Rodgers v Amcor Ltd
[2018] WADC 134
•18 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RODGERS -v- AMCOR LTD [2018] WADC 134
CORAM: GETHING DCJ
HEARD: 14 SEPTEMBER 2018
DELIVERED : 18 OCTOBER 2018
FILE NO/S: APP 111 of 2017
BETWEEN: GARY RODGERS
Appellant
AND
AMCOR LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE
Coram: ARBITRATOR MOSS
File Number : A43368 of 2017
Catchwords:
WorkCover appeal - Whether costs orders can be made against a worker's representative personally where no order is made against the worker
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA), s 264, s 265
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr M J Lourey |
| Respondent | : | Mr P E Jarman |
Solicitors:
| Appellant | : | Chapmans Barristers & Solicitors |
| Respondent | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1
Aziz v Tempo Services Ltd [2010] WASCA 39
Bennett v Carruthers [2010] WASCA 131
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 387
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Commonwealth Bank of Australia v Rosebridge Nominees Pty Ltd [2005] WASCA 211
Director General of Department of Transport v McKenzie [2016] WASCA 147
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Hawker Pacific Pty Ltd v Lang [2015] WASCA 256
Hayter v HWE Mining Pty Ltd [2017] WADC 26
House v The King [1936] HCA 40; (1936) 55 CLR 499
Inghams Enterprises Pty Ltd v Beyene (WorkCover WA Commissioner Decisions) C14-2009, 28 May 2009
Manonai v Burns [2011] WASCA 165
Michael, Re; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Sotico Pty Ltd v Wilson [2007] WASCA 112
Tame v Ladner [2006] WASCA 46
Velez Pty Ltd v Tudor [2011] WASCA 218
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54
GETHING DCJ:
Overview
This appeal concerns an injury which the appellant sustained on 30 April 2002.[1] At the time he was working as a machinist for the respondent. His statutory expenses were paid by the respondent's insurer, Allianz Australia Ltd, until around 2016 at which point payments ceased as a result of medical reports the insurer obtained. In response, by application dated 4 July 2017 the appellant made an application for arbitration to the Workers' Compensation Arbitration Service (WCIMA Application).[2] In the WCIMA Application, the appellant sought ongoing payment of his statutory expenses.
[1] The appellant filed an appeal book dated 21 May 2018 (and refiled 12 September 2018), which I will refer to as the Appellant's Appeal Book or 'AAB'. The respondent also filed an appeal book, being that dated 26 July 2018, which I will refer to as the Respondent's Appeal Book or 'RAB'.
[2] AAB 1ff.
The first directions hearing was held on 16 August 2017. Nothing meaningful was able to be achieved at that hearing because of what Arbitrator Moss (Arbitrator) found to be a lack of preparation by the appellant's lawyers. As a consequence, the appellant's lawyers were ordered to pay the costs of the hearing, plus the taxi fare of the respondent's agent to and from the hearing. The Arbitrator also ordered that the costs of the directions hearing as between the appellant and his lawyer be disallowed.
The appellant commenced an appeal to the District Court in relation to the orders in the preceding paragraph. The appellant asserts that the Arbitrator made an error of law in making those orders, misinterpreting the relevant statutory provisions, and also erred in failing to provide written reasons or, alternatively, adequate written reasons.
For the reasons that follow, leave to appeal should be granted, but the appeal should be dismissed.
Background
In his statement dated 1 August 2017, the appellant says that on 30 April 2002 he was taking a bucket of ink weighing approximately 15kg to 20kg from a trolley. In the process of lifting it, and bending and twisting to do so, he felt a sharp pain in his lower back. He immediately reported the injury to his supervisor. He was initially placed on light duties and over about a five week period returned to his duties with restrictions.[3]
[3] AAB 51.
The appellant goes on to say in his statement that, after referrals from his general practitioner, he attended physiotherapy sessions on a number of occasions. He says that throughout his time in dealing with his injury, and the medical and physiotherapy appointments resulting from the injury, he only ever received a one off payment of $400 in relation to his travel expenses. As I have already noted, the appellant's statutory expenses were paid by Allianz until around 2016. The appellant was never notified by his employer or Allianz that any medical and/or travel expenses resulting from his injury would no longer be paid.[4]
[4] AAB 51 - 52.
At some stage, the appellant became aware that the accounts for his general practitioner going back to July 2016 had not been paid. He also found out that Allianz would no longer be funding his physiotherapy treatment.[5]
[5] AAB 52.
The position of Allianz was based on two medical reports. On 14 August 2013, the appellant was examined by surgeon Mr Paul Taylor at the request of Allianz. In a report dated 19 September 2013, Mr Taylor commented that:[6]
I do not think any specific treatment or medication is required … I do not think there is requirement for ongoing regular physiotherapy.
[6] RAB 26.
The second resulted from an examination of the appellant on 24 March 2014 by occupational physician Dr Steven Overmeire, again at the request of Allianz. In a report dated 31 March 2014, Dr Overmeire stated that:[7]
There is no indication for further, formal medical treatment, in my opinion. There is no indication for physiotherapy treatment, invasive treatment or surgery.
[7] RAB 33.
