Sweetman v MACA Mining Pty Ltd - [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:

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).
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

The background to the appeal is set out below.
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.
Liability for the injuries sustained were accepted by the respondent (Respondent) under the Act and the Appellant was receiving weekly payments.
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.
On 28 April 2021, the Appellant filed an application for arbitration.
On 29 November 2021, a directions hearing took place before the learned arbitrator, and at that time the Respondent advised that it had withdrawn the s 61 Notice, and, as a result, the Conciliation Application was discontinued on the basis that the Respondent would pay the Appellant's costs in an amount to be taxed if not agreed.
The Appellant and Respondent were unable to agree on the amount of costs payable to the Appellant and so an application for assessment of the Appellant's costs was heard before the learned arbitrator on 31 March 2022.
As stated at [2], the Appellant sought $17,367.70 in costs and disbursements. The amount claimed for disbursements was $8,161.25 for a supplementary report dated 9 December 2020 from Dr Neil Ozanne, as well as reports dated 2 August 2021 and 10 August 2021 from, respectively, Dr Evan Jenkins and Dr Darshan Trivedi.
Following argument concerning the matter, the learned arbitrator awarded $6,640.60, which included a part payment of the reports from Dr Jenkins and Dr Trivedi.
The Appellant appeals the amount that was ordered, not including the amount claimed in relation to Dr Ozanne, as that is an amount claimable pursuant to sch 1, cl 17(1AA) of the Act.

The appeal

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; and
F.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).

Respondent's preliminary issues

The Respondent raised a preliminary issue in the appeal and submitted that it should be resolved in its favour, and the appeal be dismissed.
That preliminary issue concerns whether the learned arbitrator was acting under pt XI or pt XV of the Act, and whether this court has jurisdiction to hear an appeal on an assessment of costs.
In this regard the Respondent submits, in effect, that:
(a)appeals to this court are only able to be made against decisions made exclusively by arbitrators, because s 247 of the Act only permits appeals against an arbitrator's decision made under pt XI of the Act; and
(b)costs assessments are not within the exclusive jurisdiction of arbitrators; rather, such assessments are instead made under pt XV of the Act (and not pt XI of the Act).
The Respondent submits further that:
(a)s 176 of the Act sets out the exclusive jurisdiction of arbitrators;
(b)costs are dealt with under pt XV of the Act, and s 268(1) provides, in effect, that pt 2A of the Workers' Compensation and Injury ManagementRegulations1982 (WA) governs costs assessments;
(c)reg 18C provides that a costs assessment is to be undertaken by a taxing officer, and that reg 18B defines taxing officer as 'the Director, the Registrar, a conciliation officer, or an arbitrator'; and
(d)as the arbitrator does not have exclusive jurisdiction over costs, no appeal can lie to this court.
Furthermore, the Respondent says that insofar as the decision in Inghams Enterprises Pty Ltd v Gashaw Beyene [2009] WACC C14‑2009 (Inghams) decides that this court does have jurisdiction, that it was wrongly decided.
Section 176 of the Act provides as follows:
176. Exclusive jurisdiction of arbitrators
(1)In this Part -
dispute means -
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(b)a dispute in connection with an obligation imposed under Part IX;
(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;
(d)any other matter of a kind prescribed by the regulations.
(2)A proceeding for the determination of a dispute is not capable of being brought other than under this Part.
(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
Bowden DCJ in Wang v Costa Holdings Pty Ltd [2022] WADC 119 observed as follows at [46]:
An arbitrator has jurisdiction to assess costs pursuant to s 264 and s 268(1) of the Act and the Regulations. In exercising that task the arbitrator is dealing with a dispute in connection with a claim for compensation and is exercising a pt XI power and duty and pursuant to s 247 an appeal can lie from an arbitrator's decision made under pt XI of the Act to the District Court.
His Honour went on to observe that in his view Inghams was correctly decided, and that the various amendments to the Act since that decision do not affect the rationale of the decision.
Following consideration of the extensive reasoning by Commissioner McCann in Inghams, I respectfully agree with Bowden DCJ in Wang v Costa, and so the preliminary issue raised by the Respondent fails.

