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 page 2 ‑ 11.
The appellant sought compensation, pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (the Act), for injuries to both his shoulders. He received weekly payments of compensation for the injury to his left shoulder, which occurred on 13 May 2013. He subsequently injured his right shoulder on 6 October 2014.
The appellant made two applications for arbitration. In the first, Application A27000, the appellant argued that his right shoulder injury resulted from his left shoulder injury and fell within that claim and thus he should be entitled to an extension of the prescribed amount for weekly payments pursuant to s 217 of the Act.
In the second, Application A20341, the appellant argued that his right shoulder injury was a fresh injury, entitling him to a fresh prescribed amount.
Initially the two Applications A27000 and A20341 were heard together. In around April 2016 the parties agreed that Application 27000 would no longer be heard together with Application A20341.
After a conciliation conference held on 24 September 2015, it was agreed that Application A27000 be amended to include a claim to extend the prescribed amount for medical expenses pursuant to cl 18A(1a) of sch 1 of the Act. Thus there were two aspects of Application A27000 – an extension of the prescribed amount for weekly payments pursuant to s 217, and an extension of the prescribed amount for medical expenses, pursuant to cl 18A.
The respondent agreed to an extension of the prescribed amount pursuant to cl 18A, to enable the appellant to undergo surgery on his right shoulder.
The appellant proceeded with Application A20341, which was heard and dismissed on 19 July 2016. The appellant appealed that decision to the District Court, and that appeal was allowed in part: Smith v WA Plantation Resources Pty Ltd [2017] WADC 8.
The appellant also continued with the s 217 aspect of Application A27000, with directions hearings occurring from time to time until 15 May 2017, when the appellant filed a notice of discontinuance.
The appellant then sought an order that the respondent employer (also the respondent in this appeal) pay his costs of Application A27000.
On 23 November 2017 Arbitrator Ekanayake awarded costs to the appellant in Application A27000, on the basis that he was partly successful in obtaining the extension of the prescribed amount for medical expenses pursuant to cl 18A. However, the order was that the respondent pay costs only up to and including 18 May 2016, which was the date it was recorded the appellant had undergone his right shoulder surgery.
The solicitors for the appellant then filed a bill of costs prepared in accordance with the relevant scale, which proceeded to an assessment before a different arbitrator, Arbitrator Rutherford.
At the hearing for the assessment of the bill of costs on 20 December 2017, Arbitrator Rutherford declined to assess the costs and dismissed the application for assessment. From my reading of the transcript of the hearing and the written decision of 21 December 2017 (see [36] below), it appears that Arbitrator Rutherford was of the view that there was some overlap between the work done on this and the other application, Application A20341 (which, as I have set out in [7] above, were heard together until April 2016), which could not be ascertained from the bill of costs as filed without the provision of schedules and timesheets. Arbitrator Rutherford concluded by saying:[2]
… My issue here is other than my own assessment of costs based on my own view of the complexities of the matter and the work that could or ought to have been done, or maybe has been done by inference, other than that I can't see another way to assess these costs because the information that you've got, Mr Quinn, is part of the generic. You're unable, other than your own time, to give any primary evidence as to the work or value of work that was put into this matter.
Ultimately, I'm left to rely on my own resources and my own estimate and that's essentially what you're putting to me, Mr Quinn [counsel for the appellant].
MR QUINN: I am.
MR RUTHERFORD: Well, I don't think that's appropriate to go through an assessment in a matter of this type of case – assessment – because there is a related matter, not necessarily a conciliation, but certainly if you go into arbitration. Both matters were heard and (indistinct) both matters were considered. The issues are (indistinct) the assessments are not, I would have thought, amenable to that form of assessment of costs.
I think any assessing officer would require a great deal more information so that he or she is in a position to make an assessment of costs on a fair and reasonable basis and doesn't amount to what ultimately amounts to a series of guesses based on an informed guess by a comparatively experienced legal practitioner. That's all I have got and I'm declining to assess costs on that basis.
So as it stands now, without going through the merits of the assessment, I'm dismissing the application for assessment.
…
… but to make myself clear, I'm not assessing costs so it doesn't prevent, in other words, any other application to be made for assessment because I'm not dealing with the merits of it. I'm declining to, but effectively what I'm saying is if you want costs assessed, you're going to have to do it properly, in relation to assessment of costs not today, not based on what I hear.
[2] ts 13 – 14, WorkCover WA (20 December 2017).
By an appeal notice dated 30 January 2018, the appellant sought leave to appeal from the order made by Arbitrator Rutherford.