On or about 1 May 2017, an Application for Conciliation was completed on behalf of the appellant. In the application, the appellant sought orders that the respondent pay statutory expenses which had been incurred by the appellant.
At the time the Application for Conciliation was filed, the appellant had not provided the respondent or Allianz with evidence of the medical expenses which he says had not been paid.
The parties attended a conciliation conference on 7 June 2017. It was not in issue at the conciliation conference that the appellant sustained a compensable injury to his back on 30 April 2002. The issue was whether the appellant required further treatment. The matter was not able to be resolved at the conciliation conference.[8]
[8] AAB 40 - 41.
As I have already indicated, the WCIMA Application was filed on 5 July 2017. In it the appellant sought payments of his statutory expenses. At point 21.1 of the application, the 'medical/hospital/other expenses' claimed by the appellant were detailed as 'TBA'.[9] Also in the application, the appellant foreshadowed that he would file a report from his general practitioner, and it was noted that the report had not yet been commissioned.[10] The application did not include a witness statement from the appellant, or details of the expenses the appellant sought payment for.
[9] AAB 3.
[10] AAB 10.
On 17 July 2017, the registrar provided a notice to the parties that a directions hearing was scheduled to be held on 16 August 2017.[11] The notice contained the following:
[11] AAB 45-46.
You are required to attend the Directions Hearing and must be prepared to identify and outline:
a) the issues in dispute and the prospect of resolving any particular issue by agreement
b)any witnesses proposed to be called at the arbitration and any limitations upon their availability
c)any relevant documents not already produced to the Arbitrator and other parties that you require the Arbitrator to consider
d)any issues that might delay the matter proceeding to arbitration
e)where the arbitration is likely to include an argument on the law, the area of law in dispute
f)an indication of suitable and/or unsuitable dates for arbitration (this means diaries should be brought to the directions hearing).
On 20 July 2017, a reply was filed on behalf of the respondent. The reply noted that as neither a witness statement nor details of the expenses had been provided by the appellant, there was no evidence to which the respondent could reply. The respondent foreshadowed filing more information when the appellant filed evidence in support of the application.[12]
[12] AAB 48 - 50.
Prior to the directions hearing on 16 August 2017, the appellant had not filed:
(a)a signed witness statement with his application for arbitration;
(b)evidence of the incurred expenses he sought payment of in the WCIMA Application; or
(c)the report foreshadowed from his general practitioner (a Dr Patel).
Hearing on 16 August 2017
The first directions hearing the in the Appellant's Application was on 16 August 2017 before the Arbitrator.
The decision of the Arbitrator was initially reported in a minute dated 16 August 2017 in the following terms:
This is the first directions hearing of this matter.
The parties gave a brief summary of their respective cases.
In summary the worker is seeking orders that the respondent pay his past and future medical expenses pursuant to Schedule 1, clause 17 in respect of a back injury he sustained 30 April 2002, with those expenses to be advised. Mr Quinn indicated that the expenses to date were in the order of $600 - $700.
The respondent, in its Reply, disputes the orders sought on the basis that: no evidence has been presented detailing what expenses the applicant claims he has incurred or is likely to incur, and further that the medical evidence filed by the applicant is at odds with the orders sought as it states that the applicant requires no further formal medical treatment.
There was discussion regarding the evidence foreshadowed by the worker. In respect of the foreshadowed medical reports the worker provided a copy of a report by his GP, Dr Patel, addressed to Chapmans and dated 6 July 2017.
I made orders below regarding the filing of Dr Patel's report, and a schedule of medical expenses, following which Mr O'Reilly sought an order that the costs associated with today be borne by the worker. Mr Quinn responded to that oral application.
I made orders below in terms of Mr O'Reilly's oral application, on the basis that Mr Quinn in his lack of preparation, had wasted my time, Mr O'Reilly's time, and his own client's time.
The specific orders made were (Arbitrator's Decision):
As a result of the Hearing the following Order(s) have been made:
1.The worker do file and serve Dr Patel's report dated 6 July 2017 by the close of business today.
2.The worker do file and serve a schedule of the statutory expenses claimed by Friday 18 August 2017.
3.Chapmans do forthwith pay the respondent's costs of today in the sum of $407 being two hours at a registered agent's rate (50% of $407), plus the respondent's taxi fare to and from the directions hearing today.
4.The cost of this directions hearing as between the worker and Chapmans, be disallowed.
5.This matter is listed for a directions hearing on Thursday 24 August 2017 at 2 pm.
The Arbitrator made a further programming order recorded in a second order dated 18 August 2018. That order is not relevant for present purposes.
On 18 August 2018 the appellant requested the Arbitrator to provide written reasons pursuant to Workers' Compensation and Injury Management Act 1981 (WCIMA) s 213 in relation to the orders in pars 3, 4 and 5 of the Arbitrator's decision (which I will refer to as the Costs Decision).[13] The Arbitrator subsequently rescheduled the directions hearing to 20 September 2017, a decision for which the appellant also sought written reasons. Those written reasons were delivered on 31 October 2017 (Arbitrator's Reasons).
[13] AAB 65.
As there is a challenge to the adequacy of the Arbitrator's Reasons, it is necessary for me to quote from them in some detail. The events which transpired at the directions hearing on 16 August 2017 are set out by the Arbitrator in the following terms:[14]
[14] Arbitrator's Reasons, pars 17 – 33.
