| Run income | $4,324.32 | | Plus other income | $1,680 | | Plus decals (signage) | $23 | | Less network access fee (radio costs) | $42 | | Less claim fund (damage to parcels in Foxline's system) | $8.23 | | Less other | $0.00 | | Total | $5,977.09 | | Plus 10% GST | $597.71 | | Total amount payable | $6,574.80 |
58 During the arbitration, submissions were made on Foxline's behalf that the capital cost of Mr Rekabe's truck should be considered when looking at his costs and expenses. Counsel for Foxline highlighted that the 'other income' amount was a payment calculated on the tonnage of Mr Rekabe's vehicle and that other drivers of smaller vehicles did not receive this payment. The other income of $1,680 for the month of September amounted to 26% of the total amount paid to Mr Rekabe. In addition, there were other costs, including signage and GST, which would result in a cost-to-remuneration ratio of up to 35%: see the arbitrator's reasons: [69] - [70] and [72]. 59 On the other hand, counsel for Mr Rekabe submitted that the capital cost of the truck should not be considered when looking at Mr Rekabe's costs and expenses, and that his costs and expenses were confined to fuel, registration, servicing and insurance. These amounted to about $554 per month which for one particular month produced a cost-to-remuneration ratio of less than 10%: arbitrator's reasons [59]. Later in her reasons the arbitrator summarised the cost-to-remuneration ratios submitted on Mr Rekabe's behalf, as being between 10% and 20%: [72]. 60 The arbitrator identified the issues in relation to remuneration and 'other income' and also canvassed the parties' different approaches to the calculation of the cost-to-remuneration ratio, however, she ultimately concluded that there was a difficulty in relying on the approach taken by either party: arbitrator's reasons [73]. (Page 21)
61 I consider it is clear from her reasons that the arbitrator concluded that she needed to take into account the costs which Mr Rekabe had incurred in equipping himself for his contract with Foxline, namely the capital cost of his purchase of the truck. There has been no appeal from the approach taken by the arbitrator, in her reasons [65], that she could not ignore the capital cost for the truck and that while this should not be a main focus, it was a factor to consider in determining for what Mr Rekabe was being remunerated. Indeed, during the hearing of this appeal, counsel for Mr Rekabe agreed that it was necessary to look at this capital cost (ts 46). 62 During submissions at the hearing of this appeal, counsel for Mr Rekabe produced and addressed a table of other cases in which a detailed comparison of each case was made with Mr Rekabe's situation. Ultimately the submission made to me was that the authorities place a cost-to-remuneration ratio for expenses which are 'minimal' or insignificant at somewhere between 20 and 30%. At the arbitration hearing the submissions made on Mr Rekabe's behalf (both written and oral) were to the effect that a cost-to-remuneration ratio of less than 20% meant that a contractor would fall within the extended definition of worker. 63 It was submitted that Mr Rekabe's expenses were fuel, registration, radio, insurance and maintenance which were comparatively insignificant and on certain calculations the cost-to-remuneration ratio could have been as low as 9%. (I should observe that at arbitration Mr Rekabe's counsel conceded that the costs for these expenses were estimates only, as there was no supporting documentation (AB 270). I should also observe that in written submissions for this appeal, par 29, there was a proposition that Mr Rekabe's expenses were only fuel, registration and maintenance, which was a mere 5.5% of his earnings). Whatever expenses counsel for Mr Rekabe may choose to rely upon, these expenses do not, of course include the capital cost of the truck. 64 The arbitrator made a finding of fact that the provision of the truck by Mr Rekabe was an integral and indispensible part of providing the services to Foxline. She was, on the authorities and principles as I have discussed in [28] to [36] above, entitled to consider the cost to Mr Rekabe of equipping himself to perform the independent contractor agreement. That cost was not confined, as was argued both at the arbitration hearing and this appeal, to expenses such as fuel, registration, radio, insurance and maintenance for the truck. (Page 22)
