Smith v Salini Australia Pty Ltd
[2023] WADC 27
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SMITH -v- SALINI AUSTRALIA PTY LTD [2023] WADC 27
CORAM: VERNON DCJ
HEARD: 7 FEBRUARY 2023
DELIVERED : 15 MARCH 2023
FILE NO/S: APP 36 of 2022
BETWEEN: GRAHAM SMITH
Appellant
AND
SALINI AUSTRALIA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA ARBITRATION SERVICE
Coram: ARBITRATOR VAN ZALM
File Number : A97500
Catchwords:
Application to strike out appeal grounds - Application to substitute new grounds
Legislation:
District Court Rules 2005 (WA), r 51(4A), r 51(4B), r 57(2)(b), r 57(2)(i)
Workers' Compensation Injury Management Act 1981 (WA), s 5(1)(a), s 5(1)(d), s 33, s 34, s 36, s 37, s 38, s 184(4), s 201(1), s 201(2), s 217B, s 247(1), s 247(2)
Result:
Application to strike out allowed
Application to substitute new grounds dismissed
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr D M G Burton |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | McCabes |
Case(s) referred to in decision(s):
Armet v CFC Consolidated Pty Ltd [2019] WASCA 165
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Avsar v Binning [2009] WASCA 219
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Burton v The President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Marks v Coles Supermarkets [2021] WASCA 176
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Neil v Nott (1994) 121 ALR 148
Retail Equity Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 8875, 23 May 1991)
Rocter Tanks Pty Ltd v Adam [2001] SASC 285
Woden Valley Glass v Psaila (1993) 44 FCR 140
VERNON DCJ:
Introduction
By a re‑amended appeal notice dated 30 November 2022 (re‑amended notice) and pursuant to s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) the appellant sought leave to appeal the decision dated 25 May 2022 of a WorkCover WA arbitrator, Mr D Van Zalm, by which the arbitrator largely dismissed the appellant's application for weekly payments and medical expenses against the respondent.
By an application dated 1 December 2022, the respondent applied to strike out the re‑amended notice and to dismiss the application for leave to appeal pursuant to r 57(2)(b) of the District Court Rules 2005 (WA) (DCR). The respondent submits that the grounds of the re‑amended appeal notice:
(a)are not capable of being understood and are therefore embarrassing;
(b)do not raise any material question of law or mixed questions of law and fact as required; and
(c)has no reasonable prospect of success.
The history of the appeal before the respondent's application is as follows:
(a)On 9 June 2022 the appellant lodged an appeal notice;
(b)On 21 September 2022 the appellant applied to amend the appeal notice;
(c)On 27 September 2022 Registrar Kubacz granted the appellant leave to file and serve an amended appeal notice by 11 October 2022;
(d)On 11 October 2022 the appellant filed an amended appeal notice;
(e)On 27 October 2022 the respondent applied for orders striking out the amended appeal notice and to dismiss the application for leave to appeal;
(f)On 16 November 2022 his Honour Judge Herron ordered that the grounds of appeal in the amended appeal notice be struck out and gave the appellant leave to file further amended grounds of appeal by 30 November 2022; and
(g)On 30 November 2022 the appellant filed the re‑amended notice.
On 3 February 2023, the appellant filed a document entitled 'New Appeal Notice' (the new notice). He orally applied to amend in terms of the new notice at the hearing of the respondent's application to strike out on 7 February 2023. On the morning of the hearing the appellant filed an affidavit in support sworn on 3 February 2023. The appellant also filed written submissions on 6 February 2023.
There was, in my view, some uncertainty about the appellant's apparent concession, both in filing the new notice and orally at the hearing, that the re‑amended notice was liable to be struck out. Accordingly, I proceeded to hear both applications on the merits.
It was apparent from both the new notice and the re‑amended notice that the appellant did not fully understand the requirement to separately identify the questions of law said to ground the application for leave to appeal, the grounds supporting those questions of law identifying the errors alleged to have been made by the arbitrator and the terms of the decision the appellant seeks the court to make on appeal. This is not a criticism of the self‑represented appellant. However, as a result it is necessary to carefully review each notice as a whole in an attempt to understand the basis of the appeal.
I have determined to refuse the leave sought by the appellant and to grant the respondent's application for the reasons set out below. In summary, I am satisfied that neither the new notice nor the re‑amended notice raise any material or tenable error of law or mixed error of law and fact.
The appellant did not ask to be allowed another opportunity to draft acceptable grounds. When I raised that possibility with him the appellant indicated that he was unlikely to be able to do so in an appropriate form. I agree with his assessment in that regard. However, I am also satisfied that there is nothing else arising on the material before me that discloses a material error of law or mixed law and fact that would require me, in fairness, to grant the appellant such an opportunity. Accordingly, I have determined to dismiss the appeal.