17.At the outset the parties' representatives, Mr Quinn of Chapmans on behalf of Mr Rodgers and Mr O'Reilly of Allianz on behalf of Amcor, gave brief summaries of their clients' respective cases.
18.Mr Quinn advised that his client does not require regular on‑going treatment or time off work but that his GP has advised him to undergo regular check-ups and has referred him to physiotherapy.
19.Mr Quinn advised that his client was seeking approximately $600-$700 for seven GP attendances and two physiotherapy attendances made over the past year. Mr Quinn observed that the medical evidence stating that his client required no further treatment was stale.
20.In terms of the worker's past medical expenses Mr O'Reilly pointed out that today was the first he had heard of the seven GP expenses and the two physio attendances being claimed. He pointed out that no invoice or receipts for the medical expenses had been attached to the application, and that there is no evidence of those attendances, and that he was unable to advance matters as he did not know what the expenses were.
21.In terms of the worker's future medical expenses Mr O'Reilly observed there is no medical evidence to support that worker's claim for future treatment. Without any such evidence, he is unable to respond.
22.In respect of outstanding evidence foreshadowed by the worker Mr Quinn stated that Chapmans had not yet commissioned a report from the worker's GP, Dr Patel. He was unable to advise why the report had not yet been commissioned despite the lapse of approximately 6 weeks since the application was received at WorkCover. Mr Quinn stated that he anticipated that Dr Patel's report could be filed within 28 days.
23.At this juncture I enquired of Mr Rodgers why the medical reports had not yet been commissioned and he responded that it had been commissioned 'some time back'. Mr Rodgers indicated that the report was sent directly to Chapmans. He handed to Mr Quinn a copy of Dr Patel's report dated 6 July 2017 addressed to Chapmans. Mr Quinn examined the report and identified it as the report that had been commissioned by Chapmans and received by Chapmans on the 6 July 2017.
24.Mr Quinn stated that he had consulted Chapmans multiple files relevant to this application and he was unable to provide any satisfactory answer as to why he had not come across Dr Patel's report of 6 July 2017. He stated that he would hope that the report would be on the files, but he hadn't seen it when he consulted the files. He was unable to advise when the report was commissioned by Chapmans, nor was he able to advise why it had not been filed by Chapmans despite having been received by them approximately six weeks ago. Mr Quinn stated that today was the first time he had seen the report. He did not know where the Chapmans letter commissioning the report was and stated that he had not seen any such letter.
25.Mr Quinn acknowledged that the blame lies with him, as he understood that Dr Patel's report had not yet been commissioned. He indicated that the report could be filed today.
26.Mr Quinn advised that receipts were available in respect of the medical expenses claimed. He did not proffer any reason as to why they had not hitherto been filed and served or otherwise made available to the respondent. He indicated that further and better particulars as to the dates and costs associated with them could be filed within two days.
27.Mr Sean O'Reilly stated that the directions hearing had been a farce and he sought an order that the costs of the directions hearing be borne by the worker. He advised that he was a registered agent.
28.Mr Quinn responded that this (an order for costs) was without precedent, that the matter could move forward with programming orders and he noted that the respondent had not foreshadowed any evidence.
29.I put it to Mr Quinn that the respondent had not foreshadowed any evidence because at this stage the respondent had no case to answer (a proposition with which Mr Quinn agreed), however the respondent may wish to commission medical evidence once it has seen the worker's medical evidence.
30.In considering Mr O'Reilly's application for costs, I indicated that I would give consideration to making a cost order against Chapmans rather than the worker. Mr Quinn's only submission was to query the grounds upon which such a costs order could be made.
31.I stated to the parties that I could stand the matter down and deliver my decision as to costs after a short break, or alternatively I could reserve my decision as to costs and deliver it at the next directions hearing.
32.Mr Quinn stated that he wished me to stand the matter down and then deliver my decision on costs. Mr Quinn did not seek leave to make any further submissions on the matter of costs.
33.I then stood the matter down and following a short break delivered my decision on costs.
The Costs Decision involved the application of WCIMA s 264 and s 265 which are in the following terms:
264.Costs to be determined by dispute resolution authority
(1)Subject to this Division, costs are in the discretion of the relevant dispute resolution authority.
(2)A dispute resolution authority may determine by whom, to whom and to what extent costs are to be paid.
(3)A dispute resolution authority may order costs to be assessed on the basis set out in the Legal Profession Act 2008 Part 10 Division 8 (or in relevant regulations under section 268) or on an indemnity basis.
(4)Any party to a proceeding may apply to a dispute resolution authority for an order as to costs.
(5)A dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.
(6)If a dispute resolution authority is satisfied that a part only of the application was frivolous or vexatious, fraudulent or made without proper justification, the dispute resolution authority may order the worker to pay the costs relating to that part of the application.
(7)Without limiting section 265, the regulations may make provision in relation to the making of orders for the payment by a party of the costs of another party so as to -
(a)promote the early settlement of issues and disputes by agreement; and
(b)discourage unnecessary delay, excessive attendances and excessive preparation of documentation.
