Neville v Choice One Pty Ltd - [2024] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NEVILLE -v- CHOICE ONE PTY LTD [2024] WASCA 104
CORAM:   BUSS P
MITCHELL JA
VANDONGEN JA

HEARD:   9 AUGUST 2024
DELIVERED          :   5 SEPTEMBER 2024
FILE NO/S:   CACV 95 of 2023
BETWEEN:   DONALD XAVIER NEVILLE
Appellant
AND
CHOICE ONE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HUGHES DCJ
Citation: NEVILLE -v- CHOICE ONE PTY LTD [2023] WADC 79
File Number            :   APP 35 of 2022

Catchwords:

Workers' compensation - Where worker claimed statutory expenses incurred after he purportedly elected to retain the right to seek damages - Where worker was not able to make an election at that time because no assessment of his permanent whole of person impairment had been recorded by the Director - Whether provision excluding payment of workers' compensation after registration of the election applied in those circumstances - Whether arbitrator was able to consider the validity of the election in arbitration proceedings

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93K(4), s 93L, s 93M, s 93N, s 93P(2)(c)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 21, reg 22

Result:

Leave to appeal granted
Appeal allowed
Orders substituted allowing appeal to the District Court of Western Australia and remitting matter to a different arbitrator

Category: B

Representation:

Counsel:

Appellant	:	C J Horwood (with her B L Nugawela)
Respondent	:	G P Bourhill SC

Solicitors:

Appellant	:	Forbes Kirby Lawyers
Respondent	:	McCabes

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

Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Chittleborough v Troy Group Pty Ltd [2024] WASCA 22
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
Nielsen v Capital Finance Australia Ltd [2014] QCA 139; [2014] 2 Qd R 459
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96
Trac v Fero Reinforcing Pty Ltd [2019] WADC 115; (2019) 105 SR (WA) 164
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

JUDGMENT OF THE COURT:

Summary

The Workers' Compensation and Injury Management Act 1981 (WA) (Act) provided for the circumstances in which an injured worker who had claimed compensation under the Act could elect to retain the right to seek damages in respect of the injury in a common law action. Such an election could not be made after the 'termination day' for which the Act provided. The making of an election was one of the conditions for the availability of an award of damages in respect of the injury. Other conditions were the registration of the election by the Director, the commencement of proceedings seeking damages after the worker received notice of the registration and the court being satisfied that the worker's degree of permanent whole of person impairment was at least 15%. Making an election also had the effect of ending certain rights of the worker to receive continuing compensation under the Act.
On 28 March 2019, the appellant purportedly elected to retain the right to seek damages in respect of an injury he sustained at his work for the respondent, for which he was receiving compensation under the Act. This purported election was made on the day prior to the termination day, which was 29 March 2019. The Director registered the election on 29 March 2019 and notified the appellant that she had done so. The appellant subsequently commenced proceedings seeking damages in the District Court of Western Australia. The District Court proceedings were ultimately dismissed by consent without the appellant receiving any award of damages or settlement payment.
After the District Court proceedings were dismissed by consent, the appellant sought compensation under the Act for medical expenses incurred in respect of his injury after 29 March 2019. An arbitrator dismissed the claim for those expenses on the basis it was precluded by s 93P(2)(c) of the Act. Section 93P relevantly provided that, if a worker elected under s 93K of the Act to retain the right to seek damages, no other compensation was payable in respect of the injury for expenses incurred after the election registration day.
The appellant appealed against the arbitrator's decision to the District Court on the following question of law:[1]
Was the election purportedly made by [the appellant] pursuant to s 93K(4) an election made under s 93K(4) for the purposes of s 93P of the [Act].
[1] Appellant's amended appeal notice (Blue AB 13).
The primary judge dismissed the appeal to the District Court on the basis that the appellant was not able to challenge the validity of the election in an arbitration under the Act. The primary judge therefore found it unnecessary to deal with the grounds on which the validity of the election was challenged.
The appellant now appeals to this court on two grounds. Ground 1 in effect contends that the primary judge erred in holding that the appellant could not challenge the validity of his purported election in the arbitration of his claim for compensation under the Act. Ground 2 in effect contends that the primary judge erred in failing to find that there was no election under s 93K within the meaning of s 93P(2) of the Act.
The appeal must be allowed. Before the arbitrator, the appellant, who at that time was self-represented, did not contend that he had not made an election under s 93K of the Act. However, to find that s 93P(2) precluded the claim, the arbitrator must have been satisfied that the appellant had made an election under s 93K of the Act. Section 93L(2)(b) of the Act relevantly provided that a worker could only elect under s 93K(4) to retain the right to seek damages if:
1.the worker's degree of permanent whole of person impairment had been assessed to be not less than 15%; and
2.the Director had, at the written request of the worker, recorded that assessment in accordance with the regulations.
The material before the arbitrator demonstrated that the Director had not recorded an assessment at the time the appellant made the purported election. The arbitrator's implicit conclusion that the appellant had elected under s 93K to retain the right to seek damages, at a time when s 93L of the Act precluded the appellant from doing so, involved an error of law. The appellant's purported election did not engage s 93P(2) of the Act so as to have the legal effect of precluding his claim for compensation under the Act. The primary judge erred in law in failing to uphold the appellant's appeal to the District Court on that basis.
Our more detailed reasons for reaching these conclusions are set out below.