65 The arbitrator then made findings that: (a) Mr Rekabe was not being remunerated for personal manual labour or services alone: [74]. (b) Mr Rekabe was being remunerated for providing parcel delivery services, which in addition to personal manual labour or services included the provision of a truck and the meeting of the running expenses of that vehicle [74]. (c) The provision of the truck by Mr Rekabe was an integral and indispensable part of providing the parcel delivery service [74]. (d) The provision of the truck was 'at least as important' as Mr Rekabe's own personal labour in the performance of the tasks he was contracted to complete [74]. (e) What Mr Rekabe was required to provide, including a vehicle for which he met all costs, radio and insurance, was not so insignificant that in reality he was paid in substance for his personal manual labour or services [75]. (f) A significant component of the payment from Foxline to Mr Rekabe for the contractual services he provided was remuneration to Mr Rekabe for equipping himself with a delivery truck, which he had to run and maintain [75]; (g) The remuneration Mr Rekabe received was not in substance for the personal manual labour or services he provided: [75]. 66 Having regard to her reasons as a whole, it is apparent to me that the arbitrator took the view that it was too difficult to precisely dissect Mr Rekabe's monthly pay into remuneration that was in return for his manual labour and remuneration that was a return for 'something else'. In the circumstances the arbitrator was, as a matter of law, entitled to take a broad approach to all of the evidence. In doing so she focussed on the questions, (correctly in my view): was Mr Rekabe remunerated for something else besides his manual labour and, if so, what was the relative significance of the former to the latter? 67 I turn now to the second part of the appeal ground 2, which is the failure to take into account 'other evidence'. While it could be said that some particular aspects of the 'other evidence' identified by Mr Rekabe were not specifically addressed in her reasons, pursuant to s 213(4) of the (Page 23)
Act the arbitrator was entitled to confine her findings and reasons to those facts and circumstances which did impact on her reasoning and conclusion: see also Velez Pty Ltd v Tudor [2011] WASCA 218. 68 In any event, dealing with the matters of 'other evidence' which it is said the arbitrator did not consider, I make the following observations. 69 In relation to cl 6.1.2 of the independent contractor agreement upon which counsel for Mr Rekabe relied in [53](a) above, the arbitrator took into account the whole of the Foxline independent contractor agreement. 70 There is, in my view, no basis to say that the arbitrator failed to take into account cl 2(B) of sch 1 to the independent contractor agreement, as set out in [53](b) above. The arbitrator specifically referred to cl 2 of sch 1 to the independent contractor agreement and adequately summarised the basis upon which the other income was calculated, including what cl 2(B) of sch 1 provided, in her reasons [54]. 71 In respect to the alleged failures to take into account the evidence set out in [53](c) and (d), while the arbitrator did not recite the evidence of Mr Andrews, nor specifically refer to the further document marked 'BA1' entitled 'Foxline express parcels', she summarised the evidence of Mr Saxild that the independent contractor was paid depending on the number of runs he did and subject to the tonnage of the vehicle he was using: [42]. 72 In any event, the evidence referred to in the appeal submissions relating to the second part of appeal ground 2, particularly that from Mr Andrews, tends to confirm that the 'other income' was calculated by reference to both the tonnage of the truck and the number of runs Mr Rekabe did with the truck. 73 The 'other income' was not only based on Mr Rekabe's exertions. As the arbitrator found [71], a component of the 'other income' was a sum which Foxline paid based on the tonnage of Mr Rekabe's truck, a finding which was open to her. 74 Finally, in relation to the evidence in [53](e) which it is said that the arbitrator failed to take into account, the arbitrator in her reasons did refer to the pay documents and how the 'other income' was calculated, including, as I have already observed, in her reasons [54] that this was based on both the tonnage of the truck and the number of runs done by Mr Rekabe. It is thus neither accurate nor fair to say, as was submitted to me by counsel for Mr Rekabe, that the arbitrator did not have regard to (Page 24)
