Oliver v Doral Mineral Sands Pty Ltd - [2023] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   OLIVER -v- DORAL MINERAL SANDS PTY LTD [2023] WADC 118
CORAM:   RITTER DCJ
HEARD:   10 AUGUST 2023
DELIVERED          :   16 OCTOBER 2023
FILE NO/S:   APP 67 of 2022
BETWEEN:   ROBERT GEORGE JOHN OLIVER
Appellant
AND
DORAL MINERAL SANDS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR NUNN
File Number            :   A97692

Catchwords:

Workers' compensation - Appeal from arbitrator's decision - Whether allowing extension of time would be futile

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), pt XIII

Result:

Outcome pending further clarification from parties

Representation:

Counsel:

Appellant	:	Mr B Ullinger
Respondent	:	Mr J J Sheldrick

Solicitors:

Appellant	:	Your Local Lawyer
Respondent	:	Hall & Wilcox (Perth)

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

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Marks v Coles Supermarkets [2021] WASCA 176
St John Ambulance Australia (WA) v Annesley [2013] WADC 37
Thomas v Chandler Macleod [2015] WADC 78

RITTER DCJ:

Summary of outcome

The present application before the court is an application within the pending application before the court to seek leave to appeal against the decision of the arbitrator.
As set out below, the application is deficient. However, in my view it would be inappropriate to simply dismiss the application on that basis. The deficiency was not addressed by counsel at the hearing. There was however full argument on whether the proposed amended appeal grounds were unarguable, and thus allowing an extension of time to allow the grounds to be pleaded would be futile. I have therefore decided that issue, as set out below. In my view it would not be futile to allow proposed grounds 1, 3, 4, 5 and 6 to be argued at the application for leave to appeal.
In my opinion the appropriate course now is to publish the reasons and invite the parties to make contact with the court or my associate to seek leave to file another or any amended application and/or for another hearing of any such applications or the present application.

Procedural background

The substantive proceeding before the court is an application for leave to appeal against an arbitrator's decision under pt XI of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The arbitrator gave written reasons for his decision on 11 November 2022. An appeal notice was filed on 8 December 2022.
The substantive application is made pursuant to s 247 of the Act.
Section 247 sets out the jurisdiction of the District Court in the following way:
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a)in the case of an appeal in which an amount of compensation is at issue -
(i)a question of law is involved and the amount at issue in the appeal is both -
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
Section 247(2) provides that a grant of leave by the court is not to be made unless, with respect to each of the alternatives there mentioned, there is a question of law involved in the appeal. That is, there being a question of law involved in the appeal is a jurisdictional prerequisite.
The appeal notice filed on 8 December 2022 said the question of law was:
Issue estoppel and waiver in relation to application of section 57A.
The ground of appeal in the appeal notice was:
That the Arbitrator erred in finding that the signing of consent orders in regard to the direction and conduct of the litigation provides any basis for the applicant being barred from later re‑enlivening certain arguments. That Respondent be estopped from denying the claim was validly made on 4/12/2019 given that it was able to be processed, and was, in fact processed and pended in 2019/2020. As such the Respondent waived the right to claim that there were any imperfections with the form of the claim.
The hearing of the application for leave to appeal was initially before Judge Levy on 6 April 2023. The hearing was partly heard and then adjourned. When his Honour adjourned the application he made consequential procedural orders.
Relevantly, the second order was that by 20 April 2023 the appellant file and serve three documents. They were:
(a)any proposed amended grounds of appeal;
(b)any application for leave to amend the appeal grounds;
(c)any submissions or material to be relied upon in support of those applications.
I note that the second order did not permit the appellant to seek to amend the appeal notice generally but only the grounds of appeal. The appellant was not, for example, given leave by Judge Levy to amend the appeal notice insofar as it specified the question of law involved in the proposed appeal.
The third order made by Judge Levy was that by 4 May 2023 the respondent was to file any submissions and material in response.
The fourth order was that within 14 days of the respondent's reply the appellant is to take steps to have the matter relisted.
The fifth order was an order that the appellant pay the respondent's costs of today and any costs thrown away.[1]
[1] The counsel who appeared before me at the hearing were unable to explain how this order was made given s 267 of the Act.
The documents referred to in the second order were not filed by 20 April 2023. However, documents satisfying the descriptions of the documents that were meant to be filed on 20 April 2023 were filed on 2 May 2023.
On 5 June 2023 the present application before the court was filed. This was for an order extending the time to comply with Order 2 made on 6 April 2023, from 20 April 2023 to 2 May 2023, being the date the documents were filed.
Therefore the application to be now determined is the application dated 5 June 2023. This is an application made within the pending application for leave to appeal.
There were two affidavits filed by the appellant in support of the application. Both were sworn by Mr Dawkins, the appellant's solicitor. These affidavits are dated 5 June 2023 and 9 August 2023, respectively.
The respondent did not object to the court relying upon the contents of these affidavits in determining the application.
There was also an affidavit filed on behalf of the respondent, from Ms Driscoll, the respondent's solicitor dated 4 August 2023. This affidavit attached the transcript of the hearing before Judge Levy on 6 April 2023.
The parties also filed written submissions.

The question of law problem

I have earlier set out the question of law that was included in the appeal notice when first filed. I have also set out the question of law contained in the document described as 'Amended appeal notice' filed on 2 May 2023. There is however a procedural difficulty. That is because the order made by Judge Levy on 6 April 2023 did not give the applicant leave to file an amended appeal notice. As set out above the order simply provided that the appellant file and serve three identified documents by 20 April 2023. None of the identified documents referred to an amendment to the appeal notice but simply to the grounds of appeal.
If that is so there would appear to be no authority for the appellant to have filed the amended appeal notice or to rely upon that document to support the court deciding to allow the applicant to rely upon amended appeal grounds.
The purported amended appeal notice refers to the attached amended grounds of appeal and includes as the question of law the eight points earlier quoted. None of these supposed questions of law replicate what was in the original appeal notice that was filed. It therefore appears that the appellant no longer asserts or wishes to proceed on the basis that the question of law involved in the appeal is as asserted in the original appeal notice: 'issue estoppel and waiver in relation to application of s 57A'.
Given the procedural history earlier identified and the orders made by Judge Levy, there is nothing before the court which would allow the court to allow an amendment to the appeal notice as filed to on amended appeal notice in the form of that filed on 2 May 2023, including the new alleged questions of law.
I do not believe this issue has been adequately addressed by the parties. In the written submissions by the appellant for the hearing on 10 August 2023 at par 4, it was asserted that the appellant was applying to amend the orders made by Levy DCJ so that he may file an amended appeal notice, previously filed 2 May 2023. However, that is not what the application before the court as filed, sought. This application, referred to earlier and dated 5 June 2023 said:
The applicant applies for - an order allowing order 2 made on 6 April to be complied with by 2 May 2023. Programming orders to be made as attached and reflective of original timeframes for compliance by each party but allowing for delay in complying with order 2.
There was attached to the application a document described as a minute of proposed orders. This document said 'The following amendments to the orders made on 6 April 2023 are proposed should the Application in an Appeal be successful'. What was thereafter described was simply that order 2 made on 6 April 2023 be amended by changing the date from 20 April 2023 to 2 May 2023. These orders did not seek any order by the court for leave to amend the appeal notice.
On this basis the application before the court is clearly deficient. Unless remedial steps are taken the application will have to be dismissed.
However to simply dismiss the application, given the full argument as to whether it would be futile to extend time given the content of the proposed grounds of appeal, is probably contrary to modern court case management principles.
Accordingly, on the basis that the present deficiencies in the application may be cured, I will set out my opinion on whether it would or would not be futile to grant an extension of time to permit the appellant to rely on each of the proposed grounds of appeal.