Legal principles
The court may grant leave to amend the grounds of appeal: r 56 and r 57(2)(i) of the DCR.
The court may also order that the notice of appeal or any part of it be struck out: r 57(2)(b) of the DCR. However, the DCR do not state the criteria on which an appeal notice or part of an appeal notice may be struck out.
A right to appeal is determined by the legislation that creates that right: Rocter Tanks Pty Ltd v Adam [2001] SASC 285 [93].
Subject to the provisions of the Act an arbitrator's decision is binding on the parties and not subject to appeal or amenable to judicial review: s 217B of the Act.
Where an arbitrator gives written reasons for decision under pt XI of the Act in respect of a dispute a party to that dispute may appeal against the decision with leave of the District Court: s 247(1) of the Act.
The District Court may only grant leave to appeal if a question of law is involved in the appeal: s 247(2) of the Act; Marks v Coles Supermarkets [2021] WASCA 176 [101].
An appeal involves a question of a law if the decision‑maker has made a material error of law or mixed law and fact: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20] (Buss JA; Wheeler and Pullin JJA agreeing), BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3] and [15].
In determining whether an error is 'material' the test is whether the arbitrator's decision would, or might, have been different if the error had not been made: Marks v Coles Supermarkets [2021] WASCA 176 [136]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [15]. In this respect the reference to the possibility of a different result is to a result that is more favourable to the appellant than the decision made. An error which, even if established, would have no effect on the result or would lead to a result less favourable to the appellant could not be said to be material.
The importance of the grounds of appeal in identifying the error that the decision‑maker is alleged to have made was emphasised in Avsar v Binning [2009] WASCA 219, concerning an application to amend an appeal governed by the Supreme Court (Court of Appeal) Rules 2005 (WA). The comments made apply equally to the current appeal. Owen JA, (with whom Miller and Newnes JJA agreed), said [37]:
An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process … In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:
The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellant court that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties.
The requirements of s 247(2) of the Act are reflected in r 51(4A) and r 51(4B) of the DCR, which provide that an appellant under the Act must state in the notice of appeal the question of law the subject of the appeal, the error alleged to have been made by the arbitrator and the decision that the appellant claims should be made.
It follows from the above that a notice may be struck out as failing to meet threshold requirements for leave to appeal set out in s 247(2) of the Act, or to comply with the rules that reflect those requirements: that is by failing to identify a material error of law or mixed law and fact by the arbitrator.
A ground that asserts only that the decision‑maker has found the facts wrongly or that the decision is against the weight of the evidence does not raise an issue involving a question of law: Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [21] (Buss JA; Wheeler and Pullin JJA agreeing). A decision‑maker does not make an error of law by preferring the evidence of one witness over another: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [5]. The question of whether incapacity for work is total or partial has been held to be a matter of fact: Woden Valley Glass v Psaila (1993) 44 FCR 140, 143.
The Supreme Court (Court of Appeal) Rules 2005 (WA) specifically provide for an appeal to be struck out on the basis that it does not have a reasonable prospect of success: r 42(2)(f). Similarly, the Magistrates Court (Civil Proceedings) Act 2004 (WA), which governs appeals from the Magistrates Court to the District Court, specifically provides that an appeal from the decision of a magistrate may be struck out if there is no reasonable basis for it or it does not have a reasonable prospect of succeeding: s 43(4)(a) and s 43(4)(b). However, there is no such specific provision governing appeals to the District Court under the Act and I have been unable to locate any authority for the proposition that there is an inherent jurisdiction of the District Court to strike out a notice of appeal on the basis that it does not have a 'reasonable' prospect of success.
However, an appeal may be struck out under the courts inherent jurisdiction as an abuse of process if it raises a question of law that is obviously untenable or unarguable and without substance, such an appeal being properly described as frivolous and vexatious: Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 [139]; Burton v The President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 95; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [15].
In addition, a ground of appeal that cannot be understood is liable to be struck out: Retail Equity Pty Ltd v Custom Credit Corporation Ltd (Unreported, WASCA, Library No 8875, 23 May 1991), 14 (Malcom CJ).
Due allowance must be made for self‑represented litigants and a court should be careful to ensure that the rights of such a litigant have not been obscured by inadequacies of expression or irrelevant material: Neil v Nott (1994) 121 ALR 148, 150. The court must be aware of the possibility that an arguable case may exist beneath inadequately expressed and irrelevant material, and that some leniency may be given to a litigant in person in relation to compliance with the rules. However, the allowances that can be made are limited as a matter of fairness to the appellant's opponent and because the provision of acceptable grounds is fundamental to the exercise of the court's appellate function: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
Summary of the arbitrator's findings
In summary, the arbitrator determined that:
(a)the appellant had suffered a compensable injury to his right knee within the meaning of s 5(1)(d) of the Act and therefore the respondent was liable to pay compensation to the appellant; however
(b)the appellant's claim for weekly payments of compensation for the injury should be dismissed because the appellant had not established that he was totally incapacitated for work as a result of the injury or the extent of his partial incapacity; and
(c)the appellant was entitled to reasonable medical expenses pursuant to Schedule 1 cl 17 of the Act but not inclusive of the cost of surgery to the appellant's right knee, as that surgery was unreasonable.
