Steele v Clough Projects Pty Ltd - [2019] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   STEELE -v- CLOUGH PROJECTS PTY LTD [2019] WADC 60
CORAM:   STEVENSON DCJ
HEARD:   12 &19 NOVEMBER 2018 & 21 JANUARY 2019
DELIVERED          :   24 APRIL 2019
FILE NO/S:   APP 49 of 2018
BETWEEN:   MICHAEL STEELE
Appellant
AND
CLOUGH PROJECTS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR MENGLER
File Number             :   A 48952 of 2018

Catchwords:

Appeal - Workers compensation - Section 217A - Reconsideration of decision by arbitrator if 'new information' - Jurisdiction of arbitrator to reconsider - Whether 'new information' justifies a reconsideration hearing - Whether a different arbitrator to the primary decision maker can reconsider the matter

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), sch 1 cl 17, s 177, s 186, s 188, s 217A, s 247

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr B L Nugawela
Respondent	:	Mr G P Bourhill

Solicitors:

Appellant	:	Eureka Lawyers
Respondent	:	DWL Legal

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95
Barr v Farrell [2013] WASCA 211
Clough Projects Pty Ltd v Steele (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A48752, 18 April 2018)
Mirvac (WA) Pty Ltd v Seddon (Unreported, Unpublished, Workers' Compensation Arbitration Service, File Number C16-2009, 19 June 2009)
Rankins v The State of Western Australia [2018] WASCA 138
Steele v Clough Projects Pty Ltd (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A39589, 7 July 2017)
Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55

STEVENSON DCJ:

This is an application for leave to appeal and an appeal from a decision made on 18 April 2018 by Arbitrator Mengler in the Workers' Compensation Arbitration Service (WA). The learned arbitrator decided that additional documentary evidence sought to be relied upon by the respondent (Clough Projects) was 'new information' which justified a reconsideration of the primary decision‑maker's decision pursuant to s 217A of the Workers' Compensation and Injury Management Act 1981 (the Act).
The primary decision was made by Registrar Ekanayake (as he then was) on 7 July 2017. Registrar Ekanayake made orders that Clough Projects pay the appellant (Mr Steele) his reasonable medical and other expenses incurred or likely to be incurred in accordance with sch 1 cl 17 of the Act arising from a compensable injury on 26 June 2012, including, but not limited to, the expenses set out in a list of expenses, totalling $3,065.75 (the primary decision).
Registrar Ekanayake otherwise dismissed Mr Steele's application for compensation by way of weekly payments on the basis of total incapacity for work from September 2016. This was because, although the learned registrar considered Mr Steele had some level of incapacity, Mr Steele did not discharge the burden of proof of establishing the alleged incapacity.
The 'new information' relied upon by Clough Projects to seek a reconsideration of the primary decision made by Registrar Ekanayake consists of a forensic intelligence report and further medical opinions expressed by two of the doctors who gave evidence at the initial hearing.
It is not in dispute that the documentary material and medical opinions relied upon by Clough Projects, either singularly or in combination, are capable of constituting 'new information' for the purpose of s 217A of the Act, subject to the arbitrator forming a lawful opinion that it has the necessary quality and relevance to justify a reconsideration of the original decision: Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55 (Buss JA) [22].
It is common ground that the 'new information' is relevant to the primary decision, even though it would have been available to Clough Projects at the time the decision was made if inquiry had been made. Nevertheless, it is noted there is no explanation why it was not obtained prior to the hearing.
This appeal gives rise to a threshold jurisdictional question as to whether the power contained in s 217A is enlivened in the circumstances and context of the issues in dispute.
The jurisdictional issues that require determination are:
(a)Can a different arbitrator to the primary decision-maker exercise the power to reconsider the decision made by the first arbitrator pursuant to s 217A of the Act?
(b)If yes, is the 'new information' capable of giving rise 'in the opinion of the arbitrator' to a preliminary decision that it 'justifies reconsideration of the matter'?
(c)Are there any other matters arising out of the proper construction of the Act which pre-condition the jurisdiction and power of an arbitrator to invoke a reconsideration of a decision under s 217A of the Act?
The issue posed in par 8(b) above is not concerned with the question of whether the 'new information', if taken into account, would on reconsideration lead to a change in the decision previously made by the arbitrator. That decision has not yet been made by an arbitrator in the proceedings in the Workers' Compensation Arbitration Service (WA).
The issues that give rise to this appeal arise out of the preliminary issues which Arbitrator Mengler, with the agreement of the parties, was asked to determine, namely:
(a)Do the contents of the documents submitted by [Clough Projects] comprise new information relevant to the decision that was not available to the Registrar; and
(b)If 'yes' to (a) above, am I satisfied that the information justifies reconsideration of the decision?
For the reasons which follow, in my opinion, leave to appeal should be granted and the appeal dismissed.

