Qube Ports Pty Ltd v Bennison - [2024] WADC 82

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   QUBE PORTS PTY LTD -v- BENNISON [2024] WADC 82
CORAM:   SEFTON DCJ
HEARD:   30 MAY 2024
DELIVERED          :   26 SEPTEMBER 2024
FILE NO/S:   APP 7 of 2024
BETWEEN:   QUBE PORTS PTY LTD
Appellant
AND
PAUL MARK BENNISON
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR SHARP
File Number            :   A118608

Catchwords:

Appeal - Workers' compensation - Rule 59 Workers' Compensation and Arbitration Rules 2011 (WA) - Exercise of discretion - Medical reports - Clear and obvious case - Procedural fairness - Adequacy of reasons - Irrelevant considerations - Question of law - Revision of ex tempore reasons

Legislation:

Rules of the Supreme Court 1971 (WA), O 36A r 5 (repealed)
Workers' Compensation (DRD) Rules 2005 (WA), r 90, r 91 (repealed)
Workers' Compensation and Arbitration Rules 2011 (WA), r 30, r 58, r 59 (repealed)
Workers Compensation and Arbitration Rules 2024 (WA), r 36, r 37
Workers' Compensation and Injury Management Act 1981 (WA), s 3(d), s 188, s 213, s 247 (repealed)
Workers Compensation and Injury Management Act 2023 (WA), s 336, s 350(4)(d), s 391, s 448(2)(f), s 571, s 572, s 574 - s 576

Result:

Leave to appeal refused
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr R D McCabe
Respondent	:	Mr J J Sheldrick

Solicitors:

Appellant	:	McCabes
Respondent	:	JDK Legal Services

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

Alcoa of Australia Limited v Blay [2015] WADC 62
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Bar‑Mordecai v Rotman [2000] NSWCA 123
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Blakers v South Metropolitan Health Service [2023] WADC 143
Bromley v Bromley [1965] P 111
Browne v Browne [2019] WASCA 1
Catholic Education Office of WA v Granitto [2012] WASCA 266
Charles v The State of Western Australia [2021] WASCA 114
David Massey v Australia National Industries (Unreported, CM-21/99, Magistrate SA Heath, 26 May 1999)
DL v The Queen (2018) 266 CLR 1
Dodson v Woolworths Group Ltd [2020] WADC 157
Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55
House v The King (1936) 55 CLR 499
Lam v Beesley (1992) 7 WAR 88
Low v Romaro [2023] WASCA 155
Marks v Coles Supermarket [2021] WASCA 176
Medical Board of Australia v Adams [2023] WASCA 41
Minister for Immigration v AAM17 [2021] HCA 6; (2021) 95 ALJR 292
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Player v Avery [2022] WASCA 147
Ruhamah Property Co Ltd v The Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
Silbert v Steinberg [2010] WASCA 113
Skinner v Broadbent [2006] WASCA 2
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Summit Homes v Lucev (1996) 16 WAR 566
Taramore Pty Ltd v Greenwood (Unreported, C3-2006, Commissioner Nisbet, 16 March 2006)
Velez Pty Ltd v Tudor [2011] WASCA 218
Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202
Waite v Alcoa of Australia Ltd [2020] WASCA 1
Wilson v Metaxas [1989] WAR 285
Withers v AV Jennings Pty Ltd (1981) 1 WCR (WA) 167
XCO Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 37; (1971) 124 CLR 343
Zamora v OCS Services Pty Ltd [2024] WADC 77

SEFTON DCJ:

Introduction

The appellant appeals against an interlocutory decision of an arbitrator at WorkCover WA to refuse to grant it leave to lodge and admit into evidence, in arbitration proceedings, a report it obtained from Dr Overmeire.
The respondent had already obtained reports from Dr Overmeire and the appellant had obtained medical reports from Dr Tang. Both are occupational physicians.
For the reasons that follow I consider that the grounds of appeal are lacking in merit, leave to appeal should be refused and the appeal should be dismissed.

Background

On 16 February 2023, the respondent brought an application for the determination of his claim for weekly payments of workers' compensation and medical and other expenses for an injury he allegedly sustained on 17 July 2022.[1]

Issues in the arbitration dispute

[1] Appellant's Book of Documents, pages 55 - 58 (AB).

On 17 November 2022, the appellant's insurer accepted liability for medical expenses only associated with the injury for the period 17 July 2022 to 27 October 2022. It denies liability to make weekly payments of workers' compensation or any other medical or other expenses.[2] In its reply to the application[3] the appellant disputes that the respondent sustained anything other than a minor injury. It disputes he sustained any incapacity.
[2] AB 53 - AB 54, AB 56.
[3] AB 295 - AB 296.
In the alternative, the appellant says that if the respondent has a partial capacity, he has the onus to prove his loss, and has not done so.
The appellant says further that the respondent failed to mitigate his loss by going on a sustained period of leave and by resigning from his employment.[4] It says that at all relevant times remunerated duties were, and would have been, available for the respondent.[5]

Evidence

[4] According to a witness statement of the respondent filed in the arbitration proceedings, he went on leave between 1 August 2022 and 12 October 2022 on an extended holiday with his family that had been scheduled prior to his injury on 17 July 2022. He says that he commenced physiotherapy on his return, on 13 October 2022. He further says that he resigned from his employment with the appellant on 30 November 2022 to start his own brewing business. See AB 63 pars 18, 19 and 22.

[5] The appellant relies on David Massey v Australia National Industries (Unreported, CM-21/99, Magistrate SA Heath, 26 May 1999); Withers v AV Jennings Pty Ltd (1981) 1 WCR (WA) 167 in support of this contention.

The respondent seeks to rely in the arbitration proceedings on a primary report from Dr Overmeire dated 23 May 2023 and his supplementary reports dated 26 July 2023 and 6 September 2023. It also seeks to rely on a vocational evaluation report of Mr Michael Parry dated 5 July 2023 in which vocational rehabilitation options are assessed including the respondent's suitability for a range of occupations.
The appellant seeks to rely in the arbitration on a primary report of Dr Tang dated 27 October 2022, as well as his supplementary reports dated 6 September 2023 and 19 October 2023. It also seeks to rely on a statement of Ms Danielle Markey, its National Injury Management Advisor, dated 14 July 2023 and related documents,[6] as well as a vocational assessment report of Ms Louise Manger dated 24 October 2023.[7]
[6] AB 314 - AB 398.
[7] The report also obtained a further supplementary report dated 21 February 2024 from Dr Tang. It is not sought to be relied on by the appellant in the appeal, and leave would be required to do so. It is included in the appeal book for completeness and given so that it can be considered, if appropriate, if the appeal is upheld in determining what relief should be granted.
In her report, Ms Markey identified various suitable duties which she suggested could have been made available to the respondent to maintain full working hours having regard to any medical restrictions he may have. These were said to include duties which did not require the respondent to undertake physical duties or utilise his physical skills.
Ms Markey suggested that the respondent had experience and a broad skill base performing multiple roles and that this could have been utilised within the business, and he could have been provided with suitable work duties on a full-time basis having regard to any medical restrictions he may have. She said that the respondent had acquired various skill sets during his time as an employee of the appellant in numerous roles set out in a table in the statement. They included as a bus driver, a gear store and various crane, foreman, forklift operator and team leader roles.
Of the listed skills, Ms Markey said that the skills highlighted in yellow could have been utilised by the business to engage the respondent in work performing these specific roles which were appropriate and within the guidelines of his first medical certificate. The highlighted roles were bus driver, gear store and various foreman and team leader roles. Ms Markey also attached a job dictionary listing a range of positions and duties and their features which she said describes suitable work duties which would have been available to the respondent.
In Ms Manger's vocational report, she identified potentially suitable vocational options of OH&S Advisor, Service Advisor and Warehouse Supervisor, subject to medical approval.

