Neville v Choice One Pty Ltd - [2023] WADC 79

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   NEVILLE -v- CHOICE ONE PTY LTD [2023] WADC 79
CORAM:   HUGHES DCJ
HEARD:   29 JUNE 2023
DELIVERED          :   18 JULY 2023
FILE NO/S:   APP 35 of 2022
BETWEEN:   DONALD XAVIER NEVILLE
Appellant
AND
CHOICE ONE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR NUNN
File Number            :   A100128

Catchwords:

Workers' Compensation - Appeal from the Workers' Compensation Arbitration Service - Whether the arbitrator erred in law finding s 93P of the Workers' Compensation and Injury Management Act 1981 (WA) precluded the worker from claiming expenses - Election under s 93K of the Workers Compensation and Injury Management Act 1981 (WA) to retain the right to seek damages

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), div 2 pt IV, s 3(d), s 92, s 93K(4)(a), s 93K(4)(b), s 93L(2), s 93L(6), s 93L(8), s 93P, s 93P(23)(c)(ii), s 93P(2)(c)(iii), s 96L(6), s 217B, s 247(1), s 247(7)

Workers' Compensation and Injury Management Regulations 1982 (WA), reg 22

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr F A Robertson
Respondent	:	Mr G Bourhill SC

Solicitors:

Appellant	:	Law Access
Respondent	:	McCabes

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
East Metropolitan Health Service v Lee [2022] WASC 54
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Re Monger; Ex Parte TNT Australia Pty Ltd [2002] WASCA 223
Thomas Peacock and Sons Pty Ltd v Abreu [2013] WASCA 19
Trac v Fero Reinforcing Pty Ltd [2019] WADC 115

HUGHES DCJ:

This is an appeal from the decision of Arbitrator Nunn (the learned Arbitrator) delivered and published on 13 May 2022 finding the appellant (Mr Neville) was barred from recovering 'any other expenses' incurred after the 29 March 2019 by operation of s 93P(2)(c)(iii) of the Workers' Compensation and Injury Management Act 1981 (WA), (the Act).
The appeal is brought pursuant to s 247(1) of the Act. Leave to appeal is required. Leave may not be granted unless there is a question of law involved. It is well established that where a question of law is involved, the whole decision appealed from is open to review, not merely the question of law, and that the appeal court is required to conduct a real review.[1] A decision does not involve a question of law unless the error is material to the decision.[2]
[1] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
[2] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The sole ground of appeal contained in the amended notice of appeal filed on 15 November 2022 is whether the learned Arbitrator erred in law by concluding s 93P of the Act precluded the appellant from making a claim.
For the following reasons, leave to appeal is refused and the appeal dismissed.

Background

The background to this case is as follows;[3] on 29 March 2017 Mr Neville fell at…

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.

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Details

Case: [2023] WADC 79
Decision Date: 18 JULY 2023

CaseChat Overview and Summary

The appeal before the court involved the worker, Neville, who sought to recover certain expenses incurred during his treatment. The respondent, Choice One Pty Ltd, had previously accepted liability for the worker's claim but argued that the worker was precluded from claiming these expenses under section 93P of the Workers' Compensation and Injury Management Act 1981 (WA). The matter was heard and determined by the Workers' Compensation Arbitration Service, and the decision was now the subject of appeal. The central legal issues revolved around the interpretation and application of sections 93K and 93P of the Workers' Compensation and Injury Management Act 1981 (WA). Specifically, the court needed to determine whether the worker's election to retain the right to seek damages under section 93K precluded him from claiming certain expenses under section 93P.

The court examined the statutory provisions and considered the legislative intent behind the Workers' Compensation and Injury Management Act 1981 (WA). It held that section 93K provided the worker with the option to elect to retain the right to seek damages, but this did not automatically preclude the worker from claiming expenses under section 93P. The court emphasised that the provisions were to be interpreted harmoniously and that the worker's election under section 93K did not preclude him from claiming expenses if they were not otherwise excluded by the terms of the Act. The appeal was allowed, and the decision of the Workers' Compensation Arbitration Service was set aside. The matter was remitted back to the original tribunal for reconsideration in light of the court's findings.

Orders