Background to the workers compensation claim

Mr Steele was employed by Clough Projects as a carpenter when he sustained an injury to his left knee on 26 June 2012.
On 16 July 2012, Clough Projects' insurer (CGU Workers Compensation) accepted liability for the claim.
On 13 September 2012, Mr Steele was issued with a final medical certificate noting that he was fit for pre‑injury duties.
On 23 April 2013, Mr Steele's employment with Clough Projects was terminated.
As a result of the left knee injury, sustained on 26 June 2012, Mr Steele aggravated or accelerated degenerative osteoarthritic changes in the left knee which rendered him incapacitated for pre‑injury duties from September 2016.
On 19 December 2016, Mr Steele lodged an application for arbitration at WorkCover WA.
The arbitration was heard by Registrar Ekanayake (as he then was) on 7 July 2017: Steele v Clough Projects Pty Ltd (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A39589, 7 July 2017).
In his conclusion, Registrar Ekanayake summarised his findings as follows:
[220]I have found that Mr Steele's acute injury on 26 June 2012 made symptomatic a previously asymptomatic degenerative condition in the medial compartment of his left knee. The injury also aggravated or accelerated the degenerative process.
[221]Although I consider that Mr Steele has some level of incapacity and that incapacity results from his injury of 26 June 2012, Mr Steele has not discharged his burden of proof to establish that incapacity. In particular, I am not satisfied, as Mr Steele contends, that he was totally incapacitated from September 2016 onwards.
[222]I am satisfied that the expenses contained in Mr Steele's list of expenses are reasonable expenses as required by cl 17 of Sch 1, and there is a relevant connection between those expenses and Mr Steele's compensable injury. Mr Steele is also entitled to compensation for any further reasonable expenses connected to his compensable injury, based on my findings in this decision.
On 17 January 2018, Clough Projects lodged an Application for Arbitration at WorkCover WA seeking a reconsideration of the primary decision of Registrar Ekanayake pursuant to s 217A of the Act. Mr Steele filed a reply.
Clough Projects sought a reconsideration of the decision of Registrar Ekanayake on the basis of 'new information' to be found in and constituted by the following documents:
(a)MJM Intelligence report, dated 3 October 2017;
(b)Medical report of Dr Frederick Phillips, dated 10 October 2017;
(c)Two medical reports of Dr Euan Thompson, dated 8 December 2017; and
(d)Supplementary report of Dr Frederick Phillips, dated 8 March 2018.
The s 217A application was referred to Arbitrator Mengler for determination. At their request and with the agreement of the parties, Arbitrator Mengler was asked to determine as a preliminary issue the questions set out in [10] above.
On 18 April 2018, Arbitrator Mengler decided that the documents referred to in [21] above, constitute 'new information' and justify reconsideration of the primary decision pursuant to s 217A of the Act: Clough Projects Pty Ltd v Steele (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A48952, 18 April 2018) [24].
In a rider to his reasons for decision, Arbitrator Mengler posited the possibility that the reconsideration hearing might be held at the same time as the hearing of another application involving the same parties (No A46398). I infer this is the fresh application by Mr Steele for weekly payments arising out of his 2012 injury referred to in oral submissions by counsel. If this other application is 'a second bite at the cherry' by Mr Steele to claim compensation by way of weekly payments, then this appeal is arguably otiose, because precisely the same factual issues as to the alleged liability of Clough Projects will arise in those proceedings.

Mr Steele's grounds of appeal

Mr Steele's final grounds of appeal as set out in his further amended appeal notice filed 5 December 2018 are as follows:
1.The Arbitrator had no jurisdiction to determine the s.217A application as he was not ''the'' original Arbitrator who ''previously made'' ''the'' original decision;
1A.The learned Arbitrator erred in law in determining that the information/evidence sought to be adduced was ''new information'' with (sic) the meaning of s 217A of the Act.
1B.The learned Arbitrator misconstrued the task he was charged to do pursuant to s 217A of the Act, failed to properly discharge his function and consequently made determinations and orders which were beyond his jurisdiction and power.
1C.The bringing of the s 217A application below constituted a collateral attack on the worker's s 62 application, amounted to an abuse of process, had had no practical utility, was not the subject of any recovery application and was not capable of reference to Arbitration for want of either conferral or Conciliation.
2.In the alternative to Grounds 1, & 1A, 1B and 1C, the Arbitrator erred in law in finding that the documents contained ''new information relevant to'' the original decision;
3.In the alternative to Grounds 1, & 1A, 1B & 1C, the Arbitrator erred in law in failing to apply an appropriate test as to whether the putative new information justified reconsideration of:
(1)the relevant original causation findings and/or;
(2)the reasonableness of Clause 17 expenses,
When instead he should have carefully evaluated the ''importance of the relevant original findings'' (especially including those at [171], [172], [173], [174], [182], [183]-[188], [200]-[202], [204]-[205]) against ''the putative new information in the context of a possible de novo reconsideration'' of the original findings;
4.In the alternative to Grounds 1, ~~and~~ 1A, 1B & 1C, the Arbitrator erred in law in finding that reconsideration of the original decision was ''justified''.

