Zerjavic v Chevron Australia Pty Ltd
[2020] WASCA 40
•3 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZERJAVIC -v- CHEVRON AUSTRALIA PTY LTD [2020] WASCA 40
CORAM: BUSS P
MURPHY JA
VAUGHAN JA
HEARD: 24 JANUARY 2020
DELIVERED : 3 APRIL 2020
FILE NO/S: CACV 22 of 2019
BETWEEN: ZELJKO ZERJAVIC
Appellant
AND
CHEVRON AUSTRALIA PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : CIV 680 of 2017
Catchwords:
Self-represented litigant - Whether self-represented litigant should be permitted to advance new case on appeal - Whether primary judge obliged as a matter of procedural fairness to explain 'responsibility' of calling expert evidence - Turns on own facts
Factual findings - Alleged error in fact by primary judge - Role of appellate court in conducting review of factual findings by primary judge - Whether primary judge correct in finding that the respondent had no involvement in actions and decisions relating to the appellant - Turns on own facts
Refusal to admit evidence - Whether letter business record under s 79B of the Evidence Act 1906 (WA) - Whether primary judge obliged as a matter of procedural fairness to inform appellant of entitlement to issue subpoena to obtain evidence - Turns on own facts
Alleged failure to find a duty of care based on statutory provisions as to occupational health and safety of persons engaged in petroleum operations or geothermal energy operations - New case advanced on appeal - Claim for new trial - Whether new trial in the interests of justice - Turns on own facts
Legislation:
Mental Health Act 1996 (WA), s 29, s 34, s 43
Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA) reg 5, reg 7, reg 9, reg 10, reg 17, reg 44, reg 45
Petroleum and Geothermal Energy Resources Act 1967 (WA), sch 1 cl 1, cl 7, cl 13
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | K Robson |
| Respondent | : | G J Pynt |
Solicitors:
| Appellant | : | Evangel Legal |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bauskis v Liew [2013] NSWCA 297
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Byrne v Australia Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Child and Adolescent Health Service v Mabior [2019] WASCA 151
Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278
Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Crampton v R [2000] HCA 60; (2000) 206 CLR 161
Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458
Findlay v State of Victoria [2009] VSCA 294
Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332
Hamod v The State of New South Wales [2011] NSWCA 375
Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867
McLennan v McCallum [2010] WASCA 45
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317
Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1
Re Minister for Immigration; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Smart v Power [2019] WASCA 106
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Stone v Braun [2015] WASCA 103
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2019] WADC 9
TABLE OF CONTENTS
Overview
The background facts
The appellant's case at trial
The primary judge's findings
The appellant's new case on appeal
The appellant's case on appeal
Grounds of appeal
The respondent's answer and notice of contention
Ought the appellant be permitted to advance a new case on appeal?
The relevant principles
Application of the principles to the appeal
Grounds 1 and 2: Alleged lack of procedural fairness
Grounds 3, 4 and 5: Alleged factual errors
General
Ground 3
Ground 4
Ground 5
Ground 6: Alleged error in refusing tender of Sonic Health letter
The application for a new trial and Ground 7: Alleged error in failing to find the respondent owed duties arising under legislation
Conclusion and orders
Annexure A The Statutory Provisions referred to by the appellant
Petroleum and Geothermal Energy Resources Act 1967 (WA): sch 1
Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA)
JUDGMENT OF THE COURT:
Overview
This is an appeal against a decision in the District Court (Herron DCJ) dismissing the appellant's claim after a five‑day trial.[1]
[1] Zerjavic v Chevron Australia Pty Ltd [2019] WADC 9 (primary reasons).
In July 2015 the appellant was employed as an electrical and instrumentation technician at Barrow Island. His employer was a company called Kentz Pty Ltd (Kentz). Kentz was an independent contractor of the respondent. The respondent was the operator of, and a participant in the joint venture that owned, a natural gas project (Gorgon Project) located on and offshore of Barrow Island. Barrow Island is located about 1,200 km north of Perth off the Western Australian coast.