265.Costs unreasonably incurred by representative
(1)If in any proceeding before a dispute resolution authority or in any matter under this Act which is resolved by agreement, costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, of a legal practitioner or agent representing a party (the representative), a dispute resolution authority may make an order -
(a)disallowing the costs, as between the representative and the client; and
(b)directing the representative to repay the client costs which the client has been ordered to pay to any other party to the proceeding; and
(c)directing the representative personally to indemnify any other person than the client against costs payable by the person indemnified.
(2)A dispute resolution authority may by order exempt any costs or proportion of any costs from the operation of this section if of the opinion that it would be unjust not to do so because the representative concerned made all reasonable efforts to avoid unnecessary litigation in the proceeding or for any other reason should not be held responsible for the incurring of the costs concerned.
The portion of the Arbitrator's Reasons relating to the Costs Decision is as follows:[15]
[15] Arbitrator's Reasons, pars 39 – 51.
39.In making orders that Chapmans pay the respondent's costs of the directions hearing on 16 August 2017 I have to the history of the proceedings between the parties.
40.In particular I have regards to the fact that:
(a)at the conciliation conference as long ago as 8 June 2017 'the nature of the treatment required was not clearly identified at the conference';
(b)the medical reports of Drs Overmeire and Taylor, all over 3.5 years old, albeit relied upon by the worker in support of his claim, concur that he does not require any medical treatment;
(c)notwithstanding that Dr Patel's report was received by Chapmans on or about 6 July 2017, as at the first directions hearing on 16 August 2017 it had not been provided to the respondent, nor filed and served at the arbitration service; and
(d)Mr Quinn had not adequately prepared for the directions hearing on 16 August 2017 as he did not know if a report had been commissioned, nor whether a report had been received from Dr Patel, nor had he therefore sought instructions from the worker to file/serve Dr Patel's report of 6 July 2017.
41.Despite the lapse of some two months since the conciliation conference and some five weeks since the lodgement of the application for arbitration, the basis of the worker's application was not supported by any medical evidence provided to the respondent, or filed and served at the arbitration service.
42.In my view costs were wasted by Chapmans failure to attend to the timely filing and service of Dr Patel's report received by them on or about 6 July 2017, particularly in circumstances where the medical evidence hitherto filed by the worker did not support his claim for medical treatment. In my view this undue delay by Chapmans diminished the utility of the directions hearing and wasted the time of the parties in attendance. Costs were wasted because the next directions hearing would effectively be the equivalent of the first directions hearing where the respondent would be aware of the case to be answered and adequate evidence filed by the worker.
43.During the directions hearing it was the worker who drew it to Mr Quinn's attention that Dr Patel's report had been sent direct to Chapmans on or about 6 July 2017. The worker handed a copy of that report to Mr Quinn.
44.Mr Quinn conceded that on the evidence filed by his client to date, the respondent had 'no case to answer'. It appears that since the time of the conciliation conference that has been the prevailing situation.
45.Clearly the failure to provide the foreshadowed report to the employer, and to file and serve it at the arbitration service, was Chapmans failure, and not due to any fault by Mr Rodgers.
46.This is not a matter where there appears any basis upon which the lack of preparedness for directions hearing is connected to the conduct of the worker or any other matter outside of the control of Chapmans.
47.I find there is nothing to persuade me that Chapmans should not be held responsible for the waste costs incurred by the employer in attending the directions hearing on 16 August 2017.
48.In my view Chapmans' conduct is inconsistent with a main purpose of the Act, that disputes be dealt with fairly, economically, informally and quickly.
49.I find that the employer has incurred wasted costs as a result of the conduct/default of Chapmans. I am satisfied that the work of Mr O'Reilly associated with attending the directions hearing was wasted, in that it was in essence a repetition of the conciliation conference, in that there was no medical evidence to support the worker's claim, nor any details of his expenses.
50.In my view a fair assessment of the costs wasted in this case is two hours at a registered agent rate of (50% of $407) per hour, one being the hour of the directions hearing, and the other an hour in preparation and travel time, and the return taxi fare.
51.For these reasons I have exercised my discretion and ordered that Chapmans pay the respondent's costs of the directions hearing as outlined at paragraphs 1(c) above, and pursuant to s 265(1)(c).
On 18 August 2017, the appellant's lawyers filed:
(a)a medical report from Dr Patel dated 6 July 2017;
(b)a letter from that firm to Dr Patel dated 4 May 2017; and
(c)the appellant's preliminary schedule of statutory expenses.
On 12 October 2017 Allianz advised the appellant's lawyers that it would not pursue payment of the costs ordered by the Arbitrator. Allianz also made an offer to pay the appellant's costs of the WCIMA Application.[16] Those costs were later assessed by a registrar.
[16] AAB 77 - 78.
The District Court Appeal
By an Appeal Notice dated 28 November 2017, the appellant appealed from the Costs Decision. The appellant seeks to have the Costs Decision quashed or in the alternative to have the matter allocated to a different arbitrator to be determined according to law.
On 8 December 2017 the respondent filed a notice of respondent's intention stating that it did not intend to take part in the appeal and would accept any order made by the court in the appeal other than costs. However, it later changed its position, filing on 31 May 2018 an amended notice of respondent's intention to the effect that it would argue that the Costs Decision should be upheld on the grounds relied on by the Arbitrator.
