Sweetman v MACA Mining Pty Ltd

Case [2023] WADC 140

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   SWEETMAN -v- MACA MINING PTY LTD [2023] WADC 140

CORAM:   EGAN DCJ

HEARD:   7 OCTOBER 2022

DELIVERED          :   29 NOVEMBER 2023

FILE NO/S:   APP 29 of 2022

BETWEEN:   ANDREW SWEETMAN

Appellant

AND

MACA MINING PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction              :   WORKERS' COMPENSATION ARBITRATOR SERVICE

Coram:   ARBITRATOR FLETCHER

File Number            :   A98803


Catchwords:

Leave to appeal - Jurisdiction of the District Court of Western Australia - Court's jurisdiction to hear appeals from decisions of arbitrators on the question of costs - Proper construction of s 247 of the Workers' Compensation and Injury Management Act 1981 (WA)

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 213(5), s 246, s 247
Workers' Compensation and Injury Management Regulations 1982 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr R D McCabe
Respondent : Mr D P Coster

Solicitors:

Appellant : Separovic Injury Lawyers
Respondent : Moray & Agnew Lawyers

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

Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395

Glebe Sugar Refining Co v Greenock Port & Harbours Trustees [1921] WN 85

Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] WACC C14‑2009

Kanar v A & S Sadak Pty Ltd [2016] WASCA 109

Mitchell v Canal Rocks Beach Resort [2002] WASCA 331

Povey v Qantas Airways Ltd [2005] HCA 33

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

Wang v Costa Holdings Pty Ltd [2022] WADC 119

Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

EGAN DCJ:

  1. The appellant (Appellant) seeks leave to appeal a costs decision of the learned arbitrator pursuant to s 246 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).

  2. The Appellant had sought costs orders and disbursements from the learned arbitrator totalling $17,367.70, however those costs and disbursements were only assessed at $6,640.60.  As such, the amount in dispute is $9,078.35.

Background and the costs application

  1. The background to the appeal is set out below.

  2. On 1 May 2020, the Appellant suffered work‑related injuries following an accident whilst operating a large road rolling machine.  As he was reversing the roller machine, the right back wheel dipped into a drain thereby causing the machine to fall 3 m down into a drain.  The Appellant sustained injuries to his right shoulder, back, neck, right upper limb and left knee, as well as a psychological injury.

  3. Liability for the injuries sustained were accepted by the respondent (Respondent) under the Act and the Appellant was receiving weekly payments.

  4. On 18 January 2021, the Respondent served a notice on the Appellant seeking the Appellant's consent to a cessation of his payments pursuant to s 61 of the Act (s 61 Notice).  In response, the Appellant filed an application for conciliation to oppose the notice (Conciliation Application), and a conciliation conference was held on 1 April 2021, however it did not resolve.

  5. On 28 April 2021, the Appellant filed an…

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AGLC
Sweetman v MACA Mining Pty Ltd [2023] WADC 140
Case
[2023] WADC 140
Decision Date

CaseChat Overview and Summary

The appeal in Sweetman v MACA Mining Pty Ltd was brought before the District Court of Western Australia concerning the jurisdiction of the court to hear appeals from decisions of arbitrators on the question of costs. The parties involved were Sweetman, the appellant, and MACA Mining Pty Ltd, the respondent. The central dispute centred on the arbitrator's decisions regarding the costs claimed by the respondent. Sweetman contested the adequacy of the reasons provided by the arbitrator, the fairness of the costs awarded, and the proper application of the test in awarding certain costs under the Workers' Compensation (Legal Profession and Registered Agents) Costs Determination 2018 (WA).

The primary legal issues the court had to address were whether the District Court had jurisdiction to hear the appeal and whether the grounds for the appeal met the statutory criteria under s 247 of the Workers' Compensation and Injury Management Act 1981 (WA). Specifically, the court had to determine if the appeal met the conditions for leave, such as involving a question of law and the amount of compensation at issue. The court also had to consider whether the arbitrator's decision was unjust or unreasonable and whether the correct legal test was applied in determining the costs.

In its reasoning, the court examined the statutory provisions and the grounds of appeal meticulously. The court found that the appeal did not meet the criteria for leave as set out in s 247(2) of the Act. The amount of compensation in dispute did not meet the threshold of $5,000 or 20% of the amount awarded. Furthermore, the court held that the reasons provided by the arbitrator, while not perfect, were sufficient for the purposes of the appeal. The court also concluded that there was no error in the application of the legal test or in the exercise of the arbitrator's discretion. Therefore, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and Sweetman was required to pay MACA Mining Pty Ltd's costs of the appeal. This decision underscored the importance of meeting the statutory criteria for leave to appeal and highlighted the court's role in ensuring that appeals are properly founded on questions of law and significant amounts of compensation.

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

The appeal is brought pursuant to s 247 of the Act, which provides 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.(5)An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.(7)On hearing an appeal made under this section, the District Court may -(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit. There are three grounds of the appeal, and they are as follows:(a)First, the learned arbitrator provided inadequate reasons (Ground 1). The particulars for this ground are that:(i)the learned arbitrator failed to expose his reasoning for disallowing the amounts claimed for Items 1, 2, 4, 5, and 6 of the Respondent's bill of costs;(ii)the learned arbitrator failed to expose his reasoning for disallowing the amounts claimed for a registered agent; and(iii)the learned arbitrator failed to expose his reasoning for disallowing the amount claimed for preparing and attending the costs assessment.(b)Secondly, the learned arbitrator's decision was plainly unjust and unreasonable (Ground 2). The particulars for that ground are that:(i)when determining the amounts awarded, the learned arbitrator exercised his discretion in a manner which was irrational and arbitrary; and(ii)the learned arbitrator should have considered:A.whether or not it was reasonable to carry out the work to which the costs relate;B.what is a fair and reasonable amount of costs for the work concerned;C.the complexity, novelty or difficulty of the matter;D.the quality of the work done and whether the level of expertise was appropriate to the nature of the work done;E.the time within which the work was required to be done; andF.the outcome of the matter.(c)Thirdly, the learned arbitrator did not correctly apply the test or did not apply the test at all, when awarding the amounts for the items claimed under Item 10 of cl 9 of the Workers' Compensation (Legal Profession and Registered Agents) Costs Determination 2018 (WA) (Costs Determination 2018) (Ground 3). The particulars for that ground are that:(i)regarding Item 10 of cl 9 of the Costs Determination 2018, the arbitrator awarded $1,000; and(b)regarding Item 10 of cl 9 of the Costs Determination 2018, the arbitrator awarded $4,750.(collectively, Grounds of Appeal).

Ratio Decidendi

Legal Principle Established

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