evidence that the 'other income' was based on the number of runs completed by Mr Rekabe. 75 Returning back to the overall thrust of the appeal ground 2, after having regard to all of the submissions made by counsel for Mr Rekabe and the matters I have addressed above, what was being sought on Mr Rekabe's behalf was to have this court accept his cost-to-remuneration ratio arguments, without taking into account the cost of the truck he purchased in order to equip himself to carry out the independent contractor agreement. 76 The relative significance or relevance of the contractor's costs of equipping himself to perform the relevant contract was a question of fact for the arbitrator: Minniti [26]. Further, a ground which asserts the decision is against the evidence or the weight of the evidence does not raise an issue involving a question of law: Atanasoska [21]. 77 I find that the appeal ground 2 is 'dressed-up' as involving a question of law when it really involves a challenge to the findings of fact by the arbitrator. What is being sought is an impermissible review of the merits and whether the arbitrator's decision was correct or not. There was no error in law or error of mixed law and fact in the arbitrator's approach in looking at the capital expense of the truck when assessing whether Mr Rekabe was being remunerated for something else besides his manual labour or services and, if so, what was the relative significance of the former to the latter. There was no error of law or mixed error of law and fact in the arbitrator's approach in light of the authorities as I have discussed in [28] - [36] above. The assessment of the evidence and its weight and her judgment of the extent to which Mr Rekabe was being remunerated for something else other than his manual labour or services do not involve questions of law which can be challenged on appeal. 78 In my view there is no error of law or any error involving a matter of law raised in ground 2. 79 If I am wrong in that view, having regard to the matters I have set out in [57] - [74] and [77] above, I find that there was no error of law by the arbitrator and there was sufficient evidence to enable the arbitrator to make the findings that she did. 80 On the whole of the evidence the findings made by the arbitrator were open, as was her conclusion that Mr Rekabe was not a worker within the extended definition. (Page 25)
81 There is no merit to this ground of appeal.
Appeal ground 3(a) – failure to take into account submissions 82 The appeal ground 3(a) arises because while the arbitrator addressed the approach taken on behalf of Mr Rekabe in relation to the cost-to-remuneration ratio in her reasons, the cost-to-remuneration ratio mentioned in [72] of between 10% and 20% reflected only the written submissions which had been filed. She did not record in her reasons some further oral submissions, which were made at the arbitration by counsel for Mr Rekabe during closing (AB 274). In these oral submissions counsel suggested three alternative ways of calculating the cost-to-remuneration ratio which produced a lower percentage proportion of less than 10%. 83 The point made by counsel for Mr Rekabe in relation to this appeal ground 3 was that the percentages set out in the arbitrator's reasons change 'if remuneration is one of the alternatives put by us at closing submissions' (ts 29). 84 A judicial officer does not have to repeat every single argument put to him or her during the course of submissions by a party. That is made clear in the Act, s 213(4). 85 The failure to consider submissions is an error of law only if the submissions are of substance and, if accepted, they are capable of affecting the outcome of a case: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 [46]; Casarotto v Australian Postal Commission (1989) 86 ALR 399, 403. 86 The difficulty with this ground of appeal is that in the oral submissions before the arbitrator, counsel for Mr Rekabe was asking the arbitrator to construe the evidence in a certain way. 87 In my view the appeal ground 3 is 'dressed-up' as involving a matter of law when it really involves a challenge to the findings of fact by the arbitrator and the weight which she gave to the submissions made by counsel for Mr Rekabe about the cost-to-remuneration ratio. This does not involve any question of law. 88 This appeal ground 3 is also another way of putting what has been argued in relation to appeal ground 2 and it cannot succeed because, for the reasons I have already given in relation to appeal ground 2, the (Page 26)
additional oral submissions made on behalf of Mr Rekabe would not change the outcome. 89 There is, in my view, no merit in this ground of appeal.