The appellant filed submissions in support of the appeal dated 28 May 2018 (Appellant's Submissions). The respondent filed submissions in opposition to the appeal dated 30 August 2018 (Respondent's submissions).
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 WCIMA s 213(3) or otherwise), a party may, with the leave of the District Court, appeal to the District Court against the decision.[17] As the Arbitrator has purported to have given written reasons for her decision, this is sufficient to found the appeal jurisdiction even if, on appeal, those reasons are found to be inadequate.
[17] WCIMA s 247(1).
The present appeal is not one in which an amount of compensation is in issue. Accordingly, the relevant restriction on the grant of leave is that 'the District Court is not to grant leave to appeal unless … a question of law is involved'.[18]
[18] WCIMA s 247(2)(b).
The question of law identified in the Appeal Notice is 'whether the Arbitrator correctly interpreted and applied s.264 and s.265 of the Workers' Compensation and Injury Management Act 1981'.
The parties were content to have the issue of whether the appellant should be granted leave to appeal determined with the substantive hearing.[19]
[19] BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [14] (Pullin JA, with whom Buss & Wheeler JJA agreed).
The present appeal was commenced within 28 days after the day on which the written reasons for the decision appealed against were given to the appellant, as required by WCIMA s 249(4).
Except as provided by WCIMA pt XIII or WCIMA s 267, the appeal is to be conducted in accordance with the rules of court of the District Court. [20]
[20] WCIMA s 247(5).
The appeal books filed by each party contain documents and evidence that was not before the Arbitrator. The parties jointly applied for leave for this evidence to be admitted in the appeal. In the somewhat unique circumstances of this appeal, it is appropriate to grant the parties this leave.[21]
[21] WCIMA s 247(6).
The appeal is to be by way of review of the decision appealed against.[22] This is in contrast to the criminal injuries compensation appeal jurisdiction in which the court is to decide the application 'afresh.'[23] Nor is the appeal a hearing de novo.[24]Rather, if some question of law is 'involved' the whole decision appealed from is open to review and not merely the question of law.[25] The review is a 'real review'.[26] It is not limited to pure questions of law.[27] Correction of errors of law is the court's 'principal, but not only, task'.[28]
[22] WCIMA s 247(5).
[23] Criminal Injuries Compensation Act 2003 (WA) s 56(1).
[24] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (French CJ, Bell, Keane, Nettle & Gaudron JJ); Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18] (Wheeler JA, with whom Pullin & Buss JJA agreed).
[25] Pacific Industrial Co [18].
[26] Robinson Helicopter [43]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow & Kirby JJ); Aziz v Tempo Services Ltd [2010] WASCA 39 [40], [42] (Pullin JA with whom Newnes JA agreed); Sotico Pty Ltd v Wilson [2007] WASCA 112 [46] (Pullin JA); Pacific Industrial Co [22] – [24].
[27] Pacific Industrial Co [18].
[28] Pacific Industrial Co [25].
The appellant must show 'proper basis' for disturbing the decision such as an error of 'fact, law or logic.'[29] It is not sufficient that the court undertaking the review would have come to a different conclusion on the facts to that of the Arbitrator.[30] Unless the 'review' persuades the court that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand.[31]
[29] Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [33] (judgment of the court); Pacific Industrial Co [26].
[30] Erceg [33]; Pacific Industrial Co [26].
[31] Pacific Industrial Co [20] – [26].
What issues arise for determination?
The Appeal Notice identifies two specific grounds of appeal:
1.The learned Arbitrator erred in law insofar as she failed to properly interpret and/or apply the provisions of s.264 and 265 of the Workers' Compensation and Injury Management Act 1981.
2.The learned Arbitrator erred in law by failing to provide any, or any adequate, reasons for her decision.
At the hearing on 14 September 2018, counsel for the appellant did not press the ground of appeal that the Arbitrator failed to provide written reasons for decision pursuant to WCIMA s 213. Rather, the appeal was limited to the adequacy of those reasons.
Based on the Appeal Notice, the written submissions filed and the submissions at the hearing, five issues arise for determination:
•Should the appellant be given leave to commence the appeal?
•Did the Arbitrator err in interpreting WCIMA s 264 and s 265?
•Did the Arbitrator err in exercising the discretion in WCIMA s 265?
•Did the Arbitrator fail to provide adequate reasons pursuant to WCIMA s 213?
•What final orders are appropriate?
Should the appellant be given leave to commence the appeal?
The pre-requisite to the District Court being able to grant leave in the present appeal is that 'a question of law is involved'.[32] A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different'.[33] Further, an appeal may 'involve' a question of law where an error of law, or an error of mixed law and fact, is involved.[34] 'An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence'.[35] An error of fact alone is insufficient.[36]
[32] WCIMA s 247(2)(b).
[33] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ); BHP Billiton [15].
[34] Billiton Iron Ore Pty Ltd v Treby [2018] WASCA 60 [36] (Buss P, Murphy JA, Chaney J); Erceg [31]; Hawker Pacific Pty Ltd v Lang [2015] WASCA 256 [15] (judgment of the court); BHP Billiton [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA, with whom Wheeler & Pullin JJA agreed).