Relevant provisions of the Act

Under the Act, an appeal to this court from a decision of an arbitrator is governed by pt XIII commencing with s 247. This section provides that leave must be granted by the District Court of Western Australia and that leave will only be granted if a question of law is involved. It is not in issue that the grounds of appeal raise questions of law.
Section 217A(1) and (2) of the Act provide:
217A.Arbitrator may reconsider decision if new information
(1)In this section —
new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
(2)If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and —
(a)vary or revoke the decision previously made; or
(b)make any further decision,
as the arbitrator considers appropriate having regard to the new information.
Section 217A of the Act is in the same terms as its predecessor, namely s 186. However, s 186 was materially different to the relevant provisions which existed before its enactment. Each reiteration has continued to give rise to questions of statutory construction for practitioners and courts alike. Arguably, at each time, the legislature has not seen fit to make plain its intended purpose and full ambit, as to an arbitrator's power to reconsider a decision.
There is no expressed limitation period for seeking the right to invoke the 'reconsideration' jurisdiction and power contained in s 217A. The passage of time and, more particularly, delay may be relevant factors, depending on the circumstances and any change of position as a result of, or since, the primary decision was made, which might in itself determine whether reconsideration is 'justified'.
It is trite law that the objects and purpose of the Act must be construed liberally and beneficially but, in most cases when 'reconsideration' of a decision is raised, it will probably more often than not be potentially adverse to the worker's interests. Ironically, given the full ambit of the wider issues involving the parties, there is no reason why Mr Steele could not seek a reconsideration of the primary decision based on (presumably) the new information on which he is relying on for his fresh substantive claim in the subsequent proceedings he has commenced.
It is important to bear in mind, when considering the proper operation of s 217A, the inherent tension in dispute resolution systems between a 'fast and informal' decision-making process, and the public interest in the finality and ongoing certainty once decisions have been made. The workers compensation jurisdiction is a good example of the inherent conflict between these different positions and competing public policy interests.
In order determine the present issues, proper consideration must be given to where s 217A sits in relation to the other procedural provisions in pt XI of the Act and the limited appeal rights afforded to aggrieved parties from decisions made by arbitrators under the Act.

Ground 1 – can a different arbitrator to the primary decision-maker exercise the jurisdiction conferred by s 217A to reconsider the decision

Mr Steele contends that 'as a matter of textural primacy' all references to 'the arbitrator' in s 217A, as a matter of statutory construction, refer to 'the' arbitrator who made the original decision. By contrast, Mr Steele calls in aid s 182K(7), which expressly makes reference to 'the conciliation officer, or another conciliation officer …' (not an arbitrator) varying or revoking a direction previously made under s 182K(2) or (4).
It is submitted on behalf of Mr Steele that the use of the definite article is a word of limitation, when the legislature could have used the indefinite article (such as 'an' or 'any') when referring to the arbitrator in s 217A.
Further, it is submitted that, where the new information largely goes to a question of credibility, the only person who can review or 're‑consider' the 'original internalised (or partly externalised) views on the witness credibility, would be the original decision‑maker'. It is submitted that only the original decision-maker truly would know, and properly could know, whether the new information 'justifies' reconsideration of the decision.
In addition, Mr Steele contends that his construction of s 217A advances the finality of an arbitrator's decision that is 'enshrined in s 217B' of the Act. Section 217B provides:
217B.Arbitration decisions not reviewable
(1)Except as otherwise provided by this Act a decision of an arbitrator is final and binding on the parties and is not subject to an appeal.
(2)A decision of an arbitrator or anything done under this Act in the process of coming to a decision of an arbitrator is not amenable to judicial review.
For these reasons, Mr Steele contends that only the primary decision‑maker, Registrar Ekanayake (who at all material times was acting as an arbitrator) is vested with the jurisdiction conferred by s 217A of the Act to reconsider his decision as a result of 'new information'.
It is common ground in this appeal that Registrar Ekanayake resigned from his position as Registrar, Arbitration in January 2018. Accordingly, he could not therefore reconsider his original decision pursuant to the power in s 217A because he was functus officio.
Clough Projects accepts that Mr Steele's submissions would have some force and effect if the original decision-maker is available and physically able to conduct a reconsideration. That is not the position in this case.
I have not been referred to any decision where the power of an arbitrator in s 217A of the Act has been sought to be invoked and applied by a different arbitrator. On its own, of course this does not determine the issue. It does suggest that the circumstances in this case where the original decision-maker is unavailable to hear the matter, rarely arises.
Notwithstanding the initial attractive force of Mr Steele's submissions, I am not persuaded that a (limited and restricted) statutory ability to appeal against an arbitrator's decision, without more, can itself determine the proper construction of s 217A. The right to appeal is limited to a question of law and the 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: s 247(1) and s 247(4). In particular, and relevantly, s 247(6) imposes an evidentiary limitation on the evidence which can be considered on the hearing of an appeal.
Contrary to Mr Steele's submissions, the force and effect of s 217B of the Act that the decision of an arbitrator 'is final and binding on the parties and is not subject to an appeal' and anything done under the Act in the process of coming to a decision 'is not amenable to judicial review', in my view, tends to widen the ambit and scope of s 217A insofar as it is a 'release valve' if the decision made by the arbitrator is demonstrably wrong as a result of new information bearing upon relevant issues critical to the decision itself.
The principles of statutory construction are well-known by the courts, even though, when called upon to determine a particular issue, judicial minds may differ in discerning the legislative intention of a parliamentary enactment. It is easy to say that the proper meaning is to be found by reading the words in context and giving the language used its 'natural and ordinary meaning'. This in itself can create a conundrum.
In the 2004 parliamentary debates, concern was expressed about the proposed reforms which, in part, were intended to enable an 'ordinary person' to enforce his or her rights at minimal cost and without the need for legal representation. The procedures were intended to be simple, open and transparent in consideration of 'demystifying' the process. As Mrs C Edwardes observed in the second reading parliamentary debates on 2 June 2004, 'Appeals have a limited right. People cannot appeal the arbitrator's decision, and I think that is scary for all participants in the system'.

