Liu v Inghams Enterprises Pty Ltd

[2007] WASCA 9

LIU -v- INGHAMS ENTERPRISES PTY LTD [2007] WASCA 9

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 9
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:124/2006	Heard:	8 DECEMBER 2006
Coram:	PULLIN JA	Delivered:	9/01/07
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ZHEN LIU INGHAMS ENTERPRISES PTY LTD
Catchwords:	Workers' compensation Review officer refused to make costs order under s 84ZL(1) Appeal dismissed by Compensation Magistrate Right of appeal under s84ZN(2) Whether grounds of appeal involve question of law Points not taken below Whether allowed to be raised on appeal No point of principle calling for leave Appeal dismissed
Legislation:	Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZL(1), s 84ZW, s 84ZN(2)
Case References:	Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 House v The King (1936) 55 CLR 499 Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Gardner v Caporn [2005] WASCA 153 Steele v Deputy Commissioner of Taxation of the Commonwealth of Australia (1999) 197 CLR 459 Van Dongen v Masters Dairy [2001] WASCA 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LIU -v- INGHAMS ENTERPRISES PTY LTD [2007] WASCA 9 CORAM : PULLIN JA HEARD : 8 DECEMBER 2006 DELIVERED : 10 JANUARY 2007 FILE NO/S : CACV 124 of 2006 BETWEEN : ZHEN LIU

Appellant

AND

INGHAMS ENTERPRISES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATES' COURT

Coram : MS P M HOGAN CM

File No : CM 1 of 2006

Catchwords:

Workers' compensation - Review officer refused to make costs order under s 84ZL(1) - Appeal dismissed by Compensation Magistrate - Right of appeal under s84ZN(2) - Whether grounds of appeal involve question of law - Points not taken below - Whether allowed to be raised on appeal - No point of principle calling for leave - Appeal dismissed

(Page 2)

Legislation:

Workers' Compensation and Rehabilitation Act 1981 (WA), s 84ZL(1), s 84ZW, s 84ZN(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr G R Hancy

Solicitors:

Appellant : In person
Respondent : Dibbs Abbott Stillman

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

Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21
House v The King (1936) 55 CLR 499
Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309

Case(s) also cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Gardner v Caporn [2005] WASCA 153
Steele v Deputy Commissioner of Taxation of the Commonwealth of Australia (1999) 197 CLR 459
Van Dongen v Masters Dairy [2001] WASCA 1

(Page 3)

1 PULLIN JA: There are two applications before the Court. The first is an application by the appellant for leave to appeal pursuant to the repealed s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 (WA). The section was repealed by s 67 of the Workers' Compensation Reform Act 2004 (WA) but the parties did not dispute that the transitional provisions in the Reform Act mean that s 84ZW still applies to and governs these proceedings.

2 The second application is by the respondent pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA). This confers jurisdiction on a single Judge to dismiss the appeal if none of the grounds of appeal have reasonable prospects of succeeding.

3 The orders the subject of the appeal are orders made by Compensation Magistrate Hogan on 29 August 2006, dismissing the appellant's appeal against an order of a review officer dismissing an application by the appellant pursuant to s 84ZL(1) of the Act for a costs order against the respondent.

4 The background to the application for costs is set out in the reasons of the Compensation Magistrate which I do not need to repeat in full. In short however, the appellant claimed to have suffered an injury while working for the respondent and made an application for workers' compensation. This application required a four day hearing at the end of which an order for compensation was made on 11 November 2005. Section 84ZL(1) of the Act provides:

"Each party to the proceedings bears the parties own costs unless the review officer orders otherwise."

5 The appellant sought an order for costs from the review officer on the basis that the circumstances of the case were a departure from the norm and that the application was extensive, complex and protracted.

6 The review officer refused to make an order for costs. The review officer agreed that the matter was protracted but found that it was not complex, that the proceedings were not defended frivolously, that some of the delay in question was caused by the appellant, that the delay caused by the respondent was not without reasonable basis, that an issue which arose about whether the appellant had failed to attend a medical appointment was not complex, that any difficulties which arose as a result of the review officer's refusal to adjourn the hearing on 1 February 2005 were brought about as a consequence of the actions of the appellant, that the respondent's decision to appeal the review officer's decision of 10 March

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2005 did not result in an increase in the complexity of the issues in the dispute and that there was therefore no basis upon which to order costs.

7 The appellant appealed against the review officer's decision on 6 April 2006. The grounds of appeal were:

(a) the review officer erred in fact and law when he considered that whilst the application was protracted it was not complex and therefore on a balance of probabilities concluded that there was no basis to order that the respondent pay the appellant's costs;

(b) the review officer had a discretion to order costs given the circumstances of the case in relation to extensiveness, complexity and time and erred in law in failing to give any or any proper reasoned basis for not exercising his discretion in the appellant's favour.

8 The parties and the Compensation Magistrate all proceeded on the basis that the appeal to the Compensation Magistrate from the review officer was pursuant to s 84ZN(2) which provided that where a party to a proceedings who is dissatisfied with a decision or order of the review officer may "where a question of law is involved" appeal to a Compensation Magistrates' Court against the decision or order.