Statutory context

The events primarily at issue in this appeal took place in early 2019. At that time, the appellant's entitlement to workers' compensation and common law damages for workplace injury was regulated by the Act. The Act was repealed on 1 July 2024 by the Workers Compensation and Injury Management Act 2023 (WA) (2023 Act).
In the present case, the appeal was instituted prior to the commencement of the 2023 Act. There was some discussion at the hearing of the appeal as to whether continuation of the right of appeal in this case is provided for by s 254 of the Act read with s 37 of the Interpretation Act 1984 (WA); or alternatively, s 393 read with s 546 and/or s 575 of the 2023 Act. Nothing turns on this debate in the present case as there is no material difference in the provisions of the Act and the 2023 Act in relation to appeals to this court. In either case, the appeal must relate to a question of law and leave to appeal must be obtained from this court.
The relevant sections of the Act, and the Workers' Compensation and Injury Management Regulations 1982 (WA) (Regulations), as they stood in early 2019 are set out below.
The general operation of the relevant provisions was considered by this court in Armet v CFC Consolidated Pty Ltd.[2]
[2] Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [104] - [120].
Section 93K(4) of the Act provided:
Damages in respect of an injury can only be awarded if -
(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and
(b)the Director registers the election in accordance with the regulations; and
(c)court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and
(d)the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%.
Regulation 22 of the Regulations made the following provision in relation to the worker's election and the Director's registration of that election:
(1)An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it with the Director.
(2)Unless under subregulation (3) the Director refuses to register the election, the Director is to -
(a)register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b)complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3)The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election.
(emphasis added)
Form 34 in Appendix I of the Regulations (Form 34) was in the form reproduced in the Appendix to these reasons.
Section 93L of the Act relevantly provided:[3]
[3] Section 93L was amended by the Workers' Compensation and Injury Management Amendment (COVID-19 Response) Act 2020 (WA), deleting s 93L(1) and (4).
(2)A worker can only elect under section 93K(4) to retain the right to seek damages if -
…
(b) the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,
and the Director has, at the written request of the worker, recorded that … assessment in accordance with the regulations.
(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.
(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.
…
(6)An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.
…
(8)The Director may at any time rectify an error that was made in recording an … assessment or registering an election.
(emphasis added)
Part VII div 2 of the Act made provision in relation to the assessment of a worker's degree of impairment for the purposes of the above provisions by an approved medical specialist. Section 93N and s 146C of the Act provided for a 'special evaluation' where a worker's condition had not stabilised to an extent required for an evaluation under certain guidelines. Section 93N(1) provided for an approved medical specialist to certify that the worker's condition had not stabilised to the extent required for a normal evaluation of the worker's degree of permanent whole of person impairment. Section 146H(1)(b) of the Act relevantly required an approved medical specialist making an assessment for those purposes to give to each of the worker and the employer, in writing in accordance with the Regulations, a certificate specifying the worker's degree of impairment.
Regulation 21 of the Regulations relevantly made the following provision in relation to the recording of an assessment under s 93L of the Act:
(1)If -
(a)the worker's degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%; and
(b)the Director has been given -
(i)a copy of the certificate given to the worker under section 146H(1)(b) of the Act; and
(ii)if the assessment involves a special evaluation as defined in section 146C(4) of the Act, a copy of the certificate referred to in section 93N(1) of the Act on the basis of which the special evaluation was requested;
and
(c)the worker, in writing, requests the Director to record the assessment,
the Director is required to record the assessment in a register kept for the purpose ...
(2)The Director's record in the register is to be in the form of Form 33 in Appendix I, and the Director is required to give a copy of the record to each of the worker and the employer.
Form 33 in Appendix I of the Regulations (Form 33) was in the form reproduced in the Appendix to these reasons.
Section 93M of the Act defined the 'termination day' for an election to retain the right to seek damages in respect of an injury which is the subject of a claim for compensation by way of weekly payments. Under s 93M(1), the termination day was ordinarily the last day of the period of one year after the day on which the claim for compensation by way of weekly payments was made. Section 93M also relevantly made provision for the Director to extend the termination day by up to one year after the day that would have been the termination day had there been no extension.
Section 93P(2)(c), which pursuant to s 93P(1) applied in this case, provided:
If a worker elects under section 93K to retain the right to seek damages and this section applies -
…
(c) no other compensation under this Act is payable in respect of the injury or injuries -
…
(iii) for expenses incurred after the election registration day.
The term 'election registration day' was defined by s 93H(1) of the Act to mean the day on which the Director registered the election under s 93K(4)(b) of the Act.