[35] Erceg [31]; BHP Billiton [5].
[36] Erceg [31]; BHP Billiton [5].
The position in the present appeal is in contrast to an appeal in which an amount of compensation is in issue where the prerequisites are more detailed:[37]
[37] WCIMA s 247(2)(a).
(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.
This suggests that in the present appeal, it is sufficient for there to be a question of law involved, and there is no specific additional requirement based either on the financial significance of the amount in issue or the public interest. However, these matters will still be of general relevance to the exercise of the discretion to grant leave.[38]
[38] Inghams Enterprises Pty Ltd v Beyene (WorkCover WA Commissioner Decisions) C14-2009, 28 May 2009, page 33 (Commissioner McCann).
There is thus no specific limit or restriction placed on the discretion to grant leave, other than that the appeal involve a question of law.[39] If there is a question of law involved, leave should be granted if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.[40]
[39] Atanasoska [19].
[40] Hawker Pacific [27]; BHP Billiton [20] (Buss JA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [16] (Buss JA).
The issue of law identified by the appellant is whether the power in WCIMA s 265 is conditioned by the restrictions on the power to award costs in WCIMA s 264(5) and (6). The appellant says that the Arbitrator erred in applying s 265 on the basis that it is not conditioned by s 264(5) and (6).
The construction of a statute, including the meaning to be attributed to individual words or phrases used, is a question of law.[41]
[41] Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 395 - 397 (judgment of the court); Michael, Re; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231 [103] (Parker J, with whom Malcolm CJ & Anderson J agreed).
In relation to ground 2, a failure to provide adequate reasons will constitute a denial of procedural fairness and thus an error of law.[42]
[42]Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 – 367 (Deane J).
The present appeal thus involves questions of law. The potential significance of the policy position sought to be advanced in relation to ground 1 is such that it is in the interests of justice that leave to appeal be granted.
Did the Arbitrator err in interpreting WCIMA s 264 and s 265?
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.[43] As the plurality of the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[44]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text… The language which has actually been employed in the text of legislation is the surest guide to legislative intention… The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision…, in particular the mischief… it is seeking to remedy.
[43] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [26] (French CJ, Hayne, Keifel & Bell JJ); Director General of Department of Transport v McKenzie [2016] WASCA 147 [45] – [47] (Buss P, with whom Murphy JA and Beech J agreed) ('McKenzie').
[44] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ) (references omitted).
Further, 'the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[45]
[45] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 387 [26] (French CJ & Hayne J); McKenzie [48].
Finally, in interpreting legislation, the court is required to prefer a construction that would promote the purpose or object underlying the legislation (whether that purpose is expressly stated in the written law or not) over a construction that would not.[46]
[46] Interpretation Act 1984 (WA) s 18.
As I have indicated, the issue of law identified by the appellant is whether the power in WCIMA s 265 is conditioned by the restrictions on the power to award costs in s 264(5) and (6). The appellant says that the Arbitrator erred in applying WCIMA s 265 on the basis that it is not conditioned by s 264(5) and (6).
In other words, the appellant says that before a costs order can be made against a worker pursuant to WCIMA s 265, the dispute resolution authority must first consider whether the application, in whole or in part, 'was frivolous or vexatious, fraudulent or made without proper justification'. The appellant's submission is that it is only in these circumstances that a dispute resolution authority can order costs to be either disallowed as between the representative and the client, or ordered to be paid directly by the representative to the other party.
The respondent says that WCIMA s 264 and WCIMA s 265 deal with different situations. It says that, in making the two orders comprising the Costs Decision, the Arbitrator was not required to consider the application of WCIMA s 264(5) or (6).
In the Arbitrator's Reasons, the Arbitrator does not address the application of WCIMA s 264(5) or (6). It is a fair reading of the Arbitrator's Decision that she did not consider that it was necessary to apply either subsection.
In my view, the ordinary and grammatical meaning of the words of WCIMA s 264 and s 265, having regard to their context and legislative purpose, do not give rise to the application suggested by the appellant. Assuming the jurisdiction in WCIMA s 265(1) is enlivened by the conduct described, the power in s 265(1)(a) is that 'a dispute resolution authority may make an order … disallowing costs, as between the representative and the client'. On its face, this extends to any costs payable as between the representative and the client pursuant to the costs agreement between them. There is no requirement for there to be an order for the costs to be otherwise payable by the worker to another party.
The power in WCIMA s 265(1)(c) is that 'a dispute resolution authority may make an order … directing the representative personally to indemnify any other person than the client against costs payable by the person indemnified'. Again, there is no requirement for there to be an underlying order for the costs to be otherwise payable by the worker to another party.
The other paragraph of WCIMA s 265(1) is (b), which provides that 'a dispute resolution authority may make an order … directing the representative to repay the client costs which the client has been ordered to pay to any other party of the proceedings'. If the client is a worker, then, in making the underlying order for costs, the dispute resolution authority would need to apply WCIMA s 264(5) or (6). However, if the client is the employer, the dispute resolution authority would not need to apply WCIMA s 264(5) or (6) in making the underlying costs order. The application of WCIMA s 264(5) and (6) is independent of WCIMA s 265, and only arises where the dispute resolution authority is considering making an 'an order for the payment of costs by a worker'.
