on the appellant pursuant to s 61 of the Act notifying the appellant of the respondent's intention to discontinue the weekly payments on the grounds that she had a full capacity for work. The appellant disputed each notice and filed applications disputing each notice (SD47/11 and SD325/11T). On 23 August 2011, Arbitrator McCahon heard the two applications and found that the appellant retained the capacity to work full time as a menu monitor. The appellant's weekly payments of workers' compensation ceased from 23 August 2011.[31]

Second compensation claim (A1539)

[31] According to the appellant's chronology, in May 2012, the appellant lodged a claim (A1507) for a reconsideration of the decision made by Arbitrator McCahon that the appellant retained the capacity to work full time as a menu monitor. On 6 November 2012, Registrar Melville dismissed the appellant's claim under A1507.

In May 2012, the appellant lodged a second workers' compensation claim (A1539). She alleged recurrence of her wrist injuries; recurrence/exacerbation of her September 2010 shoulder injuries; a work related right shoulder injury sustained on 22 May 2009 (the same date as the first injury); and a consequential left shoulder condition. The appellant alleges in her chronology that the reason she did not report the right shoulder injury earlier was that it had been misdiagnosed as ulna nerve related pain, associated with her wrist injuries. The respondent denied liability for the second claim and denied that the appellant was incapacitated for work. The appellant filed an application in A1539 seeking a determination of liability for the second claim and an order that she receive weekly payments from 23 August 2011 (the date on which her claims arising from her first injury had been dismissed, and her workers' compensation payments ceased). The matter came before Registrar Melville.
The respondent disputes A1539 on the following grounds:[32]
1.WorkCover lacks jurisdiction to determine the appellant's claim for shoulder injuries because the appellant failed to lodge her claim within 12 months of the injury, and the respondent has suffered irreparable prejudice because of the delay.
2.WorkCover lacks jurisdiction to determine the appellant's claim for bilateral wrist injuries because she has not lodged a claim for recurrence that resulted in an incapacity for work from 23 August 2011.
3.The substantial issues the appellant wishes to agitate in support of her claims were determined by Arbitrator McCahon on 23 August 2011 in SD47/11 and SD325/11T, and the appellant is estopped from seeking a further determination.
4.The appellant did not suffer any shoulder injuries or a recurrence of bilateral wrist injuries.
5.The appellant's shoulder injuries, if any, are not work related.
6.The appellant is not incapacitated for work.
[32] District Court reasons [7].
On 11 February 2013, Registrar Melville held that he had jurisdiction to hear A1539. The respondent appealed against that decision. In St John of God v Kezic, on 17 October 2013, Curthoys DCJ found that Registrar Melville had only dealt with the recurrence of the bilateral wrist injuries jurisdictional issue, but if the registrar dealt with the shoulder injuries jurisdictional issue he failed to give any or sufficient reasons.[33] Curthoys DCJ granted leave to appeal to the respondent, quashed Registrar Melville's order of 11 February 2013, and ordered that A1539 be relisted for hearing before a new arbitrator. A1539 has not reached arbitration and no final decision has been made in this matter.

Third compensation claim (A11258)

[33] St John of God v Kezic [8].

In January 2014, the appellant lodged an application, A11258, for arbitration of a third claim of workers' compensation. The third claim is for workers' compensation from 20 September 2011 for alleged 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 (the time during which she worked with the new computer system); and psychological sequelae. In the appellant's chronologies provided to the District Court and the Court of Appeal she states that this third claim was instituted to remedy the fact that the recurrence of injuries claim was not supported by proper documentation in her second claim (A1539).
The respondent disputes A11258 on the grounds that:
1.The respondent challenges the appellant's credibility as to her injuries and incapacity.
2.WorkCover lacks jurisdiction to determine the appellant's recurrence of shoulder injuries claim because she failed to lodge her claim within 12 months of the injury, and the respondent has suffered irreparable prejudice because of delay.
3.WorkCover lacks jurisdiction to determine the appellant's psychological sequelae claim because the claim was not the subject of conciliation.
4.The substantial issues the appellant 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.
5.The appellant did not suffer a recurrence of the bilateral wrist injuries.
6.The appellant's injuries or incapacity, if any, are not work related.
7.The appellant is not incapacitated for work.
A11258 has not reached arbitration and no final decision has been made in that matter.

Rules relied upon in making interlocutory orders under appeal

Before turning to the appellant's grounds of appeal in this court, it is also convenient to outline the statutory provisions and legal principles relied upon in making the interlocutory orders that were under appeal in the District Court.