The test to determine the application

In considering the present application, the court is guided by the observations of the High Court in Jackamarra v Krakouer.[2] This is because the issue in this application is whether time should be extended to allow a party to comply with a procedural order when an application for leave to appeal has already been instituted. Following Jackamarra, the issue, overall, is whether it is in the interests of justice to allow the extension of time. In Jackamarra the High Court decided that it would only be if there was futility in granting the extension of time sought that such an application would be refused.
[2] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (Jackamarra).
In Jackamarra,[3] Kirby J said the party seeking the court's indulgence bears the burden of persuading the decision-maker to grant its request. If the proposed case is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. This is because to grant it would be futile. His Honour also explained by reference to English authority:
The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary for the Home Department; Ex parte Mehta (77). It ordinarily involves consideration of "the outline of the case"
'We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time'.
(FN⁷⁷: R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091; [1975] 2 All ER 1084 at 1088).
[3] Jackamarra [66(4)].
In considering the merits of allowing an extension of time, I will follow the observations made by Kirby J in Jackamarra. However, I do not take those observation to mean that the court should not have regard to how long out of time the documents were filed and the reasons therefore, in determining the application. That will be later referred to.

The appellate jurisdiction of the court

The Court of Appeal in Marks v Coles Supermarkets[4] said this about the appellate jurisdiction of the court under s 247 of the Act:
100First, the 'appeal' for which s 247 of the Act provides is from an administrative decision of an arbitrator, who is an officer of the executive government of the State, to a court of law. The decision which is the subject of an appeal is one which finally resolves a dispute between parties as to the obligation of one party to pay, and the right of the other party to receive, payments of workers' compensation. The arbitrator's decision may be registered and enforced as an order of a court.
101Secondly, leave to appeal against an arbitrator's decision to the District Court can only be granted if a question of law is involved in the appeal.
102Thirdly, subject to the grant of leave to adduce additional evidence under s 247(6), the appeal to the District Court must be resolved by reference to the material before the arbitrator.
103Fourthly, on appeal the District Court's powers include the power to quash the arbitrator's decision either with or without substituting any decision that should have been made in the first instance. There is no express power of the District Court to remit a matter to an arbitrator, or to a different arbitrator, for a further or substituted hearing. However, such an order might be made as a 'further or other decision, as to costs or otherwise, as the District Court thinks fit', under s 247(7)(b) of the Act.
104It is in this context that s 247(5) of the Act provides that an 'appeal under this section is to be by way of review of the decision appealed against'.
[4] Marks v Coles Supermarkets [2021] WASCA 176.
In Thomas v Chandler Macleod[5] O'Neal DCJ described the appellate jurisdiction of the court in this way:[6]
26On whatever basis an appeal is brought pursuant to s 247(2), a question of law must be 'involved'. An appeal 'involves a question of law where either an error of law, or an error of mixed law and fact is involved': BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
27A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result so that, but for the error, the decision may have been different: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353; BHP Billiton Iron Ore Pty Ltd v Brady [15]. Ignoring for now the limiting provisions of s 247(2)(a), in order to obtain a grant of leave all that the appellant has to show is that there is a real or significant argument to be put which involves a question of law: Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
28Once it has been established that a ground involves a question of law, the whole decision of the arbitrator, and not merely the identified question of law is open to review: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].
29If the court decides that a question of law is involved and leave to appeal has been granted, then the District Court is required to undertake a 'real review' of the matter. That review however is based on the materials that were before the arbitrator, and is not conducted by way of a hearing de novo: Pacific Industrial Co v Jakovljevic [20], [26].
[5] Thomas v Chandler Macleod [2015] WADC 78.
[6] See also the reasons of Schoombee DCJ in St John Ambulance Australia (WA) v Annesley [2013] WADC 37 [34] - [39].
As these cases reflect, and as referred to earlier, the jurisdiction of the court to hear an appeal is conditional upon the ground of appeal involving a question of law.
Following these authorities and their reference to the reasons of Pullin JA in BHP Billiton Iron Ore Pty Ltd v Brady[7] to establish that there is a question of law involved, the proposed appeal must engage the question of whether an error of law or an error of mixed law and fact has occurred.
[7] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].
For present purposes, melding this jurisdictional precondition with the test referred to in Jackamarra means, in my opinion, that leave ought to be granted to extend the time required by the appellant, if proposed appeal grounds reasonably arguably involve a question of law and pass the futility test.