Appellant's jurisdictional issue

In light of s 247(1) of the Act (see [13]), the Appellant submits, in effect, that an issue also arises as to whether written reasons of the learned arbitrator's decision were given to the parties by the time the appeal was commenced and if not, what might be the consequence, including, in particular, whether this court has jurisdiction to hear and determine the appeal.
In order to consider this issue, it is necessary to consider both the statutory provision and when certain events occurred.
On 31 March 2022, the parties attended the hearing before the learned arbitrator.
On 1 April 2022, the learned arbitrator made orders in relation to the matter and in those orders stated, relevantly, that 'if the parties require written reasons for decision, the transcript of the hearing does stand as my reasons'.
Section 213(5) of the Act provides as follows:
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.
As set out at [13], s 247(4) of the Act provides, in effect, that an application for leave cannot be made later than 28 days after the day on which written reasons for the decision appealed against were given to the party appealing.
On 29 April 2022, the Appellant commenced the appeal. The appeal was therefore commenced not later than 28 days from when the learned arbitrator made his orders.
Relevantly, however, the learned arbitrator's file (or WorkCover file) was provided to the court in late July/early August 2022, and inspected by solicitors for the Appellant on or about 9 August 2022. It seems that this is when the Appellant, through his solicitors, first obtained the transcript of the hearing, and hence the written reasons of the learned arbitrator.
It follows that the Appellant was not armed with the learned arbitrator's written reasons at the time the appeal was commenced; rather, the written reasons came into the possession of the Appellant more than three months after the appeal was commenced.
In written submissions, and as alluded to at [24], the Appellant stated that 'there might be some contention that the court does not have jurisdiction to hear this appeal because written reasons had not been obtained before the appeals were filed' (emphasis added), and in doing so cited the Court of Appeal decision in Kanar v A & S Sadak Pty Ltd [2016] WASCA 109 (Kanar), as well as a decision of this court in Smith v WA Plantation Resources Pty Ltd [2018] WADC 158 (Smith). The Respondent joined in the Appellant's submission that an issue of jurisdiction arose and submitted, in effect, that this court had no jurisdiction for the reasons espoused in both Kanar and Smith.
In Kanar, the Court of Appeal considered an application for leave to appeal from a decision of a judge of the District Court who found that the District Court had no jurisdiction to hear an appeal by the appellant on the basis that:[1]
… it was a precondition to an appeal to the District Court that the appellant obtain written reasons for the decision appealed against, a construction that his Honour considered was supported by s 247(4) [of the Act]. His Honour concluded that such a precondition was consistent with the orderly disposition of the appeal process, for which reasons were essential, and was not onerous as reasons were essential, and was not onerous as reasons were able to be obtained under s 213(3)(b) upon a request made within 14 days of the decision.
[1] Kanar [11].
One of the grounds of appeal in Kanar was that 'the appellant was denied procedural fairness in that he was not given an opportunity by the primary judge to provide a transcript of the hearing' before the arbitrator.[2]
[2] Kanar [15].
Relevantly, the Court of Appeal stated that:[3]
This ground begs the question whether, as the primary judge found, it is a precondition to the jurisdiction of the District Court to entertain an appeal from the decision of an arbitrator that the appellant has obtained written reasons for the decision. That is a question of statutory construction.
(emphasis added)
[3] Kanar [16].
The Court of Appeal stated further as follows:[4]
19In 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)).
20There 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).
21It 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 [the arbitrator of his decision]. 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.
22By 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. …
(emphasis added)
[4] Kanar [19] - [22].
In Smith, Davis DCJ relied upon, and followed, the decision in Kanar when dismissing an appeal from a decision of an arbitrator under s 247 the Act on the basis that the appeal notice was filed before written reasons for the decision of the arbitrator were obtained. Relevantly, Davis DCJ stated as follows:[5]
[5] Smith [49] - [55].
49Based on the above facts, I find (and no issue was taken by the appellant about this at the hearing before me) 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.
50There were two alternative arguments put forward by the respondent to argue that this court has no jurisdiction to hear the appellant's appeal.
51First, 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 and no extension of time can be granted.
52Secondly 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.
53The 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.
54Counsel 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.
55These 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.
(footnotes omitted)