The appellant failed to satisfy the arbitrator that he had suffered an injury under s 5(1)(a) of the Act, namely 'a personal injury by accident arising out of or in the course of the employment or whilst the worker was acting under the employer's instructions'. The arbitrator was not satisfied that there was a particular incident on 10 January 2020 where the injury to the appellant's right knee occurred: [4], [75] of the arbitrator's reasons. The arbitrator accepted the view of an occupational physician engaged by the appellant's former solicitors, Dr Neil Ozanne, that the appellant had a degenerative tear which was not caused by one incident alone which finding was supported by an orthopaedic surgeon relied on by the respondent, Dr Leeks: [4], [62] ‑ [63], [76] and [94] of the arbitrator's reasons.
The arbitrator made this finding having rejected the appellant's evidence that he had not experienced right knee pain prior to 10 January 2020. Instead, the arbitrator accepted that the appellant had told both the appellant's general practitioner, Dr Kundal, and Dr Ozanne that he had right knee soreness in the months before 10 January 2020: [57] and [58] of the arbitrator's reasons.
However, despite this finding the appellant was successful on the threshold issue of whether his injury came within the definition of injury under s 5(1) of the Act because the arbitrator found that he had suffered an injury within the meaning of s 5(1)(d) of the Act, namely 'the recurrence, aggravation, or acceleration of any pre‑existing disease, where the employment was a contributing factor … to a significant degree': [4], [110] of the arbitrator's reasons.
The arbitrator found that the appellant's pre‑existing degenerative tear was asymptomatic before his employment with the employer until November 2019. He rejected Dr Leeks' opinion that this was due to age and found, in reliance on Dr Ozanne's opinion, that the appellant's work duties contributed to the injury to a significant degree: [108], [109] of the arbitrator's reasons.
Accordingly, the arbitrator found in the appellant's favour on the threshold issue of whether the appellant had established he had suffered a compensable injury, albeit on a different basis than that relied on by the appellant.
However, the arbitrator found that the appellant had failed to establish on the balance of probabilities that he was entitled to weekly payments for total incapacity for his pre‑accident work for the period claimed. The arbitrator found that no medical witness was of the opinion that the appellant had a total incapacity, the appellant had returned to some work for a period in 2021, and that there was no medical report to say that he was not able to perform that work from a physical point of view: [115], [123] - [126] of the arbitrator's reasons.
The arbitrator found that the appellant had failed to meet the onus on him to prove that what he was able to earn in suitable employment was less than the amount payable for total incapacity or that there was no suitable employment open to him as a result of his physical injury: [129] - [150] of the arbitrator's reasons.
Finally, whilst the arbitrator found that the appellant was entitled to reasonable medical expenses, he also found that the cost of a partial arthroscopic meniscectomy was not a necessary or reasonable expense based on his acceptance of Dr Ozanne's opinion: [160] - [162] of the arbitrator's reasons.
Application for leave to replace the re-amended notice with the new notice
The new notice is in the following terms:
Questions of law
1.Was the arbitrator correct to decide that [the appellant] had a pre‑existing degeneration of the meniscus in his right knee under Section 38(3,4) of the Worker's Compensation and Injury Management Act 1981?
2.Was the arbitrator correct to decide that [the appellant's] recommended surgery was both unnecessary and unreasonable under Section 38(3,4) of the Worker's Compensation and Injury Management Act 1981?
Grounds of appeal
1.The learned arbitrator at paragraph 94 made an error of mixed law and fact in finding, against the determination of the majority medical panel comprising of 2 members binding on any tribunal, that [the appellant] had a pre‑existing degenerative disease.
The learned arbitrator in his broad discretion to inform himself as he sees fit, failed to act with regard to the principles of natural justice and the substantial merits of the case.
The learned arbitrator instead preferred the unlawful majority view of the medical assessment panel … 'that [the appellant] has a pre‑existing degeneration of the meniscus in his right knee.'
2.The learned arbitrator at paragraph 161 made an error of mixed law and fact in finding, against the determination of the majority medical panel comprising of 2 members binding on any tribunal, that [the appellant's] recommended surgery is both unnecessary and unreasonable.
The learned arbitrator in his broad discretion to inform himself as he sees fit, failed to act with regard to the principles of natural justice and the substantial merits of the case.
