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)
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…
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- AGLC
- Smith v Salini Australia Pty Ltd [2023] WADC 27
- Case
- [2023] WADC 27
- Decision Date
CaseChat Overview and Summary
The court examined the arbitrator's findings, which included the determination that Smith had suffered a compensable injury under s 5(1)(d) of the relevant Act, although it dismissed his claim for weekly payments due to insufficient evidence of total incapacity. The court also upheld the arbitrator's decision that Smith was entitled to reasonable medical expenses but not for the cost of knee surgery deemed unreasonable. Furthermore, the court assessed whether Smith's appeal grounds were sufficiently clear and relevant, considering the appellant's self-represented status.
In its reasoning, the court highlighted the need for allowances to be made for self-represented litigants, yet underscored the limitations of such allowances to maintain fairness. The court found that Smith's appeal, despite some inadequacies in expression and relevance, contained an arguable case. The court ultimately upheld the arbitrator's decision, affirming the compensability of Smith's injury under the specified section of the Act but dismissing his claims for total incapacity and unreasonable medical expenses.
The final orders of the court dismissed Smith's appeal, affirming the arbitrator's decision on the compensability of his injury, the dismissal of his claim for weekly payments, and the rejection of the cost for unreasonable surgery as part of his medical expenses.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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]. 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.