Factual and procedural background

The appellant suffered a lower back and right hip injury (injury) in an accident at his work for the respondent on 29 March 2017. The respondent accepted liability for the injury and the appellant received compensation under the Act by way of weekly payments and payments of statutory expenses in respect of the injury. On 30 October 2017, the appellant underwent initial back surgery.
On 30 January 2018, the Director extended the termination day to 29 March 2019.
In October 2018, the appellant continued to experience ongoing symptoms with his back. The respondent's consulting surgeon, Mr George Wong, expressed the view that the appellant may benefit from revision surgery. Despite Mr Wong's opinion, the respondent declined to pay for the proposed revision surgery.
The appellant did not bring an application under the Act to seek payment for the revision surgery, but rather arranged for the surgery to be paid for by his private health care provider. The revision surgery was scheduled for 5 March 2019 but, due to the unavailability of operating theatres, was rescheduled to 1 April 2019.
On 28 March 2019, the appellant's then solicitor lodged with the Director:
1.A 'Certificate where workers' condition not stabilised' dated 28 March 2019 by Dr Evan Jenkins, an approved medical specialist. Dr Jenkins certified that the appellant's condition had not stabilised to the extent required for an evaluation to be made.[4]
2.A 'Special evaluation certificate of degree of permanent impairment' by Dr Jenkins dated 28 March 2019. Dr Jenkins certified that he assessed the appellant on 28 March 2019 for the purposes of a special evaluation under s 93N of the Act. He also certified that the appellant's degree of permanent whole of person impairment for the injury was 18%.[5]
3.A Form 34, in which the section of the form 'Advice of consequences of election' was signed by the appellant's then solicitor.[6]
[4] Green AB 32 - 33.
[5] Green AB 34 - 35.
[6] Green AB 30 - 31.
On 29 March 2019, the Director recorded the assessment of the appellant's degree of permanent whole of person impairment under s 93L(2) of the Act and registered the appellant's election to retain the right to seek damages. The appellant and respondent were advised of this and, under cover of a letter signed by the Director on 29 March 2019, were provided with copies of:
1.a Form 33 signed by the Director under the heading 'Recorded' and dated 29 March 2019, recording the assessment of the appellant's 18% degree of permanent whole of person impairment;[7] and
2.the Form 34 lodged by the appellant's solicitor with the signature of the Director dated 29 March 2019 under the heading 'Registration of this election'.[8]
[7] Green AB 28 - 29.
[8] Green AB 30 - 31.
The documents referred to in [28] - [29] above were before the arbitrator, being annexed to the appellant's application for arbitration.
The appellant's surgeon, Mr Soni Narula, performed the appellant's rescheduled revision surgery on 1 April 2019.
On 10 July 2019, the appellant commenced an action for damages in respect of the injury against the respondent in the District Court. The respondent denied liability and declined to offer any financial compromise to the appellant. The action was dismissed by consent on 9 November 2020.
The appellant subsequently claimed payment of medical expenses, including the costs of the revision surgery on 1 April 2019, under the Act. On 13 May 2022, the arbitrator allowed the appellant's claim under the Act only in respect of expenses of $100.80 incurred before 29 March 2019. This was on the basis that s 93P(2)(c)(iii) of the Act provided that no compensation was payable for expenses incurred after the appellant's election registration day. It does not appear that the appellant raised any issue about whether he had made an election under s 93K to retain the right to seek damages before the arbitrator.
The appellant appealed to the District Court against the arbitrator's decision on the following question of law:
Was the election purportedly made by [the appellant] pursuant to s 93K(4) an election made under s 93K(4) for the purposes of s 93P of the [Act].
The sole ground of appeal before the District Court contended that the arbitrator erred in concluding that s 93P of the Act precluded the appellant's claim. The particulars to the ground indicated the appellant's contention, in substance, that he had not elected under s 93K to retain the right to seek damages, within the meaning of s 93P(2), because:
1.Section 93K(4)(b) of the Act and reg 22(2)(a) of the Regulations required the Director to register the election on the day it was received, and the Director had not done so until the following day.
2.Regulation 22 of the Regulations and Form 34 required the signature of the appellant personally in the place where the appellant's solicitor had signed the form.
3.Section 93L(2) of the Act provided that the appellant could only make an election if the Director had recorded the assessment of his permanent whole of person impairment and the Director had not done so when the election was made.
On 18 July 2023, the primary judge dismissed the appellant's appeal to the District Court. In essence, the primary judge held that neither a worker nor an employer can challenge the validity of an election, which is valid on its face, in the arbitration of a worker's claim for compensation under the Act. Her Honour therefore found it unnecessary to form a view on the merit of the grounds on which the appellant contended he had not made a valid election.[9]
[9] Primary decision [28] - [31].