On 31 July 2015, while at Barrow Island, arrangements were made for the appellant to be reviewed by a general practitioner, Dr Paul Gannon, at the Barrow Island medical centre. Dr Gannon examined the appellant in relation to his mental health. Thereafter:
1.Dr Gannon referred the appellant to Fiona Stanley Hospital for a psychiatric examination (pursuant to s 29 of the Mental Health Act 1996 (WA) (Mental Health Act)) and issued a transport order (under s 34 of that Act) authorising a police officer to apprehend the appellant and take him to the examination.
2.The appellant, escorted by police officers, was evacuated from Barrow Island by a private medevac plane operated by Aspen Medical. At Fiona Stanley Hospital the appellant was examined by a psychiatrist and admitted as a patient.
3.On 3 August 2015, following examination by Dr Stephen Fenner, a consultant psychiatrist at Fiona Stanley Hospital, the appellant was admitted as an involuntary patient under s 43 of the Mental Health Act. He was transferred to the Alma Street Centre at the Fremantle Hospital on 6 August 2015.
4.The appellant was discharged from Alma Street Centre on 19 August 2015.
In the District Court, the appellant said that he did not have, and had never had, mental health issues or a mental health condition. The appellant said that there was no justification or proper basis for the action taken. The appellant alleged that he was unreasonably and unlawfully detained against his will. The appellant further alleged that the respondent was responsible for the events which unfolded and for the loss and damage he claimed to have suffered as a result.
At the trial the primary judge identified that the appellant claimed damages for breach of a duty of care under the Occupiers Liability Act 1985 (WA) and the Mines, Safety and Inspection Act 1994 (WA), a general duty of care pursuant to s 5B of the Civil Liability Act 2002 (WA), false and unlawful imprisonment, assault and trespass.[2] The primary judge held that the Mines, Safety and Inspection Act 1994 (WA) did not apply in relation to the claims the appellant brought against the respondent.[3] Otherwise, broadly speaking, the primary judge found that the appellant had not proven that the respondent was responsible for or involved in the actions of 31 July 2015 and following.[4] The primary judge also found that no one acted improperly - all acted in good faith, reasonably and properly, and with the appellant's welfare and best interests in mind.[5]
[2] Primary reasons [13] - [14].
[3] Primary reasons [32].
[4] Primary reasons [9].
[5] Primary reasons [10].
On appeal there are allegations that the appellant was not accorded procedural fairness. The appellant, now having the benefit of legal representation, contends that the primary judge should have informed him of his 'responsibility' to adduce expert evidence.[6] The appellant also takes issue with certain aspects of the primary judge's factual findings[7]. Finally, the appellant contends that the primary judge ought to have received a subpoenaed document in evidence[8] and failed to find that the respondent owed him certain duties under specific legislation.[9]
[6] Grounds of appeal pars 1 - 2 WAB 5.
[7] Grounds of appeal pars 3 - 5 WAB 5 - 7.
[8] Grounds of appeal par 6 WAB 7.
[9] Grounds of appeal par 7 WAB 7.
The primary judge considered the case on the basis that the impugned acts and omissions which directly gave rise to the claim for liability were the events of 31 July 2015 and thereafter. On appeal, however, it was contended in written submissions filed on the appellant's behalf that the primary judge 'failed to consider' a case 'also put' by the appellant, namely, that before 31 July 2015 the respondent should have imposed a flight ban on the appellant returning to Barrow Island.[10] With the possible exceptions of Grounds 1, 5 and 6, the appellant's grounds of appeal, and written submissions in support, are implicitly premised on such a case being open on appeal.[11]
[10] Appellant's submissions par 6 WAB 8. See also pars 20 - 23, 33, 48V, 48ZD, 48ZO WAB 14 - 16, 23, 25. See also Grounds of appeal par 2 WAB 2.
