Steele v Clough Projects Pty Ltd

Case [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Clough Projects Pty Ltd v Steele (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A48752, 18 April 2018)

Mirvac (WA) Pty Ltd v Seddon (Unreported, Unpublished, Workers' Compensation Arbitration Service, File Number C16-2009, 19 June 2009)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Steele v Clough Projects Pty Ltd (Unreported, Unpublished, Workers' Compensation Arbitration Service, File No A39589, 7 July 2017)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:

  1. 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).

  2. 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).

  3. 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.

  4. The 'new information' relied upon by Clough…

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AGLC
Steele v Clough Projects Pty Ltd [2019] WADC 60
Case
[2019] WADC 60
Decision Date

CaseChat Overview and Summary

In Steele v Clough Projects Pty Ltd, the appellant, Mr Steele, sought reconsideration of an arbitrator's decision under section 217A of the relevant legislation. The dispute arose from a workers' compensation claim where the arbitrator, Registrar Ekanayake, had previously made a decision that Mr Steele now sought to challenge due to the emergence of new information. The primary issue before the court was whether the statutory power to reconsider an arbitrator's decision under section 217A extends to a different arbitrator than the one who made the original decision, particularly when the original decision-maker is no longer available due to resignation.

The court had to determine if the statutory provision permitting reconsideration of an arbitrator's decision due to new information was confined to the original decision-maker, or if it could be exercised by any arbitrator. Mr Steele argued that the statutory language implied that only the original decision-maker could exercise this power. Clough Projects, on the other hand, contended that the provision allowed for reconsideration by any arbitrator, even if the original decision-maker was no longer in office.

The court concluded that the statutory power to reconsider was not limited to the original decision-maker. The court found that the statutory language did not expressly restrict the power to reconsider to the original decision-maker, and the absence of such a restriction indicated a broader intent. The court also highlighted that the purpose of section 217A was to provide a mechanism for correcting errors in decisions made by an arbitrator when new information comes to light. The court found that the resignation of the original decision-maker did not preclude the exercise of this power by another arbitrator. The court rejected Mr Steele's argument that the finality of an arbitrator's decision, as provided for in section 217B, required the original decision-maker to be the sole person who could exercise the reconsideration power.

The court ordered that the reconsideration of the original decision could be conducted by a different arbitrator, in accordance with section 217A of the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 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. 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).

Ratio Decidendi

Legal Principle Established

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.