Interlocutory decision in A1539 the subject of Appeal 42 of 2014

In the District Court, the orders the appellant appealed in both Appeal 42 of 2014 and Appeal 43 of 2014 were orders dismissing the appellant's applications for leave to file certain documents as late evidence. The reason leave was not granted for these documents to be filed as late evidence was that Arbitrator Powles was not satisfied of the evidence's relevance to the issues in dispute. The appellant contended in the District Court and contends in the Court of Appeal that the excluded documents are relevant to the arbitration hearing.
Arbitrator Powles identified r 30 of the Rules as being relevant to the granting of leave to adduce late evidence in her reasons of 10 April 2014.
Rule 30 provides:
30. Adducing late material in evidence
(1)In any proceeding, any document, material or information not lodged within the time limits prescribed in these rules must not be adduced in evidence in the proceeding by any party to the proceeding without first obtaining the leave of the arbitrator.
(2)An arbitrator must not give leave unless -
(a)no other party is prejudiced by the relevant document, material or information being adduced in evidence; or
(b)in any event, the other parties consent to it being adduced; or
(c)in the opinion of the arbitrator it is required to be admitted in evidence in the proceeding in the interests of justice.
The precursor to r 30 was r 64 of the Workers' Compensation (DRD) Rules 2005 (WA) (DRD Rules). Rule 64 was materially the same as r 30 of the Rules.
In explaining the effect of r 30, Arbitrator Powles referred to the relevant principles for an arbitrator to consider when deciding the application. Arbitrator Powles referred in this regard to McMahen v Alcoa World Alumina[34] which dealt with r 64 of the DRD Rules:
The grounds for the granting of leave are set out in rule 64(2) and are, relevantly, that the employer will not be prejudiced by the late filing of the evidence and, in the opinion of the arbitrator, it is necessary for it to be adduced in evidence in the interests of justice.
I have considered the requirements of sub-rule (2) in a number of decisions including Aziz v Tempo Services Ltd [2009] WACC C6-2009 and Total Marine Services Pty Ltd v Hutchinson [2009] C7-2009 at [30]. In Hutchinson I said that an arbitrator is primarily required to consider three criteria when dealing with a contested application:
(i) Any material prejudice to the other party caused by the late filing of the evidence, including the possibility for delay, and the means (if any) of mitigating the same;
(ii) The relevance and potential probative force of the disputed evidence;
(iii) The applicant's reason for giving late notice of its reliance on the evidence.
[34] McMahen v Alcoa World Alumina [2009] WACC C26‑2009 [3] ‑ [4].
Arbitrator Powles also referred to the observation in All Saints College v Bendotti[35] that:
[G]iven the legislative imperatives which require disputes in the DRD to be resolved in an economical, informal and quick manner, it must be understood that leave pursuant to rule 64 is an indulgence, not a right, and that arbitrators will take into account the public interest as well as the parties' interests in determining applications.

Interlocutory decision in A1539 the subject of Appeal 43 of 2014

[35] All Saints College v Bendotti [2009] WACC C18‑2009 [17].

Arbitrator Powles also referred to McMahen in her extempore reasons delivered on 27 March 2014, in identifying the legal principles relevant to the granting of leave to file late, previously unspecified, documents as evidence.

Interlocutory decision in A11258 the subject of Appeal 44 of 2014

In his extempore reasons of 9 April 2014, Arbitrator Rutherford considered r 4, r 28, r 29 and r 37 of the Rules in his decision to:
(a)grant leave for an extension of time to file the respondent's reply; and
(b)refuse the appellant's application seeking an order that the respondent's failure to file its reply within time be dealt with summarily under r 28.
Rule 28 provides:
28. Procedure where party does not reply
(1)If a party on whom an application for arbitration has been served fails to lodge a reply in accordance with these rules, the dispute in respect of which the application is made may be determined as if that party did not dispute any part of the application.
(2)An arbitrator may make any order the arbitrator thinks fit to deal with the application. (emphasis added)
Arbitrator Rutherford pointed, inter alia, to the use of the word 'may' rather than 'must' in the provision.[36] He considered that this indicated that an arbitrator has a discretionary power rather than a mandatory duty power under r 28 to determine the application for arbitration as if that party did not dispute any part of the application.
[36] Transcript 72, 09/04/14.
Rule 4 provides:
4. Relief from procedural requirements
(1)An arbitrator may, in a particular case, as the arbitrator thinks is necessary in the interests of justice or otherwise to give effect to the Act -
(a)extend or abridge a time limit for doing any thing under these rules, or the commencement of any thing under these rules; or
(b)waive compliance with any other procedural requirement or prohibition under these rules.
(2)The extension or waiver may be given even though the time for complying has passed.
(3)This rule does not apply in relation to the time limit for lodging an application for arbitration.
Arbitrator Rutherford found that r 4 when read with r 28 gives a discretion to extend the time by which a reply can be filed, and supports the conclusion that r 28 confers a discretion.[37]
[37] Transcript 72, 09/04/14.
Amongst other matters, Arbitrator Rutherford considered, with reference to Cook's Construction Pty Ltd v Jurek,[38] that the factors to be taken into account included whether the proposed reply raised an arguable defence; 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.[39]
[38] Cook's Construction Pty Ltd v Jurek [2008] C7‑ 008, delivered 23 May 2008.
[39] Transcript 73 ‑ 74, 09/04/14.
Rule 37 provides:
37. Interlocutory applications
(1)In this rule -
interlocutory application means any application or request for an order, except an order that finally determines a dispute between parties.
(2)Except as permitted under subrule (3), a party must not lodge an interlocutory application unless -
(a)the party has consulted each other party affected by the application with a view to resolving the matters giving rise to the application; and
(b)the application is endorsed with, or is lodged together with a document containing, a statement, signed by the party or the party's legal practitioner or registered agent, to the effect that the consultation under paragraph (a) has taken place.
(3)An arbitrator may permit an application to be lodged without the consultation referred to in subrule (2)(a) if the arbitrator is of the view that there are exceptional circumstances justifying the lodging of the application without the consultation.
(4)A party who lodges an interlocutory application must include an explanation as to why the subject matter of the application was not addressed in the application for arbitration, the reply to the application or at a directions hearing in respect of the application, as the case may be.
It was the appellant's contention that it was not appropriate for an interlocutory application for an extension of time to be filed by the respondent, because a reply had not been filed, and the respondent was therefore not a 'party' to the dispute pursuant to r 37. Arbitrator Rutherford found that on the proper construction of r 37, a person in the position of the respondent who was applying to file a reply out of time was making an 'interlocutory application' within the meaning of r 37(1), notwithstanding the reference to 'party' in r 37(4).[40]
[40] Transcript 71, 09/04/14.
Rule 29 provides:
29. Material to be lodged and served with reply
(1)A party on whom an application for arbitration is served must -
(a)lodge with the party's reply; and
(b)serve on each party on whom a copy of the reply is served,
copies of all documents, material and information, whether issued under the Act or otherwise, that the party proposes to adduce in evidence in the determination of the dispute.
…
(6)The party must -
(a)lodge copies of any document, material or information specified in a reply in accordance with subrule (5) with the Registrar; and
(b)serve copies of the document, material or information on each person on whom a copy of the reply is required to be served,
not less than 14 days, or any shorter period specified in the practice notes, before the hearing of the proceeding.