The amended appeal notice

The proposed amended appeal notice set out the following as the question of law:
1.Whether the Appellant was bound by Consent Orders made on 17 January 2022 that limited his potential rights to entitlements under the Act and/or whether the Consent Orders breached s 301 of the Act and/or whether the Arbitrator had power to make orders (by consent or otherwise) that limit the operation of the deeming provision of s57A(5) of the Act;
2.What is the proper interpretation of s178 (1)(a), s178(1) (b) s178(1) (c), s178(1) (d), s57A (1), s57A(2A) and s57B(1) of the Workers Compensation and Injury Management Act (the Act);
3.When evaluating the expert medical evidence, did the Arbitrator properly apply the legal authorities of Kooragang Cement Pty Ltd v Bates 35 NSWLR 452 when determining remoteness of injury.
4.What is the ambit of "interests of justice" in Rule 30(c) of the Workers Compensation and Injury Management Arbitration Rules 2011 (WA) (the Rules) and the impact this has on the exercise of the Arbitrator's discretion when determining if late documents can be filed into evidence;
5.Whether the Arbitrator provided inadequate reasons for decision: Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA.
6.To what extend does s3(d) of the Act inform the operation of s188(2)(b) and s188(3) of the Act specifically in relation calculating the rate of compensation.
7.Whether the Appellant has been denied natural justice.
8.Whether the Arbitrator made findings of fact that were not reasonably open to him.
(underlining omitted)
The document headed 'Appellant's Amended Grounds of Appeal' contained 11 proposed grounds. At the hearing of the application, the appellant's counsel did not press proposed grounds of appeal 2, 9 and 11.
For the rest of the proposed grounds, I will consider them against the tests I have earlier outlined.
Before doing so, I will set out the reasons for the delay in compliance with the order made by Judge Levy and then a summary of what the arbitrator decided. This is necessary for the purpose of considering whether the proposed appeal grounds pass the tests set out above.

The affidavits of Mr Dawkins

The first affidavit of Mr Dawkins sworn on 5 June 2023 outlined the engagement of Mr Ullinger to act as counsel at the hearing before Judge Levy. He was engaged the day before the hearing.
The first affidavit referred to Mr Ullinger's request, to Mr Dawkins following the hearing on 6 April 2023 for the whole of the conciliation and arbitration file at WorkCover. Mr Dawkins says that he tried to access the file which had been held by Lane Buck & Higgins but they refused to part with the file pending the payment of their invoices by the appellant. Mr Dawkins deposed that on 11 April 2023 he attempted to obtain access to the WorkCover file through the WorkCover portal but was told the matter was closed and the request would need to be by way of a Freedom of Information (FOI) request. An FOI request was filed with WorkCover by Mr Dawkins on 12 April 2023. He received an email in response saying his request would be reviewed and he would be provided with an initial response within three working days. However, Mr Dawkins deposed to not having been able to obtain these documents by FOI up to the date of the swearing of the affidavit.

Mr Dawkins deposed to two discussions with Ms Bryanna Ross from Hall & Wilcox about obtaining an extension of time by consent to comply with Order 2, subject to the payment of costs.
Following this, it was suggested that Mr Dawkins attend the District Court registry to photocopy the court file, which would include the WorkCover file. Mr Dawkins was able thus to obtain a copy of the District Court file on 27 April 2023. However, he was unable to provide Mr Ullinger with the full set of WorkCover documents prior to 1 May 2023.
Mr Dawkins deposed that on 2 May 2023 the documents referred to in Order 2 were filed.
Mr Dawkins' second or supplementary affidavit set out additional information about the delay in complying with order 2 of the order made by Judge Levy. The affidavit explained that Mr Dawkins acted pro bono for the appellant. He had appeared only twice in the District Court in his 11‑year legal career and never in relation to a workers' compensation appeal. Mr Dawkins deposed that as he said in par 7 of the 5 June 2023 affidavit, with no access to documents via the WorkCover portal and another law firm having a lien over the physical file, he was at that time only aware of one option for obtaining the WorkCover file as requested by Mr Ullinger. This was via the FOI request which proved to be a lengthy process.
Mr Dawkins deposed that it was only on 20 April 2023 that he discovered from Ms Ross that it was possible to obtain the whole WorkCover file from the District Court registry. Mr Dawkins' second affidavit annexed documents which showed the progress he made in trying to obtain the relevant documents. In par 9 of the affidavit he provided an apology to the court for the delay in obtaining the WorkCover documents for Mr Ullinger and therefore the delay in filing the documents with the court.
The second affidavit concluded with par 10 saying:
I do not want to see my disadvantaged [sic] due to practitioner error in not knowing how to obtain the Workcover file. FOI was obviously an unsuitable path to take as the final response to my FOI application didn't arrive from Workcover until July 2023. I am hoping to see the amended appeal documents heard by His Honour as was originally intended in spite of my mistakes and inexperience in this jurisdiction.
In my opinion the affidavits of Mr Dawkins establish that the reasons for the delay, which was not lengthy, cannot be attributable to the appellant. Therefore I do not think either the length of time for which the indulgence of the court has been sought or the reasons that the documents were not filed within the timeframe permitted by the order of Judge Levy, provide any reason not to grant the orders sought. Putting slightly differently the appellant has established that there is a reasonable explanation for the delay, which was not long, and the fact of the delay was not in any way his fault. I do not think that any criticisms can be levelled against Mr Dawkins for attempting to obtain the whole of the WorkCover file, when the counsel he briefed said that he wanted to view that before drafting the documents to be filed. By the same token I do not think there is any criticism to be levelled against Mr Ullinger in wanting the view the whole of the file before preparing the documents.
There is no evidence of any particular prejudice to the respondent caused by the delay in the filing of the documents, such that it provides a reason not to grant the present application.
Due to these findings, the present application will simply be determined on the basis of whether it would not be futile to extend the time to the date sought, so that the appellant can rely on the particular proposed ground.