After discussing these matters, her Honour set out, amongst others, [19] - [22] of the Court of Appeal's decision in Kanar (which are set out at [36]), and then continued:
57The 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.
58It 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 … 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.
59I 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.
60I 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 the appeal.
(original emphasis)
Now, in this matter, counsel for the Appellant submits that Smith was wrongly decided for the following reasons:
(a)First, Kanar was distinguishable from Smith in that no written reasons had been obtained, and the court was dealing with a ground that argued the appellant had been denied procedural fairness;
(b)Secondly, s 247(1) of the Act was not subjected to any consideration concerning the court's jurisdiction to hear an appeal when the written reasons for decision were available by the time the appeal came on for hearing; rather, what was decided was that the arbitrator's decision was not written reasons for the purposes of s 213 and s 247(1) of the Act;
(c)Thirdly, there is nothing in s 247 of the Act which requires that written reasons be obtained before an appeal has been filed; rather, it simply requires that there be written decisions given to a party, whether it has been provided as required by s 213(3) of the Act or otherwise; and
(d)Fourthly, s 274(4) of the Act states that an application for leave to appeal cannot be made later than 28 days after the day on which the reasons for the decision of appeal were given and in the present case the appeal was made not later than 28 days after the written reasons were provided.
To properly consider these arguments, it is appropriate that a number of observations about the doctrine of binding precedent be made.
A useful starting point in this regard is to consider the expressions ratio decidendi and obiter dicta.
Ratio decidendi is Latin for 'the reason for deciding' or a proposition of law that is an indispensable factor in the process of reasoning leading to a judicial decision. On the other hand, obiter dicta is Latin for 'a remark in passing' or judicial observations that do not form part of the essential reasoning.[6]
[6] See generally LexisNexis Australian Legal Dictionary (2^nd ed, 2016).
Cross and Harris in Precedent in English Law (4^th ed, 1991) 72, observe, relevantly that:[7]
The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.
Strictly speaking, as Professor MacCormick has pointed out, the above formulation should speak of a 'ruling on a point of law' rather than 'a rule of law'. A statutory rule, whose interpretation is not in question, may constitute an essential step in a judge's reasoning but it will not, of course, be what is called 'ratio decidendi'. If, however, the meaning of a statute is disputed and the judge rules, as part of the justification for his conclusion, that it has one meaning rather than another, this ruling is his ratio decidendi.
(emphasis added and citations omitted)
[7] See also Enright C, Legal Technique (2002) [20.5].
Sir Anthony Mason in his article 'The Use and Abuse of Precedent' (1988) vol 4 Australian Bar Review 103, writes that:
The ratio is the principle or statement of law on which the previous decision is based to the extent to which it is essential to the decision, it being recognised that that there may be more than one ratio when the court assigns more than one ground for its decision.
In addition, in Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395, Kirby J states (at [56]) that 'it is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from … a matter in issue in the proceedings'.
McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 at [61] stated as follows:
Prima facie, the ratio decidendi and the rule of the case are identical. However, if later courts read down the rule of the case, they may treat the proclaimed ratio decidendi as too broad, too narrow or inapplicable. Later courts may treat the material facts of the case as standing for a narrower or different rule from that formulated by the court that decided the case. Consequently, it may take a series of later cases before the rule of a particular case becomes settled. Thus for many years, courts and commentators debated whether the landmark case of Donoghue v Stevenson was confined to manufacturers and consumers and whether the duty formulated in that case was dependent upon the defect being hidden with the lack of any reasonable possibility of intermediate examination. If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived.
(citations omitted)
In Povey v Qantas Airways Ltd [2005] HCA 33, McHugh J said at [76] as follows:
Cases are only authority for what they decide. When a court makes a statement that goes beyond the issue it had to decide, the extended statement is dictum and binding on no-one. Later courts commonly treat the material facts of a case as standing for a narrower or broader ratio decidendi than that expounded by the court that decided the case. …
Threads such as those set out in [42] - [48] were brought together in the Court of Appeal's decision in Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 (Mitchell), where Roberts‑Smith J (with whom Templeman J & Sheppard AUJ agreed) stated as follows:
66Lockhart J in 'The Doctrine of Precedent - Today and Tomorrow', [(1987) 4 Aust Rev 1] at 11 quotes a description of the term, 'ratio decidendi' by Professor Rupert Cross in the latter's work, 'Precedent in English Law' (Ch 2):
'The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.'