Appeals to the District Court – provisions of the Workers' Compensation and Injury Management Act 1981

Section 247 of the Act provides, relevantly, as follows:
247. Appeal against arbitrator's decision made under Part XI
(1)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 section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(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;
and
(b) in any other case, a question of law is involved.
[(3)deleted]
(4)An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
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.

The appeal grounds

There were two grounds of appeal:
1.The Arbitrator failed to provide his reasons for decision pursuant to s 213 of the Act; and
2.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.

Preliminary issue – the 'public interest test'

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.
Notwithstanding the decision of Registrar Kingsley, at the hearing of this appeal the respondent re‑agitated its argument that leave should not be granted without the appellant satisfying the test in s 247(2)(a)(ii) of the Act. The respondent's argument was that the word 'and' which appears between s 247(2)(a) and s 247(2)(b) must be read conjunctively.
Strictly speaking it is not necessary for me to address the respondent's argument on this issue, since it was determined by the registrar and there has been no appeal from the registrar's decision. However, in the circumstances I consider it is important that I should address and deal with the respondent's argument.
I am unable to accept the respondent's argument, and for the following reasons I find that it is and was not necessary for the appellant to persuade the court that the matter is of such importance that, in the public interest, an appeal should lie – what I will refer to as the 'public interest test'.
In construing s 247(2), the court must look at the ordinary and grammatical meaning of the words of the provision, having regard to their context and legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] – [70]; Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27 [26] (French CJ, Hayne, Kiefel & Bell JJ).
This is a case where, having regard to the context of s 247(2) and its underlying purpose or object, the 'and' between s 247(2)(a) and s 247(2)(b) should not be read conjunctively so as to incorporate the public interest test on an appeal under s 247(2)(b): Associated Newspapers Ltd v Wavish (1956) 96 CLR 526, 528; Smith v Papamihail (1998) 88 FCR 80, 88 ‑ 89; (1998) 158 ALR 451, 458-9; Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454 [23], [53] ‑ [54] (Malcolm CJ); [98] ‑ [99] (Steytler J); [112] ‑ [115] (McKechnie J); Interpretation Act 1984, s 18.
As explained by Blackburn J in Re Licensing Ordinance (1968) 13 FLR 143, 147, there are cases:
… in which there was a list of items, the items being joined by 'and' and the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word 'and', which is used to join the items in the list, is truly cumulative; it links the members of a class and its function is to indicate that the whole class is to be considered together. Governing the words which are numerate the members of the class are other words which categorise the class, as a whole, as a class of alternatives.
Section 247(2) lists two types of appeal. The first type of appeal is where an amount of compensation is at issue – s 247(2)(a) – and (and I use the word 'and' deliberately) the second type of appeal relates to any other case' – s 247(2)(b). They are clearly alternatives and there are different tests for the granting of leave for each. In my view the word 'and' which appears between the two is not intended to be read conjunctively and it is there to link the two types of appeal.
Further, on my reading of the ordinary and grammatical meaning of s 247(2)(b), there is no requirement for an appellant on a matter which does not relate to the issue of the amount of compensation, to establish that the matter is of public importance. The only matter which such an appellant must establish is that a question of law is involved. There is no additional requirement, as there is in s 247(2)(a), based either on the financial significance of the amount in issue or the public interest test.
This is a conclusion which has been reached in a number of other cases of this court, without issue, where it has also been held that an appeal on a question of costs and the interpretation of s 264 of the Act involves a question of law: see for example Rodgers v Amcor Ltd [2018] WADC 134 [43] ‑ [49]; Hall v Telstra SNP Monitoring Pty Ltd [2018] WADC 92 [46] ‑ [53]; Sia v Child & Adolescent Health Service (Princess Margaret Hospital) [2015] WADC 56 [9]; Ingham's Enterprises Pty Ltd v Gashaw Beyene [2009] C14 of 2009 [73].