The decision of the arbitrator

Before proceeding to consider the proposed grounds individually, it is appropriate to set out, in summary, the course of the reasons for the arbitrator's decision.
The decision of the arbitrator was to dismiss an application by the appellant for weekly payments of compensation or statutory expenses. The arbitrator also dismissed interlocutory applications that had been filed by the appellant.
The following background is largely taken from the reasons of the arbitrator.
The application before the arbitrator arose because the appellant, an exploration geologist working for the respondent, was bitten by a tick in November 2018. He made a claim for compensation in relation to the tick bite. He continued to work thereafter and the respondent accepted the claim for medical expenses. In December 2019 the appellant obtained a progressive medical certificate indicating a loss of capacity for work. However no claim form was then lodged. Nearly a year after that, in November 2020, the appellant submitted a recurrence claim form asserting he had suffered a recurrence of the original injury. That was accompanied by a progress medical certificate.
The respondent responded to this saying that it was unable to make a determination as to liability for the claim and pended liability by issuing a Form 3C under the Act.
The appellant then pressed for a determination of his claim under s 58 of the Act. The claim asserted he had contracted a disease as a result of being bitten by the tick. In so doing the appellant relied upon the definition in par (c) of the definition of injury as contained in s 5 of the Act. The relevant definition of injury was a 'disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree'.
The appellant sought weekly compensation payments from 4 December 2019 onwards as well as statutory expenses.
At [8] of his reasons the arbitrator said that at the heart of the dispute was whether the appellant had been incapacitated for work as a result of the original tick bite of November 2018 or some consequence of that bite. The arbitrator said the case turned upon the application of Leggett v Argyle Diamond Mines Pty Ltd.[8]
[8] Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182.
At [10] the arbitrator summarised that he was not persuaded that the appellant had led sufficient medical evidence to establish what caused his current condition and on that basis could not secure an order for weekly payments of compensation or statutory expenses in his favour.
In discussing the procedural background to the application, commencing at [12], the arbitrator noted that as agreed by the parties the substantive dispute largely turned upon the expert medical evidence. The arbitrator said the appellant had filed statements and the respondent did not wish to cross‑examine him. The appellant was the only witness of fact.
The arbitrator set out the relevant factual background from [22] ‑ [24]. At [25] - [41] the arbitrator set out the relevant issues and principles.
At [42] the arbitrator under the heading 'Determination', decided a number of matters. Discussion occurred under the following sub‑headings:
(a)procedural fairness;
(b)bias;[9]
(b)whether there was a claim made in December 2019;[10]
(c)whether, with respect to the claim of 4 December 2019 there had been a breach of s 57A of the Act;[11]
(d)if there was not a claim brought in December 2019 was this a dispute that ought to be considered under s 62 of the Act, which in turn requires consideration of whether the appellant has been in fact incapacitated and whether that incapacity results from the tick bite of 2018;[12] and
(e)whether there was a claim made in December 2020[13]; and
(f)if not, is this a dispute that ought to be considered under s 62 of the Act?
[9] Arbitrator's Decision A97692 [42] - [46].
[10] Arbitrator's Decision A97692 [47] - [73].
[11] Arbitrator's Decision A97692 [74] - [90].
[12] Arbitrator's Decision A97692 [91] - [93].
[13] Arbitrator's Decision A97692 [94] - [100].
The arbitrator next considered matters under the substantive heading of the 'interlocutory applications' and under sub-headings discussed:
(a)an application of 27 July 2022;[14]
(b)an application of 14 September 2022;[15]
(c)an application of 20 September 2022 and order for production of documents; and
(d)his conclusion as to the interlocutory applications.[16]
[14] Arbitrator's Decision A97692 [101] - [144].
[15] Arbitrator's Decision A97692 [145] - [149].
[16] Arbitrator's Decision A97692 [179] - [180].
The arbitrator then considered:
(a)the substantive issues[17] and an alternate position;[18]
(b)was the appellant incapacitated;[19]
(c)does the appellant's incapacity result from the tick bite of November 2018;[20]
(d)the evidence of Dr Derham;[21]
(e)the evidence of Dr Bowles;[22]
(f)the evidence of Dr McComish;[23]
(g)the pathology results;[24] and
(h)conclusion.
[17] Arbitrator's Decision A97692 [181] - [207].
[18] Arbitrator's Decision A97692 [208] - [214].
[19] Arbitrator's Decision A97692 [215] - [231].
[20] Arbitrator's Decision A97692 [232] - [235].
[21] Arbitrator's Decision A97692 [236] - [247].
[22] Arbitrator's Decision A97692 [248] - [254].
[23] Arbitrator's Decision A97692 [255] - [265].
[24] Arbitrator's Decision A97692 [266] - [276].
The relevant concluding paragraphs were as follows:[25]
Having regard to the evidence before me I accept that it is possible that [the appellant's] fatigue state is a consequence of the tick bite of November 2018. However, on the evidence before me I am unable to afford the views of Dr Derham any more significant weight than Mr McComish's and am unable to find that it is more likely than not that this fatigue state (regardless of what diagnostic label is attached to it) results from the injury for which Doral admitted liability, being the tick bite of November 2018.
Accordingly, I am unable to conclude that [the appellant's] incapacity results from the compensable injury Doral admitted liability for and accordingly he is not entitled to the weekly payments of compensation claimed.
[25] Arbitrator's Decision A97692 [285] - [286].
The arbitrator concluded by considering whether, regardless of whether the appellant was entitled to any weekly payments of compensation under the Act, he was entitled to any of the statutory expenses claimed. The arbitrator said:[26]
As I am unable to conclude that [the appellant's] condition is the result of the injury Doral admitted liability it follows that the claim for statutory expenses in relation to that consequential injury must equally be dismissed.
[26] Arbitrator's Decision A97692 [287].
The last bit of the reasons of the arbitrator said the interlocutory applications were dismissed and the application was dismissed.

Proposed ground 1

The proposed ground is in the following terms:
1.At paragraph's 83 - 86, 104 - 105 and 163 - 166 the Arbitrator erred in finding that the signing of consent orders dated 17 August 2021 in regard to the direction and conduct of the litigation provides any basis for the applicant being barred from later re‑enlivening certain arguments:
Particulars
a.the Arbitrator failing to observe that any agreement to curtail the mandatory procedures governed by s57A is a breach of s301;
b.the Arbitrator's powers to make consent orders are limited by Rule 38 (3) and the Arbitrator does not have power to make orders that curtail the mandatory procedures governed by s57A;
c.The Consent Orders circumvented the operation of s76 and are invalid because they sought to compound a claim or right to compensation, inchoate or otherwise, under the Act that may result from the mandatory procedures of s57A;
d.'If' the Consent Order was valid, then at the core of the Order was a forebearance by the Appellant of a right to produce evidence that may support an argument for potential entitlements under the mandatory provisions of s57A. It was not an irrevocable waiver of an entitlement to seek leave to file relevant evidence; or, unto itself, a consideration in the exercise of a discretion to grant leave to file evidence under Rule 30; nor was it an abandonment of any potential entitlements that he may have under the mandatory procedures governed by s57A;
e.Communications between Allianz and the Respondent's brokers on 7 January 2020 was relevant to determining whether the employer 'claimed under and in accordance with his or her policy or insurance' with the ramifications of making the claim being a determinative factor for proper procedures governed by s178, s57A or s57B of the Act.
The respondent conceded that the appellant should be given leave to argue this ground at the hearing of the appeal, subject to arguments that might be made as to the nature and quality of the particulars provided to support the ground.
Therefore, the ground does not need further consideration at the present time.
It is also clear that the ground as pleaded involves a question of law. Therefore the jurisdictional pre‑requisite under s 247 of the Act is met.

Proposed ground 2

The appellant abandoned reliance upon this ground at the hearing of the present application. Therefore no more needs to said about it.