The learned arbitrator instead preferred the unlawful majority view of the medical assessment panel 'the surgery is both unnecessary and unreasonable … [the appellant's] injury will heal with conservative treatment.'
Decision sought
1.No, the arbitrator was incorrect to decide that [the appellant] had a pre‑existing degeneration of the meniscus in his right knee under Section 38(3,4) of the Worker's Compensation and Injury Management Act 1981?
2.No the arbitrator was incorrect to decide that [the appellant's] recommended surgery is both unnecessary and unreasonable under Section 38(3,4) of the Worker's Compensation and Injury Management Act 1981?
Leave
The appellant applies for leave to appeal under WCIMA section 247 on the ground that: 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.
Other orders
The appellant also seeks orders that: the award be vacated on the grounds stated and under the power of the Court,
IOrder the insurer to establish, content and implement a specialised retraining programme for [the appellant].
IIOrder the insurer to pay [the appellant] past weekly payments for total incapacity and future total incapacity caused by completed surgery, from date of breach to date of this order (see Particulars of Capacity).
IIIOrder the insurer to pay cost of surgery, past and future statutory expenses (see Particulars of Capacity).
Section 38(3) and s 38(4) of the Act, to which the appellant refers in the new notice are applicable only where a reference to a medical panel of two or three physicians is made under s 36 of the Act. That section concerns the reference to a specialist medical panel of the question of a worker's condition and fitness for work where a worker makes a claim under s 33 or s 34 of the Act. However, s 33 and s 34 of the Act have no relevance to the arbitrator's decision. Section 33 extends the definition of 'injury' to which the Act applies to workers suffering from pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis. Section 34 in effect extends the reference to pneumoconiosis to workers suffering from chronic bronchitis in association with pneumoconiosis.
The appellant made a number of submissions based on the operation of the provisions in s 33, s 34, s 36, s 37 and s 38 of the Act in support of the grounds articulated in the new notice. There is no need to repeat them here. Suffice to say his reliance on these provisions is misconceived and nothing in those submissions raises any error of law by the arbitrator.
The appellant in his submissions also makes a number of complaints about the manner in which certain of the appellant's medical records were provided to the occupational physician, Dr Ozanne. These complaints were not referred to in the new notice. It was difficult to ascertain the nature of the complaints other than it appears these may be the same records that, in the re‑amended notice, the appellant complains were irrelevant. The complaints also appear to be of the disclosure of the records to Dr Ozanne, rather than any error in their content.
Again it is not necessary to repeat the submissions in any detail - they go to the arbitrator's reliance on Dr Ozanne's evidence that the appellant suffered a pre‑existing degenerative condition in his knee. However, as I have said, the arbitrator relied on Dr Ozanne's evidence in finding in the appellant's favour that he had suffered an 'injury' within the meaning of s 5(1)(d) of the Act. To the extent that any of these complaints could amount to an error of law or mixed law and fact they could not be said to be material.
Even if the arbitrator had erroneously determined that the injury was a exacerbation of a pre‑existing degenerative condition rather than a new injury, the outcome would not have changed. Although the arbitrator was satisfied the appellant had suffered a compensable injury, the arbitrator was positively satisfied on the evidence that the appellant was not totally incapacitated for work by reason of that injury. The arbitrator was also satisfied the appellant had some partial capacity for work and had not met the burden of proving what he could earn by reason of that partial capacity for work.
The appellant also referred in submissions (but not in the new notice) to having requested his treating doctor and Dr Ozanne be called for examination at the hearing before the arbitrator, and being refused. In his submissions filed 6 February 2023, the appellant relied on s 201(2) of the Act as requiring the arbitrator to issue the subpoena on request. However, s 201(2) refers to expert reports obtained under s 201(1), and s 201(1) refers to expert reports obtained by the arbitrator, not those obtained by the parties.
The records of the directions hearings before another arbitrator, Ms F Sharpe, attached to the appellant's affidavit evidence that on 17 November 2021, the appellant raised the possibility of seeking a subpoena to cross‑examine Dr Kundul and Dr Ozanne and was told that this would require extraordinary circumstances. However, there is no suggestion that the appellant subsequently sought to issue a subpoena to either of those doctors. However, this could only have affected an issue on which the appellant was successful.
The appellant also submits in his submissions (but not the new notice) in effect that that the arbitrator was wrong in law to rely on 'test results' that the respondent is alleged to have failed to have provided to the appellant before the arbitration hearing, relying on s 184(4) of the Act. The test results are not identified, nor is the passage where the arbitrator relied on them. That section provides that 'any document, material or information that a party to a dispute has failed to provide in contravention of subsection (1) cannot be admitted on behalf of the party in a proceeding on the dispute before an arbitrator'. Subsection (1) provides that the parties must comply with the arbitration rules as to the provision of documents. The appellant does not identify the basis on which he says the respondent was required to give him a copy of his own medical records.