Preliminary issue – jurisdiction

There is a further matter of jurisdiction raised, as a preliminary issue, by the respondent, which arises from the following facts.
In declining to assess the costs and dismissing the application for assessment of the bill of costs on 20 December 2017, Arbitrator Rutherford gave oral (ex tempore) reasons, details of which I have set out in [15] above.
On 21 December 2017 Arbitrator Rutherford issued a document entitled 'Costs Orders' which set out the case (Application A27000), the parties and their representatives, the hearing and decision dated (20 December 2017) and, relevantly for the purpose of this appeal, details of the decision:
Current position:
As to the applicant's assessment of costs application, I advised the parties that on reading the Registrar's Reasons in relation to his recent costs order, in my view costs were to be assessed on the basis that the applicant is entitled to costs of this matter up to and including 18 May 2016 as those costs relate to both the s 217 and cl 18A aspects of the application.
However, other than as to a disbursement, I declined to assess costs and dismiss the application (without determining the merits of the various components of the application for assessment of costs).
Ex tempore reasons were provided.
The Costs Orders document then set out the orders which were made, Arbitrator Rutherford's signature and the date (21 December 2017). It also set out the appeal rights, including that a party to a dispute may, with leave of the District Court, appeal to the District Court against a decision of an arbitrator, and that an application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application. This is, of course, a requirement for a decision in writing as set out in s 213(2) of the Act.
By letter dated 28 December 2017 the solicitors for the appellant wrote to the Registrar – Arbitration Service at WorkCover WA and requested that Arbitrator Rutherford provide his reasons for decision as required by s 213(3)(b) of the Act.
By further letter dated 15 January 2018 the solicitors for the appellant wrote again to WorkCover WA as follows:
We refer to our letter of 28 December 2017 and note we have not had a response.
We are now in receipt of a document labelled 'Costs Orders' dated 21 December 201 [sic] which sets out order number 2, an order that our client's application for the assessment of costs be otherwise dismissed.
We would ask again that Arbitrator Rutherford provide his Reasons for Decision in relation to that order, pursuant to section 213 of the Act.