Proposed ground 3

The proposed ground is in the following terms:
3.The Arbitrator erred at law at [59] by finding that the provision of the medical certificate dated 4/12/2019 did not complete the claim for weekly compensation payments 'made on the employer' where the claim for compensation pursuant to s178(1)(b) was provided to the Respondent on or about 31 December 2018.
Particulars
a)The Arbitrator erroneously imported an arbitrary timeframe between when the provision of evidence of incapacity and the claim for weekly compensation under s178(1)(b) should be provided to the employer. Neither the Act, nor the rules stipulate any such timeframe between when the documents need to be given to the employer by the worker;
The respondent submits that leave ought not to be granted because the proposed ground mistakes the arbitrator's findings at [59] of his reasons. The respondent also alleges the particulars are misconceived as they do not identify where in the arbitrator's reasons he is alleged to have 'imported an arbitrary timeframe'.
I approach these arguments on the basis that leave will only not be granted to allow the ground to be argued if it would be futile to do so on the basis that the ground is clearly unarguable.
The reasons of the arbitrator at [59] were in the following terms:
As there had been no prior claim (nor admission of a liability) for weekly payments if the certificate of 4 December 2019 was the first time [The appellant] had intended to make a claim for weekly payments of compensation (whether by reference to the injury of 2018 or some subsequent injury (for example the 4 December 2019 injury)) then it was necessary for him to have lodged both the founding documents of the claim with the employer.
Although perhaps not the most clearly expressed paragraph, in my opinion, it is reasonably clear that what the arbitrator is saying is that there were circumstances within which the appellant would have been required to lodge both of the founding documents of the claim with the employer. The circumstances were if the certificate of 4 December 2019 was the first time the appellant had intended to make a claim for weekly payments of compensation, whether by reference to the injury he suffered in 2018 or later, including the injury he suffered on 4 December 2019.
On its face, the reasons in the paragraph do not contain the finding alleged in the proposed ground of appeal. The arbitrator did not make an express finding that the provision of the medical certificate dated 4 December 2019 did not complete the claim for weekly compensation payments, but instead postulated that if there had been no claim or admission of liability for weekly payments if the certificate of 4 December 2019 was the first time the appellant had intended to make a claim for weekly payments of compensation, then it was necessary for him to have lodged both of the founding documents of the claim with the employer.
The reference to the founding documents is to s 178 of the Act within div 2 of pt XI. The heading to div 2 is 'Requirements before commencing proceeding'. Section 178 is in the following terms:
(1)Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless -
(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,
but -
(c)the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and
(d)the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.
(2A)For the purposes of showing that the employer has not been prejudiced in defending the proceedings for subsection (1)(d), the period from the occurrence of the injury, or from the time of death, to the time the claim is made is to be taken into account.
(2)Notice in respect of an injury under this Act is to state -
(a)the name and address of the person injured; and
(b)in ordinary language the cause of the injury; and
(c)the date and place at which the injury occurred,
and is to include such other information, if any, as may be prescribed by the regulations.
The particular to ground 3 refers to s 178(1)(b) which includes a time limit of the claim for compensation being with respect to an injury within 12 months from the occurrence of the injury.
At the hearing the appellant's counsel asserted there was no dispute the appellant had made a claim for compensation in about December 2018. The appellant also submitted it was not in dispute that on 4 December 2019 the appellant produced a medical certificate that he claimed established an entitlement to weekly compensation payments. It was also not in dispute that at that time the employer did not provide a copy of that medical certificate to the insurer. The appellant's counsel submitted that a question of law was, noting those primary facts and based upon the documents referred to, was whether what occurred was capable of falling within the ambit of the statutory process of making a claim for compensation on the employer for weekly payments arising out of the injury in the claim form dated 2018.
The appellant submitted the proper construction of the statutory process was that upon the provision of the certificate of incapacity that completed the claim for compensation to be made on the employer for weekly compensation payments. As I understood it, at the hearing, the appellant's argument was that if the claim form was provided in December 2019, referrable to the tick bite in November 2018 and there was also a medical certificate served upon the employer in December 2019, that was sufficient to enliven s 57A of the Act, irrespective of whether the medical certificate was provided to an insurer by the employer.

The appellant referred to s 57A(3) of the Act and s 57A(5) of the Act as combining to provide a deeming entitlement to weekly payments to be made by the employer, with the insurer liable to indemnify the employer for that.
The appellant submitted that the error in [59] was that it was implicit in the arbitrator's reasons that by virtue of the passage of time between the date of the claim for compensation and the time that he provided his medical certificate, the right of continuing to produce a subsequent medical certificate to certify incapacity had been lost and that it is necessary for him to lodge a new claim for compensation. It was submitted that nothing in the Act stipulated that there was a time frame.
As I understood the argument at the hearing, particular 3(a) was to the effect that the arbitrator erroneously imported an arbitrary time frame between when the provision of evidence of incapacity and the claim for weekly compensation should be provided, when this was not conferred in the Act.
As discussed at the hearing, one difficulty with the appellant's argument is that whilst the particular talks about the erroneous importation of an arbitrary time frame, the arbitrator's reasons at [59] does not on its face do so.
The appellant's counsel then further elaborated that the error made by the arbitrator was that he seemed to think that because there was a passage of time between the provision of the claim form and the production of the medical certificate, that this somehow caused a disjoint that required the appellant to lodge a new claim for compensation. It was submitted that there was nothing in the Act which says that a claim form cannot be produced without any incapacity at all. The claim can be accepted and one, or two or three years later a claim for incapacity flowing from that injury can be made by the production of a medical certificate. It was submitted that what the arbitrator had done is simply said 'well you need to make a new claim for compensation' but that was not what the Act says.
On this point the respondent's counsel said that in saying in his oral submissions that the arbitrator misstated what was being done by the appellant, this was a different ground of appeal to what was being advanced in ground 3 as pleaded. This was because the ground of appeal as pleaded was predicated upon the arbitrator having made that very finding. Elaborating, the respondent's counsel said the argument was that the provision of the medical certificate did not complete the claim for weekly compensation payments, but this was not what the arbitrator found at [59]. The respondent's counsel contended that on the basis of the combined effect of the claim form and the medical certificate, the insurer accepted liability for medical expenses and paid medical expenses accordingly. So there was an application at that time in effect for medical expenses only.
The respondent's counsel also referred to the claim form dated 31 December 2018 where the appellant had ticked a box which had said 'no' in answer to the question 'Did you have to stop work? Yes or no?'.
However, that document was not before the arbitrator at the time of the hearing and decision. The respondent's counsel completed his submissions on proposed ground 3 by saying the particular does not go to the ground and there was no arbitrary time frame found by the arbitrator. There was no question of time frame that was being considered in [59] of his reasons.
In my opinion, the complexities of the arguments above, establish that it would not be futile to allow the ground of appeal to be heard.