Primary medical reports

In Dr Tang's primary report, he expressed opinions including that:
1.The respondent likely sustained a left distal biceps strain in the claimed workplace incident of 17 July 2022.
2.The strain injury should have, and had, resolved. He had fully recovered from its effects.
3.The respondent at the time of the report had intermittent, non‑specific mechanical left elbow pain which was not significantly functionally restrictive and there was a degree of pain avoidance.
4.This did not result directly from the claimed workplace incident. His current symptoms were not attributable to the incident or his employment. The respondent was likely to have contracted the current disease regardless of his employment.
5.The respondent did not require further treatment for his left elbow.
6.Barriers to his return to work were ongoing intermittent left elbow pain and pain focused and pain avoidant behaviour. The symptoms may naturally resolve while the respondent was on annual leave. The respondent otherwise had full work capacity and is suitable for normal duties and work hours without restriction.
In Dr Overmeire's primary report he expressed opinions including that:
1.His diagnosis to account for the respondent's symptoms was mild distal biceps tendinopathy with mild bicipitoriadial bursitis.
2.The prognosis was for a gradual improvement of symptoms, the biceps tendinopathy can take 12 - 18 months and Dr Overmeire anticipated maximum medical improvement by January 2024.
3.Then current reported symptoms remained attributable to the incident of 17 July 2022.
4.He did not consider that the current symptoms would be the same had the work accident not occurred.
5.He disagreed with Dr Tang's opinion that the respondent had full work capacity and considered that given the respondent had an ongoing, symptomatic biceps tendinopathy in his left, dominant arm, manual handling restrictions were appropriate at that stage. He recommended certain further treatments but otherwise concluded that the natural history of the condition was an eventual, full recovery.
6.The respondent did not then have capacity for unrestricted pre‑injury duties as a stevedore. Dr Overmeire referred to manual handling of up to 45 kg being an inherent requirement of the role and that the respondent would be at high risk of aggravating and deteriorating his left distal biceps tear.
7.The respondent was fit to work on a full-time basis with a 5 ‑ 6 kg left-handed lifting limit. He was fit for modified, restricted duties on a full-time basis. The main requirement was avoiding left-handed lifting above 6 kg. It was also recommended he avoid sustained or repetitive left-handed gripping, forearm rotation and operating vibratory or percussive, hand-held tools.
8.The timeframe for full resolution of symptoms and restoration of the respondent's pre-injury work capacity was likely to be at least another six months.
9.Certain further treatment was recommended.

Other medical reports

In a supplementary report dated 26 July 2023 Dr Overmeire expressed his opinion as to the respondent's then capacity to perform any of the roles identified in Mr Parry's report taking into account the duties and critical physical demands of each occupation. While Dr Overmeire considered that the respondent had a restricted capacity to work in a number of the roles identified, that was generally subject to the manual handling restriction he had identified in his primary report.
On 6 September 2023 Dr Tang provided a supplementary report, having been provided with the reports of Dr Overmeire and Mr Parry. Dr Tang essentially maintained his previous opinions, indicating that he did not consider the respondent had an ongoing distal biceps strain injury since July 2022. Dr Tang also indicated that he considered the respondent had full work capacity and was physically suitable for full‑time work in any of a wide list of roles, not considering the extent to which he may or may not have been reasonably trained, qualified or experienced in those roles. The roles referred to a list of highlighted specific roles which were said to have been able to be performed by him as an employee of the appellant, as outlined in a table in the request for the report. Dr Tang considered that a graduated return to work may be beneficial if the respondent were to return to employment.
In his further report dated 19 October 2023 Dr Tang clarified that his suggestion for a graduated return to work program was a recommendation, not a requirement. Dr Tang considered the respondent otherwise had full work capacity, but there were factors that would likely impact on his return to work. He considered that had the respondent not resigned from his employment and had he participated in a graduated return to work program, he would likely have returned to his pre-injury duties and hours by then.

Report of Dr Overmeire dated 18 October 2023

A further report dated 18 October 2023 was obtained from Dr Overmeire by the appellant, rather than the respondent.
According to the report, Dr Overmeire was asked to review Ms Markey's witness statement as well as certain other related documents.
In the report, Dr Overmeire set out the questions he was asked as well as his answers. The questions were directed to:
(a)whether anything in the statement of Ms Markey and its attachments would cause him to alter his opinion expressed in his report of 23 May 2023 and supplementary report dated 26 July 2023, 'particularly, in respect of causation, diagnosis, treatment and/or the claimant's capacity for work'. If so, it requested that he provide his detailed reasons;
(b)whether based on the history of activity provided by the respondent to Dr Overmeire at review in May 2023, the respondent had a work capacity. If so, he was asked whether he considered the respondent had a capacity to undertake various duties as a stevedore in line with the duties Ms Markey says could be made available to the respondent. He was also asked whether he considered the respondent had capacity to undertake various other roles; and
(c)whether the respondent would be more likely to have made a return to his full-time pre-injury and/or full-time pre-injury and/or full-time suitable employed duties, or would otherwise be fit for such duties, if he had remained in his employment with the appellant, instead of going on leave and tendering his voluntary resignation in December 2022, and assuming appropriate restricted duties, and/or a graduated return to work program would have been made available to him at that time.
The opinions expressed by Dr Overmeire in the report included that the respondent had a full-time work capacity with manual handling restrictions as outlined in his primary report. He also expressed the opinion, based on the alternative roles highlighted in the letter of instruction and duty descriptions outlined in the 'Qube Ports Job Dictionary', that the respondent was fit to work full-time without restriction as a breakout driver, bus driver, forklift driver (light but not heavy) and team leader. He observed that the gear store role required manual handling up to 22 kg, which was unsuitable given the lifting restrictions he recommended. Dr Overmeire also suggested that the respondent could manage operating mobile machines, although noted that the job description referred only to bulldozer operation.

Interlocutory application

As the respondent would not consent to the appellant lodging the report of Dr Overmeire dated 18 October 2023, and admitting it into evidence in the arbitration, the appellant made an interlocutory application seeking leave to do so.
It was necessary for the appellant to seek leave of an arbitrator because r 59(1)(a) of the Workers' Compensation and Arbitration Rules 2011 (WA) (2011 Arbitration Rules)[8] provides that a party cannot, without leave, lodge or admit into evidence a medical report by a medical practitioner in a particular area of medical practice if another medical report by another medical practitioner in the same area of medical practice has been lodged or admitted in evidence on behalf of that party.
[8] The 2011 Arbitration Rules were repealed and replaced by the Workers Compensation and Injury Management Arbitration Rules 2024 (WA) (2024 Rules) on 1 July 2024 upon the repeal of the Workers' Compensation and Injury Management Act 2011 (WA) (1981 Act). The 1981 Act has been replaced by the Workers Compensation and Injury Management Act 2023 (WA) (2023 Act). While certain provisions of the 2023 Act commenced on 24 October 2023, the main operative provisions of the 2023 Act commenced on 1 July 2024. The 2011 Arbitration Rules continue to apply to dispute proceedings that were pending immediately before 1 July 2024 unless a transitional direction is made that otherwise provides. See 2023 Act s 571, s 572, s 574(4), s 575, s 576.
While the appellant unsuccessfully sought to persuade the arbitrator that r 59 did not apply in the circumstances of the case, it now accepts the rule does apply.