The appellant contends (point 20 in the summarised grounds of appeal below) that Stone DCJ erred in law in failing to take into account that Arbitrator Rutherford wrongly accepted the respondent's reply out of time and in the absence of copies of all documents, materials and information required by r 29. Stone DCJ outlined the requirements of r 29[41] without elaboration. However, the point was the subject of a detailed exchange in the hearing before Stone DCJ as follows:[42]
[41] District Court reasons [39].
[42] Transcript 322, 27/11/15.
The appellant: Because he had no documents. He had no documents to check to see - the fact that they write there, 'We object to this, object to that' - you have to have some sort of documents to object, to show that you have proof or whatever, don't you?
Stone DCJ: Isn't their reply adequate for that purpose? They've got leave to file.
The appellant: But you have - you need to have your documents attached to the reply - - -
Stone DCJ: But there was an index - I think all that's been explained, though, Ms Kezic, why - - -
The appellant: But it's - an index is not - - -
Stone DCJ: Well, it's an indication of what documents there are. I mean, that's - and then I take it the documents are then filed. When leave is given and the formal reply is filed in the registry the documents are filed with it, aren't they?
Is that what occurred, Mr McCabe [counsel for the respondent], or not?
The appellant: At the end after it's been granted leave, I think.
Respondent's counsel: (Indistinct) your Honour.
Stone DCJ: Yes. Yes.
The appellant: But why do we have then rule 29?
Stone DCJ: Rule 29?
The appellant: That says that all the documents have to be lodged. Why have that rule? I realise that the arbitrator can overrule - overrule - - -
Stone DCJ: And he did. But he has.
The appellant: Yes. But he - - -
Stone DCJ: Because ideally, ideally, a reply is filed in time and ideally it complies with rule 29. But where it doesn't, as occurred in this case, the arbitrator, having regard to rule 4, has to give reasons why it's in the interests of justice or not.

Interlocutory decision in A11258 the subject of Appeal 55 of 2014

The respondent applied on 2 May 2014 for A1539 and A11258 to be heard together. Arbitrator Rutherford found in his reasons dated 4 June 2014 that there was no specific provision for an order for matters to be heard together, but that it was an interlocutory application within the meaning of r 37(1) of the Rules.[43]
[43] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA, 04/06/14) (page 5).
Arbitrator Rutherford considered that the effect of s 3(d), s 177, s 188(5) and s 190(1) of the Act was that an arbitrator was provided with discretionary power to make orders that two separate arbitration applications be heard together.[44]
[44] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA, 04/06/14) (page 6).
Section 3(d) of the Act provides that a purpose of the Act 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'.
Arbitrator Rutherford noted that these factors are 'not necessarily aligned' and 'there therefore needs to be a weighing up of these factors as to their comparative influence in each case'.[45]
[45] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA 04/06/14) (page 5).
Section 177(1) states the object of dispute resolution in pt XI of the Act:
[I]s 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.
Section 190(1) provides that '[a]n arbitrator may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding'.
Section 188(5) provides '[t]o the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines'. Arbitrator Rutherford considered that s 188(5) does not give an arbitrator unfettered discretion, and that it must be confined within the purpose of the Act and the objects of the dispute resolution part of the Act.[46]
[46] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA 04/06/14) (page 6).
Arbitrator Rutherford considered that '[w]ithin these parameters, [he was] 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'.
Arbitrator Rutherford was guided in the application of the discretion by the relevant factors to be taken into account on an application for a consolidation order that were summarised by Master Sanderson in Saker v Creative Land Management Pty Ltd[47] and referred to by Allanson J in Moondancer Holdings Pty v Navarac Pty Ltd.[48]
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;
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.
[47] Saker v Creative Land Management Pty Ltd [2000] WASC 44 [2].
[48] Moondancer Pty Ltd [6].
Arbitrator Rutherford[49] noted that Allanson J considered that these factors are a useful guide for an application that actions be heard together.[50]
[49] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA 04/06/14) (page 6).
[50] Moondancer Pty Ltd [7].