Proposed ground 4

The proposed ground is in the following terms:
4.In the alternative to Ground 3 [above], if the provision of the medical certificate dated 4/12/2019 was not sufficient to complete the claim for weekly compensation initiated by the claim form provided to the Respondent on or about 31/12/2018 and was insufficient to support a claim for a recurrence because there had not previously been a claim for weekly compensation payments, then the Arbitrator erred at law at [59] by insisting that it should have been provided with a new claim form, either in the form of a Form 2B [61] or a 'non-prescribed' form at [62] because s178(1) (c ) provides that it is unnecessary for a notice to be provided by an injured worker.
With respect to this ground, the respondent submitted it was untenable because it referred to completion of 'the claim', whereas s 178(1)(c) talks about the provision of a notice.
The appellant countered that there was no misdescription of the requirement of s 178(1)(c).
The ground is pleaded as an alternative to ground 3. The ground as pleaded contains certain provisos. The ground pleads that in the event of those provisos, the arbitrator erred in [59] of his reasons by insisting that 'it', being the medical certificate, should have been provided with a new claim, as set out in the ground, when s 178(1)(c) provides that it is unnecessary for a notice to be provided by an injured worker.
Section 178(1)(c) of the Act has been quoted above.
Section 178(1) refers to 'Proceedings for the recovery under this Act of compensation for an injury …'. Section 178(1)(a) and s 178(1)(b) provide for a notice being given and the timing of a claim for compensation being made. Section 178(1)(c) then provides for the situation where there is the 'want of or any defect or inaccuracy in such notice'. Section 178(1)(c) provides that this is not a 'bar to the maintenance of such proceedings'. On the conditions thereafter mentioned the proviso is the employer not being prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause.
I have referred above to the content, structure and meaning of [59] of the arbitrator's reasons.
I accept that the construction of this paragraph urged for by the appellant in proposed ground 4 is not a futile argument because the paragraph concludes with an assertion that it was 'necessary for [the appellant] to have lodged both the founding documents of the claim with the employer'. However s 178(1)(c) of the Act refers to circumstances where this is not a bar to the maintenance of proceedings for the recovery of compensation.