The hearing of the interlocutory application

The interlocutory application was heard by the arbitrator on 16 January 2024. The arbitrator commenced the telephone hearing by summarising the submissions of the parties in relation to the application. The parties were then afforded an opportunity to make further submissions.

Reasons for decision

After hearing oral submissions the arbitrator delivered ex tempore oral reasons for decision and dismissed the application.
On 17 January 2024, a formal written document was issued by the arbitrator in relation to the application. It included brief written reasons for the decision that had been made the previous day and recorded the order that had been made dismissing the application.
The written reasons were broadly reflective of the oral reasons, except in certain respects. An issue accordingly arises as to which version of the reasons the court should properly have regard, for the purposes of the appeal. In my view, for reasons explained below, it is the oral reasons.
Before considering that question further, and given their relevance to the question and the appeal more generally, it is convenient to first set out the substance of both the oral and written reasons.

Oral reasons

In delivering oral reasons for decision, the arbitrator commenced by referring to the purpose or reason for the appellant obtaining the supplementary report. The arbitrator found, in effect, that the reason was to get Dr Overmeire to look at the further documents that had been forwarded to him, and address the specific questions that were asked to address whether anything in the vocational evidence or the statement of Ms Markey caused Dr Overmeire to alter his opinion expressed in his report of 23 May in respect of causation, diagnosis and treatment and the capacity for work.

The arbitrator then referred to the aspect of Dr Overmeire's report to the effect that the information provided, suggesting it could be a different mechanism of injury, did not cause him to alter his opinion regarding causation.

The arbitrator also referred to the aspects of the report of Dr Overmeire in relation to the work capacity of the respondent in relation to various roles and whether his opinion had changed in relation to those. She summarised that Dr Overmeire thought the worker had some capacity when he interviewed him in May, and that while he had not reviewed him since, he anticipated that his symptoms may have improved so that his functional tolerances could be greater than indicated in his first report.
The arbitrator stated that clearly the reason for the request for the supplementary report was to see whether Dr Overmeire had changed his mind or expressed a different view in light of the material that had been provided to him.

The arbitrator then referred to r 59 and the decision of Commissioner Nisbet in Taramore v Greenwood.[9] She referred to the genesis of the rule being to limit the number of medical reports to be filed and to stop doctor shopping, which was very prevalent in those days. She also referred to the observations of Commissioner Nisbet in relation to parties to disputes before former review officers of the then Conciliation and Review Directorate previously appearing to adhere to the principle that the party who filed the last best medical report would win. Alternatively, the party who filed the last medical report would win.
[9] Taramore Pty Ltd v Greenwood (Unreported, C3-2006, Commissioner Nisbet, 16 March 2006) (Taramore).

The arbitrator stated that was the reason for r 59 and adopted the position outlined by Commissioner Nisbet, that leave should only be given in clear cases. She then referred to the Commissioner Nisbet's indication of examples of the type of cases where an arbitrator should give leave and referred, amongst other things, to circumstances where there was a dispute between the experts and whether the treating specialist was different to the reporting specialist.
In apparent reference to the appellant's contention that r 59 had no application in this case, the arbitrator noted that in this situation r 59 was clear. She found that the appellant was clearly relying on medico‑legal reports from Dr Tang and Dr Overmeire and that Dr Tang had given his opinion with respect to issues of causation and issues of capacity, which were both issues in the case, and had also apparently commented on the recent report of Dr Overmeire.
The arbitrator stated that it seemed to her that the appellant had obtained information that it wanted in Dr Tang's reports and that, if it needed further clarification, it could always seek to obtain a further report from Dr Tang to specifically report on the documents which were put to Dr Overmeire. She stated that she did not think this was a clear and unequivocal situation where an arbitrator should give leave under r 59.
The arbitrator observed that both medico-legal reports covered the same issues and, in effect, the appellant would be able to rely on all the medical reports, the three from Dr Tang and the most recent report of Dr Overmeire.
The arbitrator also stated that while she did not think that Dr Overmeire's report was very prejudicial to the worker (in the sense of what Dr Overmeire had said), she did think it was unfair to ask him to respond to a further report given his financial situation and what he thought may be a need to obtain further evidence.

The arbitrator indicated that it was open to the appellant to obtain a further report from Dr Tang commenting on the material provided to Dr Overmeire.
The arbitrator stated that she was satisfied that r 59 was relevant to the particular situation but did not think it was a case where it should not be adhered to and on that basis dismissed the interlocutory application.

Written reasons

The subsequently provided written reasons of the arbitrator were more concise and, while similar in effect, differed in certain respects.
The arbitrator commenced by setting out the nature of the application and certain procedural aspects. She then explained that the respondent had already filed three medico-legal reports from Dr Tang and that the applicant relied on medical reports of Dr Overmeire, noting that both were occupational physicians.
The arbitrator indicated that the respondent submitted that it wished to put various documents to Dr Overmeire including a witness statement from Ms Markey. She observed that Dr Overmeire was asked specific questions as to whether such documents would alter his opinion expressed in his previous reports '[particularly] in respect of causation, diagnosis, treatment and capacity for work'.

The arbitrator stated that the main objection by the respondent was that if such a report were allowed to be filed, it would be in clear breach of r 59 and that it referred to the decision of Taramore. She explained that, in that decision, Commissioner Nisbet provided some guidance to arbitrators in relation to using their discretion to allow or not allow further evidence from the same area of medical practice. She observed that he considered that leave should be granted in clear and obvious cases and provided certain non-exhaustive examples where leave may be considered, none of which she considered relevant to the case.
The arbitrator indicated that while the appellant submitted that r 59 did not apply in this instance, as the appellant had filed reports from Dr Overmeire, that was not convincing.
The arbitrator concluded by stating:
In my view Rule 59 is there to help create a level playing field between the parties. If leave were to be granted, the [appellant] can rely on the opinion of two occupational Physicians, both medico legal in nature and both having been asked to comment on the same issues in dispute.
While new material may have become available, there is nothing to stop the [appellant] from asking Dr Tang to provide an opinion in respect of such documents.
The [appellant] has not convinced me that this is a clear and obvious instance where leave should be granted.
The Application is therefore dismissed.

Which reasons?