[11] See the references at fn 10.
At the oral hearing of the appeal counsel for the appellant accepted that the case being advanced by the appellant on appeal was not put to the primary judge.[12] Counsel accepted that the appellant was seeking a new trial on the basis of a case that was never run at trial.[13] In short, the appellant was advancing a different case in negligence that was not run below.[14]
[12] Appeal ts 13.
[13] Appeal ts 13. See also appeal ts 12, 15, 16, 18, 31, 33, 36 - 37. But cf appeal ts 19 ([i]t's not the case that this is totally new).
[14] Appeal ts 15.
For its part the respondent contended that the appellant's 'flight ban' case (as articulated on appeal) was not the case the appellant put at trial and was inconsistent with the case put at trial.[15]
[15] Respondent's submissions pars 5, 7 - 8, 57, 59 - 61, 67(c) WAB 39 - 41, 53 - 54, 56.
The background facts
With limited exceptions the primary judge's factual findings are unchallenged in the appeal. Accordingly, it is only necessary to repeat so much of the background facts as is sufficient to place in context the issues raised on the appeal. The primary judge's reasons otherwise provide a comprehensive account of the circumstances that gave rise to the litigation and the evidence that was received.
The appellant was born in Croatia. At the time of the events in the litigation he was about 50 years of age. The appellant moved to Australia in 1989. While in Australia he studied for and received an electrical licence. He commenced working for Kentz at Barrow Island on 15 February 2015.
Kentz was involved in the Gorgon Project as a participant in a joint venture known as the 'CKJV' (the other party to the joint venture was CBI Contractors Pty Ltd). The CKJV was an independent contractor to the respondent. The CKJV's role was to deliver the mechanical, electrical and instrumentation scope of work on Barrow Island. It did so as one of a number of contractors engaged on the Gorgon project. The respondent, as operator of the Gorgon project, had engaged another joint venture - the Kellogg Joint Venture‑Gorgon (KJVG) - as its engineering, procurement and construction management contractor for the Gorgon Project. Among other things the KJVG provided support to the respondent's project personnel in relation to the management of construction activities of the contractors engaged on the Gorgon Project.
On commencing work at Barrow Island the appellant was initially accommodated on board a ship, the Europa, docked at Barrow Island's port.
The appellant was evidently dissatisfied with the accommodation on board the Europa. He considered it to have poor ventilation and inadequate air conditioning. In particular the appellant was concerned that people were smoking on board the ship. At an induction session, before the appellant started working at Barrow Island, a John Zvetan had been introduced to a group of people (including the appellant) as a health and safety supervisor employed by the respondent on the Gorgon Project. Mr Zvetan gave the group (including the appellant) his mobile phone number. The appellant decided to raise his issues about the Europa with Mr Zvetan. Thereafter, between 25 March 2015 and 24 April 2015, there was an exchange of text messages between the appellant and Mr Zvetan. The text messages did not name the appellant.
The text messages are set out in full in the primary reasons at [38]. As they go on for some 10 pages we will not repeat them. Among other things there were references to 'criminal behaviour', 'serious breaches of security' and the possibility that 'someone can easily release poison gas on the ship … and kill many hundreds people'. There was also a mention of 'Russian spies - agents' and 'mafia' being on the ship.
The primary judge made a factual finding, unchallenged on appeal, that Mr Zvetan did not know who the appellant was or who was sending the text messages.[16] Mr Zvetan sent the text messages on to KJVG managers and later followed up with KJVG to ask what actions were being taken to address the complaint.[17] On about 24 or 25 April 2015 the appellant was contacted by a Darren Driscoll. Mr Driscoll was an industrial relations manager at Kentz. Mr Driscoll informed the appellant that he, the appellant, was to be taken off the ship and provided with accommodation at the camp onshore. That is what happened. Subsequently Mr Zvetan was informed by email that it had been decided to remove the person sending the text messages from the Europa at the earliest opportunity.[18]
[16] Primary reasons [248].