67Further on (ibid), Lockhart J states:
'Dicta or judicial dicta (a term sometimes used) means dicta that relate to a matter in issue in the case; obiter dicta are dicta that are more peripheral. Sometimes the expression obiter dicta is, however, commonly used to cover both meanings. Dicta may be of considerable persuasive weight but they cannot be binding on any court. This is the generally accepted view.'
68The High Court has in recent years discussed the doctrine of precedent in relation to the determination of ratio decidenda. Gummow and Hayne JJ in Jones v Bartlett (2000) 205 CLR 166 at 224, explained the different approaches which may be taken where a ratio decidendi is not easily discernible. One view, their Honours said, is for the court to make its own determination of the legal issues so long as the reasoning supports the 'actual decision' in the earlier case; and cited Lord Denning MR in In Re Harper v National Coal Board [1974] QB 614 at 621 and Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at 188. Another view, they said, is that of McHugh J in Re Tyler & Ors; Ex parte Foley (1993‑1994) 181 CLR 18 that:
'… where the earlier case lacks a ratio decidendi, a later court is bound to apply the earlier decision if the circumstances of the instant case cannot reasonable be distinguished from those that gave rise to the earlier decision.'
69The first question here therefore is whether there is a discernible ratio in Bunce.
Adopting then the approach in Mitchell, the question for consideration is whether there is a discernible ratio in Kanar.
In this regard, I note that the Court of Appeal in Kanar expressly stated, in effect, that resolution of the ground of appeal involved a question of statutory construction.[8] The Court of Appeal also stated clearly that an appeal can be commenced only once written reasons are provided, and that written reasons for decision had to be obtained at the outset or before the application was filed.[9] Indeed, the Court of Appeal stated that this was evident from the language used in both s 247(1) of the Act, and also from the provision in s 247(4) of the Act.[10]
[8] Kanar [16].
[9] Kanar [19], [20] and [22].
[10] Kanar [19].
As I have observed at [43], the ratio of a case can extend to the interpretation of a statutory provision.
To adopt that which Kirby J said in Garcia, the proper construction of s 247(1) of the Act was clearly a 'matter in issue' in Kanar. Indeed the Court of Appeal expressly stated as much. In addition, and adopting that which Sir Anthony Mason said in his article referred to at [43], the proper construction of s 247(1) of the Act was essential to the decision of the Court of Appeal in Kanar.
In the circumstances, I consider that the ratio decidendi of Kanar - or at the very least, one of them - is that on a proper construction of s 247(1) of the Act, written reasons of an arbitrator must be obtained before an application pursuant to the section is filed. Indeed, that is consistent with my own reading of the statutory provision.
In my view, Davis DCJ in Smith was clearly of the view that the ratio of Kanar (or at least one of them) is as I have stated, and whilst her Honour did not express it in those terms, that is undeniably evident from her decision.
I do not consider that the proper construction of the section can be treated differently in circumstances where the learned arbitrator's written reasons are provided to the parties prior to the hearing of any appeal (as occurred in this case), or even within 28 days from the date when the arbitrator delivered his or her written decision (as opposed to providing written reasons).
It follows that; first, I do not consider that Smith was wrongly decided; and secondly, I do not accept the arguments advanced by the Appellant as set out at [39] as to why Kanar should not apply, or be followed by this court. In the circumstances I consider that I am bound by the decision in Kanar.
For the reasons discussed above, therefore, I find that this court does not have jurisdiction to hear the appeal because the appeal notice was filed before the written reasons for the decision of the learned arbitrator were obtained.

Grounds of appeal

In light of my above finding there is no need to consider other aspects of the appeal including, in particular, the Grounds of Appeal.

Conduct of counsel for the Appellant

Finally, I take a moment to comment on the conduct of counsel for the Appellant in this case. As stated in [24] and [32], it was counsel for the Appellant that raised the jurisdictional issue on which this appeal has been determined. It is of course well established that counsel has a duty to bring all relevant authorities to the attention of the court, irrespective of whether or not those authorities assist the party for whom counsel is acting.[11]
[11] See Glebe Sugar Refining Co v Greenock Ports & Harbours Trustees [1921] WN 85, 86 (HL).
Counsel for the Appellant is to be commended for complying with that obligation and bringing the matter to the attention of the court. Given that the duty is well established, and indeed expected by the court, one might think it unnecessary to comment on the matter. To the contrary: proper and ethical practice should always be acknowledged, particularly where it is done to the highest standard, as was the case here. The proper discharge by counsel of duties to the court and the adherence by them to high ethical standards reinforces not only the integrity of the adversarial process but also the judicial system as a whole.

Conclusion

In the circumstances, for the reasons discussed above, the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to the Judge
29 NOVEMBER 2023