On the principles of statutory construction, in Barr v Farrell [2013] WASCA 211 Newnes JA at [42] said:
The objective of statutory construction is to give to the words of the statutory provision the meaning which the legislature is taken to have intended them to have, applying the established rules of construction: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [78]; Lacy v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, [43]. Ordinarily, although not always, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky [78].
Further, in Barr v Farrell [59] Murphy JA summarised the relevant principles of statutory interpretation as follows:
The relevant principles of statutory interpretation were not in dispute and it is unnecessary to outline them in any detail here. For present purposes, the following principles are, however, to be particularly borne in mind in construing s 41(3). Parliament's intention is to be ascertained by determining the intention manifested by the legislation: Wik Peoples v Queensland [1996] HCA 40; (1996) 187 CLR 1, 168 169 (Gummow J). Statements as to legislative intention made in explanatory memoranda or by ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31]. Ordinarily, but not always, the grammatical and ordinary sense of the words is to be adhered to: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]; Corporate Affairs Commission (New South Wales) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 340 (Gaudron J). A provision must be read in context and not in isolation from the enactment of which it forms a part: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 318 (Mason J). Within a provision, the meaning and operation of particular expressions must be read with and accommodated to the rest of the section: Taylor v Public Service Board (New South Wales) [1976] HCA 36; (1976) 137 CLR 208, 213 (Barwick CJ); Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation [1971] HCA 17; (1971) 124 CLR 97, 105 (Gibbs J). The unit of communication by means of language is the sentence, and not the parts of which it is composed, and the significance of individual words in a sentence is affected by other words and the syntax of the whole: R v Brown [1996] AC 543, 561, quoted with approval by the High Court in Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 397. A provision which is remedial in character should be construed so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open: Khoury v Government Insurance Office of (NSW) [1984] HCA 55; (1984) 165 CLR 622, 638.
By contrast with respect to the statutory construction issue in that case, and arguably, in some respects in parallel to the issues in this case, Murphy JA made the following observation:
… Fourthly, the use of the indefinite article before the word 'guardian' appears to be of some substantive significance to the structure of the sentence in s 41(3). The term 'a guardian' does not, in its grammatical and ordinary sense, convey the meaning of 'the' actual guardian of the plaintiff at the time. The reference to 'a' guardian in the context of an inquiry into unreasonableness appears to be designed to emphasise the objective nature of the inquiry. It appears unlikely to me that the reference to 'a' guardian within the context of the sentence as a whole is really a drafting technique addressing the situation where there are two actual guardians of the plaintiff, and is intended to mean, in effect, 'the' actual guardian of the plaintiff, or if more than one, either of them.
For these reasons, Murphy JA held at [64] that the relevant provision in issue 'does not appear to me to be addressing the state of mind of the particular person who was, in fact, the guardian of the minor at the time that the limitation period expired'. In a general way, although Barr v Farrell involved reconsideration of issues concerning a limitation period, the operation of the outcome and effect on legal rights has some parallel to the issues in this case.
The difficulties associated with statutory construction is encapsulated, including in the title, of the following observations of the Hon J Basten, 'Statutory Interpretation: Choosing Principles of Interpretation' (2017) 91 ALJ 881:
CHOOSING PRINCIPLES OF INTERPRETATION
Many cases requiring resolution by a superior court turn on questions of statutory interpretation. Judgments, seeking to identify the principles to be applied, often repeat statements from recent High Court cases. Generally, the statements contain reference to the 'text, context and purpose of the Act', terms which themselves give little assistance, as is apparent from the usual absence of any further reference to the authoritative statements of principle when the language of specific provisions is being addressed. Nor are these statements universally applied by the High Court. For example, an earlier interpretation by the High Court of a particular provision of an Act 'is a powerful indicator of the correct interpretation of a provision of the same Act which serves similar purposes and uses identical or substantially similar language'. In other cases legislative history may be critical. Or again, in relation to principles of foreign state immunity or the operation of a Convention incorporated into domestic law, principles of international law and judgments of foreign courts may be of central importance.