[17] Primary reasons [40].
[18] Primary reasons [42]; GAB 303.
There is an issue in the appeal as to whether the primary judge should have found that Mr Zvetan was involved in moving the appellant from the Europa. The appellant also gave evidence that, earlier in April 2015 while on leave, he was visited by police officers who discussed some of the earlier text messages. There is an issue in the appeal as to whether the primary judge should have found that Mr Zvetan was involved in the police visit.
The appellant made separate workplace incident complaints in June 2015 and July 2015. The first consisted of a 14 June 2015 email to KJVG.[19] The second, which followed an incident on 21 July 2015, commenced with emails of 24 July 2015, 27 July 2015 and 28 July 2015 directed to a Kentz superintendent (Gresley Davis) and a Kentz supervisor (Robert Hillman).[20] At this time the appellant was off Barrow Island on leave. Thereafter, between 28 and 31 July 2015, the appellant sent a series of further text messages to Mr Zvetan of the respondent (now identifying himself, by name, in the text messages). The further text messages are also reproduced in full in the primary reasons (at [54]). The primary judge characterised the text messages as being 'increasingly vitriolic'.[21] In a passage that is unchallenged on appeal, his Honour also found that the appellant's emails and texts of late July 2015 were 'bizarre, alarming, threatening and … not reflecting reality'.[22] The primary judge found that:
[The] text messages reflected an obsession with workplace issues and did not seem to reflect the reality of what had happened. The messages were harassing in tone and bizarre or alarming in content. The messages were out of all proportion to what had happened.[23]
[19] See primary reasons [45].
[20] Primary reasons [49] - [53].
[21] Primary reasons [54].
[22] Primary reasons [242].
[23] Primary reasons [251]. Again, this finding is not challenged in the appeal.
The appellant's text messages to Mr Zvetan were forwarded to Mr Driscoll. Separately, at around this time, a Kentz employee had approached Mr Driscoll about having difficulties with the appellant. Mr Driscoll's evidence, which the primary judge accepted, was that as the appellant was offsite Mr Driscoll decided to wait until the appellant returned to Barrow Island to have a discussion with him.[24]
[24] Primary reasons [114], [118].
The appellant returned to Barrow Island on an afternoon flight on 30 July 2015.
During the morning of 31 July 2015, at around 7.30 am, the appellant first met with a Jonathon Lord. Mr Lord was an industrial relations adviser employed by Kentz reporting to Mr Driscoll. Mr Lord's evidence, which the primary judge accepted,[25] was that during the meeting the appellant became animated and questioned Mr Lord's professionalism. The appellant's language became emotive. Mr Lord then involved the appellant's supervisor (Hillary Gregory) and the superintendent (Mr Davis). They tried to talk to the appellant about his complaint. However, the appellant became agitated and left the room.[26]
[25] Primary reasons [229], [242].
[26] Primary reasons [165].
The outcome of the meeting was reported to Mr Driscoll. Concerns were expressed about the appellant continuing to work because of his state of agitation and safety issues if he was allowed to work with others.[27] Mr Driscoll thought it best, given the appellant's agitation and the matters as reported, that the appellant return to camp and arrangements be made for him to be reviewed by the Barrow Island general practitioner.[28] Mr Driscoll informed the appellant of this; the appellant reacted angrily.[29] According to the appellant, he told Mr Driscoll that he wanted to leave the project and go home.[30] However, Mr Driscoll informed the appellant that it was a management instruction for him to return to camp.[31] When the appellant did so Mr Driscoll made arrangements for the consultation with Dr Gannon.[32]
[27] Primary reasons [119] - [120].
[28] Primary reasons [121].
[29] Primary reasons [123].
[30] Primary reason [58], [88].
[31] Primary reasons [124].
[32] Primary reasons [125].