Appeal ground 4 – the arbitrator's reference to an authority not raised with the parties at arbitration 90 Section 188(1) of the Act provides that arbitrators are bound by the rules of natural justice, except to the extent that the Act authorises a departure from those rules. Section 188(2)(b) requires arbitrators to determine matters in a manner that is fair, just, and in accordance with 'equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. 91 It has been held that the principles of procedural fairness require an arbitrator to invite submissions from the parties if he or she intends to rely upon principles of law or make findings on a point which has not, in substance, been raised or canvassed during the hearing: see Nardi[63] and see also Atanasoska [61]. 92 This ground of appeal alleges an error of law by a denial of procedural fairness because of the reference by the arbitrator to the authority of Scope Investigation Services Pty Ltd v Kelly CM65/99 (the 1999 Scopedecision) referred to in [73] of the arbitrator's reasons, which I have set out in full above [26]. It is true that neither party raised this authority with the arbitrator, however, there is, in my view, no merit to this ground of appeal for a number of reasons. 93 First, the 1999 Scopedecision did not raise any new issues which had not, in substance, been raised or canvassed in the parties' written submissions or during the hearing. 94 Secondly, the ground of appeal appears to arise because of the reference to the words at the beginning of the following paragraph [74], 'Applying the legal principles outlined above'. This has been taken by counsel for Mr Rekabe as referring only to the 1999 Scope decision. In my view, on a reading of the arbitrator's reasons as a whole, the reference in [74] to 'the legal principles outlined above' is a reference to the earlier authorities which she canvassed in the reasons [6] to [11]. It is also apparent that the arbitrator followed the three step process outlined in Summit Homes v Lucev, Rossi and Minniti. (Page 27)
95 It was also submitted to me that the 1999 Scope decision was a critical component of the arbitrator's reasons and 'it is the only authority from which the arbitrator quoted.' That is plainly a submission which it is not open to make, given what is contained in the earlier parts of the arbitrator's reasons when she referred to and quoted from the relevant authorities on the extended definition of a worker. 96 Thirdly, it was put to me that the 1999 Scopedecision, although post Summit Homes v Lucev, was pre Rossi. Counsel for Mr Rekabe suggested that 'if we had been told that this is what - that the arbitrator was going to cast to one side the math, to put it very bluntly, and go down this - well, this broader view, then I would have had an opportunity to raise the Rossi decision'. The difficulty with these submissions is that Rossi followed but explained Summit Homes v Lucev and made it clear that the broader view can be taken. 97 Finally, and in any event, a departure from the rules of natural justice will not always result in upholding the appeal and setting aside the order under review. After hearing the submissions the parties wish to make, the appeal court may be satisfied that those submissions would not produce any different outcome: see Smith v McCusker QC [2010] WASCA 55 [59], [61]; Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. 98 I am not satisfied that the submissions made by counsel for Mr Rekabe in this case produce any different outcome, for the reasons I have already addressed in relation to the appeal grounds 2 and 3. 99 While this appeal ground on the face of it does involve a question of law, I consider it is another way of challenging the arbitrator's factual findings. Further, I do not consider there is any merit to this ground of appeal.
Appeal grounds 3(b) and 5 – the alleged inadequacy of the arbitrator's reasons 100 The appeal ground 3(b) proceeds on the basis that the arbitrator made a determination on the 'other income'. 101 The appeal ground 5 relates to the arbitrator's findings in her reasons [74] and [75], based upon the failure to undertake a mathematical calculation of the respective proportions of what, in substance, Mr Rekabe was being paid for his personal manual labour or services and what he was being paid for something else. It was suggested that it was not clear (Page 28)
what the arbitrator took into account when she concluded that a significant component of Mr Rekabe's remuneration related to equipping himself with the truck, which he had to run and maintain. 102 The failure of an arbitrator to give reasons, or adequate reasons, for a decision, is an error of law: Summit Homes v Lucev(569); Nardi [26] - [31]. 103 The common law position is that a function of reasons is to provide procedural fairness to a litigant who is entitled to know why he or she has been successful or unsuccessful, and to allow an appeal court to determine whether the decision was based on an appealable error. The reasoning process which led to the result must be disclosed with sufficient certainty to achieve those ends: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32]. 104 This has been modified, however, by the provisions of s 213(4) of the Act, as was discussed by Commissioner McCann in Nardi [29] - [31] and the Court of Appeal in Velez Pty Ltd v Tudor [57] - [70]. Section 213(4) only requires the arbitrator to identify the facts accepted and give reasons for doing so, however, the arbitrator is still obliged to expose the reasoning process linking them and justifying the ultimate result: Velez Pty Ltd v Tudor [70]. 105 In my view the arbitrator's reasons were adequate. Going through the requirements of s 213(4) of the Act, the facts she accepted were identified, as were her reasons for doing so: s 213(4)(a). The law was applied and her reasoning process applying the law to the facts has been exposed: s 213(4)(b). She did not have to canvass all of the evidence, nor all of the factual and legal arguments or issues arising in the case: s 213(4)(c) and s 213(4)(d). The basis for her decision is apparent as I have already discussed when addressing the appeal ground 2. 106 This was a case where the arbitrator concluded it was not easy to determine exactly the extent to which Mr Rekabe was being remunerated for 'something else' besides his personal manual labour or services and the relative significance of the former to the latter. The arbitrator in her reasons made it clear that in the circumstances of this case she was not adopting either of the parties' mathematical calculations of the cost-to-remuneration ratio and gave reasons for not doing so. The arbitrator explained that the 'something else' besides his personal manual labour or services for which Mr Rekabe was being remunerated (Page 29)
was the provision of the truck which he had to run and maintain, and that was at least as significant as the provision of his manual labour. That was a matter of judgment for her to make. 107 I consider there is no merit to this ground.