It is quite proper for a decision maker (such as the arbitrator) to revise ex tempore reasons after the order to which they relate has been authenticated, so long as the substance of the reasons is not altered. It is well established that revisions may be made to correct mistakes of transcription, errors of grammar or infelicities of style, or where by reason of an error, the reasons plainly misstate what the decision-maker meant to say, and also to clarify the reasons as expressed orally.[10] Where in a particular case the line is to be drawn, between permissible alterations and changes of substance, may not always be clear‑cut, however.[11] Reasons may not be revised to make an objectively substantive change to the reasons originally given.[12]
[10] Lam v Beesley (1992) 7 WAR 88, 93 ‑ 94; Bar‑Mordecai v Rotman [2000] NSWCA 123 [194] ‑ [195]; Vogt v Legal Practitioners Complaints Committee [2009] WASCA 202 [56] (Vogt). See also Bromley v Bromley [1965] P 111, 116.
[11] Vogt [57], [59]. In that case there was a change of substance between oral reasons and later written reasons which went beyond what was permissible editing of reasons. As the order of the tribunal was made and authenticated on the basis of oral reasons, it was the oral reasons to which regard was to be had on the appeal.
[12] Minister for Immigration v AAM17 [2021] HCA 6; (2021) 95 ALJR 292 [30] - [32]; Vogt[56]; Charles v The State of Western Australia [2021] WASCA 114 [36] (Charles).
If a decision-maker delivers oral reasons and subsequently publishes written reasons which alter the substance of the reasons, it is the oral reasons to which an appellate court has regard in discerning whether appellable error is established.[13]
[13] Vogt [57] - [59]; Charles [39].
In my view the written reasons in most, but not all, respects fall within the scope of permissible alterations and, as such, regard should be had on appeal to the oral reasons rather than the written reasons, particularly where they materially differ.
For example, in the oral reasons the arbitrator referred to her view that she did not think that Dr Overmeire's report was very prejudicial to the worker (in the sense of what Dr Overmeire had said), but did think it was unfair to ask him to respond to a further report given his financial situation and what he thought may be a need to obtain further evidence. This aspect was omitted from the written reasons. In my view the omission was not within the scope of a permissible alteration.
Given that both parties have, at times, in their submissions, referred to aspects of both the oral and written reasons, I have however considered certain arguments advanced on appeal by reference to both sets of reasons. In my view, it does not materially alter the outcome of the appeal whether regard is had to the oral or written reasons for decision.

Grounds of appeal

The appellant relies on the following three grounds of appeal:[14]
1.The arbitrator erred in law in failing to take into account a material consideration, namely, the appellants [sic] prejudice in a refusal to grant leave to the appellant to adduce evidence from the report of Occupational Physician, Dr Overmeire dated 18 October 2023. In the alternative, the arbitrator failed to give adequate reasons for decision.
2.The arbitrator erred in law in acting on a wrong principle and/or was mistaken in fact in finding that a level playing field was determined by the number of experts a party relied on to support its case, and that the appellant relying on 2 occupational physicians was prejudicial to the respondent.
3.The arbitrator erred in law in taking into account an irrelevant matter and/or was mistaken in the purpose of Dr Overmeires [sic] report in finding that there was nothing to stop the appellant from putting new material to Dr Tang and asking him to provide an opinion on such new information.
[14] Particulars of the grounds were also provided.

Before considering those grounds, it is convenient to first set out various legal principles relevant to the determination of the appeal.

Legal principles

Leave to appeal and nature of appeal

As written reasons for the arbitrator's decision under Part XI in respect of a dispute were given to the parties, the appellant may, with leave of the District Court, appeal to the District Court against the arbitrator's decision.[15]
[15] Section 247(1) 1981 Act; s 391(1) 2023 Act.
Leave is not to be granted unless 'a question of law is involved'.[16] If no question of law whatever can be identified in the appeal as arising from the arbitrator's decision, there is no jurisdiction to grant leave to appeal.[17]
[16] See s 247(2)(b) 1981 Act; s 391(2) 2023 Act.
[17] Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17] (Pacific Industrial).
An appeal will 'involve' a 'question of law' where an error of law or error of mixed law and fact is involved.[18] That will occur if [it is established] the decision-maker whose decision is under appeal has made an error of law or an error of mixed law and fact.[19] It does not however follow that if it is ultimately not established that the decision‑maker actually made an error of law or an error of mixed law and fact that the appeal does not 'involve' a question of law. What must be shown, in order to show that an appeal involves a question of law, is that there is a real or significant argument to be put on the question of law.[20]
[18] Pacific Industrial [18]. Contrast BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] (BHP Billiton); Atanasoska v Inghams Enterprises Pty Ltd[2009] WASCA 17 [20] (Atanasoska).
[19] BHP Billiton [3]; Atanasoska [20].
[20] O'Halloran v Legal Profession Complaints Committee [2013] WASCA 59 [13]; Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
If a ground of appeal, properly analysed, does not involve a question of law, linguistic gymnastics in its formulation cannot alter the position.[21] Merely finding facts wrongly or on a doubtful basis does not amount to an error of law.[22]
[21] Atanasoska [21].
[22] Atanasoska [21].
The correction of errors of law is the primary, but not sole, function on such an appeal.[23] Provided that some question of law is 'involved', once leave is granted, the [court] is obliged to conduct a 'real review'. The whole of the decision appealed from is open to review, and not merely the question of law.[24]
[23] Pacific Industrial [17].
[24] Pacific Industrial [18] and the cases cited therein including Ruhamah Property Co Ltd v The Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 15 and XCO Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 37; (1971) 124 CLR 343, 348.
An appeal is to be by way of review of the decision appealed against.[25] The 'review' required by s 247(5) is in the nature of an appeal by rehearing. Some 'proper basis', within the constraints of the appellate process, must be established for disturbing the decision under challenge.[26] Some material error of fact or law, or some other miscarriage, must be established.[27] Once an error or a miscarriage of justice is established then this court, if it is in a position to do so, substitutes its own decision for that of the arbitrator.[28] Given the decision was a discretionary decision, it was common ground that the principles summarised in House v The King[29] are applicable to the ascertainment of error.
[25] Section 247(5) 1981 Act; s 391(5) 2023 Act.
[26] Pacific Industrial [20], [21], [25]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] - [57]; Marks v Coles Supermarket [2021] WASCA 176 [124] (Marks).
[27] Marks [124].
[28] Marks [131].
[29] House v The King (1936) 55 CLR 499, 505.
Other than the requirement that the appeal involve a question of law, the power to grant leave to appeal is not expressly confined. Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.[30]
[30] Compare, in relation to the discretion to grant leave to further appeal to the Court of Appeal if that appeal 'relates' to a question of law, Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46], cited with approval in Waite v Alcoa of Australia Ltd [2020] WASCA 1 [78] (the Court).
If on a review the court forms the view that, although a question of law is 'involved', there has been no relevant error of law, that may be a factor which the court may consider relevant to the question of whether leave should be granted.[31]
[31] Pacific Industrial [25].
Given the interlocutory nature of the decision regarding practice and procedure, the decision must be wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice will be done by leaving the decision unreversed.[32] This is reflective of the particular caution and special restraint appropriate in granting leave to review the interlocutory decision of an arbitrator under the Act.[33]
[32] Silbert v Steinberg [2010] WASCA 113 [3].
[33] Blakers v South Metropolitan Health Service [2023] WADC 143 [17] - [18]; Low v Romaro [2023] WASCA 155 [27] - [30].
The requirement that a substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be, and remain, a broad discretion to grant or withhold leave.[34] What is a substantial injustice depends on all the circumstances of the case.[35]

Proper construction of rule 59

[34] Alcoa of Australia Limited v Blay [2015] WADC 62 [17] (Sleight DCJ).

[35] Wilson v Metaxas [1989] WAR 285, 294 (Malcolm CJ).