Proposed ground 5

The proposed ground is in the following terms:
5.In either of the circumstances identified in Ground 3 or Ground 4 [above], the Appellant nonetheless made a claim for compensation on the employer in accordance with s178 and the Arbitrator erred at law at [67] by holding that an application can only be made by a worker under s58 in circumstances where there has been a claim under s57A. The Arbitrator does not specify whether this is a claim by the Appellant on the Respondent or a claim by the Respondent on the insurer. In either of the circumstances, the Appellant made a valid claim for weekly compensation upon the Respondent.
The respondent submitted the ground advances an unarguable interpretation of s 58 of the Act. Section 58 of the Act and also s 57A of the Act, which is referred to in the proposed ground, are as follows:
57A.Claims procedure where employer insured
(1)This section applies where -
(a)a claim for compensation by way of weekly payments for total or partial incapacity is made on an employer in accordance with section 178(1)(b); and
(ba)the employer is indemnified by a policy of insurance against liability to pay the compensation claimed; and
(b)the worker suffering the injury serves on the employer a certificate signed by a medical practitioner -
(i)in or to the effect of the form prescribed containing substantially the information sought in the form; or
(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as referred to in subparagraph (i) has previously been served.
(2A)In the circumstances mentioned in subsection (1), before the expiration of 5 full working days the employer must claim under and in accordance with his or her policy of insurance in respect of liability to pay the compensation claimed.
Penalty: a fine of $1 000.
(2)Where, in the circumstances mentioned in subsection (1), an employer fails to make a claim under and in accordance with his policy of insurance before the expiration of 5 full working days of his insurer after the day on which the circumstances mentioned in subsection (1) arose or, where the making of a claim within that time would not be reasonably practicable, as soon as reasonably practicable thereafter, the insurer may, in the Magistrates Court, sue and recover from the employer, as a debt due, any amount that, under the policy of insurance, he is liable to pay by way of indemnity in respect of the first 5 working days for which weekly payments are claimed by the worker.
(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer -
(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.
Penalty: $1 000.
(3a)If within 10 days after the Director is notified under subsection (3)(c) that a decision is not able to be made, the insurer has not -
(a)notified the worker to whom the claim relates, the employer and the Director that liability is accepted in respect of the weekly payments claimed; or
(b)subject to section 75, notified the employer, the worker and the Director that liability is disputed in respect of all or any of the weekly payments claimed and of the reasons why it is disputed,
the claim by the worker shall be deemed to be disputed.
(4)Where the Director has requested an insurer to do so, the insurer shall cause each notification to the Director under subsection (3)(c) to be accompanied by a means specified by the Director for conveying to the Director, in a machine-readable form so specified, the information contained in the notification.
Penalty: $1 000.
(5)Where an insurer fails to comply with subsection (3) in respect of a claim for weekly payments under this Act, the worker who made the claim is, by force of this subsection, entitled to the weekly payments claimed and the insurer is liable to indemnify the employer in respect of those weekly payments, but either the employer or the insurer may apply for a determination under subsection (6).
(6)On an application under subsection (5) an arbitrator may determine the entitlement that the worker would have but for the operation of subsection (5), and thereupon the entitlement of the worker is as so determined but without affecting his entitlement under subsection (5) in respect of the period before that determination.
(7)An employer shall make the first of the weekly payments not later than 14 days after -
(a)he is notified that the insurer accepts the claim or the time prescribed by subsection (3) expires without the employer having received any notification as required by that subsection from the insurer; or
(b)on an application made under section 58, an arbitrator has ordered the commencement of weekly payments under this subsection,
and subsequent weekly payments shall be made on the employer's usual pay days.
(8A)An employer who fails to make a weekly payment by the due date under subsection (7) commits an offence.
Penalty for each weekly payment not made when due: a fine of $2 000.
(8)An employer who having received a payment from an insurer in respect of the employer's liability to make a weekly payment to a worker fails to make that weekly payment to the worker in accordance with subsection (7) commits an offence.
Penalty: $2 000.
…
58.Liability for weekly payments, arbitrator may determine
(1)Where, in the circumstances mentioned in section 57A(1) -
(a)a period of 19 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or
(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the insurer -
(i)under section 57A(3)(b) or 57A(3a)(b), that liability is disputed; or
(ii)under section 57A(3)(c), that a decision as to liability is not able to be made within the time allowed,
an arbitrator may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.
(2)Where in the circumstances mentioned in section 57B(1) -
(a)a period of 17 days has elapsed since those circumstances arose and the worker has not received the first of the weekly payments claimed; or
(b)whether or not the period mentioned in paragraph (a) has elapsed, notification has been given by the employer -
(i)under section 57B(2)(b) or 57B(2a)(b), that liability is disputed; or
(ii)under section 57B(2)(c), that a decision as to liability is not able to be made within the time allowed,
an arbitrator may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.
(2a)Where under section 57A(3a) or 57B(2a) a claim by a worker is deemed to be disputed, the Director may order the employer to make an application for an arbitrator to hear and determine the question of liability to make the weekly payments claimed.
(3)An employer may, in the circumstances mentioned in section 57A(1) or section 57B(1), make application for an arbitrator to hear and determine the question of liability to make the weekly payments claimed, and an arbitrator may hear and determine the matter.
[(4) deleted]
(5)On a hearing under subsection (1), (2), (2a) or (3) the arbitrator is to satisfy himself as to all the evidence before him and -
(a)if the arbitrator considers that the evidence is satisfactory to establish liability to make weekly payments, may -
(i)make an order that weekly payments including arrears to the date of the hearing shall be paid out of moneys standing to the credit of the General Account and that the employer shall forthwith pay to WorkCover WA for the General Account the amount of such payments together with an additional 10% of that amount; or
(ii)make an order as to weekly payments by the employer to the worker on such terms as the arbitrator sees fit;
or
(b)if the arbitrator considers that the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as the arbitrator sees fit.
(6)The fact that an application has been dismissed under subsection (5) shall not be taken into account by an arbitrator in any other proceedings under this Act.
The respondent submitted it was clear on the face of s 58 of the Act that it is necessary for there to have been a claim made under s 57A. The appellant countered that in [67] of the arbitrator's reasons, it is said that under s 58 of the Act, a dispute can only be brought where a claim has been made under s 57A of the Act. The appellant contended that this was an incorrect proposition of law.
At [61], [62] and [67] the arbitrator said the following:
61.It is arguable that a fresh form 2B itself was required. See for example the obiter comments of Justice Wheeler in McGowan v Castrum at [16] which have been adopted with approval in such other cases as Butler v St John of God Health Care Inc C7/2006, 2 May 2006 (at [18]) and Royal Perth Hospital v Morris [2012] WADC 82 (at [71]-[72]).
62.However, it is not necessary that any specific form in fact be used provided the requisite information is in substance conveyed. See for example, Prestige Property Services Pty Ltd v Terzioski CM‑97/03, Packington J, 15 January 2004 at [24]‑[25].
…
67.Weekly payments are sought under s 58 of the Act. A dispute under s 58 can only be brought where a claim has been made under s 57A.
The gravamen of ground 5 as pleaded is that the arbitrator erred in [67] of his reasons by holding that an application can only be made by a worker under s 58 in circumstances where there has been a claim made under s 57A. Section 58(1) of the Act provides for a situation where 'the circumstances mentioned in section 57A(1)' have occurred. The circumstances mentioned in s 57A(1)(a) is that there is claim for compensation in accordance with s 178(1)(b) of the Act. Section 178(1)(b) of the Act has been set out above. This paragraph provides for a claim for compensation with respect to the injury having been made within 12 months from the occurrence of the injury.
In the proposed ground as drafted it asserts that the arbitrator does not specify whether the 'claim' under s 57A is a claim by the appellant on the respondent or a claim by the respondent on the insurer. Whilst that may be so, in my opinion it is clear from the context that the arbitrator must be referring to a claim by the appellant on the respondent. This is because of the reference to a dispute under s 58 of the Act. Section 58(1) clearly refers to 'the application of the worker'. Therefore, the reference by the arbitrator to a claim having been made under s 57A must be a claim of the sort referred to in s 178(1), which is a claim for compensation by way of weekly payments made by a worker.
However, in my opinion it would not be futile to allow argument of the proposed ground to proceed. This is because the arbitrator refers to a claim having been made under s 57A, whereas s 57A itself refers to a claim having been made in accordance with s 178(1)(b) of the Act. At the present juncture in my opinion that is sufficient to determine that the argument of the proposed ground will not be futile.

Proposed ground 6

The proposed ground is in the following terms:
6.The Arbitrator erred at law at [74 – 77] in determining that the mandatory provisions for payment of compensation to the worker contained in s57A(5) did not apply and/or that any entitlement under this section is the subject of a claim by the Appellant. The entitlements under are s57A (5) are derived from the operation of the statute and are determined under an application pursuant to section 58.
This ground refers to the arbitrator's reasons at [74] - [77]. These paragraphs are as follows:
74.As I am not persuaded that lodgement of the progress medical certificate of 4 December 2019 itself is sufficient to constitute a claim for weekly payments of compensation there is no basis to consider that there has been a breach of s 57A in relation to this 'claim'.
75.However, if I am wrong to conclude that there was no claim, I nevertheless consider that there can be no breach of s 57A in respect of it.
76.The strict liability provisions of s 57A are only triggered when the processes set out by s 57A are followed. It is not possible for a worker to claim direct against the insurer. That is only permissible under s 175 of the Act. See McGowan v Castrum at [5].
77.Rather, in this instance, the certificate was provided direct to the insurer (albeit contemporaneously with the employer).