Grounds of appeal - Court of Appeal

The grounds of appeal across all four appeals to the Court of Appeal may be summarised as raising the following points:
1.It was an error of law for Stone DCJ to defer his decision on costs to a hearing on 7 May 2015 and delay awarding costs. In particular, Stone DCJ erred in allowing submissions to be made on costs and on the proper construction of s 267 of the Act, and in allowing that question to be determined at the hearing on 7 May 2015.[51]
[51] Ground 1 CACV 18 of 2015, ground 1 CACV 19 of 2015, ground 1 CACV 20 of 2015 and ground 1 CACV 21 of 2015.
2.Stone DCJ erred in law in not stating in his reasons that Arbitrator Powles had made an error of law in not giving leave to the appellant to file the Alesco Payrun sheets and the Freshstart Reports, and in not directing that the case should be remitted to a different arbitrator.[52]
[52] Ground 3 CACV 18 of 2015 and grounds 2 and 8 CACV 19 of 2015.
3.Stone DCJ erred in law in dismissing the appellant's appeal of Arbitrator Powles' decision to dismiss an application by the appellant to file the letter to Ms Brown as late evidence, on the basis it had no bearing on the arbitration hearing.[53]
[53] Ground 2 CACV 18 of 2015 and ground 4 CACV 19 of 2015.
4.Stone DCJ erred in law in not addressing Ms Kezic's letters. The appellant submits that she was never heard on the subject of this correspondence.[54]
[54] Ground 3 CACV 19 of 2015.
5.Stone DCJ erred in law in failing or refusing (as well as in not giving reasons for his refusal) to take further action in relation to:
a)the letter to Ms Brown - in relation to which the appellant submits that the respondent's legal representative should have been referred to the Legal Practitioner's Complaints Committee or the police over the letter to Ms Brown;[55]
[55] Ground 2 CACV 18 of 2015 and ground 4 CACV 19 of 2015.
b) a letter dated 26 March 2013 - in relation to which the appellant submits that it had attached an unauthenticated OSH/Investigation Report which allegedly breached s 131 of the Criminal Code (WA) - 'Deceiving Witness';[56]
[56] Ground 3 CACV 19 of 2015.
c) the respondent's submissions that there be a rehearing on jurisdictional issues - the appellant submits that the respondent's legal representative should have been referred to the police for disobedience and contempt of court;[57]
[57] Ground 6 CACV 19 of 2015.
d) the OSH/Investigation Report attached to Ms Hudson's affidavit - in relation to which the appellant submits the Report is 'falsified' and should have been referred to the police for investigation.[58]
[58] Ground 7 CACV 19 of 2015 and ground 4 CACV 20 of 2015.
6.Stone DCJ erred in law in failing to apply the relevant law in dealing with the respondent's 'abuse of process' in making false claims of prejudice and false claims of issue estoppel, particularly in relation to s 178 of the Act with respect to applications A1539 and A11258.[59] Ground 4 in CACV 19/2015 suggests that the relevant law to be applied includes s 4(1)(a) ‑ (c) of the Vexatious Proceedings Restriction Act 2002 (WA), and that, accordingly, the respondent should be prohibited from instituting further jurisdictional proceedings.
[59] Ground 4 CACV 19 of 2015, ground 8 CACV 20 of 2015 and ground 7 CACV 21 of 2015.
7.Stone DCJ erred in law in failing to give any weight to the agreement which had been reached by both parties for the jurisdictional issues to be dealt with on the papers, and that the arbitrator should not have set a hearing date to deal with jurisdictional issues.[60]
[60] Ground 5 CACV 19 of 2015.
8.Stone DCJ erred in law in:
a) misunderstanding the orders as recorded in the transcript of proceedings before Curthoys DCJ on 17.10.13; or
b) failing to take into account Arbitrator Rutherford's 'misrepresentation' of Cuthoys DCJ's order.
In this regard it is alleged that Curthoys DCJ did not specify that there be a rehearing of jurisdictional issues. Rather, his orders stated 'Case No A1539 is to be relisted for hearing before a new arbitrator'.[61]
[61] Ground 6 CACV 19 of 2015 and ground 4 CACV 21 of 2015.
9.Stone DCJ erred in law because his Honour failed to have regard to Arbitrator Powles' error of law in giving leave to the respondent to file Ms Hudson's affidavit. In relation to this, the appellant had serious concerns about the authenticity of the OSH/Investigation Report and the emails annexed thereto because the OSH Report was unsigned and undated, 'rendering it an unlawful document'. Stone DCJ also allegedly disregarded evidence allegedly showing that Ms Hudson's affidavit contained falsified documents.[62]
[62] Ground 7 CACV 19 of 2015 and ground 4 CACV 20 of 2015.
10.Stone DCJ erred in law by allegedly depriving the appellant sufficient time to present properly her arguments in relation to:
i)Ground 6 of the amended ground of appeal in Appeal 43 of 2014, which relates to a failure to apply relevant law with regards to the concerns raised about the legitimacy of the documents attached to Ms Hudson's affidavit;[63]
[63] Ground 7 CACV 19 of 2015.
ii) the granting of leave for the filing of Ms Hudson's affidavit.[64]
[64] Ground 4 CACV 20 of 2015.
11.Stone DCJ erred in law by denying the appellant an opportunity to present oral submissions in relation to ground 5 of the amended grounds of appeal in Appeal 43 of 2014. Ground 5 of the amended grounds alleged that the arbitrator erred in law by failing to consider the prejudice to the appellant's case in allowing Ms Hudson to attend the directions hearings.[65]
[65] Ground 9 CACV 19 of 2015.
12.Stone DCJ erred in law in allowing Ms Hudson to attend the District Court appeal hearings, as this prejudiced the appellant's case because evidence was revealed to Ms Hudson, including discussions relevant to the 'dubious' nature of the annexures attached to Ms Hudson's affidavit.[66]
[66] Ground 9 CACV 19 of 2015.
13.Stone DCJ erred in law in imposing an unfair deadline of 12.00 pm, 28 November 2014 in which to present the remaining submissions relevant to Appeal 44 and Appeal 55 of 2014.[67]
[67] Ground 2 CACV 20 of 2015 and ground 2 CACV 21 of 2015.
14.Stone DCJ erred in law because he failed to have regard to the error of law of both Arbitrator Powles and Arbitrator Rutherford in allowing Ms Hudson to file her affidavit. There was allegedly an error of law because, first, an order to produce is not the same as discovery, and an order for production of documents does not require an affidavit to be provided; and secondly, because it was manifestly unreasonable given the 'illegitimacy' of the documents attached to it.[68]
[68] Ground 7 CACV 19 of 2015 and ground 4 CACV 20 of 2015.
15.Stone DCJ erred in law in stating 'Arbitrator Powles gave adequate reasons' when the only reasons given were in relation to the two interlocutory applications dealt with at the directions hearing on 27 March 2014, and no reasons were given in relation to other orders made that day namely:
(i) the decision allowing Ms Hudson (head of insurance) to remain in attendance during proceedings despite her being a witness the respondent intends to call to give evidence;
(ii) the decision to set a hearing date to deal with jurisdictional issues, despite both parties not having been heard on this matter; and
(iii) the decision to grant leave for filing the affidavit of Ms Hudson by the respondent which was filed out of time.[69]
[69] Ground 8 CACV 19 of 2015 read with ground 1 of Appeal 43 of 2014, amended grounds of appeal.
16.Stone DCJ erred in law because he failed to give adequate reasons with respect to:
(i) the matters raised in Ms Kezic's letters which in part related to the prejudice to the respondent of the appellant's late claim for her shoulder injury;[70]
[70] Ground 8 CACV 19 of 2015.
(ii)upholding the arbitrator's decision to grant leave to the respondent to file the affidavit of Ms Hudson; in particular, the appellant alleges [33] of the District Court reasons are inadequate;[71]
[71] Ground 7 CACV 19 of 2015.
(iii)setting a date for the rehearing of jurisdictional issues.[72]
[72] Ground 8 CACV 19 of 2015 and ground 4 CACV 21 of 2015.
17.Stone DCJ erred in law by failing to address grounds 3(a), 3(b), 3(c) and 3(d) of the amended grounds of appeal in Appeal 44 of 2014 in his written reasons. In relation to this complaint:
•Ground 3(a) was to the effect that the arbitrator did not give the appellant an opportunity to make submissions in relation to the prejudice Ms Hudson's affidavit would cause to the appellant's case.
•Ground 3(b) was to the effect that the affidavit of Ms Hudson attached unauthenticated documents which were not in compliance with the order for production, and was not a sufficient response to a direction to produce.
•Ground 3(c) was to the effect that the appellant's consent should have been sought to file Ms Hudson's affidavit.
•Ground 3(d) alleged that the 'Position Description' provided by Ms Hudson is different to the 'Task Description' which the respondent was asked to produce.[73]
[73] Ground 4 CACV 20 of 2015; ground 3 of Appeal 44 of 2014, amended grounds of appeal.
18.Stone DCJ erred in law by failing to have regard to the fact that there are no provisions in the Act or Rules which gives an arbitrator the power to extend the time within which the respondent can file its reply.[74]
[74] Ground 3 CACV 20 of 2015 and ground 3 CACV 21 of 2015 read with ground 1(a) of Appeal 55 of 2014, amended grounds of appeal.
19.Stone DCJ erred in law in failing to have regard to the fact Arbitrator Rutherford failed to take into account that the reply in A11258 and the interlocutory application for hearing A1539 and A11258 together, had been filed 'illegally' given the absence of a registry stamp, and could therefore not be utilised.[75]
[75] Ground 3 CACV 20 of 2015.
20.Stone DCJ erred in law in failing to take into account that Arbitrator Rutherford wrongly accepted the respondent's reply out of time and in the absence of copies of all documents, materials and information required by r 29 of the Rules.[76]
[76] Ground 5 CACV 20 of 2015.
21.Stone DCJ erred in law in applying r 4 of the Rules 'Relief from procedural requirements', when the interlocutory application for an extension of time had not been processed through registry, and did not attach all relevant documents to its materials, which meant that there was no dispute to which r 4 could be applied.[77]
[77] Ground 3 CACV 20 of 2015.
22.Stone DCJ erred in law in making a determination in Appeal 44 of 2014 in the absence of relevant case law that specifically related to an appeal against an arbitrator's decision to grant leave for an out of time reply to an application for arbitration, or r 4 being used to 'override the numerous Rules breached' by the respondent.[78]
[78] Ground 6 CACV 20 of 2015.
23.Stone DCJ erred in law by failing to take into account arguments in relation to ground 2(d) of the amended grounds of appeal in Appeal 44 of 2014 and failing to give reasons for his decision relevant to that ground. Ground 2(d) was an allegation that the evidence in A1539 and A11258 is not similar, and that the respondents have tried to create a false impression that both cases were the same, so as to have them heard concurrently.[79]
[79] Ground 7 CACV 20 of 2015.
24.Stone DCJ erred in law in failing to give relevant consideration to Arbitrator Rutherford's comment that 'the application is properly brought as an interlocutory application' which was in contradiction with his previous comments 'that it is difficult to find a clear preceptor for a respondent to make such an application'.[80]
25.Stone DCJ erred in law in failing to apply r 37(4) of the Rules to the respondent's interlocutory application.[81]
26.Stone DCJ erred in law in failing to take into account that there is no specific provision in the Act which gives an arbitrator the power to make a decision to consolidate cases managed by two different arbitrators. Section 3(d), s 177, s 190(1) and s 188(5) detailed in the arbitrator's decision at [27] ‑ [33][82] did not give Arbitrator Rutherford the power to remit case A11258 to Arbitrator Powles to be heard concurrently with A1539.[83]
27.Stone DCJ erred in law in making a determination on the appeal in the absence of case law which specifically related to an appeal against the decision of an arbitrator granting leave for applications to be heard concurrently. His Honour erred by:
(i)applying Moondancer Pty Ltd because the facts in Moondancer Pty Ltd were not applicable to the current relevant circumstances; and
(ii)depriving the appellant of the opportunity to refer to Espanol Holdings Pty Ltd v Banning [2000] WASC 192.[84]
28.Stone DCJ erred in law by failing to have regard to the relevant consideration that in having both A1539 and A11258 heard together, there is a likelihood both cases will be dismissed on a jurisdictional matter, despite there being no prejudice to the respondent in either matter.[85]
29.Stone DCJ erred in law by wrongfully stating that the bias application against Arbitrator Powles was 'subject to appeal' and it was therefore 'inappropriate to make a decision about Ms Kezic's perceived bias by Arbitrator Powles'.[86] The appellant asserts that there was no evidence of an appeal being initiated, and that, accordingly, the bias allegations were not given proper consideration.[87]
[80] Ground 3 CACV 21 of 2015; ts 71, 09/04/14.
[81] Ground 3 CACV 21 of 2015.
[82] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA, 04/06/14).
[83] Ground 5 CACV 21 of 2015.
[84] Ground 6 CACV 21 of 2015.
[85] Ground 7 CACV 21 of 2015.
[86] District Court reasons [58].
[87] Ground 8 CACV 21 of 2015.