There are three fundamental reasons why the search for universal guidance is unsuccessful. First, interpreting and applying a statute can give rise to many different kinds of problem. It follows that statements made in one context may be unhelpful in another. Secondly, although it is conventional to refer to 'common law and statutory rules of construction', in fact they are not helpfully identified as 'rules' in the sense that that term is usually used in the law. Calling them rules encourages lower courts to approach statements in High Court judgments as if they were themselves statutory language. Thirdly, being more akin to principles, they are usually stated at a high level of generality. For example, in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39], in a commonly cited passage, the Court said:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the … text." So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text.'
At the risk of transgressing the second sentence of the passage above, it is worth reminding ourselves of the often cited joint judgment of Hayne, Heydon, Crennan and Kiefel JJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 - 47:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
In my view, given the intended purpose of s 217A of the Act in appropriate circumstances where information not available to the arbitrator at the time of the hearing might result in a different outcome or decision, the restrictive construction contended by Mr Steele that only the original decision-maker can exercise the power should not be favoured.
When one considers the place of s 217A in the determination of disputes in the context of the provisions of the Act as a whole, a construction which arguably might lead to an injustice and wrong decision being perpetuated, it is in the interests of justice, and presumably the intention of Parliament, that the arbitrator's decision be open to reconsideration, even if the initial arbitrator who heard the matter is no longer available to exercise the power of reconsideration.
The pre‑condition that the 'new information' must first, in the opinion of the arbitrator, justify reconsideration of the matter may be seen as a protection to the exercise of the power by an arbitrator other than the original arbitrator. That is, the new information must plainly have sufficient relevance and import to the basis upon which the original decision was made before a reconsideration hearing is warranted. Depending on the context and issues, the new information may fall below this threshold requirement, in which case a reconsideration hearing would not be warranted. In my opinion, the need for a substitute arbitrator to give consideration to this requirement is not a reason on its own to take away the operation of s 217A in its entirety, just because the initial arbitrator, for whatever reason, is no longer available to hear the matter.
In my view, although it is obviously preferable that the original arbitrator who made the decision be asked to reconsider his or her decision under s 217A of the Act, if that arbitrator is not available for any reason (including death) then an alternative arbitrator seized with the matter can determine if 'the new information' in his or her opinion justifies reconsideration of the matter. If so, then the alternative arbitrator can decide if the original decision should be varied or revoked, or whether any other decision needs to be made.
In an appropriate case, depending on the circumstances, it might be necessary for a different arbitrator, as a condition of exercising the reconsideration power, to require a witness or certain evidence to be recalled as a matter of procedural fairness, particularly to the party most at risk of being prejudiced by the matter being reopened. Obviously, in most cases as a matter of practicality (including the efficient use of public resources and judicial time) good governance will dictate that the primary decision-maker will continue to deal with the matter.
For these reasons, the proper construction of s 217A, and the Act, does not preclude a different arbitrator to the primary decision-maker in an appropriate case, such as this one, from exercising the reconsideration power. Accordingly, ground 1 of the appeal must be dismissed.