The interpretation revealed by the ordinary and grammatical meaning of the words of WCIMA s 264 and s 265 promotes the purpose or object underlying the WCIMA, whereas the interpretation proposed by the appellant would not.[47] The purposes of WCIMA relevantly include 'to make provision for the hearing and determination by parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick'.[48]
[47] Interpretation Act 1984 (WA) s 18.
[48] WCIMA s 3(d).
Those objects are elaborated by Commissioner McCann in Inghams Enterprises Pty Ltd v Beyene:[49]
9.For the benefit of all stakeholders I take this opportunity to confirm what I said to the parties on 3 April 2009 and on earlier occasions:
(i)It is the duty of everyone who is involved in the affairs of the DRD (whether in the capacity of a party, a legal representative, a witness, an administrative officer or a judicial officer) to have regard at all times to the statutory objectives which are intended to deliver speedy, fair and economical dispute resolution for the benefit of workers (and their dependents), employers and their insurers. (See Thomas v Department of Education and Training [2009] WACC C8-2009 at [5]).
(ii)Parties are expected to take a reasonable position in relation to interlocutory issues, so that any necessary directions (including an extension of time) can be made by consent, or at least, unopposed, when there is no proper basis for the relief to be opposed. (See Cooks Construction Pty Ltd v Jurek [2008] WACC C7-2008 at [9]).
(iii)The Act confers a privilege upon the parties to have legal representation (which includes representation by a registered agent). It is important to note that the ethical responsibilities of a practitioner appearing in the DRD are twofold, that is, to act as an advocate and to assist the Directorate in the administration of justice. The latter responsibility is owed to the community and is a correlative of the privilege conferred by the community to act as a legal representative. Competent, ethical representation is of great importance to both the parties and the work of the Directorate. (See Purje v Catholic Education Office & Others [2008] WACC C4-2008 at [25]).
(iv)Forensic methods which involve the raising of false or unimportant issues, or engage in unnecessarily technical, academic or pedantic arguments, or involve confusing, aggressive or superior behaviour are inconsistent with the objectives of the Act and proper professional standards and will not be countenanced in the DRD (see Purje at [30]).
(v)The involvement of competent and ethical legal representation is expected to promote agreement between the parties on issues which are not in dispute and the discarding of arguments and issues which are not relevant, so that proceedings are confined to the real issues, with resultant diminution in the time and cost of resolving disputes. The objectives of the Act are, in brief, to furnish 'speedy and fair' dispute resolution (see s 190(1) and Purje at [38]).
[49] Inghams Enterprises Pty Ltd v Beyene (WorkCover WA Commissioner Decisions) C14-2009, 28 May 2009 [9].
A significant aspect of ensuring that the determination process is economical is to give the dispute resolution authority a wide power to make orders where costs have been unreasonably incurred by a representative. There may well be applications which are made with proper justification (and so do not enliven s 264(5) or (6)), but which are managed by the worker's representative in the manner described in WCIMA s 265(1). To ensure that determinations are made economically, the dispute resolution service needs to be able to make orders pursuant to WCIMA s 265(1) in this instance. This is what occurred in the present case.
Absent a caveat to the effect asserted by the appellant apparent from the ordinary and grammatical meaning of the words of WCIMA s 265(1), the only other way in which one could arise is if it is able to be ascertained by implication from the subject matter, scope and purpose of s 264 and s 265 as a whole.[50] Given what I have outlined at [57] ‑ [62], the appellant has not persuaded me that a caveat can be so implied.
[50] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 – 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).
The appellant has not satisfied me that the Arbitrator erred in interpreting WCIMA s 264 and s 265.
Did the Arbitrator err in exercising the discretion in WCIMA s 265?
The nature of the inquiry an appellate court is to undertake when reviewing a discretionary decision is conveniently summarised in the decision of Dixon, Evatt and McTiernan JJ in House v The King:[51]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[51] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 – 505 (Dixon, Evatt & McTiernan JJ) (references omitted).
In Norbis v Norbis Mason and Deane JJ made the following comments elaborating on the principles set out in House:[52]
Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
[52] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519 (Mason & Deane JJ); Commonwealth Bank of Australia v Rosebridge Nominees Pty Ltd [2005] WASCA 211 [17] (Miller AJA); Tame v Ladner [2006] WASCA 46 [36] ‑ [41] (Malcolm CJ).
The appellant says that the Arbitrator erred as she placed reliance on a fact which was not in fact the case. The fact was that Dr Patel's report dated 6 July 2017 had not been provided to the respondent.[53] It was common ground on the appeal that a copy of this report had been provided to the respondent at some stage prior to 25 July 2017. That this occurred is apparent from the materials before me as there is a facsimile dated 25 July 2017 from Allianz to Dr Patel referring to the 6 July 2017 report and requesting certain further information.[54]
[53] Arbitrator's Reasons, par 40(c), quoted above [24].
[54] AAB 77 - 78.
There is a preliminary issue of law. This is whether on an appeal by way of a review, an exercise of discretion can be challenged on the basis of facts which the decision maker was not aware of. At the hearing on 14 September 2018 I invited the parties to file supplementary submissions on this point, and set a timetable for this to occur. No submissions were filed on behalf of the appellant. Submissions dated 28 September 2018 were filed on behalf of the respondent.
