Peter Kumeroa v United Group Limited

[2013] HCASL 183

PETER KUMEROA

v

UNITED GROUP LIMITED

[2013] HCASL 183
P42/2013

1. The applicant applied for weekly payments under the Workers' Compensation and Injury Management Act 1981 (WA) for incapacity said to result from an injury sustained during his employment with the respondent. An arbitrator dismissed the application, primarily on the basis that he found that the relevant injury had occurred at an earlier date. The arbitrator accepted that that existing injury had recurred in the work place, but considered that the applicant's employment was not a contributing factor to that recurrence.

2. The applicant's appeal to the District Court of Western Australia required a grant of leave and was statutorily confined to questions of law.  Goetze DCJ found that only one error of law could be said to be raised by the applicant's submissions, which was that the arbitrator should not have refused to allow the applicant to call three witnesses at the conciliation conference.  The applicant had made his application to call witnesses on the day of the conciliation conference.  When asked why he wished to call those witnesses, the applicant conceded that he had not spoken to them about their evidence but said that he thought that their evidence would support his case that the relevant injury resulted purely from the work incident.  Goetze DCJ found that within that context, there was no error of law, and that even if there was, there was no miscarriage of justice as it was a matter of pure speculation what evidence those witnesses would give. Goetze DCJ allowed an application to dismiss the applicant's appeal.

3. The Court of Appeal of the Supreme Court of Western Australia refused leave to appeal on the basis that, even if there had been an error of law, there was no miscarriage of justice.  That Court also refused two applications to adduce additional evidence on the basis that the evidence was available to the applicant at the time of the conciliation conference.

4. The applicant's Draft Notice of Appeal and Written Case seek to place "fresh evidence" before this Court. This Court cannot receive further evidence as s 73 of the Constitution does not authorise it.[1]  The applicant also submits that the arbitrator erred in law by not letting him call Dr Wong when he had identified a reasonable ground for Dr Wong to give evidence.  The transcript does not show that the applicant had identified such a ground.  An appeal to this Court would have no prospects of success.

   [1]Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, affirmed in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29.

5. The applicant requires an enlargement of time within which to file his application for special leave to appeal.  He has filed an affidavit in support of an application for that enlargement of time.  An enlargement of time should be granted, but special leave to appeal should be refused. 

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
3 December 2013 S.J. Gageler