9 The Compensation Magistrate concluded that the question about whether there was anything "out of the norm" in terms of complexity of resolving those issues was a matter of fact to be determined by the review officer. As a result, the Compensation Magistrate concluded that the first ground of appeal revealed no error of law and was therefore dismissed.

10 The Compensation Magistrate, correctly in my view, saw the second ground of appeal as a complaint about the adequacy of the review officer's reasons for not exercising his discretion in the appellant's favour. The Compensation Magistrate explained what reasons were given by the review officer which self-evidently were adequate reasons for decision.

11 The Compensation Magistrate also considered what was a slightly different point which emerged from the outline of submissions prepared on behalf of the appellant in relation to the second ground of appeal. The submissions referred to a failure to give proper weight to relevant matters and giving undue weight to irrelevant matters which suggested a ground alleging error by reference to the principles in House v The King (1936) 55 CLR 499. The Compensation Magistrate concluded that the review officer did not act upon a wrong principle, did not give weight to

(Page 5)

extraneous or irrelevant matters, did not fail to give weight or sufficient weight to relevant considerations and was not satisfied that the decision was so unreasonable or so unjust that she should interfere. The appeal was therefore dismissed.

12 The appeal to this Court has been brought pursuant to s 84ZW, which allows an appeal to this Court against a decision of a Compensation Magistrate's Court on a question of law, but then only by leave.

13 To establish that there is a question of law it is necessary to show that an error of law has occurred: Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 at [35].

14 The appellant's proposed grounds of appeal are as follows:

"(a) the learned magistrate erred, in failing to find that the review officer erred in fact and law when he considered that whilst the application was protracted there was nothing complex or 'out of norm' in the evidence concerning the issue of causation and capacity. Her Honour did not, however, give proper reasons beyond a general reference what the review officer said when holding his conclusion.

(b) the review officer erred in not finding the fact that the respondent was using the medical reports on the basis that the edited tape appealed against his decision of 9 March 2005 and finding that it was not frivolous. He did not, in his reasons, refer to any of the facts and circumstances which occurred during that period.

(c) the learned Magistrate erred, in not finding the review officer improperly exercised discretion to refuse the appellant's application for an adjournment of hearing so she could not put the psychiatrist's report in evidence. This prevented her being able to present the relevant evidence affecting the decisions the appellant was given. Her Honour failed to give any reasons.

(d) the learned Magistrate erred in not finding the review officer had a discretion to order costs given the circumstances of the case in relation to extensiveness, complexity and time and erred in law in failing to give

(Page 6)

any or any proper reasoned basis for not exercising his discretion in the appellant's favour."

15 In my opinion, grounds 3 and 4 do not involve questions of law. They involve issues of fact and the weight that relevant facts might be given in determining whether the circumstances of the case were a departure from the norm in terms of "extensiveness, complexity and time". The first ground reasserts that the application was protracted, that it was complex and out of the norm.

16 The second and third grounds of appeal raise grounds of appeal which were not grounds of appeal before the Compensation Magistrate. Parties to litigation are bound by the course they adopt at trial (or on appeal). At least in part this principle is founded on public policy considerations favouring the finality of litigation. A party on appeal may sometimes be permitted to raise a new point of law if the facts have been fully found. Steytler J (as he then was) in Mostert v Durban Roodepoort Deep Ltd [2004] WASCA 309 at [54] noted however, that an appellant would not be permitted as of right to make a new case on appeal even if the point is unaffected by possible further evidence. The Court retains a discretion. In my opinion there is no reasonable prospect that the Court of Appeal would exercise its discretion to entertain these grounds when the issue concerns costs only.

17 As to the last ground of appeal, I do not for my part consider it is correct for the appellant to say that the learned Compensation Magistrate "erred in not finding the review officer had a discretion to order costs". The Compensation Magistrate accepted that the review officer had a discretion to order costs but considered that the exercise of the discretion had not miscarried. Insofar as the ground refers again to the "extensiveness, complexity and time", this is once again an attempt to reargue the merits and does not reveal any error of law on the part of the Compensation Magistrate.

18 In my opinion, none of the grounds of appeal have reasonable prospects of success. In any event, even if the grounds involved questions of law, the appellant's application for leave to appeal should be dismissed. The appeal concerns only the question of costs and there is no point of principle which calls for the grant of leave.

19 The respondent also raised a question about whether the Compensation Magistrate had any jurisdiction to hear the appeal from the review officer. The respondent contended that after 14 November 2005

(Page 7)

and by reason of s 183 of the Workers' Compensation Reform Act 2004, a pending proceeding which was referred to a review officer was on and from the commencement day (14 November 2005) taken to be a proceeding pending before an arbitrator and that by s 247 of the amended Act, the right of appeal from a decision of an arbitrator was with leave to the Commissioner appointed under s 281 of the Workers' Compensation and Injury Management Act 1981.

20 There is no need to consider this jurisdictional issue. It would only have arisen if the appeal succeeded, in which circumstance a question would have arisen about whether this Court could make an order in lieu of the order made by the Compensation Magistrate. I therefore express no opinion about whether the respondent's submissions have merit.

21 In my opinion, no ground of appeal has a reasonable prospect of succeeding. I would therefore dismiss the appeal pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005.