Grounds 1A and 2 – is the further information sought to be adduced 'new information' for the purpose of s 217A of the Act

The finding by Arbitrator Mengler, in my view, is consistent with the practical outcomes of dispute resolution provided for by the Act and consistent with the objects for dispute resolution as set out in s 177(1) of the Act as follows:
177.Object of this Part
(1)The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that —
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
(d)in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
The concept of 'new information' for the purpose of s 217A requires a full understanding of the practices and procedures which govern the making of decisions by arbitrators under the Act. This is, , contained in part, in s 188 which provides, relevantly:
188.Practice and procedure, generally
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
…
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
The full extent of the operation of s 217A (and its predecessor in identical terms - s 186) has not been fully examined in case law. In Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95 Murphy JA made the following preliminary observations on s 186 of the Act (now s 217A) at [275] – [278]:
275Section 186 may not be utilised unless, amongst other things, the arbitrator forms the opinion that the new or different material sought to be relied upon 'justifies' reconsideration of the matter, and is then persuaded to exercise the discretion conferred by s 186(2). The full extent of the basis upon which the discretion in s 186(2) is to be exercised or not, and of the basis for forming the requisite opinion that information 'justifies' reconsideration for the purposes of s 186(1), have not been examined in any case law to which the court was referred, and the occasion to do so does not arise in this appeal. For present purposes, it may be noted that s 186 contains strictures beyond the regime provided for in s 93D(5) (12). For example, under s 93D(12), an employer is to be regarded as having agreed that the worker's degree of disability is not less than that in a referral under s 93D(5), unless the employer has given notification to the contrary under s 93D(8). Such a 'deemed' (as it were) agreement is operative for the purposes of the worker achieving the statutory threshold under s 93E(3)(a): s 93E(1), definition of 'agreed'.
276Section 186 clearly operates, in my view, to provide an employer with an avenue for seeking a merits redetermination of the worker's degree of disability in the event that the worker has succeeded in overcoming the limitation on his or her right to recover common law damages by having obtained a determination of the relevant degree of disability. The employer may, by seeking to invoke s 186, seek to demonstrate that the worker did not have, or no longer has, the degree of disability determined pursuant to s 93D(10) in respect of an earlier referral by the worker under s 93D(5).
277Thus, and subject to the appeal procedures, a worker with an accrued cause of action against the employer, who has overcome the statutorily imposed restrictions on the full exercise of his or her common law rights, may not subsequently be deprived of the benefit of those rights except where the employer can successfully invoke s 186. As noted earlier, s 93D(5) applies to give a worker, not the employer, the right to refer to the director the question of the worker's degree of disability in the event of disagreement.
278This appeal raises, inter alia, the question of whether, in the circumstances of this case, the appellant worker, who was seeking to establish the 30% threshold by reason of a claimed deterioration in the degree of disability beyond that previously determined, was confined to invoking s 186, or whether the appellant worker could properly seek a further determination in accordance with s 93D(5) (12).
In Wyatt v M R & RC Smith Pty Ltd Buss JA considered the proper construction of s 186 of the Act (as it then was). It is necessary to set out [18] – [23] in full, partly because it underlines the difference in interpretation positions that have been adopted by others in the past:
18Although the appellant did not appeal against the dismissal of the s 186 application, it is important to make some observations concerning the proper construction and application of s 186 in that the reasoning and conclusion of the Arbitrator in relation to that section were, with respect, plainly wrong.
19The Arbitrator's construction of s 186 was identical to Commissioner Nisbet QC's construction of the provision in the earlier case of Sandford v W & R Porteous (Unreported, C11/2006, 30 May 2006).
20In Sandford, the learned Commissioner reviewed the legislative precursors to s 186. After referring to the former s 84ZF(3) and (4) of the Act, he said:
'Importantly, the former provision defined "new information" as information that was not available to the review officer when the decision was made, whereas the current provision [that is, s 186] adds the important qualification that that new information must have been "available" to a party at the time the decision was made [21].
A little later, the learned Commissioner frankly admitted:
'I appreciate that it is difficult to see the purpose behind this provision [that is, the "important qualification" added by s 186] and, during the course of submissions the mischief to which this provision is directed was not immediately discernible. The best I could suggest to the parties at the time and still is that this provision appears to be addressing the prospect of concealment of an important fact or matter by one of the parties which had it been known to the arbitrator at the time his or her decision was made would have been of significant importance, for example, an almost identical claim against another employer some time previously [25].'
21In s 186, the term 'new information' is defined for the purposes of the section. The phrase, 'although available to a party at the time the decision was made', does not exclude from the definition, information which is 'fresh' (in the sense of information which the party did not have, and could not have obtained with reasonable diligence, for use at the earlier hearing) as distinct from information which is 'new' (in the sense of information which the party had, or could have obtained with reasonable diligence, for use at the earlier hearing, but was not made available to the Arbitrator). The word, 'although', means 'even though'. The phrase, 'although available to a party at the time the decision was made', conveys a legislative intention that information will be 'new information', as defined, notwithstanding the fact that the relevant information was available to the party at the time of the earlier decision, but was not disclosed to the Arbitrator. The phrase in question operates by way of extension, and not by way of restriction. That is, the phrase makes plain that 'new information', as defined, comprises not only information which is 'fresh' (in the sense I have explained), but also information which is 'new' (in the sense I have explained).
22Accordingly, a party may make an application, for the purposes of s 186(2) of the Act, based on information that was not 'available' to the party at the time the earlier decision was made. Also, a party may make such an application based on information that was 'available' to the party at the time the earlier decision was made. In each case, however, the information in question must not have been available to the Arbitrator when he or she made the earlier decision, and the Arbitrator hearing the s 186(2) application must be of the opinion that the relevant information justifies reconsideration of the matter.
23The Arbitrator in the present case (and the learned Commissioner in Sandford) therefore misconstrued s 186.

Although the rules of evidence do not apply to arbitration proceedings under the Act, it is worth noting in passing, the distinction at common law between 'fresh evidence' and 'new evidence' as summarised by Buss P in Rankins v The State of Western Australia [2018] WASCA 138 [60]:
60At common law, there is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.
61The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.
Subject to the issue of whether Arbitrator Mengler was right in his opinion that the new information justified a reconsideration of the matter, Mr Nugawela quite properly conceded in his submissions that this ground of appeal cannot succeed. In the context and circumstances of the issues arising out of the decision of Registrar Ekanayake at first instance, the materials sought to be relied upon by Clough Projects is plainly information relevant to that decision. It is not disputed that, at the time the decision was made, the 'new information' was not proffered or made available to the arbitrator.
These grounds of appeal must be dismissed.