It might be speculated, for it is not said, that the appellant's complaint in this regard is that Dr Ozanne, and possibly the arbitrator, should not have been given a copy of medical records concerning the 2014 injury to the appellant's left knee. There is nothing to suggest that any dispute about that was raised with arbitrator. However, that again goes to an issue on which the appellant was successful and cannot be a material error.
The arbitrator did rely on the fact that after the 2014 injury the appellant had surgery to his left knee when it was locking as supporting Dr Ozanne's view that surgery would only be required on the right knee if it was locking, which it was not. However, this was only after the arbitrator had determined to accept Dr Ozanne's opinion about this for the reasons set out in [160] of the arbitrator's reasons. Accordingly, even if reference to this material was an error of law (which it does not appear to be) the exclusion of the evidence that the appellant had surgery only after locking of his left knee would not have resulted in a different outcome on the issue of the need for surgery on his right knee.
The appellant also refers to complaints that the transcript of the hearing has been deliberately altered to exclude evidence favourable to him. Again this apparently refers to factual findings in relation to an issue determined in the appellant's favour. There is no basis for asserting that the arbitrator or anyone else improperly altered the transcript, although it may be accepted that transcripts do, on occasion, contain errors.
The only particular passage the appellant complained had been altered was on page 90 of the transcript, as follows:
Mr Burton: Yes, but you accept, generalise, 2019 in the year you had calf pain?
The appellant: Yes, with knee.
Mr Burton: You had hip pain?
The appellant says that the reference to 'knee' is in error and it should be a reference to 'hip' as evidenced by the cross‑examining counsel's response. This does seem likely to be the case, as during the passage of evidence after this the appellant denies that he had pain in his knee in 2019 before the alleged incident at work on 10 January 2020. There is, however, nothing to suggest that the arbitrator misunderstood the appellant's evidence to be an admission of knee pain before 10 January 2020 or relied on that evidence. Indeed, it is clear that the arbitrator did not.
The arbitrator said at [32] and [33] of the arbitrator's reasons that he did not believe the appellant was deliberately trying to change his evidence at any time to suit his case and was not prepared to make any adverse findings about his credibility or his reliability. However, he said 'the evidence of all the medical practitioners still needs to be examined in the context of the objective evidence as to the accuracy and consistency of the history each of the various doctors has recorded and relied on': [34] of the arbitrator's reasons. Ultimately, as I have said, the arbitrator found that the appellant had told Dr Kundal that he had knee soreness in the month prior to 10 January 2020 and told Dr Ozanne that he had soreness in the right knee in November 2019, as recorded in their notes but contrary to the appellant's evidence: [57] ‑ [58] of the arbitrator's reasons. The arbitrator sets out the totality of the evidence supporting this finding at [59]. There is no reference there or anywhere else in the reasons that the arbitrator found the appellant had admitted to suffering pain in his knee before 10 January 2020 nor does the appellant point to any such finding.
This again goes to an issue on which the appellant was ultimately successful and any alleged error could not be said to be material, in that it could not have affected the outcome adversely to the appellant's interests.
For the reasons set out above the new appeal notice does not raise any material error of law. Accordingly, I refuse leave to amend in terms of the new notice.
The appellant's affidavit sworn 3 February 2023
The appellant apparently raises in his affidavit (in effect) an assertion that he had been denied natural justice at the hearing on 9 and 10 February 2022 because the arbitrator refused to order that the entirety of the Rockingham Medical Centre (RMC) records be produced in the arbitration. Whilst there is some discussion about the RMC records in the transcript at the outset of the hearing, the appellant's responses suggest he may, in fact, have had all the relevant records, although this is not entirely clear.
The records of directions hearings before Ms F Sharpe attached to the appellant's affidavit indicate that there had been some complaint about the RMC having sent the appellant's medical records to the respondent rather than WorkCover WA. At a directions hearing on 22 December 2021 the appellant indicated he wished to have an order to produce directed to Dr Kundal for a complete record of his medical history 'to ensure the authenticity of the documents already produced from the [RMC]'. I note that the appellant had asserted that Dr Kundal had falsified some, but not all, of the RMC notes, in particular the reference to knee pain in the month prior to 10 January 2020. Ms Sharpe's notes of that appearance state that the appellant 'shall provide the order to produce document as soon as possible due to the holiday period' and the matter was listed for another directions hearing on 31 January 2022. According, the onus was on the appellant to issue the order to produce, and there is no evidence he did so.
There is also no evidence before me that any order was sought or refused about the production of any further documents by either the arbitrator at the hearing or Ms Sharpe at the directions hearings. Nor has the appellant indicate how any RMC records in addition to those that the arbitrator referred to in his reasons might have been relevant to any proceedings.