Foxline's proposed 'cross-appeal' or grounds upon which it seeks to uphold the arbitrator's decision 108 Given my findings on the application for leave to appeal and the appeal, it is not necessary for me to deal with Foxline's proposed cross-appeal. 109 However, the proposed cross-appeal does raise some other issues, including procedural issues, the relevant rules which apply, and whether in any event I could consider the cross-appeal, which I should address and record. 110 Foxline's application for leave to bring a cross-appeal arose out of matters which were discussed when I questioned the basis for the 'run income' part of Mr Rekabe's remuneration in the 'Recipient Created Tax Invoice' for the month of September 2009. 111 The run income of $4,324.32 was explained in another document 'Payment Advice for September 2009'. That Payment Advice set out the calculation of the revenue per driver (as it is described in that document) or the run income as it is described in the Recipient Created Tax Invoice of $4,324.32. The Payment Advice set out all of the Foxline delivery revenue details for the month, the actual number of runs undertaken by all drivers in the month and the value per run which in the month of September 2009 was $51.48, but otherwise varied from month to month. The value per run was then multiplied by the number of runs completed by Mr Rekabe to arrive at the run income. 112 The evidence was, and this was a matter which was conceded by counsel for Mr Rekabe on the appeal (ts 20 - 21), that the value per run did not relate solely to Mr Rekabe but took into account other drivers' deliveries, as well as Foxline's operational expenses. Accordingly, the run income of $4,324.32, which made up the bulk of the payment in September 2009, and also the bulk of the payment in other months, was not solely related to Mr Rekabe's exertions but, as counsel for Mr Rekabe conceded, 'it is linked to his and other, or the entire fleet' (ts 22). (Page 30)
113 It was with this in mind that Foxline, at the end of the hearing of the appeal, sought leave to file a cross-appeal. There then arose an issue as to whether Foxline could now do so, particularly given the time limitation for the bringing of an appeal. I directed Foxline to file a minute of proposed cross-appeal and both parties to file and serve written submissions concerning both the issue of time and the substantive merits of the proposed cross-appeal. A 'Respondent's Notice of Cross Appeal' and written submissions were filed by Foxline on 10 April 2013. Submissions in response were filed on behalf of Mr Rekabe on 6 May 2013. 114 Having considered this proposed ground of cross-appeal by Foxline and the written submissions, it is apparent that Foxline is seeking that the decision reached by the arbitrator be upheld upon an additional ground not considered by the arbitrator. Accordingly, I do not consider that this is, in truth, a cross-appeal; rather it is what is sometimes referred to as a 'notice of contention'. 115 The District Court Rules 2005 apply to this application for leave to appeal and appeal: see s 247(5) of the Act. Rule 53 provides that a respondent to an appeal must file a Form 8 (notice of respondent's intention) within 21 days after the date on which the respondent is served with an appeal notice in a WCIMA appeal, namely an appeal under the Workers' Compensation and Injury Management Act 1981 s 247(1). Rule 53 goes on to provide, relevantly, that: (Page 31)
116 The Form 8 requires a respondent to indicate: • whether or not the respondent intends to take part in the appeal; • whether the respondent will argue the primary court's decision should be upheld on the grounds relied on by the primary court in its decision; • whether the respondent will argue the primary court's decision should be upheld on grounds not relied on by the primary court in its decision, and if so, to specify on what grounds (referred to as 'Other grounds for upholding' ie, a notice of contention); • whether the respondent applies for the primary court's decision to be varied, and if so to specify on what grounds the respondent will argue that the decision should be varied; • whether the respondent also appeals against the primary court's decision and, if so, upon what grounds (referred to as 'Cross-appeal'); and • finally, whether an extension of time for appealing is needed. 117 In this case Foxline filed a Form 8 in which it indicated it would be relying on 'Other grounds for upholding' and set out two grounds upon which it would argue that the arbitrator's decision should be upheld: 118 Foxline did not raise in its Form 8 any other grounds upon which it sought to uphold the arbitrator's decision. (Page 32)
