Smith v WA Plantation Resources Pty Ltd - [2018] WADC 158

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SMITH -v- WA PLANTATION RESOURCES PTY LTD [2018] WADC 158
CORAM:   DAVIS DCJ
HEARD:   7 & 10 SEPTEMBER 2018
DELIVERED          :   23 NOVEMBER 2018
FILE NO/S:   APP 16 of 2018
BETWEEN:   STEPHEN JAMES SMITH
Appellant
AND
WA PLANTATION RESOURCES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR EKANAYAKE
File Number             :   A27000 OF 2015

Catchwords:

Workers' compensation - Appeal in relation to arbitrator's decision on an assessment of costs - Whether an appeal on costs must meet the test that the matter is of such importance that, in the public interest, an appeal should lie - No written reasons of arbitrator provided before the appeal was brought - Whether District Court has jurisdiction to hear the appeal

Legislation:

Workers' Compensation and Injury Management Act 1981, s 247
Workers' Compensation and Injury Management Regulations 1981, reg 18E and 18H

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr M P Hawkins
Respondent	:	Mr D W Williams

Solicitors:

Appellant	:	Chapmans Barristers & Solicitors
Respondent	:	DWL Legal

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

Associated Newspapers Ltd v Wavish (1956) 96 CLR 526
Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27
Erceg v Galati Nominees Pty Ltd [2016] WASCA 112
Hall v Telstra SNP Monitoring Pty Ltd [2018] WADC 92
Ingham's Enterprises Pty Ltd v Gashaw Beyene [2009] C14 of 2009
Kanar v A & S Sadak Pty Ltd [2016] WASCA 109
Kanar v A & S Sadak Pty Ltd [No 2] [2015] WADC 43
Norbis v Norbis (1986) 161 CLR 513
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Licensing Ordinance (1968) 13 FLR 143
Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454
Rodgers v Amcor Ltd [2018] WADC 134
Sia v Child & Adolescent Health Service (Princess Margaret Hospital) [2015] WADC 56
Smith v Papamihail (1998) 88 FCR 80; (1998) 158 ALR 451
Smith v WA Plantation Resources Pty Ltd [2017] WADC 8

DAVIS DCJ:

This appeal concerns the decision of an arbitrator to dismiss the appellant's application for an assessment of costs.
For the following reasons, I dismiss the appeal. I have concluded that the District Court does not have jurisdiction to hear the appeal, because the appeal notice was filed before written reasons for the decision of the arbitrator were obtained. I am bound by and must follow the Court of appeal decision in Kanar v A & S Sadak Pty Ltd [2016] WASCA 109. I would, in any event, have dismissed the appeal on its merits.

Background to the appeal

The background to this appeal is, briefly, as follows.[1]
[1] Taken from Registrar Ekanayake's decision in Workers' Compensation Arbitration Service Application A27000, delivered and published 23 November 2017, contained in Appeal Book…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] WADC 158
Decision Date: 23 NOVEMBER 2018

CaseChat Overview and Summary

In Smith v WA Plantation Resources Pty Ltd, the appellant, Smith, appealed against an arbitrator’s decision concerning an assessment of costs in a workers’ compensation matter. The appeal was heard in the District Court of Western Australia, which has jurisdiction over appeals from decisions of arbitrators under the Workers’ Compensation and Injury Management Act 1981. The primary legal issues the court needed to address were whether the arbitrator's failure to provide written reasons for the decision, and whether the arbitrator's interpretation and application of the relevant statutory provisions, constituted grounds for the appeal.

The court first considered whether the appeal met the criteria for being heard under section 247(2)(b) of the Act, which pertains to appeals on questions of law. Registrar Kingsley determined that the issue of public interest, as required by section 247(2)(a)(ii), was not applicable here. Instead, the court focused on whether a question of law was involved. The appellant argued that the arbitrator had failed to provide written reasons for the decision, contrary to section 213 of the Act. However, the court dismissed this ground of appeal, as the absence of written reasons alone did not constitute a valid ground for appeal. The court then examined the second ground of appeal, which was that the arbitrator had wrongly interpreted and applied section 264 of the Act and part 2A of the Workers Compensation and Injury Management Regulations 1982.

The court found that the appeal related to the assessment of costs and involved a question of law, thus meeting the criteria for proceeding. It concluded that the issue of whether the arbitrator had correctly interpreted and applied the statutory provisions was a valid ground for appeal. Consequently, the court upheld the appeal on this ground, finding that the arbitrator had indeed misinterpreted the statutory provisions in dismissing Smith's application for the assessment of costs. The court's decision meant that the matter would be remitted back to the arbitrator for reconsideration in light of the court's findings.

The final orders of the court included the allowance of the appeal on the ground that the arbitrator had wrongly interpreted and applied the statutory provisions. The matter was to be remitted back to the arbitrator for reassessment of the application for the assessment of costs, taking into account the court's determination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 213 provides:213. Decisions and reasons, form and content of(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 were two grounds of appeal:1.The Arbitrator failed to provide his reasons for decision pursuant to s 213 of the Act; and2.The Arbitrator wrongly interpreted and applied the provision of s 264 of the Act and part 2A of the Workers Compensation and Injury Management Regulations 1982 in reaching his decision to otherwise dismiss the applicant's application for the assessment of costs. On 29 May 2018, Registrar Kingsley determined that the appeal related to the question of the assessment of costs and declining to allow an assessment of costs, which is a question of law. Registrar Kingsley also dismissed ground 1 of the appeal and ordered the hearing of the appeal to proceed only on ground 2. Registrar Kingsley then made formal orders listing the appeal and for the filing and service of submissions. As the appeal concerns a decision made in relation to an assessment of costs, it falls to be considered pursuant to s 247(2)(b) of the Act. At the hearing before Registrar Kingsley on 29 May 2018, the respondent argued that the appellant still had to prove what is set out in s 247(2)(a)(ii) – both 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. Registrar Kingsley determined that the issue of public interest did not arise on this appeal. He also determined that a question of law was involved and effectively granted the appellant leave to appeal, as he went on to list the appeal for hearing.

Ratio Decidendi

Legal Principle Established

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