JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: NORGAARD-PEDERSEN -v- LYCOPODIUM PTY LTD [2012] WADC 57
CORAM: COMMISSIONER GETHING
HEARD: 30 MARCH 2012
DELIVERED : 20 APRIL 2012
FILE NO/S: APP 92 of 2011
BETWEEN: CHRISTIAN NORGAARD-PEDERSEN
Appellant
AND
LYCOPODIUM PTY LTD
Respondent
Catchwords:
WorkCover appeal - Error of law - Arbitrator alleged to have taken into account irrelevant considerations
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 199 (WA) s 247
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant: Mr G M G McIntyre SC
Respondent: Ms L G Rafferty
Solicitors:
Appellant: O'Halloran Legal
Respondent: SRB Legal
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Aziz v Tempo Services Ltd [2010] WASCA 39
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Comfort Inn Suites v LKB [2012] WACC C1-2012
Compass Group (Australia) Pty Ltd v McGrath [2009] WACC C25-2009
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Health Department of Western Australia v Prosser [2004] WASCA 83
House v R [1936] HCA 40; (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
MZXMM v Minister for Immigration and Citizenship [2007] FMCA 975
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Stettlement Agents Supervisory Board [2007] WASCA 97
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Seiffert v Prisoners Review Board [2011] WASCA 148
Sotico Pty Ltd v Wilson [2007] WASCA 112
COMMISSIONER GETHING: By appeal notice dated 21 December 2012, the appellant appealed from a decision of Arbitrator Brash on 28 November 2011. In the decision under appeal, Arbitrator Brash dismissed a Form 22 application for a determination that the appellant's degree of permanent disability was not less than 30%. The arbitrator assessed the appellant's degree of disability at not less than 19%.
The accident the subject of the present appeal occurred in 5 November 2004, prior to the day on which the Workers' Compensation Reform Act 2004 (WA) came into operation. It is relevantly governed by the '1993 scheme', being Workers' Compensation and Injury Management Act 1981 (WA) (WCIMA) Pt IV Div 2(2).
The appeal was commenced within the time limit set out in WCIMA s 247(4).
The respondent filed a notice of respondent's intention dated 25 January 2012. In it, the respondent stated that it would seek to uphold the decision under appeal on the grounds relied on by the arbitrator, and would not seek to rely on other grounds, nor vary the decision.
Appeal…
Keep reading for free
Create a free CaseChat account to read NORGAARD-PEDERSEN v Lycopodium Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] WADC 57
- Decision Date
CaseChat Overview and Summary
The central legal issue the court had to resolve was whether the arbitrator's alleged reliance on irrelevant considerations constituted an error of law that warranted judicial intervention. The court examined the nature of errors of law and fact, particularly in the context of statutory decision-making. It considered whether an error of fact could be so fundamental as to be classified as an error of law and whether the reliance on irrelevant material necessarily constituted such an error. The court also reviewed relevant case law, including decisions from the High Court and the Federal Court of Australia, to ascertain the appropriate standard for determining when an error of law exists in the context of statutory tribunals.
The court concluded that while the reliance on irrelevant material could be indicative of an error of law, it was not automatically so. The materiality or relevance of the considerations was to be discerned from the terms of the statute granting the power in question. The court emphasised that errors of law in the context of statutory tribunals were to be narrowly construed and that the inquiry into jurisdictional errors, as highlighted in Craig v State of South Australia, was distinct from the inquiry into whether there was an error of law. The court held that the appellant had not demonstrated that the arbitrator's consideration of the alleged irrelevant material amounted to an error of law that would vitiate the decision. Therefore, the appeal was dismissed.
As a result, the court upheld the decision of the arbitrator and dismissed the appeal brought forth by Norgaard-Pedersen. The court's reasoning focused on the need to strictly interpret errors of law and to differentiate between errors of fact and errors of law, particularly in statutory contexts. This decision underscores the importance of adhering to the statutory framework and the procedural requirements set out by legislation when making decisions, especially in matters related to WorkCover claims.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Martin CJ went on to observe that in certain limited contexts an error of fact may be so fundamental as to amount to an error of law [195]:In some exceptional statutory contexts, an error of fact may be so fundamental as to cause the decision-maker to fail to take into account a mandatory relevant consideration (see Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346), or to result in a misapprehension which is so gross as to amount to an improper exercise of the power (see Akers v Minister for Immigration Local Government and Ethic Affairs (1988) 20 FCR 363, 373; Sezdirmezoglu v Acting Minister for Immigration and Ethic Affairs (1983) 51 ALR 561, 573). However, those cases will be exceptional and the court should remain vigilant to ensure that cases in which the substantial complaint is that of error of fact are not masqueraded as cases seeking judicial review on the grounds of error of law: see Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 [35] - [36] (McHugh J). A breach of the duty to act judicially or in accordance with the rules of procedural fairness likewise constitutes an error of law. In Australian Broadcasting Tribunal, Deane J summarised the principle as follows (366 ‑ 367):If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion…. When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision. In his submissions, the appellant referred to part of this passage as authority for the proposition that if the arbitrator relied on irrelevant material, there will be an error. I do not consider that the proposition elaborated by Deane J is any different to propositions set out by Mason J in Peko‑Wallsend and Martin CJ in Seiffert referred to above. Importantly, I do not read Deane J's comments as requiring materiality or relevance to be discerned other than from the terms of the statute granting the power in question. The appellant also referred to the decision in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179. In this decision, the High Court catalogues what constitutes a jurisdictional error for both an administrative tribunal and an inferior court. One such error is where the tribunal relies on irrelevant material (179). Again, I accept this as a proposition of law, and make the same comment as I did in the preceding paragraph that materiality or relevance is to be discerned from the terms of the statute granting the power in question. Also, the inquiry as to whether or not a jurisdictional error exists is a slightly different inquiry to the present one, which is whether or not there was an error of law.