Rule 59 of the 2011 Arbitration Rules relevantly provides:
(1)Except with the leave of an arbitrator, in any proceeding -
(a)a medical report by a medical practitioner in a particular area of medical practice may not be lodged or admitted in evidence on behalf of a party to a proceeding if another medical report by another medical practitioner in that area of medical practice has been lodged or admitted in evidence on behalf of that party;
Contextually relevant is r 58, which requires that, except with the leave of an arbitrator, any medical evidence of a medical practitioner must be given in writing and a medical practitioner may not be called to give oral medical evidence at a hearing before an arbitrator.[36] An arbitrator must not give leave to call oral medical evidence unless satisfied that the giving of the medical evidence 'will assist in the determination of a dispute in a manner that is fair, just, economical, informal and quick'.[37]
[36] Rule 58(1) 2011 Arbitration Rules. Compare, now, r 36(1) 2024 Arbitration Rules.
[37] Rule 58(3) 2011 Arbitration Rules. Compare, now, r 36(3) 2024 Arbitration Rules which now includes added requirement, that the arbitrator be satisfied there are exceptional circumstances that require the medical practitioner to attend the arbitration hearing and give evidence.
The predecessor to r 58 and r 59 are r 90 and r 91 of the Workers' Compensation (DRD) Rules 2005 (WA). Rule 58 and r 59 have now been replaced by r 36 and r 37 of the 2024 Arbitration Rules, but continue to apply to dispute proceedings that were pending on 1 July 2024.
The history and statutory context of r 91 was examined by Commissioner Nisbet in Taramore. His Honour explained that, as part of a suite of changes introduced to the 1981 Act, s 293(2)(c) (as it was then) was inserted which specifically empowered the making of rules 'limiting the number of medical reports in connection with the claim or any aspect of the claim and, in particular, limiting the number of medical reports that may be admitted in evidence in a proceeding before a dispute resolution authority'.[38]
[38] Taramore [24].
The Commissioner, by reference to the genesis of the rule, observed that:[39]
Previously as witnesses [sic] an enormous number of decisions of the former Review Officers of the former Conciliation and Review Directorate, parties to disputes before the CRD appeared to adhere to the principle that the party who filed the last best medical report would win. Alternatively, the party who filed the most medical reports would win. One only has to examine a number of these past decisions to see the enormous waste of time and money that was involved in some of these exercises. The Act and the Rules together seek to put an end to that approach and force the parties to address medical issues with more precision, better analysis and a resultant clearer presentation of the dispute before an arbitrator. The undoubted philosophy behind the Act and the Rules in this regard is that the greater the number of medical reports adduced on either side of a dispute the greater the opportunities for delay, expense, and obfuscation of the real issues, and in a system specifically designed to properly manage workplace injuries, an entrenchment of an injured worker in a combative environment which will force workers to concentrate on proving to an arbitrator how sick they really are, distracting them from their principal objective which should be recovery and rehabilitation.
[39] Taramore [25].

Commissioner Nisbet also identified a concern that parties properly analyse issues and make proper use of medical evidence, including confining those medical reports to those 'which address the specific issues of the injured worker without any doubling up'.[40]
[40] Taramore [26] - [27]. Compare Rules of the Supreme Court 1971 O 36A r 5 (repealed in August 2017).
No doubt with a view to assisting arbitrators asked to exercise this discretion, Commissioner Nisbet stated that an arbitrator should be slow to give leave to adduce reports of additional medical practitioners under r 91 and should only grant leave in 'clear and obvious cases'. His Honour then set out a non-exhaustive list of circumstances in which consideration whether to admit or refuse admission of additional medical evidence may arise. The three examples were:[41]
(1)Need: does the worker claim to have sustained a disability which is not covered by any of the existing areas of medical speciality in respect of which reports have been filed? This is not the same as asking whether the same injury has been commented upon by two different areas of speciality as often happens between orthopaedic surgeons and neurosurgeons dealing with spinal injuries (as in this case for example).
(2)Dispute between experts: if there is a genuine dispute between experts this may necessitate obtaining of a further opinion.
(3)Treating specialist different from reporting specialist: occasionally the situation may arise where a worker has been seen by a specialist for medico-legal review but later is referred to another specialist in the same field for treatment after the report from the former has been filed.
[41] Taramore [28].

Neither party challenges the correctness of the Taramore decision. The appellant points out however that the decision leaves open the question as to what might amount to a 'clear and obvious case' beyond the three examples given. It also contends that this was a clear and obvious case and that having regard to the underlying principles which ought inform the exercise of the discretion it ought to have been granted leave and various errors were made by the arbitrator in exercising her discretion. Of course, even if this court were of the view that there is an appropriate basis on which the discretion could have been exercised, it does not follow that it should substitute its own view for that of the arbitrator, absent a proper basis to intervene.
Further, in relation to the operation of r 59, the appellant contends that the discretion is a wide discretion that must be exercised judicially.[42]
[42] Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [44].
It also contends that the principal question to be asked when exercising the discretion is whether it is in the interests of justice and that it would enable the determination of the arbitration in a manner that is fair, just, economical, informal, and quick.
In support of that contention, it refers to the purpose of the Act which includes providing for the hearing and determination of disputes in a manner that is fair, just, economical and quick;[43] that an arbitrator is bound by the rules of natural justice, to the extent provided for in the Act;[44] and that the arbitrator is not bound by the rules of evidence and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms. The appellant contends that the purpose of r 59 must also be considered in the context of relevant rules as to how medical evidence is adduced at arbitration.
[43] Section 3(d) 1981 Act; s 448(2)(f) 2023 Act .
[44] Section 188 1981 Act; s 336 2023 Act.
I generally accept the above contentions and the respondent did not contend to the contrary. The question of whether it is in the interests of justice to exercise the discretion is informed by the above statutory context, including the historical context for introduction of the power to limit the number of medical experts and generally limiting medical evidence to written evidence.
In my view it is in the above context that the observations of Commissioner Nisbet ought to be understood and applied. His Honour's reference to a clear and obvious case is a helpful general guideline for the exercise of the discretion that must necessarily be, and remain, a broad discretion to grant or withhold leave where it is in the interests of justice.

Ground 1

By ground 1 the appellant argues that the arbitrator erred in law in failing to take into account a material consideration, being its 'prejudice' if it were not able to adduce Dr Overmeire's supplementary report or, alternatively, failed to give adequate reasons for her decision by failing to refer to its prejudice.
In its particulars to ground 1 the appellant asserts, in effect, that the appellant would suffer a miscarriage of justice if the application was denied because (a) the totality of Dr Overmeire's opinion in respect of the respondent's capacity for work would not be available for the arbitrator to consider; and (b) the appellant would be denied the ability to adduce the supplementary opinion evidence from Dr Overmeire to support its contention that the respondent has a capacity for work. It is also said that the arbitrator failed to address those injustices.