119 In order for Foxline to pursue the ground set out in its Respondent's Notice of Cross Appeal, it would need to apply for leave to amend its Form 8. However, from my review of the proceedings before the arbitrator, particularly the submissions of the parties, this ground was not a matter raised before the arbitrator. 120 The question of whether a party can raise a new issue, not raised below, on an appeal has been recently reviewed by the Court of Appeal in two decisions. The first, Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94 related to a new ground raised by two respondents to an appeal, who had already filed a notice of contention, as it is called in the Supreme Court (Court of Appeal) Rules 2005 (WA). In addition to the grounds raised in their notice of contention, the respondents sought leave to amend to add a new ground which was not in issue in the court below. Newnes JA (with whom Pullin and Murphy JJA agreed) addressed this: 121 In Rankilor v Circuit Travel [2013] WASCA 148 the appellant sought to raise a new ground of appeal which had not been raised before. Newnes JA with whom Pullin JA agreed (Buss JA dissenting on this point), set out the relevant principles as follows: 67 This is not a ground of appeal raised before the primary judge. In my view, it is too late to raise it now. In Metwally (No 2)vUniversity of Wollongong (1985) 60 ALR 68; (1985) 59 ALJR 481, 483, the High Court said: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided (Page 33)
against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 68 In Coulton v Holcombe (1986) 65 ALR 656, 661, the High Court referred to the importance of this principle in light of the public interest in: [T]he finality of litigation, the difficulty of inducing an appeal court to consider new facts, the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8). 69 The principle applies both to points which were not taken at trial and also to the different stages of the appellate process: see Coulton v Holcombe, 660 - 661. 122 Buss JA in his judgment in Rankilorreferred to the same principles, but was of the view that the rule against a new point being raised for the first time on appeal is not absolute, referring to O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, where Mason J (Murphy, Aickin, Wilson & Brennan JJ agreeing) said '[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal … it is expedient in the interests of justice that the question should be argued and decided'. 123 I hasten to add (in light of the arguments which I heard in this appeal) that the decision of Rankilor is not an authority I have referred to the parties or which the parties have referred to me. However, the principles have, in substance, been addressed by the parties in their written submissions. 124 I am bound by the principles referred to by the majority of the Court of Appeal in Rankilor, which are in essence the same as those stated by the Court of Appeal in Ruby v Doric Constructions. These principles apply to a respondent to an appeal in this court who wishes to raise a matter, not raised in the hearing below, in a Form 8, either as a ground for upholding the primary court's decision or by way of cross-appeal. Accordingly I am therefore not able to consider Foxline's further ground for upholding the decision of the arbitrator. 125 In view of the findings I have reached, however, this makes no difference to the outcome of this appeal. (Page 34)
Conclusion 126 The view of Buss JA in BHP Billiton [20] was that if a question of law is involved leave should be granted if, in all the circumstances of the case, it is in the interests of justice to do so. 127 Having considered all of the grounds of appeal I find that: (a) grounds 1, 2 and 3 do not involve a question of law; (b) grounds 4 and 5 arguably involve a question of law, however in substance these two grounds raise questions of fact without raising a seriously arguable case that the arbitrator made any error of law, or mixed fact and law. As I have found, they are without merit. 128 In the circumstances, I consider it is not in the interests of justice to grant leave to appeal and I should refuse leave to appeal. 129 Both the application for leave to appeal and the appeal should be dismissed. 130 Foxline's application to raise a new ground of contention by its Respondent's Notice of Cross-Appeal should also be dismissed. 131 I will hear from the parties as to the appropriate orders and the issue of costs.
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