Later on 31 July 2015 the appellant attended on Dr Gannon at the Barrow Island medical centre. This was run by Medibank Health Solutions Pty Ltd (a company engaged by the respondent). Dr Gannon's evidence - which was accepted by the primary judge[33] and was not challenged on appeal - was that:[34]
1.He consulted with the appellant over approximately four hours during which he spoke with the appellant for a period, on and off, of approximately two hours.
2.After speaking to the appellant for about half an hour he spoke briefly with Mr Driscoll. Dr Gannon wanted to get a flavour of the text messages to assist him in making an assessment of the appellant. While the text messages were 'a factor' in Dr Gannon's eventual diagnosis, and his decision to refer the appellant for psychiatric examination, the main basis for Dr Gannon's diagnosis was his interview and consultation with the appellant.
3.His main concern was that the appellant was having a psychotic episode. Dr Gannon formed the view that the appellant was having early psychosis and, at a minimum, needed further assessment. Among other things, from his discussions with the appellant Dr Gannon formed a view that the appellant had an unshakeable belief of Russian spies being on the Europa.
4.His decision to refer the appellant to Fiona Stanley Hospital was not influenced by anyone from Chevron or CKJV. Nor did Dr Gannon feel under pressure from anyone to refer the appellant for assessment.
[33] Primary reasons [229]. See also [234], [238] - [241].
[34] Primary reasons [172] - [202].
Dr Gannon completed, in handwriting, a form under the Mental Health Act providing for the appellant's referral for psychiatric examination under s 29 of the Act.[35] That form was directed to referral to Graylands Hospital. A further form provided for referral to Fiona Stanley Hospital.[36] Dr Gannon also completed a transport order form under s 34 of the Act.[37] Apart from the formal requirements under the Act, Dr Gannon prepared a referral letter[38] and a 'first assessment form'.[39] Before the appellant departed from Barrow Island Dr Gannon inserted a cannula into the appellant's arm as a precaution in case, during flight, the accompanying doctor needed to administer sedation.
[35] GAB 159 - 160. The details completed by Dr Gannon are set out in full in the primary reasons at [178] ‑ [179].
[36] GAB 177.
[37] GAB 172.
[38] GAB 176. See primary reasons [184].
[39] Primary reasons [185].
In the course of these events on 31 July 2015 the appellant continued to send text messages to Mr Zvetan.[40]
[40] Primary reasons [54], [58] - [59].
The appellant was flown to Perth and taken by ambulance to Fiona Stanley Hospital. On arrival he was admitted to the mental health ward for an involuntary psychiatric assessment. The documentary evidence at trial included a discharge summary which contained the hospital's treatment notes in relation to the appellant.[41] The discharge summary noted a diagnosis of 'psychosis' and 'mania'.[42] Although the appellant was hospitalised for an involuntary assessment on 31 July 2015 he was not examined by the consultant psychiatrist, Dr Fenner, until 3 August 2015.
[41] GAB 161 - 166.
[42] GAB 161.
While at Fiona Stanley Hospital the appellant continued to send text messages to Mr Zvetan. Again, as these are reproduced in full in the primary reasons,[43] it is not necessary to reproduce the messages in their totality. It should be said, however, that there are aspects of the text messages that are disturbing. For example, on multiple occasions the appellant likened his position to that of an 'overeducated jew in a Nazi camp managed by' the respondent. Reference was also made to feeling like an 'overeducated Russian jew sen[t] on state of mind assessment 2000 km away to Siberia by Mister President V. Staljin [sic]'.
[43] Primary reasons [69].
As mentioned, the appellant was examined by Dr Fenner on 3 August 2015. Dr Fenner's evidence - which was accepted by the primary judge[44] and was not challenged on appeal - was that:[45]
1.He read the hospital records and then examined the appellant for about half an hour.