When there was no response to that letter, the solicitors for the appellant wrote again to the Registrar – Arbitration Service by letter dated 30 January 2018 as follows:
We refer to our letter of 15 January 2018 which of course followed our letter of 28 December 2017, and note we have not had a response.
We would asked one final time that Arbitrator Rutherford provide his reasons for decision in relation to order number 2 made on the 21 December 2017, pursuant to section 213 of the Act.
Alternatively could someone from the Arbitration Service please advise us as to when those reasons for decision unlikely to become available.
On 31 January 2018 Stephen Smith from the solicitors for the appellant had a discussion with someone from the Arbitration Service. The note of that telephone call records as follows:
T/O – waiting for the transcript which was the reason he hadn't provided his reason for decision. But will now get that to us as soon as possible.
The transcript of the reasons for decision was not provided, but notwithstanding this, the appellant filed an appeal notice in the District Court on 13 February 2018.
On 20 February 2018 the solicitors for the appellant wrote again to the Registrar – Arbitration Service, stating:
We refer to our requests over the past 2 months requesting that Arbitrator Rutherford provide his reasons for decision in relation to order number 2 made on the 21 December 2017, pursuant to section 213 of the Act and note we have still not received those reasons for decision.
Whilst we appear to have received an administrative phone call on the morning of the 31 January 2008 regarding the whereabouts of the transcript, can we please be advised as to when Arbitrator Rutherford believes those reasons for decision may become available.
In response, a case management officer from Conciliation & Arbitration Services at WorkCover WA (the Arbitration Service) responded to the appellant's solicitors by facsimile dated 21 February 2018. The facsimile stated that Arbitrator Rutherford has indicated his reasons for decision would be published in the next fortnight.
On 11 April 2018, the Arbitration Service then sent a notice to the parties stating:
District Court Appeal No. 16 of 2018
Please be advised, the Workers' Compensation Arbitration Service (Arbitration Service) has received notice from the District Court of Western Australia (District Court) of the above appeal from a decision of the Arbitration Service.
In accordance with r 52 (3) of the District Court Rules 2005 (WA), the Arbitration Service has provided the District Court copies of the documents relevant to the decision under appeal.
Should the parties wish to inspect those documents, please contact the District Court civil case management officer …
The documents which had been provided to the District Court included the written transcript of the hearing which took place before Arbitrator Rutherford on 20 December 2017, which transcript incorporated the ex tempore reasons he gave for dismissing the appellant's application for assessment of costs.
On 24 April 2018, following a directions hearing in this appeal, orders were made by the Principal Registrar giving leave to the parties to inspect and copy the Workers Compensation Arbitration Service file. The matter was also listed for a further directions hearing on 29 May 2018 to address the question of whether leave should be granted on the grounds of public interest, which is the hearing which took place before Registrar Kingsley, some of the details of which I have set out in [20], [21], [23] and [24] above.
On 7 May 2018 the appellant's solicitors wrote again to the Arbitration Service advising that they still did not have a copy of the reasons for decision from the arbitrator in relation to his orders of 20 December 2017, nor a copy of the transcript from that day. In response an administrative support officer at the Arbitration Service wrote by letter dated 23 May 2018 advising as follows:
In relation to the District Court Appeal No. 16/2018, a copy of the relevant transcript has been provided to the District Court.
A further copy of the audio transcript is enclosed for your attention. Should you require a written transcript, please request this from the District Court.
As to Reasons for Decision, given that a Notice of Appeal has been filed, the Arbitrator considers that he is 'functus officio' and written reasons therefore cannot be provided.
Based on the above facts, I find (and no issue was taken by the appellant about this at the hearing before me)[3] that the appellant was told by the Arbitration Service that the transcript of the hearing of 20 December 2017 were the reasons given by the arbitrator, which is of course permissible under the Act, s 213(5). However, the appellant commenced this appeal after being told that the transcript were the reasons for decision, but before actually receiving the transcript.
[3] ts 18, appeal hearing (10 September 2018).
There were two alternative arguments put forward by the respondent to argue that this court has no jurisdiction to hear the appellant's appeal.