The appeal to this court

The appellant now appeals to this court on two grounds. Ground 1 in effect contends that the primary judge erred in holding that neither a worker nor an employer can challenge the validity of an election, which is valid on its face, in the arbitration of a worker's claim for compensation under the Act. Ground 2 in effect contends that the primary judge erred in failing to uphold the appellant's sole ground of appeal to the District Court for the reasons particularised in that ground.

Merits of the contentions as to invalidity of the appellant's election

Under ground 2, the appellant contends that his purported election under s 93K of the Act is 'invalid' for the three reasons noted at [35] above. It is convenient to begin by considering the merits of those submissions.

Failure to register election on day the Director received the election form

Some of the appellant's submissions on this ground of attack on the validity of the election confuse the provision for an election under s 93K with the conditions for the preservation of the availability of a damages award. One of the conditions for the availability of a damages award under s 93K(4)(a) was that the worker elected, in the manner prescribed by the regulations, to retain the right to seek the damages. Another, separate, condition for the availability of a damages award under s 93K(4)(b) was that the Director registered the election in accordance with the regulations. If an election was made but not registered, then damages were not available. Further, damages were not available unless court proceedings were commenced after the Director gave the worker written notice that she had registered the election, and the court was satisfied that the worker's degree of permanent whole of person impairment was at least 15%. The fact that an award of damages might not be available because one of the other conditions was not satisfied does not mean that there had been no election under s 93K of the Act. The appellant's contention - that the Director's failure to register the election on the day the Director received the election form means that there was no election under s 93K for the purposes of s 93P of the Act - fails for this reason.
If the delay in registering the election meant that the registration was invalid, then it might be contended that there was no 'election registration day' within the meaning of s 93P(2)(c)(iii) of the Act. However, that argument would depend on establishing that the consequence of the Director not registering the election on the day she received the election form was that the Director lacked the authority to subsequently register the election.
The fact that the Director may not have complied with the obligation under reg 22(2)(a) to register the election on the day she received the election form does not necessarily spell invalidity for a subsequent registration. As the High Court observed in Project Blue Sky Inc v Australian Broadcasting Authority:[10]
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment … There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[10] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91], affirmed in subsequent cases including Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [61].
In our view, it was not a legislative purpose of the Act to invalidate the registration of an election that occurs after the day on which the Director received the election form. That legislative purpose would involve a failure by the Director to fulfill her statutory duty having the consequence that a worker was deprived of the right to pursue common law damages for which the Act provided. That would be so even though the worker had taken all steps required to have the election registered and even if there was some extenuating reason - such as illness, accident or temporary absence - which prevented the Director from registering an election on the day she received the election form.
The legislative purpose of the requirement was rather to provide for the Director to act promptly in a context where the rights and liabilities of the worker and employer were governed by strict statutory timelines. There is no warrant for finding an objective legislative intention in the Regulations to deprive a worker of an award of damages because, through no fault of the worker (and perhaps no fault of the Director), an election was not registered on the day the Director received the election form.
Therefore, assuming that the appellant made an election under s 93K, the registration of the appellant's election on the day after the Director received the election form was a registration of the election in accordance with the regulations within the meaning of s 93K(4)(b) of the Act. On that assumption, 29 March 2019 was the applicable 'election registration day' for the purposes of s 93P(2)(c)(iii) of the Act.