2.He believed the appellant had a psychiatric illness (physical causes for the appellant's behaviour having been excluded). The type of behaviour the appellant was exhibiting commonly occurred in mood disorders and in particular bipolar disorder. The assessment was one of mania. Dr Fenner considered that the appellant probably had bipolar disorder: he thought that the appellant had been functioning well, but was no longer functioning so well. Accordingly, Dr Fenner was hoping that the appellant was in the middle of an episode of illness which would eventually resolve. Dr Fenner did not think the appellant's judgment was sound. He considered that the appellant needed protection from his own behaviour.
3.The appellant remained preoccupied with occupational health and safety issues. The appellant had also voiced ideas that 'the KGB had infiltrated the workplace at Barrow Island' and there was a link between Fiona Stanley Hospital and the respondent amounting to a conspiracy to silence him or to bring him to hospital.
4.In his view, having regard to the circumstance that the appellant was operating dangerous equipment and that people were relying on him, the appellant needed treatment before he was allowed to return to the workplace.
5.He did not have any communication with the respondent. However, Dr Fenner considered the text messages that the appellant had sent to Mr Zvetan. Dr Fenner regarded these as an indicator that the appellant was not functioning at his best. In Dr Fenner's opinion the messages raised issues which appeared to be spurious or had little evidence behind them.
[44] Primary reasons [229]. See also [244] - [245].
[45] Primary reasons [203] - [226].
Dr Fenner issued an involuntary patient order under s 43 of the Mental Health Act on 3 August 2015 at 4.00 pm.[46] The order recorded that Dr Fenner's basis for making the order was that:
Patient is clearly manic with elevated mood, inappropriate laughter, poor judgement, and poor insight. He is preoccupied with unrealistic and possibly delusional issues concerning his workplace, and he's been making repetitious telephone calls which are damaging his reputation and future employment prospects.[47]
[46] Primary reasons [206].
[47] GAB 167.
The appellant was transferred from Fiona Stanley Hospital to the Alma Street Centre on 9 August 2015. He remained there until being discharged on 19 August 2015.
It is unnecessary, for the purposes of the appeal, to discuss the circumstances of the transfer or the appellant's evidence as to his experiences at Fiona Stanley Hospital and the Alma Street Centre. Nor is it necessary to address what occurred after the discharge. The appellant did, however, continue to send text messages to Mr Zvetan into early September 2015 until Mr Zvetan asked him to not send any more text messages.[48]
[48] Primary reasons [79] - [80].
The appellant's case at trial
The appellant appeared for himself at trial. Nevertheless, the primary judge recorded that the appellant generally presented his case competently and capably.[49] The primary judge considered that the appellant was able to cross‑examine witnesses to put his case to them.[50] Also, while English was not the appellant's native language, Dr Gannon had noted that the appellant's English was excellent.[51]
[49] Primary reasons [247].
[50] Primary reasons [247].
[51] Primary reasons [182], [192].
The primary judge analysed the statement of claim as filed by the appellant at [13] to [22] of the primary reasons. There is no suggestion in the grounds of appeal that his Honour misapprehended the pleaded case. Relevantly:
1.The appellant alleged that the respondent was under a duty of care to him pursuant to both the Occupiers Liability Act 1985 (WA) (pars 3 to 4) and the Mines, Safety and Inspection Act 1994 (WA) (par 5, 10). The primary judge also identified a claim based on a general duty of care, false and unlawful imprisonment, assault and trespass.[52]
2.There was an allegation of 'premeditated' breach immediately after the plaintiff returned to site (following the second par 5.2). Allegations of 'fabrications' (par 5.3) and intention to harm (pars 5.2 and 5.3) followed. A further allegation consisted of breach by 'fishing on' text messages with an aim of ambushing the plaintiff (par 5.5).
3.Reference was then made to the events of 31 July 2015 (par 6). Among other things the appellant alleged that the respondent was in 'full control' of all contractors 'on the site', such that nothing could be done without the respondent's input, and the respondent had planned to isolate the appellant from his co‑workers (par 6.2).