I am prepared to grant the appellant leave to rely on the contents of the affidavit of 3 February 2023. However, for the reasons above there is nothing in that affidavit which raises any question of law that the appellant should be allowed to develop or pursue.
Application to strike out the re-amended notice
The following sets out the 'questions of law', 'supporting grounds' and 'decision sought' in the re‑amended appeal notice:
Questions of law
1.Did the arbitrator prejudice [the appellant's] right to a fair trial on the issues of credibility and reliability?
1.1(a)Did the arbitrator exceed his jurisdiction when he refused to grant leave to [the appellant] late adduced fifth sign statement and particular of claim in these proceedings?
1.1(b)Did the arbitrator exceed his jurisdiction when he refused to grant leave to the insurer's legal representative to adduce [the appellant] late adduced fifth sign statement in these proceedings?
1.1(c)Did the arbitrator against the interest of justice granted leave to the insurer to cross examine [the appellant] on other irrelevant evidence not relevant to the injury claimed?
1.1(d)Did the arbitrator against the interests of justice granted leave to the insurer to cross examine [the appellant] on irrelevant medical records authenticated by a treating medical practitioner who refused to provide a relevant report/documents when requested and ordered by the Arbitrator during the discovery phase of the dispute?
1.1(e)Did the arbitrator against the interests of justice fail to preserve Salini's injury management co-ordinator's self‑incriminated answers to [the appellant's] questions to protect her from perjury, on the ground that the email was privileged information?
1.1(f)Did the arbitrator against the interest of justice fail to preserve the oral statements and submissions of [the appellant] in order to create the perception that he engaged in misbehaviour and other conduct throughout the oral proceeding?
1.2Did the arbitrator misapply the reliability test compared [the appellant] internal consistency of his statements with what was recorded in irrelevant medical notes and other undisclosed evidence?
1.3Did [the appellant] work forward to connect the accident with the CT scans?
1.4Was [the appellant's] presentation, content and tenor of his oral statements and submissions were ideal and his claim has been buried in a morass of conceived complaints?
1.5Did [the appellant's] treating medical practitioner create and tick and uncertain box on the first certificate of incapacity?
1.6Did [the appellant] orally submit that in his late adduced particulars of claim what weekly payments he was claiming?
1.7Did [the appellant] orally submit that in his late adduced particulars of claim that he did need to prove total and partial incapacity for work?
1.8Did [the appellant's] late adduced particulars of claim explain what burden of proof he carries in this jurisdiction?
1.9Did [the appellant] behave in an adversarial manner throughout both cross examinations?
1.10Did [the appellant] consistently describe seeing his two treating medical practitioners and receiving the ultrasound imaging results from them?
1.11Did the arbitrator refuse to make any adverse findings about Salini's injury management coordinator's credibility as a result of her cross examination?
1.12Did the arbitrator refuse to make a finding against Salini's injury management coordinator's credibility as a result of both cross examinations?
1.13Did the arbitrator refuse to preserve the oral statements and submissions of [the appellant] on 15 January 2020 about seeing his two treating medical practitioners for the ultrasound results?
1.14Did the arbitrator against the interest of justice refused leave for [the appellant's] late adduced fifth signed statement, refused to preserve Salini's injury management coordinator's oral evidence, refused to preserve [the appellant's] oral statements and submissions about Salini's injury management coordinator's advice to the appellant that he was unfit for work and he needs to fill in income protection forms?
1.15Did the arbitrator against the interests of justice refused leave for [the appellant's] late adduced fifth signed statement, refused to preserve Salini's injury management coordinator's oral evidence, refused to preserve [the appellant's] oral statements and submissions about Salini's injury management coordinator was the only witness who gave evidence about the email?
Grounds of appeal
1.1.1At [12] the arbitrator made an error in mixed law and fact in finding, against the interest of justice and refused leave for [the appellant's] fifth signed statement, that there were only four signed statements in these proceedings, the arbitrator exceeded his power granted to him by public policy.
1.2.1At [12] the arbitrator made an error in mixed law and fact in finding, misapplied the reliability test under the Act, that is it is appropriate for him to assess the credibility and reliability of [the appellant's] internal consistency of what he says in all of his statements as well as the consistency of the contents of these statements with what has been recorded by the medical practitioners who have provided reports in these and other the other evidence, the arbitrator exceeded his power granted to him by public policy.
1.3.1At [21] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced fifth signed statement, that [the appellant] works backwards to connect the incident with the medical assessments, the arbitrator exceeded his power granted to him by public policy.
1.4.1At [24] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused to preserve [the appellant's] oral statements and submissions, that presentation, content and tenor of [the appellant's] statements and submissions are not ideal and his claim is buried in a morass of misconceived complaints, the arbitrator exceeded his power granted to him by public policy.