Application for leave - principles

Section 254 of the Act provides:
254. Appeal from District Court to Court of Appeal
Under the District Court of Western Australia Act 1969 section 79, an appeal may be made to the Court of Appeal in respect of a judgment, order or determination in proceedings in the District Court under this Part but -
(a)the appeal must relate to a question of law; and
(b)leave to appeal must be obtained from the Court of Appeal.
The principles relevant to the grant of leave were summarised, sufficiently for present purposes, in Allmark v Mossensons (A Firm):[88]
Leave will usually only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify the granting of leave, and if in addition substantial injustice would be done by leaving the decision unreversed. See Wing Luck Foods v Lay Choo Lim [1989] WAR 358 at 360 and Friday v Australian National Airlines Commission, unreported; FCt SCt of WA; Library No 8502; 24 September 1990; Stanley v Layne Christensen [2006] WASCA 56 at [15] and [58]. These are not rules but guidelines. The Court has a residual discretion to do justice in any case requiring leave even if the guidelines are not satisfied. See Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995.
[88] Allmark v Mossensons (A Firm) [2006] WASCA 127 [26].
Further, it should be noted that the primary judge was dealing with applications for leave to appeal in respect of interlocutory decisions concerning practice and procedure in arbitration proceedings conducted by arbitrators under the Act. The courts have consistently stated that special restraint must be exercised when dealing with appeals in respect of interlocutory orders concerning practice and procedure: Dodds v Kennedy.[89]
[89] Dodds v Kennedy [2011] WASCA 32 [5] and the cases therein cited.
The need for appellate restraint applies equally, if not more so, to appeals from intermediate appellate decisions concerning practice and procedure.

