Kumeroa v United Group Limited - [2013] WASCA 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: KUMEROA -v- UNITED GROUP LIMITED [2013] WASCA 183

CORAM: PULLIN JA
MURPHY JA

HEARD: 24 JULY 2013

DELIVERED : 24 JULY 2013

PUBLISHED : 9 AUGUST 2013

FILE NO/S: CACV 55 of 2013

BETWEEN: PETER KUMEROA
Appellant
AND
UNITED GROUP LIMITED
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :APP 50 of 2012

Catchwords:

Appeal - Grounds of appeal having no reasonable prospect of succeeding - Application to adduce additional evidence

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Workers' Compensation and Injury Management Act 1981 (WA), s 247, s 254
Workers' Compensation and Injury Management Arbitration Rules 2011 (WA), r 58

Result:

Applications to adduce additional evidence dismissed
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms L G Rafferty

Solicitors:

Appellant: In person
Respondent: SRB Legal

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

Nil

REASONS OF THE COURT: This appeal was dismissed on 24 July 2013 with reasons to follow. These are the reasons.
The appeal was listed:
(a)to give the appellant the opportunity to show cause why the appeal should not be dismissed on the basis that no grounds had any reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA); and
(b)to consider an application by the appellant to adduce additional evidence.
Prior to the hearing on 24 July 2013, the appellant attempted to file a further application to adduce additional evidence by email to the registry. That application was not accepted for filing as the registry does not allow for documents to be filed by email. However, the appellant indicated that he had also forwarded a copy of the application by registered post. Although that application did not arrive at the registry by the time of the hearing on 24 July 2013, for completeness the court dealt with that application on the basis of the emailed documents at the hearing.
The appeal is an appeal pursuant to s 254 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) against a judgment of Goetze DCJ in the District Court dismissing the appellant's appeal from a decision of an arbitrator.
The background is as follows. The appellant alleged he was injured at work on 12 January 2009 when working for the respondent. He applied for workers' compensation in the form of weekly payments. The application was opposed on the basis that he was not injured at work, or that if there was any injury, it was from a pre‑existing condition and employment was not a significant factor in any aggravation of that earlier injury.
The dispute was determined by an arbitrator who dismissed the claim for weekly payments.
The appellant then appealed to the District Court and Goetze DCJ heard the appeal. Section 247(1) of the Act provides that a party may, with the leave of the District Court, appeal to the District Court against a decision of an arbitrator. Section 247(2) provides that the District Court is not to grant leave unless a question of law is involved.
The appellant's grounds of appeal when filed in the District Court did not involve any question of law. This was pointed out to the appellant by a District Court judge - Staude DCJ - who first examined the matter during directions hearings. Then when the appeal came on before Goetze DCJ, his Honour again explained the effect of s 247 of the Act and gave the appellant an opportunity to draw grounds of appeal that involved questions of law. The grounds in their final form, as described by Goetze DCJ in his reasons, did not, save for one ground, involve any question of law. Goetze DCJ dismissed the appeal for that reason and because, in relation to the ground that did involve a question of law, no miscarriage of justice was demonstrated. The ground involving a question of law related to the decision of the arbitrator to dismiss an application by the appellant to lead certain oral evidence.
The appellant now appeals to this court under s 254 of the Act, which requires a grant of leave before the appeal can proceed, and which requires that the appeal relate to a question of law.
The appeal to this court would have to allege error by Goetze DCJ in determining that the grounds of appeal before him did not involve any question of law or a miscarriage of justice. The appellant's grounds of appeal to this court read:
1.The learned arbitrator erred [in] law by refusing [the appellant's] request to call Dr Williams, Dr Wong and Professor Harper to give oral evidence.
2.Failed to account that the appellant was self-represented.
3.Failed to account for Drs; Wong, William and Harpers, Homes, Vaughan reports (sic).
4.Failed to account for the appellant[']s MRI study.
5.Failed to account for the fact that the appellant was reviewed by his general practitioner on the 22nd September 2008 for [a] right leg sprain on the right inner thigh and calf.
6.Failed to accept the appellant[']s request to induce (sic) his witness statement into evidence.
7.Failed to account that the appellant's [B]oddington records doesn't (sic) show any nurse registration numbers, full names [or] contact details.
8.Failed to account for Flynn Fidow['s] and Tony Holland's written and oral statements.
9.New information.
Ground 1 raised again a point made before Goetze DCJ. The appellant explained to Goetze DCJ that he had made an application during the course of the proceedings before the arbitrator to have certain medical or health practitioners who had provided written reports to give oral evidence, which application was refused by the arbitrator. Goetze DCJ questioned the appellant at some length in an attempt to ascertain what information he would have sought from those people. It emerged that the appellant had not spoken to them and was not aware of any additional evidence that could have been provided by them that would have assisted his case. The appellant was only able to speculate on what they may have said.
Rule 58(1) of the Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) provides that, except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing, and a medical practitioner may not be called to give oral evidence at a hearing before an arbitrator. As a result of the foregoing, it is clear that even if the arbitrator erred in law by refusing the appellant's application to call the people the appellant wanted to call, there is no injustice in leaving the decision unreversed because no miscarriage of justice has been demonstrated. Thus, leave to appeal on ground 1 should be refused. Ground 1 had no reasonable prospect of succeeding.
The submissions in support of the other grounds merely reflected an attempt to reargue the case on the facts. None of the other grounds alleged that Goetze DCJ erred in dismissing the appeal on the basis that no question of law was involved. As a result, none of the grounds had any reasonable prospect of succeeding. The appeal was dismissed.
As to the two applications to adduce additional evidence, the appellant freely conceded that all of the information that he wished to lead was evidence in the form of documents which existed and which he knew about before the hearing before the arbitrator, or related to information or evidence that he could have led had he chosen to do so at the hearing before the arbitrator. Additional evidence will not be admitted in those circumstances. For those reasons the two applications made by the appellant to adduce additional evidence were dismissed.