1.5.1At [26] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused to preserve [the appellant's] oral statements and submissions, that there is no evidence of Dr Kundal ticking a box on the first certificate of capacity, the arbitrator exceeded his power granted to him by public policy.
1.6.1At [29] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that [the appellant] argued that he did not need to prove total or partial incapacity for work because he was entitled to damages, the arbitrator exceeded his power granted to him by public policy.
1.7.1At [29(b)] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that [the appellant] argued that he did not need to prove total or partial incapacity for work because he was entitled to damages, the arbitrator exceeded his power granted to him by public policy.
1.8.1At [30] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that [the appellant's] submission that he carries no burden of proof in this jurisdiction is clearly misconceived, the arbitrator exceeded his power granted to him by public policy.
1.9.1At [31] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused to preserve [the appellant's] oral statements and submissions, that [the appellant] was argumentative throughout his cross examination, the arbitrator exceeded his power granted to him by public policy.
1.10.1At [32] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that on 15 January 2020 [the appellant] had been consistent in his description of seeing Dr Kundal and having a CT scan, the arbitrator exceeded his power granted to him by public policy.
1.11.1At [33] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that he was not prepared to make any adverse findings about [the appellant's] credibility as a result of the cross examination, the arbitrator exceeded his power granted to him by public policy.
1.12.1At [34] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that he was not prepared to make a finding against [the appellant's] credibility or reliability, the arbitrator exceeded his power granted to him by public policy.
1.13.1At [39] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced particulars of claim, refused to preserve [the appellant's] oral statements and submissions, that on 15 January 2020 [the appellant] Consults Dr Oumo who records in his notes (ultrasound imaging report), the arbitrator exceeded his power granted to him by public policy.
1.14.1At [46] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced fifth signed statement, refused to preserve [the appellant's] oral statements and submissions, that [the appellant] advised Salini that he was not fit for work, the arbitrator exceeded his power granted to him by public policy.
1.15.1At [47] the arbitrator made an error in mixed law and fact in finding, against the interest of justice refused leave for [the appellant's] late adduced fifth signed statement, refused to preserve [the appellant's] oral statements and submissions, that the only witness who gave evidence about the incident, the arbitrator exceeded his power granted to him by public policy.
Decision sought
1.The arbitrator did prejudice [the appellant's] right to a fair trial on the issues of credibility and reliability?
1.1(a)The arbitrator did exceed his jurisdiction when he refused to grant leave to [the appellant] late adduced fifth sign statement and particulars of claim in these proceedings.
1.1(b)The arbitrator did exceed his jurisdiction when he granted leave to the insurer's legal representative to adduce [the appellant's] late adduced fifth sign statement in these proceedings.
1.1(c)The arbitrator did act against the interest of justice granted leave to the insurer to cross examine [the appellant] on other irrelevant evidence not relevant to the injury claimed.
1.1(d)The arbitrator did against the interests of justice granted leave to the insurer to cross examine [the appellant] on irrelevant medical records authenticated by a treating medical practitioner that refused to provide a relevant report/documents when requested and ordered by the Arbitrator during the discovery phase of the dispute.
1.1.(e)The arbitrator did against the interests of justice fail to preserve Salini's injury management coordinator's self-incriminating answers to [the appellant's] questions in order to protect her from perjury, on the ground that the email was privileged information.
1.1(f)The arbitrator did against the interests of justice fail to preserve the oral statements and submissions of [the appellant] in order to create the perception that he engaged in misbehaviour and other conduct throughout the oral hearing.
The merit of the employer's criticism that the contents of the re‑amended notice as a whole are difficult to understand and contradictory is obvious in light of the above.
The focus of the appellant's complaints in the re‑amended notice, and his submissions, is his objection to the arbitrator's finding of fact that the injury to his right knee was not a new injury suffered on 10 January 2020, as he alleged.
Doing the best I can to attempt to understand the contents of the re‑amended notice, the majority of the re‑amended notice alleges errors in relation to this issue, where the appellant was, in fact, successful: in particular pars 1.1(c), 1.1(d), 1.1(e), 1.1(f), 1.2, 1.3, 1.4, 1.5, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14 and 1.15 of the 'questions of law', 1.2.1, 1.3.1, 1.4.1, 1.5.1, 1.9.1, 1.10.1, 1.11.1, 1.12.1, 1.13.1, 1.14.1, and 1.15.1 of the 'supporting grounds' and 1.1(c), 1.1(d), 1.1(e) and 1.1(f) of the 'decision sought'. The misconceived nature of the appellant's appeal on this basis can be seen in pars 1.11.1 and 1.12.1 of the grounds, where the complaint is that the arbitrator erred in finding that he was not prepared to make adverse findings as to the appellant's credibility or his reliability.