In my view, consistent with the way in which the principles in House and Norbis are expressed, the error of discretion must have arisen on the facts before the Arbitrator. An allegation that new evidence establishes that the factual basis relied on by the Arbitrator was wrong, is in essence an assertion of an error of fact, and not an error in the exercise of the discretion at the hearing in question.[55] So an exercise of discretion cannot be challenged on the basis of facts which the decision maker was not aware of.
[55] Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 - 78 (Brennan J); Hayter v HWE Mining Pty Ltd [2017] WADC 26 [256] (Goetze DCJ).
In any event, the point is that the representative appearing for the appellant should have known that Dr Patel had been commissioned to provide a report (contrary to what was set out in the WCIMA Application). The appellant's representative should have known that a report of 6 July 2017 had been received from Dr Patel, and had been provided to Allianz. The appellant's representative should have been in a position to inform the Arbitrator why this report had not yet been filed at WorkCover. He was not.
The Arbitrator was entitled to rely on the information provided at the hearing. On that information, the blame for the directions hearing being a waste of time lay with the appellant's representative, something which he in fact accepted.[56] In these circumstances, the appellant has not satisfied me that the Arbitrator erred in the exercise of the discretion in making the Costs Decision.
[56] Arbitrator's Reasons, par 25.
Did the Arbitrator fail to provide adequate reasons pursuant to WCIMA s 213?
The second ground of appeal is that the Arbitrator erred in law by failing to provide adequate written reasons for the Costs Decision pursuant to WCIMA s 213.
The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission[57] are an appropriate and instructive starting point in considering this ground of appeal (references omitted):
The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process … That is because 'the duty is a function of due process, and therefore of justice' … Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment … The requirement also furthers judicial accountability …
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
[57] Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] – [27] (judgment of the court); see also: Velez Pty Ltd v Tudor [2011] WASCA 218 [59] – [67] (Murphy JA, with whom Pullin & Newnes JJA agreed).
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[58]
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised… The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose…
[58] Velez [63] (references omitted).
The common law position is subject to WCIMA s 213:[59]
[59] Velez [58].
(1)A decision of an arbitrator is to be given in writing to a party to a proceeding if —
(a)the arbitration rules state that the decision is to be given in writing to that party; or
(b) within 14 days after the arbitrator makes the decision, the party requests that the decision be given in writing.
(2)An arbitrator's decision in writing is to include information as to appeal rights that may be available to the parties under this Act.
(3)The reasons for a decision of an arbitrator are to be given in writing to a party to a proceeding if —
(a)the arbitration rules state that the reasons are to be given in writing to that party; or
(b)within 14 days after the arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.
(4)The reasons for an arbitrator's decision —
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(5)A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient compliance with the requirement for the decision or reasons to be in writing.
(6)The fact that a decision is, or reasons are, given orally or in accordance with subsection (4) or (5) is not of itself a ground for reversing or modifying the decision on an appeal.
There is a provision in identical terms to WCIMA s 213(4) in Magistrates Court Act 2004 (WA) (MCA) s 31(1). In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the context of MCA s 31(1), which are apposite to WCIMA s 213:[60]
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[60] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).
His Honour went on to make a comment about the realities of work pressure in the Magistrates Court, which is again apposite to the present context:[61]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[61] Manonai [56]; Velez [69]; Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58 [107] (Schoombee DCJ).
The key concern identified by counsel for the appellant was that the Arbitrator did not specifically address the application of WCIMA s 264(5) or (6) in the Arbitrator's Decision. For the reasons set out above ([56] ‑ [64]), there was no need for the Arbitrator to do so.
The Arbitrator was only concerned with the application of WCIMA s 265(1). Hence the reference to the 'conduct/default of Chapmans', using the language of WCIMA s 265(1).[62] The Arbitrator also referred to the purposes of WCIMA, being that disputes are dealt with early, economically, informally and quickly.[63]
[62] Arbitrators Reasons, par 49.
[63] Arbitrator's Reasons, par 49.
In my view, as required by WCIMA s 213(4), in the Costs Decision the Arbitrator:
(a)identified the facts which she accepted in coming to her decision, and gave the reasons for doing so; and
(b)identified the law which she applied in coming to the decision, and gave the reasons for doing so.
Moreover, the Arbitrator did so in a manner that exposed her reasoning to an extent that made the basis of the decision clear and exposed for the purpose of appellate review.
The appellant has not satisfied me that the Arbitrator's Reasons for the Costs Decision were inadequate.
The second ground of appeal has not been made out.
Even if I were of the view that the Arbitrator's Reasons were inadequate, it would not automatically follow that the decisions of the Arbitrator under appeal would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[64] For the reasons set out above in relation to the other grounds of appeal, even if I were of the view that the Arbitrator's Reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in relation to the Costs Decision.
[64] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P & Newnes JA agreed); Mount Lawley [29].
What final orders are appropriate?
For the reasons which I have articulated, the appropriate final orders are that:
1.The appellant have leave to appeal.
2.The appeal be and is hereby dismissed.
I will hear from counsel as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING17 OCTOBER 2018
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