Ground 1B – did Arbitrator Mengler misconstrue his task or fail to discharge his function

With respect to Mr Steele, the submissions made on his behalf on this ground of appeal are circular in this particular case where Arbitrator Mengler has done nothing more than deal with the preliminary questions put to him by the parties. In fairness to Mr Steele, this amended ground of appeal arose out of discussions part‑way through the hearing of the appeal in the course of his counsel's oral submissions as to the proper construction and operation of s 217A(2).
As I understand this additional ground of appeal, Mr Steele contends that Arbitrator Mengler acted beyond power and his decision is a nullity because he did not 'turn his mind' to, or purport to go on and determine if the new information 'justifies reconsideration of the matter'. Further, and in any event, it is contended he should have 'turned his mind to whether it would have been appropriate to reconsider the decision, because this would inform whether or not the new information justifies reconsideration of the matter': [47] outline of submissions.
This contention acknowledges the pre‑condition that the new material, in order to be 'new information' for the purpose of the definition in s 217A(1), requires that the arbitrator form the opinion that it is first, relevant to the decision sought to be reviewed; secondly, that the new information was not put before or made available to the arbitrator at the time the decision was made; and, thirdly, that the new material 'in the opinion of the arbitrator justifies reconsideration of the matter'.
In my view, this is precisely what the parties expressly requested Arbitrator Mengler to determine as a preliminary issue. I infer the parties took this procedural step because Registrar Ekanayake, the primary decision-maker, was unable to hear the application for reconsideration because he was no longer in the role. Therefore, this is an exceptional case by reason of this fact alone. It accounts for the procedural steps taken by the parties, which ordinarily would not be taken.
The parties, by their own conduct, have proceeded on this basis. In the usual case, this 'two‑step' hearing procedure would not be practical or an efficient way for the matter to proceed (or fair to either of the parties). It follows, before the arbitrator makes a decision to interfere with the primary decision on a reconsideration hearing, he or she would necessarily be required to first form the opinion that this was appropriate or warranted, which would only ever be the case if the foundation opinion was formed that the information justified a reconsideration of the matter.
The position still remains true that, if the issue is to be approached in a two‑step way, the arbitrator might decide that the 'new information' justifies reconsideration of the matter but that, after a full consideration and hearing of the matter, the arbitrator is not persuaded that it is appropriate having regard to the new information to change the original decision or outcomes.
Accordingly, in my opinion there is no basis to quash the decision or orders made by Registrar Mengler, and it has not been shown that he has made any error of law with respect to the task undertaken or the discharge of the function he was asked to perform by the parties. It has not been shown that his determination or the orders made went beyond his jurisdiction and power.
If I am wrong in this finding, then in my view Mr Steele is estopped from asserting the position he maintains by reason of his acquiescence, willingness and participation in agreeing to a determination of the preliminary issues put before Arbitrator Mengler.
Ground 1B of the appeal must be dismissed.

Ground 1C – alleged want of jurisdiction and abuse of process by Clough Projects in bringing and maintaining its application for reconsideration of the matter

This ground of appeal also arose out of argument in the course of submissions. In particular, the utility of the appeal is moot in that, as I understand it, the liability, if any, of Clough Projects with respect to any future payments of compensation will, in any event, be determined in subsequent proceedings commenced by Mr Steele. It is common ground that these proceedings will involve a consideration of the new information. The third tranche of the hearing of the appeal only proceeded because the parties were unable (after conferral following the second tranche) to reach an agreement preserving their rights going forward.
There are a number of aspects to this ground of appeal.
The first concerns another jurisdictional point, made by Mr Steele late in the hearing of the appeal that the reconsideration hearing cannot proceed because it was not raised and dealt with by conciliation under div 3 of pt XI of the Act. Division 4 of pt XI of the Act, is concerned with arbitration decisions and s 182ZT provides that, if a dispute has not been resolved by conciliation, a party to the dispute may apply to have it determined by arbitration. It is contended therefore that, because there was no conciliation, then there is no power for an arbitrator to invoke the powers conferred by s 217A of the Act.
In response to this contention, Clough Projects submits that s 217A is not conditioned by an obligation to attempt conciliation first, because the dispute has already been referred to arbitration. The arbitrator is therefore seized with the jurisdiction to invoke the powers contained in s 217A.
I am inclined to the position contended for by Clough Projects. If I am wrong in this view, again in my opinion, it is a procedural matter and in itself not fatal to the exercise of the power by the arbitrator. By reason of his participation in and referral of the preliminary issue to Arbitrator Mengler for determination, Mr Steele is estopped from adopting this position. The jurisdictional argument is not so fundamental, involving a procedural step only, that it can properly be said the matter was not capable of reference to arbitration.
This ground of appeal also contends that the bringing of the application pursuant to s 217A constituted a 'collateral attack on the worker's s 62 application' and therefore is an abuse of process. This argument has no practical utility in circumstances where there is no associated application for recovery of the statutory allowances already paid to Mr Steele.
I understand Mr Steele's s 62 application referred to in the ground of appeal was made subsequently to the application for reconsideration pursuant to s 217A. If I am wrong in this regard, in my view the matters complained of would not constitute an abuse of process in any event. There is no time limit contained in s 217A which applies and which would otherwise prevent Clough Projects from bringing its application. The structure of the Act and the important opportunity for parties to an arbitrator's decision to be able to seek reconsideration of the decision if information not before the arbitrator might possibly lead to a different outcome. However, it does not make the application an abuse of process.
The legal position at the moment is that the decision of Registrar Ekanayake vests certain rights in Mr Steele and corresponding obligations and liability on Clough Projects. Clough Projects is entitled to maintain its reconsideration application, particularly if Mr Steele does not seek to progress his fresh compensation application but instead choses to divert time and resources in preserving the primary decision.
Further and in addition, Mr Bourhill on behalf of Clough Projects in his submissions indicated he was instructed that Arbitrator Mengler was requested to determine the preliminary issues by Mr Steele. This does not appear to be controverted by Mr Steele.
For these reasons, ground 1C must be dismissed.