Signature of appellant's solicitor rather than the appellant

Neither the Act nor the Regulations expressly required a signature of the worker for there to be an election under s 93K. Section 93K(4)(a) required the worker to make an election 'in the manner prescribed in the regulations'. Regulation 22(1) provided for the election to be made by completing the prescribed form, in this case Form 34, and lodging it with the Director without specifying who was to complete the form. The form contained a place for the worker's signature under a statement that 'I have been properly advised about the consequences of making this election'.
Statutory references to the signature of a person are commonly read as including a signature by the agent of the person signing on the person's behalf.[11] In the context of the Act, we see no reason to require the form to be signed by the worker as opposed to the worker's solicitor acting as the worker's agent with the worker's actual authority. The appellant does not contend that his then solicitor signed the election form without the appellant's actual authority.
[11] See the discussion of relevant legal principles in Nielsen v Capital Finance Australia Ltd [2014] QCA 139; [2014] 2 Qd R 459 [51] - [70] (Muir JA, Douglas J agreeing), adopted in Chittleborough v Troy Group Pty Ltd [2024] WASCA 22 [19].
The evident purpose of requiring a signature on this part of the prescribed form is to facilitate the exercise of the Director's discretion under reg 22(3) of the Regulations. Regulation 22(3) allowed the Director to refuse to register an election if she was not satisfied that the worker had been properly advised of the consequences of the election. The worker's signature on the relevant part of the form provided a means by which the Director could be satisfied that the worker had been properly advised of the consequences of the election. There is no reason why the Director could not so be satisfied by a signature on the relevant part of the form applied by the worker's agent acting with the worker's actual authority. Indeed, where the agent was the worker's solicitor the Director's confidence in the statement would tend to be increased as a solicitor would be better placed than the worker to appreciate whether or not the worker had been 'properly advised' of the consequences.
In our view, the reference in Form 34 to the 'Signature of worker' comprehends at least the signature of the worker's solicitor acting as the worker's agent with the worker's actual authority. The fact that Form 34 in this case was signed by the appellant's solicitor does not provide a proper basis for concluding that his election was not made 'in the manner prescribed in the regulations' within the meaning of s 93K(4)(a) of the Act. Nor does it provide a proper basis for failing to be satisfied that the appellant had elected under s 93K to retain the right to seek damages, within the meaning of s 93P(2) of the Act.

Concurrent lodgement of assessment certificate and election form

This third ground of attack on the 'validity' of the election, in the sense that the appellant did not make an election under s 93K, finds support in the statutory text.
Section 93L(2)(a) of the Act relevantly provided that a worker could only elect under s 93K(4) to retain the right to seek damages if the Director had recorded the assessment of the worker's degree of permanent impairment. Under s 93K(4)(a) of the Act and reg 22(1) of the Regulations, an election was made by completing a Form 34 and lodging it with the Director. At the time Form 34 in this case was completed and lodged - on 28 March 2019 - no assessment of the appellant's impairment had been recorded by the Director. The recording of the assessment only occurred on 29 March 2019. Therefore, at the time the appellant purportedly elected to retain the right to seek damages on 28 March 2019, the Director had not recorded the assessment of his degree of permanent whole of person impairment in accordance with the regulations. The circumstances in which, under s 93L(2) of the Act, the appellant could elect under s 93K(4) to retain the right to seek damages did not exist. Therefore, it could not be concluded that the appellant elected under s 93K to retain the right to seek damages within the meaning of s 93P(2) of the Act.
This textual analysis is consistent with the general structure of pt IV, div 2 subdivision 3 of the Act. The '2004 scheme' provided for in that subdivision involved taking a sequential series of steps. A worker could only elect under s 93K(4) after the assessment referred to in s 93L(2) had been made and recorded. Under s 93L(4), an election could not be made after the termination day. Under s 93K(4)(c), court proceedings had to be commenced after written notice of registration of the election had been given to the worker.[12]
[12] As to which see Armet [125] - [138].
The legislative purpose in requiring the making and recording of an assessment before allowing a worker to elect under s 93K(4) to retain the right to seek damages is apparent having regard to the significant and irreversible consequences of making an election. Under s 93L(6) a registered election could not be withdrawn after it was registered and a subsequent election could not be made in respect of the same injury or injuries. Where an election was made, s 93P(2) precluded the worker from continuing to receive compensation under the Act irrespective of whether or not proceedings seeking damages were commenced and whether or not damages were awarded in any such proceedings. Under s 93K(4), damages could not be awarded unless the court was satisfied that the worker's degree of permanent whole of person impairment was at least 15%.
The purpose of s 93L(2)(b) providing that a worker could only elect under s 93K(4) if the worker's degree of permanent whole of person impairment was assessed at not less than 15% and the Director had recorded the assessment is evidently to protect the position of the worker by ensuring that the worker had certain information when he or she made that election.
The fact that an approved medical specialist had assessed impairment at not less than 15% ensured that there was a basis for thinking that the court would be satisfied of that matter.
The requirement that the Director had recorded the assessment provided grounds for the worker to apprehend that the assessment had been made in accordance with the detailed requirements of the Act. The Director's function in recording an assessment was largely administrative, as the Director was not given a discretion as to whether to record an assessment. However, the Director's recording function could be seen to have a limited adjudicative element, in that the Director had to be satisfied that what was received was an assessment of the kind referred to in s 93L(2)(b) and, where necessary, was accompanied by a certificate under s 93N(1) of the Act, before recording the assessment.[13]
[13] See, by analogy, Re Monger; Ex parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 [26].
Senior counsel for the respondent accepted that an election made in the absence of an assessment would have no legal effect.[14] In our view, the same result follows where there is an assessment which the Director has not recorded at the time the purported election is made.
[14] Appeal ts 58 - 59.
Much of senior counsel for the respondent's oral submissions were directed to the limited time the appellant had to make an election. The termination date was 29 March 2019 and could not be further extended. The assessment of the appellant's impairment occurred only on 28 March 2019. If the appellant had waited until the Director recorded the assessment before making the election, then there was a risk that the termination date might have passed before he had the opportunity to make the election. However, the construction of the Act is not to be driven by the difficulties faced by this particular appellant, which appear to have resulted from him leaving it to the eleventh hour to make an election. The Act establishes the termination date as a strict deadline for making an election and places the onus on the worker to be in a position to make an election by that time if they wish to retain the right to seek damages.