Disposition

In each appeal, the applications for leave to appeal should be dismissed on the basis that the appellant has not established that any substantial injustice would be done by leaving the primary judge's decision unreversed, and the circumstances of the case do not justify the grant of leave.
In substance, the appellant's complaints are in respect of:
(a)leave not being granted for certain 'evidence' to be filed late;
(b)Stone DCJ's dismissal of a request to 'address' correspondence between the appellant and Arbitrator Powles;
(c)Stone DCJ's finding that no error of law was disclosed by leave being granted for:
(i)Ms Hudson to attend the 27 March 2014 directions hearing; and
(ii)the affidavit of Ms Hudson dated 12 March 2014 to be filed;
(d)leave being given to the respondent to file a late reply; and
(e)an application for matters in A1539 and A11258 to be heard together being granted.
As to (a) in [88] above, it has not been established that the 'evidence' sought to be adduced would be admissible, let alone of any potential cogent benefit to the appellant. As to (b) in [88] above, the function of the judge in an appeal is not to 'address' correspondence. As to (c)(i) in [88] above, this is a conventional procedural matter involving no prospect of prejudice. As to (c)(ii) in [88], the mere filing of the affidavit does not create prejudice. Any contest as to its merits can be made at trial. The matter in (d) above is merely procedural which will allow a contest on the issues at trial. The matter in (e) of [88] above is also a conventional procedural matter with no prospect in the circumstances of causing substantive prejudice to the appellant.
In addition, and moreover, none of the grounds of appeal arguably indicates that the decision below is wrong or at least attended with sufficient doubt to justify the grant of leave.
The following brief observations may be made about the merits of each of the 29 points summarised in [82] above.
In relation to point 1, no error is disclosed in the judge taking submissions from parties on the construction of s 267 of the Act in relation to costs, nor is there any error in deferring the questions of costs to a special appointment on 7 May 2015.
No question of law, or at least none with any reasonable prospect of success, arguably arises in relation to point 2. The respondent did not, on the appeal before his Honour, contend that the appeal should not be allowed in relation to the Alesco Payrun Sheets and the Freshstart Reports. His Honour was not required to say in terms that an error of law had been made, and even if it had been, that would not itself provide any basis for remitting the matter to a different arbitrator.
Point 3 appears to be based on the premise that the alleged error of law is that the decision would prevent Ms Brown from attending arbitration as a witness. This argument has no substance. The primary judge's decision does not have that effect. Moreover, it was made clear at the hearing on 30 July 2014 that the appellant should summons her witness in case she refused to attend arbitration.[90]
[90] Transcript 34 ‑ 35, 30/07/14.
In relation to point 4, it was not arguably an error of law for Stone DCJ to find that the appellant's request that he 'address' Ms Kezic's letters was 'incompetent, without merit and beyond the scope of the appeal'.[91] The complaints contained in Ms Kezic's letters are summarised above at [32]. They relevantly cover the same subject matters as the complaints in points 3, 5, 6, 7, 8, 9, 15(i) and 15(ii) in [82] above. The transcripts of the hearings on 30 July 2014 and 27 November 2014 before Stone DCJ show that the appellant was heard extensively on the matters raised in Ms Kezic's letters.[92]
[91] District Court reasons [28].
[92] See ts 37 ‑ 43, 87, 134, 183 ‑ 187, 198 ‑ 199, 30/07/14; ts 101, 254, 271, 280 ‑ 283, 289, 27/11/14.
In relation to point 5, the appellant's complaints are misconceived insofar as she contends that somehow the primary judge should have upheld the appeals against the arbitrator's interlocutory decisions on the basis that there had been breaches of the Criminal Code by the respondent or professional misconduct by the respondent's solicitors, or that matters allegedly required investigation by the police. Moreover, in the hearing of this appeal, neither of those matters was shown to be arguable in any event. The appellant's complaints were, and are, self‑evidently misconceived, and no further reasons were required.
In relation to point 6, the Vexatious Proceedings Restriction Act plainly had no application to the respondent, and none of the matters raised in point 6 otherwise indicate any arguable error.
In relation to point 7, the question before his Honour was whether the arbitrator's interlocutory decision to deal with jurisdictional issues disclosed an error of law. It was not a hearing de novo before Stone DCJ. No arguable error is disclosed by point 7.
In relation to point 8, the appellant's complaints are misconceived. They are based on the distinction the appellant seeks to make between the word 'hearing' and 'rehearing' and her erroneous belief that a 'hearing' cannot include a consideration of jurisdictional issues. In the circumstances of this case, it was open to conclude that it was appropriate for both the jurisdictional issues and merits of the appellant's workers' compensation claims to be dealt with together so as to bring the matter as a whole to a conclusion. An order to relist the matter for a rehearing of jurisdictional issues was within the powers of an arbitrator to determine practice and procedure under s 188(5) of the Act and consistent with s 185(1) of the Act which requires arbitrators to determine the 'matters in dispute in accordance with this Act'. One of the purposes of the Act is to determine matters in a 'manner that is fair, just, economical, informal and quick'.[93] No arguable question of law with any prospect of success is disclosed.
[93] Section 3 of the Act.
Points 9 ‑ 12, 14, 15(i), 15(iii), 16(ii) and 17 inclusive concern Arbitrator Powles' decision to give leave to the respondent to file an affidavit by Ms Hudson and to permit Ms Hudson to attend directions hearings on behalf of the respondent. No arguable question of law, with any prospect of success, is disclosed. Points 15(i) and 15(iii) address the adequacy of Arbitrator Powles' reasons, and points 16(ii) and 17 address the adequacy of Stone DCJ's reasons. The reasons provided by both Arbitrator Powles and Stone DCJ were adequate.
