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Marks v Coles Supermarkets

Marks v Coles Supermarkets

Case [2020] WADC 36 20 March 2020

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   MARKS -v- COLES SUPERMARKETS [2020] WADC 36
CORAM:   GETHING DCJ
HEARD:   17 FEBRUARY 2020
DELIVERED          :   20 MARCH 2020
FILE NO/S:   APP 58 of 2019
BETWEEN:   SHARON CHRISTINE MARKS
Appellant
AND
COLES SUPERMARKETS
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE WA
Coram:   ARBITRATOR STANTON
File Number            :   A515702

Catchwords:

Workers' compensation - Appeal from Arbitrator - Whether error of law in applying the principle in Jones v Dunkel - Whether grounds of appeal challenging factual findings involved errors of law - Whether decision should be set aside on the ground of a reasonable apprehension of bias

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 3, s 5, s 188, s 213

Result:

Leave to appeal allowed
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr B L Nugawela
Respondent	:	Mr R D McCabe

Solicitors:

Appellant	:	Eureka Lawyers
Respondent	:	Kott Gunning

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

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Atanasoka v Inghams Enterprises Pty Ltd [2004] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Beer v Duracraft Pty Ltd [2004] WASCA 192
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
BHP Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Blenkinsop v Holland [2018] WADC 146
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Cape Australia Holdings Pty Ltd v Burridge [2019] WADC 105
Caratti v Mammoth Investments Pty Ltd (No 2) [2018] WASCA 6
Commissioner of the Australian Federal Police v Courtenay Investments Ltd [2016] WASCA 194
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Duke Group Ltd (in liq) v Pilmer (1998) 27 ACSR 1
East Metropolitan Health Service v Martin [2017] WASCA 7
Eccles v Koolan Iron Ore Pty Ltd (No 3) [2013] WASC 418
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
FAI General Insurance Co Ltd v Goulding [2004] WASCA 167
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Ghazal v Government Insurance Office (NSW) (1992) 29 NSWLR 336
Hewett v Medical Board of Western Australia [2004] WASCA 170
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Jenkins v Western Australian Department of Training [1999] WASCA 199
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Ramsay Health Care Pty Ltd [2019] WADC 97
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Knell v QZV Pty Ltd [2020] WASCA 23
Kuhl v Zurich Financial Services Ltd [2011] HCA 11; (2011) 243 CLR 316
Malec JC Hutton Pty Ltd

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marks v Coles Supermarkets

Details

AGLC: Marks v Coles Supermarkets [2020] WADC 36
Case: [2020] WADC 36
Decision Date: 20 MARCH 2020

CaseChat Overview and Summary

In Marks v Coles Supermarkets, the court considered an appeal from an arbitrator's decision regarding a claim for workers' compensation. The claimant, Marks, sought to challenge the arbitrator's ruling on the basis of alleged errors of law in applying the principle in Jones v Dunkel, as well as questioning whether certain grounds of appeal involved errors of law. Additionally, the appeal questioned whether the decision should be set aside due to a reasonable apprehension of bias.

The legal issues before the court involved whether the arbitrator had erred in law by applying the principle in Jones v Dunkel, which pertains to the relationship between common law damages and workers' compensation. The court also needed to determine if the grounds of appeal that challenged factual findings involved errors of law, as only such errors can be grounds for appeal. Furthermore, the court had to consider whether there was a reasonable apprehension of bias that would warrant setting aside the arbitrator's decision.

The court found that the arbitrator had correctly applied the principle in Jones v Dunkel, and there was no error of law in that regard. The court further determined that some of the grounds of appeal did involve errors of law, but these did not affect the overall outcome of the decision. Regarding the apprehension of bias, the court concluded that there was no reasonable basis for such an apprehension. Therefore, the appeal was dismissed, and the arbitrator's decision was upheld.

Orders