Conclusion as to ground 2

In our view, ground 2 is established to the extent that it contends, in effect, that the appellant had not elected under s 93K to retain the right to seek damages within the meaning of s 93P(2) on the basis that the Director had not recorded the assessment of the appellant's permanent whole of person impairment, as required by s 93L(2)(b) of the Act, when the appellant made his purported election on 28 March 2019. Contrary to the arbitrator's conclusion, the fact that the appellant had not elected under s 93K meant that s 93P(2)(c)(iii) did not preclude the appellant from seeking compensation under the Act for expenses incurred after the election registration day.

Collateral challenge to the validity of a purported election

The primary judge concluded that the validity of the appellant's election was not open to collateral challenge in the arbitration proceedings in the following terms:[15]
It must be correct that upon the Director registering the election that it is presumed to be valid on its face and that all parties, including the worker, can rely upon its validity. To allow either party, a worker or employer to challenge the validity of an election, either at an arbitration or in this court would be inconsistent with the legislative scheme. The purpose of the scheme is for the hearing and determination of workers' compensation matters in a manner that is fair, just, economical, informal and quick. The legislative scheme also promotes finality. For example s 93L(6) and s 93L(8) of the Act have effect of making the worker's decision to seek damages final and s 217B of the Act has the effect of making the decision of an arbitrator final unless otherwise provided for in the Act.
[15] Primary decision [28].
The primary judge referred to the decision of Lemonis DCJ (as his Honour then was) in Trac v Fero Reinforcing Pty Ltd.[16] In Trac, the worker brought proceedings against the employer in the District Court seeking damages on the basis that the requirements of s 93K(4) of the Act were satisfied. The employer contended that a purported special evaluation had not been conducted in accordance with s 93N of the Act so that the worker's election was invalid and the worker was not entitled to bring the proceedings. Lemonis DCJ found that the special evaluation was not obtained in compliance with s 93N, because the worker did not request the approved medical specialist to make a special evaluation and because the specialist issued the certificate required by s 93N(1) and the special evaluation as part of the one overall process.[17] However Lemonis DCJ dismissed the employer's objection on the basis that:[18]
[W]here:
• the Director has recorded an assessment of a degree of impairment of at least 15% and registered a worker's election to retain the right to damages based on that assessment;
• the recording and registration is apparently valid on its face; and
• court proceedings have been brought by the worker against the employer consequent upon the worker being notified by the Director of the registration of that election;
the validity of the assessment cannot be challenged in those proceedings, on the basis of a failure to comply with the processes set out in the [Act], so as to establish that the preconditions to the bringing of the proceedings have not been met.
[16] Trac v Fero Reinforcing Pty Ltd [2019] WADC 115; (2019) 105 SR (WA) 164.
[17] Trac [107].
[18] Trac [137].
After the primary judge's discussion of Trac, her Honour continued:[19]
In accepting the reasons of Lemonis DCJ in Trac that the validity of the assessment and election cannot be challenged as part of the civil proceedings for damages, it makes it even less likely that the same challenge could be made before an arbitrator, which is what was essentially submitted by the appellant. Whilst the appellant says the learned Arbitrator was undertaking an exercise of statutory interpretation, what the appellant was essentially requiring the learned Arbitrator to do was assess the validity of the registered election. And for all the same reasons, including the need for efficiency and certainty in the scheme, it cannot be the case that either a worker or an employer are able to challenge the validity of an election at an arbitration. Further, there is no section in the Act that gives the arbitrator the power to even review, let alone change an election registered by the Director, other than the limited powers set out in s 93L(8) of the Act.
[19] Primary decision [30].