First, the respondent argued that the appeal had been brought out of time. It should have been brought within 28 days of the written decision of 21 December 2017 (see [36] above) and no extension of time can be granted.
Secondly and alternatively, applying the decision of Stevenson DCJ in Kanar v A & S Sadak Pty Ltd [No 2] [2015] WADC 43, the respondent argued that this court has no jurisdiction to hear the appeal because at the time when the appeal notice was filed, the appellant had not received written reasons for the arbitrator's decision. The effect of the decision in Kanar v A & S Sadak Pty Ltd [No 2] is that it is a precondition to the jurisdiction of the District Court to entertain an appeal from a decision of an arbitrator, that the appellant has obtained written reasons for the decision.
The appellant argued that the decision of Kanar v A & S Sadak Pty Ltd [No 2] has no application because the arbitrator provided written reasons for decision pursuant to s 213(5) by arranging a copy of the transcript of 20 December 2017 to be prepared and providing that document to the District Court on 11 April 2018.
Counsel for the appellant also argued that notwithstanding that the solicitors for the appellant had not received the written reasons for decision, or written transcript of the oral reasons, s 247(4) of the Act does not expressly prevent a party from bringing an appeal before the reasons for decision are received. The appellant was entitled to bring the appeal even before receiving the transcript.
These issues have been settled by the Court of Appeal in Kanar v A & S Sadak Pty Ltd [2016] WASCA 109(the Court of Appeal decision in Kanar), which dealt with an appeal from Stevenson DCJ's decision in Kanar v A&S Sadek Pty Ltd [No 2]. In dismissing the appeal, Buss, Newnes & Murphy JJA, in joint reasons held that there is a difference between a 'decision' in writing, and written reasons for decision, and an appeal to the District Court from a decision of an arbitrator can be commenced only once the appellant has been given written reasons for the arbitrator's decision.
This was explained by the Court of Appeal in Kanar as follows (with my emphasis in bold and italics):
[19]In the present case, it is clear that the effect of s 247 of the Act is that an appeal to the District Court from the decision of an arbitrator under pt XI can be commenced only once the appellant has been given written reasons for the arbitrator's decision. That is evident from the language of s 247(1) and from the provision in s 247(4) that the 28-day time limit for the filing of an application for leave to appeal runs from the time the appellant is given the written reasons for decision, rather than, as would ordinarily be the case, from the time of the decision. The obvious purpose is to facilitate the disposal of any application for leave to appeal efficiently and without unnecessary delay by ensuring that written reasons for the decision of the arbitrator are available from the outset. That is consistent with the evident intention of the Act to provide for the 'speedy and fair' conduct of proceedings which are the subject of arbitration (s 190(1)).
[20]There is no public inconvenience in the requirement. There can be no doubt as to what is required. And as the primary judge observed, the obligation on the appellant is not onerous. Where written reasons are not given at the time the application is determined by the arbitrator they can be obtained upon a request made within 14 days of the decision (s 213(3)(b)). If reasons were given orally, a written transcript of the part of the proceedings in which the oral reasons were given is sufficient compliance with the requirement under s 213(3) for the reasons to be in writing (s 213(5)). The decision, however, comes into effect immediately it is given, or at such later time as is specified in it, subject to any stay that may be granted by the District Court under s 250 of the Act (s 215).
[21]It was not in issue that at the time of the hearing before the primary judge there were not then in existence any written reasons of Arbitrator Melville for his decision of 16 May 2012. Nor was it in issue that his written decision did not constitute 'written reasons' for decision within the meaning of s 247(1). Clearly they did not. Section 213 draws a clear distinction between a 'decision' in writing and 'reasons for a decision' in writing.
[22]By the time the application for leave to appeal came before the primary judge it was too late for the appellant to seek to obtain written reasons. The absence of written reasons could not be cured at that stage. In order for the District Court to have jurisdiction to hear the application, the written reasons for decision had to be obtained before the application was filed. It was no doubt for that reason that the appellant's counsel did not apply to his Honour for time to obtain the written reasons but instead maintained that the arbitrator's reasons of 21 January 2013 were sufficient for the purposes of s 247(1) of the Act.