With respect to point 16(ii), Stone DCJ, in his reasons at [33], said that Arbitrator Powles' exercise of discretion to allow Ms Hudson to attend the hearing was not 'unreasonable or plainly unjust'. He also said that Arbitrator Powles had given adequate reasons for his decision. In respect of the directions hearing, the reasons by Stone DCJ were adequate in the circumstances.
With respect to point 17, it was unnecessary for Stone DCJ to give reasons on matters that were beyond the scope of the appeal of the interlocutory orders of Arbitrator Rutherford; the complaints in point 17 having no bearing on the correctness of Arbitrator Rutherford's interlocutory orders appealed in Appeal 44 of 2014. The orders appealed in Appeal 44 of 2014 concerned Arbitrator Rutherford's decision to file a late reply.
With respect to points 15(i) and 15(iii), in the context of this particular case, it has not been shown that further reasons beyond any disclosed in the course of argument were necessary.
In relation to point 13, the primary judge gave the appellant ample opportunity to present her case. No arguable error of law is disclosed.
In relation to point 15(ii), the parties were heard on this matter at the directions hearing on 27 March 2014. Despite the fact Arbitrator Powles told the appellant she did not want to hear submissions on Curthoys DCJ's order, an exchange between Arbitrator Powles and the appellant at pages 25 ‑ 27 of the transcript shows that the arbitrator heard the appellant's objection to the rehearing of jurisdictional issues on the basis of previous comments by Registrar Melville, and Curthoys DCJ's order for a 'hearing date'. In any event, having regard to the entirely conventional nature of the order to re‑list the matter for rehearing of jurisdictional issues (canvassed above in relation to point 8), no elaborate reasoning was required. No arguable error of law is disclosed.
No arguable question of law, or at least none with any reasonable prospect of success, arises in relation to points 16(i) and 16(iii). Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and, if necessary, in the context of the evidence, to determine if they give the sense of what was intended in a way that achieves their required function and purpose. With respect to point 16(i), it was unnecessary for Stone DCJ to provide reasons beyond those in his written reasons in relation to his refusal to address Ms Kezic's letters. In any event, Stone DCJ adequately addressed the matters raised in Ms Kezic's letters in his reasons. With respect to point 16(iii), given the entirely conventional nature of the order to re‑list the matter for rehearing of jurisdictional issues (canvassed above in relation to point 8), it was unnecessary for Stone DCJ to provide express reasons beyond those necessarily implicit having regard to the parties' arguments which preceded the decision. Even if reasons were found to be inadequate, it does not follow that there is necessarily an appealable error; an appeal court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. That is not this case.
Points 18, 20 and 22 relate to the arbitrator's decision to grant leave to file a reply out of time. The appellant effectively asks this court to determine the matter afresh. No question of law with any prospect of success is disclosed.
Points 19 and 21 concern procedural matters in relation to the filing of documents. No rational inference could be drawn that the documents were filed 'illegally'. These points raise no arguable question of law with any prospect of success.
Points 23, 26, 27 and 28 relate to the arbitrator's decision in relation to consolidation. The primary judge correctly dealt with this in his reasons. The reasons provided were adequate and no arguable error is shown.
Point 27 is misconceived and discloses no arguable error of law. It is evident that there was no error in the application of the principles in Moondancer Pty Ltd. The appellant's complaint that Stone DCJ erred in law by depriving the appellant of the opportunity to refer to Espanol Holdings has no substance given that both Espanol Holdings and Moondancer Pty Ltd apply the same principles of law to the question of whether an order that actions be heard together should be made. The refusal of the application to have actions heard together in Espanol Holdings turned on the facts of that particular case - particularly the prospect of the plaintiffs in a relatively simple action being involved to an unreasonable extent in a much longer and complex trial that incorporated a second action to which they were not a party.
In relation to points 24 and 25, no arguable error of law is disclosed by the appellant's complaint that pursuant to r 37(4) an interlocutory application can only be filed by a 'party', that is, where a reply has already been filed. The respondent's application for an extension of time to file their reply was properly characterised as an interlocutory application.
In relation to point 29, it appears that Arbitrator Rutherford and Stone DCJ were mistaken in believing that a bias application against Arbitrator Powles was subject to an appeal, when it was in fact not (the bias application in A1539 had been considered and rejected by Arbitrator Powles). However, this had no material bearing on Arbitrator Rutherford's decision that the two cases should be heard together; Arbitrator Rutherford stated, in relation to his understanding that the appellant had appealed Arbitrator Powles' bias application decision, that '[w]hatever the case, I consider it inappropriate for me to make a decision on such a basis'.[94] This statement was, with respect, perhaps unhelpfully truncated in Stone DCJ's summary of the factors to which Arbitrator Rutherford had regard, in the statement that Arbitrator Rutherford found 'it was inappropriate to make a decision about [the appellant's] perceived bias by Arbitrator Powles as it was subject to appeal'.[95] In any event, the decision to have the two cases heard together was unrelated to any decision as to who should hear the cases once consolidated. Once the decision had been made to have the cases heard together, the matter was referred to the registrar for allocation to an arbitrator consistent with s 182ZP and s 182ZV of the Act.
[94] Kezic v St John of God Health Care Inc (Unreported, WorkCover WA 04/06/14) (page 9).
[95] District Court reasons [58].
To the extent that this ground raises a question of law, the error had no bearing on the ultimate correctness of Stone DCJ's decision, and in that regard leave should not, in any event, be granted in respect of it.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KEZIC -v- ST JOHN OF GOD HEALTH CARE INC [2015] WASCA 182 (S)

CORAM: NEWNES JA
MURPHY JA

HEARD: ON THE PAPERS

DELIVERED : 18 SEPTEMBER 2015

FILE NO/S: CACV 20 of 2015
CACV 21 of 2015