To the extent that these paragraphs are capable of raising an error of law (and most are not) any such error could not be a material error, given that they are raised in relation to an issue on which the appellant was successful.
Accordingly, pars 1.1(c), 1.1(d), 1.1(e), 1.1(f), 1.2, 1.3, 1.4, 1.5, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14 and 1.15 of the 'questions of law', 1.2.1, 1.3.1, 1.4.1, 1.5.1, 1.9.1, 1.10.1, 1.11.1, 1.12.1, 1.13.1, 1.14.1, and 1.15.1 of the 'supporting grounds' and 1.1(c), 1.1(d), 1.1(e) and 1.1(f) of the 'decision sought' should be struck out.
Another group of paragraphs complain that the appellant was refused leave to adduce a 'fifth statement': pars 1.1(a) and 1.1(b) of the 'questions of law', 1.1.1 of the 'grounds' and 1.1(a) and 1.1(b) of the 'decisions' sought.
These paragraphs appear to raise an allegation that the arbitrator erred in law by denying the appellant procedural fairness by refusing to allow him to adduce additional evidence. However, the allegations in this respect are contradictory. For example, pars 1.1(a) and 1.1(b) of the 'decision sought' complain both that the 'fifth statement' was excluded and also that it was relied on by the respondent.
In [12] of the arbitrator's reasons the arbitrator refers to four signed statements that formed the appellant's evidence‑in‑chief. The last of these was dated 25 January 2022, just over a fortnight before the hearing on 9 February 2022. There is nothing in the reasons to suggest that the appellant sought to adduce evidence by way of a further statement or that he was refused leave to do so. The appellant did not point to any part of the transcript of the proceedings in which he had sought such leave, nor was I able to identify any occasion where that occurred. Neither did the appellant say what evidence, in particular, he would have relied on that he was unable to adduce.
In fact, it appeared from what the appellant said at the hearing before me on 7 February 2023 that what the appellant was referring to was particulars of claim which had been filed in the proceedings and which contained submissions rather than any additional evidence.
In the circumstances the alleged error of law is untenable. Paragraphs 1.1(a) and 1.1(b) of the 'questions of law', 1.1.1 of the 'grounds' and 1.1(a) and 1.1(b) of the 'decision sought' should be struck out.
The last area of complaint in the re‑amended notice of appeal concerns the issue of total and partial incapacity for work.
In par 1.6 it is said that the 'question of law' reads 'Did Mr Smith orally submit that in his late adduced particulars of claim what weekly payments he was claiming'. None of the 'supporting grounds' relate to this question, which does not raise any question of law, rather it is a matter of fact. Nor can it be material as the arbitrator clearly understood that the appellant was claiming for total incapacity.
Paragraphs 1.7 and 1.8 of the 'questions' are also not questions of law but rather raise matters of fact about what the appellant said in his submissions to the arbitrator. However, the 'supporting grounds' apparently relating to those questions at pars 1.6.1, 1.7.1 and 1.8.1 appear to attempt to raise a ground that the arbitrator erred by holding that the appellant bore the burden of proving his total or partial incapacity for work.
Again, such an argument is untenable. The law is settled that a worker bears the burden of proof in relation to both the issues of total and partial incapacity: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 [8] and [52] ‑ [55]. The appellant raised in oral argument before me that Mitchell was distinguishable on the basis that the appellant in Mitchellhad done other work and the appellant had not done other work and had been a welder for 22 years. However, that is not a relevant distinguishing factor and in any event the assertion that the appellant in Mitchell had done other work is not apparent from the reasoning in that case. In fact, the contrary is true.
As such pars 1.6, 1.7 and 1.8 of the 'questions of law', and 1.6.1, 1.7.1 and 1.81. of the 'supporting grounds' should be struck out.
Conclusion
I have concluded that the appellant should not be granted leave to amend in terms of the new notice, and that the re‑amended notice should be struck out.
I do not consider it appropriate that the appellant be granted general leave to file another appeal notice, noting that he did not seek to do so when I raised this with him at the hearing on 7 February 2023.
The appellant has been given two opportunities to rectify the deficiencies in the appeal notice and has made two further attempts without leave. There is in my view no prospect of the appellant preparing an appeal notice that complies with the rules and identifies a ground of appeal that raises a material error of law or mixed error of law and fact.
As a result, the appeal must be dismissed.
Accordingly, I make the following orders:
1.the appellant is granted leave to rely on the affidavit sworn 7 February 2023;
2.the appellant is refused leave to amend in terms of the new notice of appeal dated 3 February 2023;
3.the respondent's application dated 1 December 2022 is granted and the re‑amended appeal notice dated 30 November 2022 is struck out; and
4.the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LP
Associate to Her Honour Judge Vernon
15 MARCH 2023
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