[23]The contention that the appellant was denied procedural fairness by the primary judge by not being given an opportunity to obtain written reasons for decision must be rejected.
[24]We should add that, on the evidence, the oral reasons given by the arbitrator on 16 May 2012 were first produced in written form late in 2015 when the appellant had a compact disc containing an audio recording of the hearing transcribed. It appears from an affidavit the appellant swore in support of an application to adduce a copy of the transcript of the hearing as additional evidence on this appeal that WorkCover WA had provided him with the compact disc by a letter of 13 July 2015. There is attached to the same affidavit a letter, dated 6 May 2013, from the appellant's solicitors containing what is described as a 'DVD from the Directions Hearing on 16 May 2012'. There is, however, no evidence that that was ever transcribed and, in light of the 2015 transcription, it is to be inferred that it was not. It is unnecessary to decide whether the transcript which the appellant arranged to be prepared constitutes 'written reasons' within s 247(1) read with s 213(3) and s 213(5).
The situation in the Court of Appeal decision in Kanar is directly applicable to the situation here. At the time the appellant filed his appeal notice, there was a written decision (dated 21 December 2017), but no written reasons for that decision. As stated by the Court of Appeal in Kanar [22], the written reasons for the decision had to be obtained before the appeal notice was filed.
It is true that, unlike the appellant in Kanar, the appellant here did request written reasons for decision, and made numerous requests which were apparently ignored by the Arbitration Service until the phone call on 31 January 2018 when the solicitors for the appellant were told that the transcript would stand as the reasons. However, the transcript was not provided. Accordingly, at the time when the appeal notice was filed in the District Court, there were no written reasons for decision.
I must therefore reject the respondent's first argument that the written decision of the arbitrator constituted the written reasons for decision and thus the appeal has been brought out of time.
I must, however, follow the Court of Appeal decision in Kanar and uphold the respondent's second argument that the District Court has no jurisdiction to hear this appeal.
There are two additional comments I must make in light of the submissions made to me by counsel during the course of the hearing.
First, it was suggested that lawyers for both workers and employers treat the written decision of an arbitrator as the written reasons for decision for the purpose of an appeal.[4] In my view, that is a practice which should not be followed. Following the Court of Appeal decision in Kanar [22], the written decision does not constitute 'written reasons for decision' within the meaning of s 247(1).
[4] ts 31, appeal hearing (10 September 2018).
Secondly, it was suggested that the Arbitration Service often meets a request for written reasons for decision with the provision of a compact disc containing a recording of the hearing, which is not transcribed. If a party wants a transcript, the party must use the compact disc to get it transcribed. It is only when an appeal is lodged that a written transcript is produced by the Arbitration Service.[5] That was certainly the practice which was followed this matter (see [48]) and also in the case of Kanar (see the Court of Appeal decision in Kanar [24]). In my view that practice of the Arbitration Service does not accord with the requirements of the Act in s 247(1) read with s 213(3) and s 213(5).
[5] ts 26 – 27, appeal hearing (10 September 2018).
The dictionary meaning of the word 'transcript' in the Shorter Oxford English Dictionary is:
'Transcript' is a thing that has been transcribed; a written or printed coy. Also (LAW) a copy of a legal record, especially court proceedings.
The Act in s 213 goes further and specifies that the transcript must be written. Section 213(3) states that the requirement is to provide the requesting party with written reasons for decision. The opening words of s 213(3) are that the reasons for a decision of an arbitrator 'are to be given in writing' to the parties requesting them. The requirement in s 213(5) is that a 'written transcript' is sufficient compliance with the requirement for the reasons to be in writing. In my view, a compact disc containing an audio recording does not constitute a written transcript.
Having regard to these statutory provisions, I consider that when written reasons for decision are requested by a party and the arbitrator wishes to rely on oral reasons which he or she gave (whether ex tempore or otherwise), it is not sufficient for the Arbitration Service to provide a compact disc containing the recording of those reasons to the party who has requested written reasons for decision, and leave to the party to get that recording transcribed. It is incumbent on the Arbitration Service to transcribe the reasons and provide that written transcript to the party making the request.

