Regis Aged Care Pty Ltd v Hunter - [2018] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   REGIS AGED CARE PTY LTD -v- HUNTER [2018] WASCA 50
CORAM:   MURPHY JA
BEECH JA
ALLANSON J

HEARD:   6 MARCH 2018
DELIVERED          :   13 APRIL 2018
FILE NO/S:   CACV 17 of 2017
BETWEEN:   REGIS AGED CARE PTY LTD
Appellant
AND
MAUREEN HUNTER
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   PARRY DCJ
Citation: REGIS AGED CARE PTY LTD -v- HUNTER [2017] WADC 12
File Number            :   APP 79 of 2016

Catchwords:

Workers' compensation - Weekly payments of compensation - Employer applied under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) for order discontinuing or reducing payments - Whether employer could have invoked s 61 of the Workers' Compensation and Injury Management Act 1981 (WA) - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 60, s 61

Result:

Leave to appeal granted
Appeal upheld
Orders of primary judge set aside

Category: B

Representation:

Counsel:

Appellant	:	Mr D R Clyne
Respondent	:	Mr M J Lourey

Solicitors:

Appellant	:	SRB Legal
Respondent	:	Chapmans Barristers and Solicitors

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

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Department of Education v Kenworthy (1990) 3 WAR 1
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Johnson v Denwest Nominees Pty Ltd [2017] WASCA 200
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230; (2015) 49 WAR 243
Qantas Flight Catering v Joncerski [2004] WASCA 121
Regis Aged Care Pty Ltd v Hunter [2017] WADC 12
Taylor v Star Broken Meats (Unreported, WASCA , Library No 920434, 26 August 1992)
The State of Western Australia (Department of Education) v Leek [2014] WADC 10
Vurlow v Leighton Nursing Home [1978] WAR 15

JUDGMENT OF THE COURT:

Introduction

The appellant (the employer) seeks leave to appeal against the decision of the primary judge[1] dismissing an appeal against the decision of an arbitrator made under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). Section 60 permits an arbitrator to order that weekly compensation payments be discontinued or reduced. Both the arbitrator and the primary judge found that the employer could not invoke s 60 because the employer's proper remedy was under s 61.
[1] Regis Aged Care Pty Ltd v Hunter [2017] WADC 12 (primary reasons).
In our opinion, for the reasons that follow, the primary judge erred in coming to that view, and the employer's appeal must be upheld.

Background

The background facts are not in dispute and may be shortly stated.
The respondent (the worker) is an enrolled nurse who sustained a right hip injury on 28 June 2013 while she was manually handling a patient in the course of her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASCA 50
Decision Date: 13 APRIL 2018

CaseChat Overview and Summary

Regis Aged Care Pty Ltd, an employer, sought to appeal a decision of an arbitrator regarding weekly payments of compensation to an injured worker. The dispute was heard in the District Court of Western Australia. The employer argued that the arbitrator erred in law when deciding that there was no genuine dispute as to liability under s 60 of the Workers' Compensation and Injury Management Act 1981 (WA). The employer also argued that the arbitrator wrongly dismissed its application on the basis that it was open for the employer to issue a notice under s 61 of the Act. The court had to decide whether the appeal involved a question of law and whether the arbitrator correctly interpreted the relevant sections of the Act.

The court considered whether the appeal involved a question of law, as required by s 247 of the Act. The court applied the decision in BHP Billiton Iron Ore Pty Ltd v Brady, which established that an error of law or an error of mixed fact and law was necessary for an appeal. The court found that the employer's submission that the arbitrator erroneously focused on whether it was open for the employer to serve a notice under s 61 rather than dealing with the real issue of whether there was a dispute as to liability under s 60 of the Act was incorrect. The court held that the arbitrator correctly focused on the threshold question of whether the application could properly be brought under s 60 of the Act, when s 61 or s 62 were also potentially relevant. The court concluded that the approach adopted by the arbitrator reflected the law as stated by the Full Court in Star Broken Meats. The court found that the arbitrator did not err in law in considering whether the employer could have issued a notice under s 61 of the Act.

The court rejected the employer's appeal on the basis that the arbitrator did not err in law when deciding that there was no genuine dispute as to liability under s 60 of the Act. The court held that the employer's argument that the arbitrator wrongly dismissed its application on the basis that it was open for the employer to issue a notice under s 61 of the Act was also unsuccessful. The court found that the arbitrator correctly interpreted the relevant sections of the Act in accordance with the law as stated by the Full Court in Star Broken Meats. The court held that the employer's appeal did not involve a question of law, and therefore the employer was not entitled to leave to appeal. The employer's appeal was dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 247 of the Act provides, relevantly:247. Appeal against arbitrator’s decision made under Part XI(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.…(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.…(7)On hearing an appeal made under this section, the District Court may -(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. The employer sought leave to appeal to the District Court on two grounds:1.The arbitrator erred in law in finding that there was not a genuine dispute as to liability pursuant to s 60 of the [Act].2.The arbitrator erred in law in dismissing [the employer's] application on the basis that it was open for [the employer] to:(a)issue a notice pursuant to s 61 of the [Act]; and(b)issue an application pursuant to s 62 of the [Act]. As to the requirement of s 247 of the Act that an appeal involve a question of law, the primary judge applied the decision of this court in BHP Billiton Iron Ore Pty Ltd v Brady[25] that this required that an error of law or an error of mixed fact and law has occurred.[26][25] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3].[26] Primary reasons [16]. The primary judge rejected the employer's submission that the arbitrator erroneously focused on whether it was open for the employer to serve a notice under s 61 rather than dealing with the real issue of whether there was a dispute as to liability under s 60 of the Act. The primary judge found that, properly understood, the arbitrator's reasons revealed that she had correctly focused on the threshold question of whether the application could properly be brought under s 60 of the Act, when s 61 or s 62 were also potentially relevant.[27] The primary judge found that the approach adopted by the arbitrator reflects the law stated by the Full Court in Star Broken Meats.[28] After a detailed consideration of Star Broken Meats, the primary judge concluded that the arbitrator did not err in law in considering whether the employer could have issued a notice under s 61 of the Act, because, as the scheme was interpreted by the Full Court in Star Broken Meats, an application could not properly be brought by the employer under s 60 in circumstances where the substance of the dispute fell within s 61.[29] [27] Primary reasons [23] ‑ [24].[28] Primary reasons [25]. [29] Primary reasons [37].

Ratio Decidendi

Legal Principle Established

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