Appellant's submissions

In its written submissions, the appellant refers to a fundamental difference of opinion between Dr Tang and Dr Overmeire as to the respondent's condition following the incident. Dr Tang considers the respondent has no restrictions on his ability to perform his pre-accident duties, whereas Dr Overmeire believes he has a partial capacity to work.
The appellant contends that as Dr Overmeire believes that the respondent is able to perform alternative duties that the appellant says were available, if accepted, there would then be consensus medical opinion that the respondent can perform that other work. It says that the issue (in relation to the alternative defence) would then be appropriately narrowed to consideration of the factual evidence it intends to adduce at the arbitration, that those duties were available for the respondent.
The appellant contends that, if it is denied the ability to rely on Dr Overmeire's opinion at an arbitration hearing, it will be too narrowly restricted in leading evidence that supports its contention that it is not liable to make weekly payments to the respondent. It also contends that it would be a denial of natural justice if the rules were applied in a way that restricted it from adducing otherwise admissible evidence from a witness that the opposing party seeks to rely on.
It submits that the arbitrator did not consider or address the consequence to it by not allowing the supplementary evidence of Dr Overmeire. It says that the arbitrator made no mention or consideration of its complaint that, if the evidence were not admitted, it would be deprived of relying on admissible evidence that it had obtained from a witness the respondent continues to rely on. This was said to be repugnant to the rules of natural justice when the evidence would provide the party a good defence. The appellant contends that in the circumstances, the arbitrator erred in failing to consider its prejudice and the decision was otherwise unreasonable and plainly unjust.
In its oral submissions the appellant contended that the obligation on the arbitrator to consider and deal with the appellant's potential prejudice arose because the issue was raised by it before the arbitrator.
The ultimate prejudice it pointed to, if the supplementary report was not admitted, was the risk that its alternative defence might not be upheld if Dr Overmeire's view was ultimately preferred over Dr Tang in relation to whether the respondent had a full or partial capacity to work. Absent Dr Overmeire's further report, which made clear his views as to capacity to perform alternative duties, the evidence might not be considered sufficient.

Respondent's submissions

The respondent contends that the appellant did not suffer prejudice or a miscarriage of justice as alleged in ground 1 and its particulars, or a substantial injustice or denial of natural justice by being prevented from relying on the supplementary report of Dr Overmeire. He says that the appellant had no absolute right to cross-examine Dr Overmeire or to adduce his report. He also says that those matters are not matters of prejudice, in any event.
The respondent further contends that there was nothing in the report of Dr Overmeire that could mislead an arbitrator.
The respondent also contends that, insofar as it may now be suggested that the ultimate risk is that a finding might be made contrary to that which is accepted by Dr Overmeire in his report, that risk ought to have been, but was not, explicitly and specifically put to the arbitrator. He contends that the arbitrator did not make an error in not taking into account particular prejudice that was not put to the arbitrator in those specific terms or with that level of nuance. He also says that the concern could be adequately addressed by asking Dr Tang whether he would be fit to perform these roles.
The respondent also observes that the questions put to Dr Overmeire and his answers in his report went further than the issue of fitness to perform alternative duties which Ms Markey says could have been made available.
The respondent says that the assessment of prejudice is a factual assessment, that the respondent suffered no material prejudice, in any event.
The respondent says that this was a simple application and the reasons were perfectly adequate for the determination of the matter. He contends that there was no need for arbitrator to address the issue of prejudice in her reasons and points to s 213(4) of the Act, particularly subpar (4), which provides that the reasons for an arbitrator's decision need not canvas all the factual and legal arguments or issues arising in the case.

Adequacy of reasons for decision

The legal principles applicable to the adequacy of the reasons of an arbitrator were recently considered and summarised in Zamora v OCS Services Pty Ltd.[45]
[45] Zamora v OCS Services Pty Ltd [2024] WADC 77 [101] - [108].
Relevant principles include that:
1.The content and detail of reasons will vary according to the nature of the jurisdiction being exercised and the subject of the decision. A reason why adequate reasons need be provided is to enable the parties to understand the decision for purposes including exercising any rights to appeal, and to enable an appellate court to discharge its duty on an appeal.[46]
2.Both the losing party, and the appellate court, must be able to distinguish whether a mistake of law or fact was involved.[47]
3.Whether reasons are adequate will depend upon the circumstances of the case and the matters which arose for consideration.[48]
4.An appellate court may consider what can be inferred from the reasons as a whole.
5.In the context of an arbitrator's decision, the content required is informed by the objects of the 1981 Act, which are designed to promote expedition, simplicity, and transparency.[49]
6.The obligation is also informed by s 213 of the 1981 Act, which specifies various matters which reasons for an arbitrator's decision need not do.[50] That includes they need not canvas all the factual and legal arguments or issues arising in a case.[51]
7.An arbitrator's reasons do not need to be lengthy. They still need to expose the reasoning process that links the facts and law to justify the ultimate decision.[52]

Analysis and determination of ground 1

[46] See DL v The Queen (2018) 266 CLR 1 [32]. See also Velez Pty Ltd v Tudor [2011] WASCA 218 [65] (Velez), Summit Homes v Lucev (1996) 16 WAR 566.

[47] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280 (Soulemezis); Skinner v Broadbent [2006] WASCA 2 [38].

[48] Browne v Browne [2019] WASCA 1 [80]; Player v Avery [2022] WASCA 147 [102]; Velez [63].

[49] Section 3(d) 1981 Act. Compare s 448(2)(f) 2023 Act. See Dodson v Woolworths Group Ltd [2020] WADC 157 [168].

[50] Velez [67] - [69]. Now see s 448 2023 Act.

[51] Section 213(4)(d) 1981 Act; s 448(2)(f) 2023 Act.

[52] Velez [70].

As this ground relates to an alleged failure to consider alleged prejudice, which it was contended was raised by the appellant in its submissions before the arbitrator, it is appropriate to first consider what it did contend.
In its written submissions in support of its application the appellant submitted that if the arbitrator were to deny it the opportunity to, in essence, ask Dr Overmeire to consider further evidence in the proceedings and allow him to comment on its relevance, that would be 'grossly unfair and prejudicial to [it] given the current issues in dispute in relation to the application'. It also submitted that it was the intention of the 1981 Act for the arbitrator 'to consider all relevant evidence the parties may wish to rely on'.
Earlier in its submissions, in relation to the requirement to also obtain leave under r 30 due to the late filing of the evidence,[53] the appellant stated that it 'sought to clarify Dr Overmeire's evidence by requesting his supplementary report commenting on the witness statement evidence of Ms Markey (as it pertains specifically to the [respondent's] pre-injury role and the [appellant's] ability to provide alternative roles to assist the applicant to return to work), and asking for his further comments'.
[53] It was also necessary for the appellant to obtain leave under r 30 of the 2011 Arbitration Rules to adduce the evidence in the arbitration as it was not lodged within the time period prescribed in the rules. Given that the arbitration had not been listed for hearing the arbitrator, the arbitrator did not appear to take issue with the delay and her decision was therefore directed to whether leave ought be granted under r 59(1)(a).
The appellant identified issues in dispute between the parties and contended that 'a considerable miscarriage of justice could be sustained to [the appellant], as the arbitrator's finding with respect to the issues in dispute 'would not take into consideration all relevant evidence including the responsive supplementary report of Dr Overmeire'.
The appellant also contended that a party will be denied natural justice if it is unable to put its case to an opposing witness in cross‑examination and that natural justice should be afforded to both parties so that an arbitrator can give appropriate weight to the evidence in the proceedings.

