Marks v Coles Supermarkets

Case [2020] WADC 36


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

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Marks v Coles Supermarkets [2020] WADC 36
Case
[2020] WADC 36
Decision Date

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.

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Background

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