4.The appellant made complaint about Dr Gannon's referral (pars 7 and 8). This included mention of duty of care 'on the site'. The appellant alleged that the respondent, through its safety manager, was in conflict with him and was the source of invalid information for the referral and psychiatric assessment thus demonstrating a lack of care and breach of statutory duty (pars 9, 11). Specifically, the appellant alleged that the respondent used the text messages out of context and invented paranoia and delusions for the referral and psychiatric assessments (par 11).
5.The allegation was made that there had been 'forcible detention' without valid reason 'all caused by direct [respondent] and [respondent] contractor invalid inputs' (par 13).
[52] Primary reasons [13] - [14].
Importantly, the appellant's pleaded case did not raise an allegation that the respondent acted in breach of a duty owed to the appellant by reason of not imposing a flight ban on the appellant returning to Barrow Island. Rather complaint was made as to the events on site at Barrow Island on 31 July 2015. The respondent was alleged to be in control of, and thus responsible for, the acts of the various contractors on site. In substance the appellant alleged that, relying on the text messages as a pretext, the respondent deliberately brought about the events of 31 July 2015 (with the consequences that followed) without valid reason.
Prior to trial the appellant prepared a document headed 'Outlines of Submissions Persuant [sic] to 2005 DCR Rules 45H'.[53] That document was before the primary judge.[54] It included the following:[55]
[53] The outline of submissions required by r 45H of the District Court Rules 2005 (WA).
[54] Primary reasons [12].
[55] The quotation reproduces the spelling and capitalisation from the original document.
7.Text sms sent by [the appellant], over 4 months ALL from the same mobile number to [respondent's] Safety Manager in Perth are just a text not events suitable for Referral as the last resort (represent abusive and damaging torture with permanent harm) with prove no any other option.
8.SMS do not constitute bizarre behavior as it was done in AIM to bring safety concerns or stop abuse on the site and safe time for management, not formal Complaint. The [respondent] Reputation globally has been the main beneficiary from my texting. [The appellant] has been REWARDED with move from ship to camp accommodation much better quality even never complained regard ship accommodation.
9.The rest is taken out of the context and manipulated against [appellant] with intention of harm or lack of competence. Discussion was going in March 2015, FOUR months before July 2015, impossible to put into CONTTEXT and timeframe of the Referral. The second part of referral was input based on very old sms not valid by time and contents to support abusive torture selected by [the respondent] as the first not the last option.
…
19.[The appellant] requested to leave project on the morning of 31/07/2015, it was [the appellant's] wish; but [the respondent] had other plans to prevent this from happening. Safety is without any questions most important on any project or work place, it is bizarre that [the respondent's] Safety Manager would be acting in the manner which effected [the appellant's] prospects of employment on the Barrow Island; future employment in similar industry.
20.[The appellant] was told that he would be sent for mental assessment without any details 7:00am and not by the GP Paul Gannon. [The appellant] was left in camp at 7:20am to go in his room without further information expected flight to Perth afternoon or the next morning. At 10:15, [the appellant] was forcibly taken from his room in camp to medical center from every day normal situation PACKING SUITCASES to go home, not from the site or any recorded event with time, date, place, how, whom witnessed? At 10:30am, GP Paul Gannon started abusive torture of 'assessment' spending more time in hall with MR John from IR Kentz then Plaintiff.
a)Why was [the appellant] allowed back on the plane and Barrow Island?
b)If [the respondent] had an issues regarding [the respondent] Safety Manager receiving SMS messages from [the appellant], [the appellant] should have been advised to STOP texting or have the matter resolved by responding. [The respondent] had many NONABUSIVE options. Why [the respondent] selected the most ABUSIVE AND the most HARMFUL?
c)[The respondent] always had an option to prevent [the appellant] boarding the flight and recommend medical in Perth, why allow events, which happened unless this was preplanned ACT. If there was any reason for anything why [the respondent] could not send police to [the appellant's] home and take [the appellant] directly to Fiona Hospital Assessment Ward?