With respect to this ground, the respondent argues that it is simply incomprehensible. In response the appellant counters that if proposed ground 3 is allowed, then proposed ground 6 is also a good ground.
The ground as pleaded refers to entitlements under s 57A(5) of the Act. This sub‑section is set out above. It can be seen that s 57A(5) provides for a deemed entitlement for a worker to the weekly payments claimed. This occurs in circumstances where an insurer fails to comply with sub‑section 57A(3) in respect of a claim for weekly payments under the Act. In turn s 57A(3) refers to what an insurer must do upon an employer making a claim against the insurer as mentioned in s 57A(2). The insurer is required to do one of three things before the expiration of 14 days after the claim was made by the employer. In summary the three things are to give the worker notice that liability is accepted in respect of the weekly payments claimed, or give the worker and the employer notice that liability is disputed, or give the worker, the employer and the director notice that a decision as to whether or not liability can be accepted is not able to be made within the time allowed by the sub‑section.
In saying that the 'strict liability provisions of s 57A are only triggered when the processes set out by s 57A are followed' in [76] of his reasons, the arbitrator was clearly correct.
The proposed ground in saying that the entitlements under s 57A(5) are derived from the operation of the statute is only partially correct. The entitlements are predicated, as the statute provides, upon the insurer having failed to comply with sub‑section 57A(3), which in turn is predicated upon a claim being made by an employer under sub‑section 57A(3) and s 57A(2), which in turn is predicated upon there having been a claim for weekly payments for total or partial incapacity made on an employer in accordance with s 178(1)(b).
However, in the circumstances given the arguments of the appellant and the above analysis, I am not prepared to determine that it would be futile for this ground to be argued at the hearing of the appeal.

Proposed ground 7

The proposed ground is in the following terms:
7.If, in the alternative to Ground 6 (above), this Honourable Court determines that the Respondent did not claim the indemnity under s57A(2A) after being provided with the medical certificate dated 4 December 2019, then the provisions of s57B come into effect and the Arbitrator erred at law by failing to give effect to those provisions.
Particulars
a)The terms 'or otherwise' contained in the lower portion of s57B(1) substantially broaden the scope of this section's operation and ensures that an injured worker who provides evidence of incapacity for work is not prejudiced by the inactions of the employer;
This ground is pleaded as an alternative to ground 6. The respondent submits this ground refers to the provisions of s 57B of the Act but there was no case put to the arbitrator which relied upon s 57B of the Act. The appellant submitted that although there was no s 57B claim raised before the arbitrator, both this section and s 57A concern claims made by the worker and a proper interpretation of the Act and that this ought to have included an analysis of the appellant's potential rights pursuant to s 57B by the arbitrator.
The proposed ground asserts that the arbitrator erred by failing to give effect to s 57B of the Act.
However as submitted by the respondent and accepted by the applicant, there was no claim before the arbitrator pursuant to s 57B of the Act. In those circumstances there can be no question of law involved in the arbitrator's decision on the topic of s 57B of the Act. No decision on s 57B of the Act was made by the arbitrator because this was not in issue before him. Therefore, in my opinion it would be futile for this proposed ground to be argued before the court.

Proposed ground 8

The proposed ground is in the following terms:
8.The Arbitrator erred at law by confining the claim for compensation to a tick bite suffered by the Appellant on 18 November 2018 when the evidence overwhelmingly revealed that the claim for compensation was for illnesses resulting from multiple tick bites stemming from a period from about mid 2018 to November 2018. This finding was not reasonably open to him from the evidence and was inconsistent with the evaluation of a circumstantial claim of the type identified in Gosper v Pilbara Iron Company (Services) PTY LTD [2021] WADC 47 per Lemonis DCJ at [31] - [41].
The respondent submitted that this did not disclose any question of law. It was submitted that the authorities clearly establish that a proposed appeal ground which asserts that decisions are against the evidence or against the weight of the evidence do not raise an issue involving a question of law.
The appellant countered that there was a question of law involved which was whether no reasonable arbitrator could have made the finding which is referred to in the ground. That is, it was not reasonably open for the arbitrator to make the finding on the basis of the evidence before him.
Despite the assertion by the appellant's counsel at the hearing as to what was intended by proposed ground 8, it is drafted in terms of there being an error of law by the arbitrator erring by confining the claim for compensation to a tick bite suffered on 18 November 2018 when the 'evidence overwhelmingly revealed', that the claim for compensation was for illnesses resulting from 'multiple tick bites'. The ground refers to the finding, which, presumably is the finding that the claim for compensation for a tick bite was confined to the occurrence on 18 November 2018.
It is in my opinion clear from the conclusion of the arbitrator at [285] that he did focus on 'the tick bite of November 2018'. The arbitrator did so because that was the 'injury for which [the respondent] admitted liability'.[27] However the claim before and determined by the arbitrator failed because he was unable to conclude that the incapacity resulted from a compensable injury that the respondent had admitted liability for. Accordingly, a case based upon the illnesses resulting from multiple tick bites was not before the arbitrator for determination. Additionally in the arbitrator's summary at [10] that I have referred to above, he was not persuaded that the appellant had led sufficient medical evidence to establish what has caused his current condition. That is a finding of fact. In my opinion it would be in all of those circumstances be futile to allow an argument based upon proposed ground 8 to proceed to hearing.
[27] Arbitrator's Decision A97692 [285].

Proposed ground 9

This ground was not pursued by the appellant at the hearing.

Proposed ground 10

The proposed ground is in the following terms:
10.The Arbitrator erred at law by failing to provide adequate reasons for the decision, in particular, it is essential in a case that relies heavily on the opinions of expert witnesses, for the Arbitrator identify the qualifications and experience of all of the experts, irrespective of whether he chooses to prefer their evidence or not. The Arbitrator did not identify the qualifications of any expert witness.
The respondent referred to the obligation to provide reasons by an arbitrator under s 213(4) of the Act. This provides as follows:
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and given the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and given the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
The appellant says that there was an error of law in failing to provide adequate reasons with respect to the opinions of the experts in deciding questions of fact based upon their expert evidence.
The specific complaint in this ground is that the arbitrator did not identify the qualifications of any of the expert witnesses. The proposed ground necessarily asserts that this was required as part of the duty to provide adequate reasons for the decision and the failure to do so therefore involved an error of law.
In my opinion this argument is untenable for two reasons. Firstly, such a duty is inconsistent with the limitations upon the requirements to give reasons as specified in s 213(4) of the Act. Secondly, the appellant has not pointed to any requirement to provide reasons by an arbitrator, under the common law, which separate or in addition to the requirements under s 213(4) of the Act which would require as a matter of law that the arbitrator identify the qualifications of the expert witnesses.
In my opinion it would be futile to grant the application with respect to this ground.

Proposed ground 11

This ground was not pursued by the appellant at the hearing and therefore needs no further consideration.

Conclusions

In all the circumstances, given the inadequacies of the application put before me, in my opinion the appropriate course is to publish these reasons for decision to the parties and invite them within seven days to provide notice to the court registry or my associate of any additional or amended applications and/or desires to have those or the present application re‑listed before me for further hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HM
Associate to Judge Ritter
16 OCTOBER 2023