Merits of the appeal

In case I am wrong in my finding on the preliminary issue of jurisdiction I propose to address the merits of the appeal.
The issue of law identified by the appellant is whether the Arbitrator erred in failing to apply reg 18E and 18H:
18E. Taxing officer may require documents or further particulars
(1)   A taxing officer may, by written notice, require a person (including the applicant, a party to the proceeding in which the relevant order for costs was made, the legal practitioner or agent concerned or any other legal practitioner or agent) to produce any relevant documents of or held by the person in respect of the matter.
(2)   A taxing officer may, by written notice, require an applicant to give to the taxing officer further particulars as to any item of costs claimed.
(3)   A notice given under subregulation (1) or (2) must specify the period within which the notice is to be complied with.
(4)   If a person fails, without reasonable excuse, to comply with a notice given under subregulation (1) or (2) the taxing officer may decline to deal with the application or may continue to deal with the application on the basis of the information provided.
(5)   Nothing in this regulation prevents a person from objecting to the production of a document on the grounds of legal professional privilege.
…
18H. Matters to be considered
(1)   When dealing with an application the taxing officer must consider —
(a)whether or not it was reasonable to carry out the work to which the costs relate; and
(b)what is a fair and reasonable amount of costs for the work concerned.
(2)   In assessing what is a fair and reasonable amount of costs, the taxing officer may have regard to any or all of the following matters —
(a)the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter;
(b)the complexity, novelty or difficulty of the matter;
(c)the quality of the work done and whether the level of expertise was appropriate to the nature of the work done;
(d)the place where and circumstances in which the legal services or agent services were provided;
(e)the time within which the work was required to be done;
(f)the outcome of the matter.
(3)If the dispute resolution authority has ordered that the costs are to be assessed on a specified basis, the taxing officer must assess the costs on that basis.
The appellant's argument is that either Arbitrator Rutherford should have assessed the bill of costs pursuant to reg 18H or, if he required further information, he should have given written notice to the appellant pursuant to reg 18E.
The appellant must show a 'proper basis' for disturbing Arbitrator Rutherford's decision, such as an error of 'fact, law or logic.' The appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator: Erceg v Galati Nominees Pty Ltd [2016] WASCA 112 [33]; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [26].
Unless I am persuaded that the Arbitrator's decision should be varied, discharged or otherwise disturbed, it should stand: Pacific Industrial Co [20] ‑ [26].
I am not satisfied that there was any error of fact, law or logic by the arbitrator, taking into account the following matters.
First, the reason for the arbitrator's refusal to assess costs was because there was an overlap between the costs incurred in Application A27000 and Application A20341 and there was insufficient evidence and particulars to allow the assessment to take place. I accept the respondent's submissions that the arbitrator was mindful of reg 18H and applied it. He did so when he spoke about the assessing officer requiring 'a great deal more information so that he or she is in a position to make an assessment of costs on a fair and reasonable basis'.[6]
[6] See [15] above.
Secondly, when the lack of evidence and particulars was raised with the appellant's counsel at the hearing of the assessment of costs, the arbitrator was told that he should assess the bill of costs based on his own resources and his own estimate.[7]
[7] ts 12 – 14, WorkCover WA (20 December 2017) and the exchange with Mr Quinn; see also [15] above.
Thirdly, reg 18E did not require the arbitrator to give written notice seeking further evidence and particulars. Regulation 18E(1) and (2) both provide that the arbitrator 'may' give notice in writing requiring the applicant to produce any relevant documents or further particulars as to any item of costs claimed.

Fourthly, the arbitrator's decisions not to give written notice and also not proceed to assess the costs were, as all costs decisions are, discretionary decisions calling for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right: Norbis v Norbis (1986) 161 CLR 513, 518 ‑ 519. It is not sufficient for me to form the view that I would have exercised my discretion differently: Ingham's Enterprises Pty Ltd v Gashaw Beyene [75].
Finally, the arbitrator expressly stated that he was not dismissing the application for the assessment of the bill of costs on the merits and it was still open to the appellant to file a properly prepared bill of costs for assessment. Accordingly, even if it could be said that the arbitrator erred in the exercise of his discretion either not to proceed to assess the costs or to give written notice to the appellant to provide further evidence and particulars, there has been no substantial injustice which would justify allowing the appeal: Ingham's Enterprises Pty Ltd v Gashaw Beyene [113].

Conclusion

For the reasons I have given, both as to jurisdiction and as to the merits, this appeal must be dismissed. I will hear from the parties on the issue of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS
22 NOVEMBER 2018