In oral submissions before the arbitrator counsel contended, in essence, that r 59 did not apply and that Dr Overmeire was not an 'additional medical practitioner' that they were seeking to adduce. Counsel also contended that the appellant was seeking to 'just simply clarify some of the issues [in] dispute between the parties and put those issues to Dr Overmeire on a slightly broader factual basis' and said further that:
To the extent that we need to demonstrate a clear and obvious case, we say that the facts outlined by the evidence of Ms Markey outlines specific paid duties which are relevant to the determination of [the respondent's] medical work capacity, which is one of the main issues.
In relation to an issue that arose as to whether the materials provided to Dr Overmeire had been provided to Dr Tang, and his further opinion sought, it was suggested to the arbitrator by counsel for the appellant that Dr Tang had been asked to consider most of the evidence but in a more summary form of what had been included in Ms Markey's statement. It was accepted that the specific statement of Ms Markey may not have been provided to Dr Tang at that stage, but that the appellant was happy to seek a further supplementary report from Dr Tang, if necessary. It was suggested that Dr Tang had, for all intents and purposes, considered the material aspect of Ms Markey's evidence.
Turning then to ground 1, in my view the first limb of the ground, alleging a failure to consider the prejudice to the applicant if it were not able to adduce Dr Overmeire's supplementary report, is not made out.
First, the submissions were advanced at a high level of conclusory assertion and did not descend to any level of meaningful detail as to why it would be unfair, unjust or potentially result in a miscarriage.
Its contention that it was grossly unfair and prejudicial to the appellant given the current issues in dispute descended to no meaningful detail as to how or why that result was said to be the case. Nor did the submission that a considerable miscarriage of justice could be sustained to the respondent as the arbitrator's finding with respect to the issues in dispute 'would not take into consideration all relevant evidence including the responsive supplementary report of Dr Overmeire'.
Secondly, the appellant's submission to the arbitrator, that it was the intention of the 1981 Act for the arbitrator 'to consider all relevant evidence the parties may wish to rely on', was plainly incorrect. The restrictions imposed by r 58 and r 59 clearly demonstrate that not to be the intention.
Thirdly, it should not be inferred that the arbitrator failed to consider and take into account the potential prejudice to the appellant if the application was refused.
On the contrary, it is to be inferred from the reasons as whole that she did. In particular, the arbitrator's statement in her reasons that it seemed to her that the appellant had obtained information that it wanted in Dr Tang's reports and that if it needed further clarification, it could always seek to obtain a further report from Dr Tang to specifically report on the documents which were put to Dr Overmeire, supports an inference that she was alive to, and considered, the question of potential prejudice.
Fourthly, it is now contended by the appellant that if the evidence were not admitted it would be repugnant to the rules of natural justice when the evidence would provide the party 'a good defence'. An argument was not advanced in those terms, or to that effect, before the arbitrator and as such there was no obligation on the arbitrator to consider that argument. Further, even if the evidence might assist to establish a good defence, it would not necessarily be contrary to principles of natural justice if it were not admitted.[54] That is particularly so where, as here, there was already evidence relevant to the issue of capacity to perform duties before the arbitrator, including from Dr Overmeire as to applicable work restrictions. Further, the application related to the entirety of the supplementary report. It was not confined to opinions as to the respondent's capacity to perform duties that the appellant contends it could have made available to the respondent had he not gone on leave and resigned from his employment.
[54] Medical Board of Australia v Adams [2023] WASCA 41 [89] - [90].
Fifthly, it is also now said by the appellant that its prejudice arises from the risk that its alternative defence might not be upheld if Dr Overmeire's view was ultimately preferred over Dr Tang in relation to whether the respondent had a full or partial capacity to work. Again, a submission to that effect was not advanced before the arbitrator. As such the arbitrator was not obliged to consider that argument.
I also consider that the second limb of ground 1, concerning an alleged failure by the arbitrator to give adequate reasons for her decision by failing to refer to prejudice, is not made out.
This was an interlocutory application on a matter of practice and procedure. Elaborate reasons for decision were not required in the circumstances of the application and arguments advanced. The arbitrator was not required to canvas in her reasons all the factual or legal arguments that arose in the application.[55]
[55] Section 213(4)(d) 1981 Act; s 350(4)(d) 2023 Act.
As I have already explained, it is also to be inferred from the reasons for decision that the arbitrator did consider the question of prejudice.
Accordingly, and also having regard to relevant legal principles summarised previously, in my view the reasons delivered were adequate, and no error was made by the arbitrator not expressly referring to the question of prejudice to the appellant.

Ground 2

By ground 2 the appellant contends that the arbitrator erred in law in acting on a wrong principle and/or was mistaken in fact in finding that a level playing field was determined by the number of experts a party relied on to support its case, and that the appellant relying on two occupational physicians was prejudicial to the respondent.
In its particulars the appellant says that the purpose of r 59 of the 2011 Arbitration Rules was to limit the number of medical experts, and areas of medical expertise a party could rely on to reduce delay and costs in doubling up medical expert reports; that an identified exception to the rule is where there is a dispute between experts; and that the respondent had filed and adduced reports from Overmeire dated 23 May 2023 and 26 July 2023, and maintained reliance on them. It also says that Dr Overmeire's report of 18 October 2023 clarified aspects of his opinion [and] that narrows the issues in dispute.

Appellant's contentions

In its submissions, the appellant suggests that Commissioner Nisbet in Taramore observed that the mischief the rule seeks to ameliorate was the potentially wasteful exercise of accumulating numerous expert reports by one party over another in order to support a submission that because one party had more expert reports than another, that party should succeed.

It contends that, properly understood, Commissioner Nisbett was explaining that a party does not succeed purely on the basis that there were two medical practitioners in the same practice area reaching the same opinion. It contends that the rule was designed to reduce delay and costs caused by parties seeking to double up medical expert reports that was caused by a misapprehension that a party having multiple reports from doctors in the same area of medical practice (amongst other things) would succeed on that basis.
The appellant contends that the arbitrator proceeded on a misapprehension that a party with the most experts could argue it ought be successful and for this reason it would be unfair for the appellant to admit Dr Overmeire's supplementary report.

It says that in proceeding on the misapprehension, the arbitrator 'ignored' that a reasonable exception to why a party might rely on more than one expert in the same area of medical practice (as was said to be the purpose in the present case) was to reduce the areas of dispute between the experts. It says that it submitted to the arbitrator that Dr Overmeire did not alter his opinion about the respondent's capacity for pre-accident duties but clarified the extent of the respondent's capacity for other work. This is said to be a circumstance within the exception identified in Taramore as a genuine dispute between experts.
The appellant contends that obtaining a supplementary report from an independent expert that is relied upon by another party that clarifies or narrows the issue in dispute is clearly a reason to grant leave. There would be no unfairness to the respondent who maintains his reliance on Dr Overmeire's other reports.
The appellant contends that the arbitrator having misunderstood the purpose of r 59 resulted in an erroneous conclusion that it was unfair on the respondent if the appellant relied on the evidence.

Respondent's contentions

The respondent contends that appellant misstated the arbitrator's reasons and that she found that r 59 was there to 'help create a level playing field between the parties', which was consistent with authority. Further, he says that the appellant's actions in seeking three supplementary reports from Dr Tang and a report from Dr Overmeire is reflective of the concerns identified by Commissioner Nisbet.
The respondent also contends that the appellant's conclusion that it would be unfair to expect the respondent to respond to the report given his financial situation was a finding of fact and that the arbitrator made no mistake of fact in relation to this or to a level playing field.