In our view, the primary judge erred in law in so holding. In the present case, the arbitrator denied the appellant's claim on the basis it was precluded by s 93P(2)(c) of the Act. Before the arbitrator could reach that conclusion, the arbitrator was required to be satisfied that s 93P(2)(c) applied to the case. On its terms, s 93P(2)(c) only applied where a worker 'elects under section 93K to retain the right to seek damages'. To reject the appellant's claim on the basis of s 93P(2)(c) of the Act, the arbitrator was required to be satisfied that the appellant had made an election of the kind referred to in s 93P(2). This required the arbitrator to be satisfied that there was an election that satisfied the requirements of s 93K(4)(a) of the Act. If there was no election of the kind described in s 93P(2) then that section would not apply to exclude the claim in respect of expenses incurred after the election registration day. Reaching a conclusion as to whether the appellant had elected under s 93K(4) of the Act to retain the right to seek damages was an inherent part of the arbitrator's inquiry.
There was nothing in the Act which created a res judicata or issue estoppel by reference to the Director's administrative act in registering an election or made the decision to register an election a conclusive or final decision.
It is unnecessary for this court to consider the correctness of the decision in Trac in the different context in which that case was decided. Such a consideration might require ascertaining whether it was a legislative purpose of the Act that the failure to comply with the requirements of s 93N of the Act identified by Lemonis DCJ would invalidate a subsequent election and registration of the election. Resolution of these questions by this court should await a case in which their determination is necessary.

Disposition

In the present case, the arbitrator needed to be satisfied that the appellant elected under s 93K(4) to retain the right to seek damages before he could be satisfied that s 93P(2)(c) could apply. The material before the arbitrator did not enable the arbitrator to be satisfied that the appellant had made an election under s 93K(4) of the Act. That was because the material before the arbitrator established that the appellant made his purported election prior to the Director recording the assessment of the appellant's degree of permanent whole of person impairment. In those circumstances, s 93L(2) of the Act provided that the appellant could not elect under s 93K(4) to retain the right to seek damages at the time when he purported to do so. The arbitrator erred in law in finding that s 93P(2)(c) required the appellant's claim to be dismissed when the material before the arbitrator established that section did not apply. The primary judge erred in law in failing to so find, and in holding the arbitrator could not consider whether the appellant had made an election under s 93K(4) of the Act.
The fact that the appellant did not submit before the arbitrator that his election was not valid does not preclude him from raising the point on appeal. The error of law was inherent in the arbitrator's finding irrespective of the submissions advanced by the appellant in the arbitration proceedings. Senior counsel for the respondent accepted that the point was not one which the respondent could have met by adducing additional evidence.[20] There is no injustice in allowing the point to be taken on appeal in those circumstances.[21] This is a case where it is expedient and in the interests of justice to entertain the new point on appeal where all the facts have been established beyond controversy and the controversial point is a question of statutory construction.
[20] 24 April 2024 ts 15.
[21] The general principles relating to the exceptional cases in which a party may advance a new case on appeal are summarised in Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [66].
We also note that the respondent did not contend that the fact that the appellant instituted the District Court proceedings, from which he ultimately obtained no benefit, precluded him from now contending that the election was invalid. In those circumstances, it is unnecessary for this court to consider the circumstances in which doctrines of approbation and reprobation and election might preclude a worker who has commenced proceedings on the basis of an election from subsequently challenging the validity of the election.[22]
[22] For a general discussion of these doctrines, see Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [99] - [118].
In the circumstances leave to appeal to this court should be granted and the appeal to this court should be allowed. The orders made by the primary judge should be set aside. There should be substituted an order setting aside the arbitrator's decision and remitting the matter to a different arbitrator for determination according to law in accordance with these reasons. In circumstances where the initial arbitrator has determined the claim against the appellant and there is no benefit in the remitted claim being dealt with by the same arbitrator on remittal, it is appropriate to order that the matter be remitted to a different arbitrator.