Grounds 3 and 4 – whether the arbitrator made an error of law in failing to apply the appropriate test or arriving at his findings?

The appeal ground is partially in conflict with the concession (properly made) by Mr Steele that the documents relied upon constitute 'information relevant to' the primary decision.
Mr Steele's written submissions suggest that there is nothing in the 'new information' which would or could materially affect or change the findings which resulted in the orders made by Registrar Ekanayake at first instance. For example, it is submitted 'Dr Phillips was in any event always of the view noted at par 195 i.e., that the condition was age‑related. So was Professor Thompson – par 201. Nothing in the 'new information' was really new, or affected new opinions. It is posited - 'what difference would it have made?'
On my consideration of Registrar Ekanayake's decision at first instance, it is arguable that the 'new information' as a result of the surveillance evidence and the different medical opinions may have led to a different outcome and possibly no liability for Clough Projects to make a payment of statutory allowances on the basis that Mr Steele had made a full recovery from his injuries sustained as a result of his 2012 accident.
In other words, Mr Steele's ongoing symptoms might be attributable to over use and other non-work related activities undertaken after he had made a full recovery. Such a finding is consistent with the symptoms being age‑related. Alternatively, the decision-maker might find that, by reason of the activities undertaken by Mr Steele referred to in the intelligence report, legal liability under the Act going forward should be reduced or not left open-ended.
To constitute 'new information' for the purpose of s 217A the arbitrator must, amongst other things, form an opinion as to whether the information justifies reconsideration of the matter. If this threshold is not reached then, by definition, the new material cannot constitute 'new information' and there is no power to conduct a reconsideration hearing.
In Mirvac (WA) Pty Ltd v Seddon (Unreported, Unpublished, Workers' Compensation Arbitration Service, File Number C16-2009, 19 June 2009) Commissioner McCann, in dealing with s 186 (the predecessor provision to s 217A) at [24] noted that the arbitrator in that case relied upon earlier decisions that the test is whether the new information is 'likely to change' the original decision. In Mirvac v Seddon this issue was not revisited. However, with respect, I agree with Arbitrator Mengler at par 20 where he expressed the view that this is too high a standard. He preferred the view that the test should be 'something like the new information having a realistic potential to change the result'. Notwithstanding this, Arbitrator Mengler was bound to apply the higher test preferred by Commissioner McCann.
Given the criticality of the credibility of Mr Steele to the decision at first instance and the findings made in any event, it is not surprising that Arbitrator Mengler formed the view, even applying the higher test, that the new information (if accepted) 'would likely' have resulted in a different decision. As he said at par 23:
I am of the opinion that, if the new information is accepted in a reconsideration of the decision it will, without more, likely change the result. Reconsideration of the decision is therefore justified.
In my opinion, on a proper consideration of Registrar Ekanayake's reasons for decision and findings it is arguable that, if the 'new information' is accepted on a reconsideration hearing it, without more, may change the result.
I am not persuaded to accept Mr Steele's submissions that the new information, if accepted without more, could not lead to a real possibility that the primary decision would have been different. Critical issues for determination involved the work capacity of Mr Steele at the relevant time. His evidence and position in this regard is arguably undermined by the content of the MJM report (which forms part of the new information) and the importance of this was correctly identified by Arbitrator Mengler in pars 21 and 22 of his reasons for decision which provide:
21.In his report of 8 March 2018 Mr Phillips, having assumed the information in the MJM report reflected the true position as regards the respondent's work activities in the period September 2012 – July 2015, formed the opinion that
it would appear that a more accurate assessment of his (the respondent's) disability would be that accepting that the injury was a displaced degenerative tear of the medial meniscus that he (the respondent) fully recovered within expected time frames even though he was "bedridden' for two weeks
(page 4, para 1(e).
22.Further, Mr Phillips says; 'The report (MJM) confirms my impression that he was capable of full‑time pre‑accident employment as a carpenter, some nine weeks following his surgery' (page 4, para 2(b)).
In my view, it was open to Arbitrator Mengler to be satisfied that the 'new information' does justify reconsideration of the decision. Whether it will result in any change in the primary decision, or any further decisions being made, is a live matter and must remain for determination by the arbitrator on the reconsideration hearing. Procedural fairness would, I infer, permit Mr Steele to be heard in relation to the new information in order to explain it and contradict it. He would be permitted to adduce additional expert medical opinion as a result of any underlying change to the factual foundation of his claim for workers' compensation payments and entitlements - precisely the issues he seeks to re-agitate in his subsequent substantive application for payment on workers' compensation.

Conclusion

I am satisfied that the appeal raises some questions of law (not all of which are required to be determined in this case). Accordingly, leave to appeal is granted. However, for the reasons above, in my view, no error of law has been established and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MJ
Associate to Judge Stevenson
26 APRIL 2019