Analysis and determination of ground 2

In my view this ground is not made out for several reasons.
First, the ground is premised on the erroneous assertion that the arbitrator found 'that a level playing field was determined by the number of experts a party relied on to support its case'.
For the reasons already given, in my view the reasons for decision to which regard ought properly to be had are the ex tempore oral reasons for decision, not the subsequent written reasons. The ex tempore reasons make no finding by reference to a 'level playing field' or in substance as contended.
Further, even if regard is properly to be had to the written reasons, the arbitrator did not expressly or by implication make the finding suggested. Rather, she expressed the view that r 59 is there to help create a level playing field between the parties. That involves no misconception by the arbitrator of the reasons of Commissioner Nisbet in Taramore. As recounted earlier in the reasons, Commissioner Nisbet explained that:
The undoubted philosophy behind the Act and the Rules in this regard is that the greater the number of medical reports adduced on either side of a dispute the greater the opportunities for delay, expense, and obfuscation of the real issues, and in a system specifically designed to properly manage workplace injuries, an entrenchment of an injured worker in a combative environment which will force workers to concentrate on proving to an arbitrator how sick they really are, distracting them from their principal objective which should be recovery and rehabilitation.
Secondly, in my view the appellant's contentions as to the proper understanding of Commissioner Nisbett's reasons and the reasons for the rule are unduly narrow. As the above passage illustrates, the philosophy behind r 59 is not limited to reducing delay and costs caused by parties seeking to double up medical expert reports based on a misapprehension as to whether they would therefore succeed.
Thirdly, in my view the arbitrator did not proceed under a misapprehension that a party with the most experts could argue it ought be successful and for this reason it would be unfair for the appellant to admit Dr Overmeire's supplementary report. Rather, the arbitrator's reasons, which include a summary of aspects of Commissioner Nisbet's reasons, reveal no misapprehension as to his reasons of Commissioner Nisbet or other error of principle.
Fourthly, the unfairness found by the arbitrator was not that suggested by the appellant. The arbitrator said that while she did not think that Dr Overmeire's report was very prejudicial to the worker (in the sense of what Dr Overmeire had said), she did think it was unfair to ask him to respond to a further report given his financial situation and what he thought may be a need to obtain further evidence.

Ground 3

The third ground is that the arbitrator erred in law in taking into account an 'irrelevant matter' and/or was mistaken in the purpose of Dr Overmeire's report in finding that there was nothing to stop the appellant from putting new material to Dr Tang and asking him to provide an opinion on such new information.

Appellant's contentions

As to the second limb of this ground, the appellant contends that the purpose of obtaining the supplementary report from Dr Overmeire was to determine whether Dr Overmeire's opinion was affected by any change in the factual assumptions made based on the documents provided, and to clarify his opinion as to the extent of the respondent's capacity for work that was reasonably available to him had he not voluntarily left his employment. That purpose was said to be clarify and test Dr Overmeire's opinion by asking questions that would have been put to him in cross-examination, rather than attempting to adduce the same opinion evidence from a medical practitioner in the same area of medical practice.
It says that the arbitrator was mistaken as to its purpose. This is said to have in turn led to the arbitrator proceeding on a misapprehension that the appellant could put the relevant documents and ask the same questions to Dr Tang. This was not a relevant consideration because the purpose of the report was to distinguish his opinion from Dr Tang's.

Respondent's contentions

The respondent contends that the ability of the appellant to put the new material from Ms Markey to Dr Tang and obtain his opinion was relevant to the exercise of the discretion of the arbitrator. Also, it says that no contention to the contrary was made by the appellant to the arbitrator and that it is therefore now not open to it to complain that the arbitrator ought not to have considered the issue.
The respondent also disputes that the arbitrator made any error in relation to the reasons for the report being obtained and further says that this involves a question of fact not law.

Analysis and determination of ground 3

In my view the first limb of this ground is not made out. In her oral reasons the arbitrator found that Dr Tang had given his opinion with respect to issues of causation and issues of capacity, which were both issues in the case, and had also apparently commented on the recent report of Dr Overmeire. She further said that it seemed to her that the appellant had obtained information that it wanted in Dr Tang's reports and that if it needed further clarification, it could always seek to obtain a further report from Dr Tang to specifically report on the documents which were put to Dr Overmeire. Her written reasons were to similar effect.
Those matters were not irrelevant to the exercise of the arbitrator's discretion even if that might not fully address the prejudice the appellant now articulates it might suffer from not being able to rely on the further opinion of Dr Overmeire (see ground 1).
In relation to the second limb of ground 3, I am not persuaded that the arbitrator made any mistake in relation to her identification of the purpose or reason Dr Overmeire's report was obtained.
In delivering her oral reasons for decision, the arbitrator commenced by referring to the purpose or reason for the appellant obtaining the supplementary report. The arbitrator found, in effect, that the reason was to get Dr Overmeire to look at the further documents that had been forwarded to him and address the specific questions that were asked to address whether anything in the vocational evidence or the statement of Ms Markey caused him to alter his opinion expressed in his report of 23 May in respect of causation, diagnosis and treatment and the capacity for work. The arbitrator stated that clearly the reason for the request for the supplementary report was to see whether Dr Overmeire had changed his mind or expressed a different view in light of the material that had been provided to him.
The arbitrator's conclusions in relation to the reasons for the report being obtained are consistent with the reasons or purpose advanced by the appellant in its written or oral submissions before the arbitrator.
Further, even if regard is had to the arbitrator's subsequent written reasons, my conclusion that the ground is not made out is unaffected, as they are similar in effect to the oral reasons. In the written reasons the arbitrator said that the appellant had submitted that it wished to put various documents to Dr Overmeire, including a witness statement from Ms Markey. She said that Dr Overmeire was asked specific questions as to whether such documents would alter his opinion expressed in his previous reports [particularly] 'in respect of causation, diagnosis, treatment and capacity for work'.
I accordingly am not persuaded that the arbitrator erred in fact in relation to her identification of the purpose or reason for the appellant obtaining the supplementary report.

Disposition of appeal

In my view leave to appeal should be refused and the appeal should be dismissed.
I am satisfied that the appeal involves questions of law as each ground raised questions of law in respect of which there was a real and significant argument to be put. Ground 2 and 3 also raised alleged errors of fact. The respondent contends that as such those limbs of grounds 2 and 3 do not involve questions of law. The appellant however contends that they do, in reliance on Commissioner Nisbet's observation in Taramore at [16] that whether a discretion has been properly exercised or not is a question of law. As I heard only limited submissions on this point, I do not propose to decide it, as it is not necessary to do so.
As all the grounds lack merit, I am satisfied that it is appropriate to refuse leave to appeal.
Further, even if any of the errors contended for by the appellant had been made by the arbitrator, I would still refuse leave to appeal as I do not consider that substantial injustice would be caused by leaving the interlocutory decision unreversed.
Dr Overmeire has given evidence in his earlier reports as to the extent of limitations of the respondent's work capacity. If it is found, contrary to the evidence of Dr Tang, that the respondent suffered an injury and that the respondent has partial work capacity as opined by Dr Overmeire, it will be a question of fact for determination by the arbitrator as to whether any duties or roles identified by Ms Markey or otherwise in the proceedings are consistent with those limitations (assuming that there is no other inconsistent evidence as to the limitations).
Further, the appellant still has the opportunity to more clearly articulate its concerns about potential prejudice in relation to matters it contends are critical to, or determinative of, certain issues dealt with in Dr Overmeire's report of 18 October 2023, to the arbitrator through its pending application. The application seeks leave to call Dr Overmeire to give medical evidence at the ultimate hearing of the arbitration to enable it to cross‑examine him. The appellant will of course be required to satisfy the arbitrator that it will assist in the determination of the dispute in a manner that is fair, just, economical, informal and quick and that it is appropriate to exercise her discretion.

Orders

I will make orders that leave to appeal is refused and the appeal is dismissed and otherwise hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CJ
Associate to his Honour Judge Sefton
26 SEPTEMBER 2024