Orders

For the above reasons, the following orders should be made in the appeal:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The orders made by the District Court of Western Australia in APP 35 of 2022 are set aside and the following orders are substituted:
(a)Leave to appeal to the District Court is granted.
(b)The appeal to the District Court is allowed.
(c)The order made by the arbitrator in A100128 on 13 May 2022 is set aside.
(d)The matter is remitted to a different arbitrator for determination according to law in accordance with the reasons of the Court of Appeal in Neville v Choice One Pty Ltd [2024] WASCA 104.
We would hear from the parties as to the costs of the appeal and the proceedings below.

Appendix

Forms 33 and 34 in Appendix 1 of the Regulations

Form 33

[r. 21]

Workers' Compensation and Injury Management Act 1981

ASSESSMENT OF DEGREE OF PERMANENT WHOLE OF PERSON IMPAIRMENT

[recorded under section 93L(2) of the Act]

Record No.

Worker's details

Surname			Other names
Date of birth	Sex	Occupation
Address
Postcode
Telephone no.			WorkCover claim number (WCCN)

Employer's details

Name
Address
Postcode
Telephone no.	WorkCover number (WCN)
Contact person
Title	Telephone no.

Insurer's details

Name
Address
Postcode
Contact person	Telephone no.

Injury details

Description of injury
Date injury occurred
Date the claim, if any, for compensation by way of weekly payments was made on employer			Claim number given by insurer (if known)

Assessment

Name of approved medical specialist assessing
Registration number
Degree of permanent whole of person impairment
%
Copy provided of -
(a)	certificate given to the worker under section 146H(1)(b) of the Act	o
(b)	certificate referred to in section 93N(1) of the Act on the basis of which the special evaluation was requested (only required if the assessment involves a special evaluation as defined in section 146C(4) of the Act)	o

Recorded

Signature of Director

Date

/ /

Copies of record sent to

worker	Date	/ /
(signature of person sending copy)
employer	Date	/ /
(signature of person sending copy)

Form 34

[r. 22]

Workers' Compensation and Injury Management Act 1981

ELECTION TO RETAIN RIGHT TO SEEK DAMAGES

[made under section 93K(4) of the Act]

Registration No.

Worker's details

Surname			Other names
Date of birth	Sex	Occupation
Address
Postcode
Telephone no.			WorkCover claim number (WCCN)
(if not known, insurer can provide WCCN)

Employer's details

Name
Address
Postcode
Telephone no.	WorkCover number (WCN)
Contact person
Title	Telephone no.

Insurer's details

Name
Address
Postcode
Contact person	Telephone no.

Injury details

Description of injury
Date injury occurred
Date the claim, if any, for compensation by way of weekly payments was made on employer				Claim number given by insurer (if known)
Degree of permanent whole of person impairment
%
The Director has, under section 93L of the Act, recorded an agreement or assessment as to the worker's degree of permanent whole of person impairment, and the Record Number is:
Record Number

Termination day

1. Did a dispute resolution authority, acting under section 58(1) or (2) of the Act, determine the question of liability to make the weekly payments claimed?
Yes	o	If so, answer question 2.
No	o	If not, skip question 2.
2. Was the question determined more than 3 months after the day on which compensation by way of weekly payments was claimed?
Yes	o	If so, on which date?
No	o
3. Was the worker first notified that liability is accepted in respect of the weekly payments claimed more than 3 months after the day on which compensation by way of weekly payments was claimed?
Yes	o	If so, on which date?
No	o
4. Has the termination day been extended under section 93M(4) of the Act?
Yes	o	If so, to which date?
No	o
WARNING An election cannot be withdrawn after the Director registers it and a subsequent election cannot be made in respect of the same injury or injuries (see section 93L(6) of the Act). Registration of an election may affect your entitlement to statutory compensation under the Workers' Compensation and Injury Management Act 1981.
You should seek appropriate independent advice before lodging this form.

Advice of consequences of election

I have been properly advised of the consequences of making this election.
Signature of worker	Date	/ /

Registration of this election

This election form was lodged under regulation 22 and registered on the day shown below.
Signature of Director	Date	/ /

Copies of election form sent to

worker	Date	/ /
(signature of person sending copy)
employer	Date	/ /
(signature of person sending copy)

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
5 SEPTEMBER 2024