d)[The appellant] was abused prior and to the event of 31/07/2015 and it is clear that this abuse continued by the actions of [the respondent].
e)There was never any records or events prior to 31/07/2015 and AFTER that [the appellant] was risk to health and safety to himself or others and how [the appellant] was identified as a person who posed risk to himself or other co-workers is a FABRICATION.
f)[The respondent] has made the first and the final call for the [the appellant's] removal and duty of care is paramount in any such events and actions.
g)By detention requested by [the respondent] in [Fiona Stanley Hospital] and isolation from co-workers and family /friends [the respondent] is responsible for the actions and by inputs to Referral at Barrow and FHS, all based on manipulation of non‑relevant messaging?
h)[The appellant] was detained in FSH by manipulation of MHA [ie the Mental Health Act], which was used to show extent of the powers which [the respondent] can apply.
i)It was done without considering best interest and ANY INTEREST of the [appellant … his wellbeing or considering long lasting effects, which were attributed by [the respondent's] Action.
j)Harm, Suffering and Loss is [the respondent's] responsibility, [the appellant] claims damages to the fact that it did not have any health or mental issues and that by exposing various safety concerns [the respondent] made decision for MHA, which is attributed to [the appellant's] claim of damages.
k)[The respondent] fully on the site, late phase of the project, relevant contractors work under direct control of [the respondent] and for any negligence or lack of competence [the respondent] Fully responsible as per OLA 1985 Sec.6(1) (a) + (b), and Sec.6(2).
…
24.… these [ie the text messages] were used by [the respondent] to set up the events of 31/07/2015 to forcibly send [the appellant] for MH [ie mental health] assessment without any support available to [the appellant] by any available support from work‑collies and union, using [the respondent's] Safety Manager request and influence GP to follow this through
25.GP was doing what he was told by the [the respondent] group, [the appellant] was never mentally ill before and was found not be after the discharge from Fremantle hospital; [the appellant's] next of keen Mother or sister were never considered and nominated next of keen was never contacted.
26.[The appellant] refused to accept GP and any request to sign on the dotted line which the medical professionals put as unable to sign. This was not the choice of [the appellant], GP P. Gannon and S. Fernner are doing what was proposed to them by [the respondent]. (bold emphasis in original; italicised emphasis added)
Accordingly, unlike the statement of claim, the appellant's outline of submissions raised the possibility that the respondent might have imposed a pre‑31 July 2015 flight ban on the appellant returning to Barrow Island. That possibility was mentioned at pars 20(a) and (c). However, it was not contended that the failure to do so constituted breach of a duty to prevent the appellant returning to Barrow Island. Rather, the contention was advanced in support of the appellant's hypothesis that the respondent had implemented a plan to have him removed from Barrow Island and detained pursuant to the powers under the mental health legislation. See pars 9, 19, 20(b), 20(f), 20(h), 20(j), 24, 25 and 26. A similar argument was advanced by the appellant in opening[56] and closing[57] oral addresses.
[56] ts 55 ('.. they acted in this way, practically. To maximize the harm, because they have 20 other options. If it's any disagreement or like … SMS messages … [y]ou just do not allow me to come back with airplane. That's the simplest and easiest and the most effective method.')
[57] ts 628 ('[t]hey allowed me to come on the island only because has been premeditated set up'), 631 ('it's a real setup'), 632 ('they are building like fabrication to prepare setup'), 633 (where the primary judge obtains confirmation from the appellant as to the substance of his case); 636 ('probably it's a possibility of setup or similar stuff').
On appeal the appellant accepted that he put a case to this effect to the primary judge.[58] As will be seen, however, the appellant went on to assert that the primary judge failed to consider another case - belatedly accepted to be a new case formulated on appeal - grounded on a contention that the respondent should have imposed a flight ban on the appellant returning to Barrow Island.
[58] Appellant's submissions par 5 WAB 8 ('The appellant was convinced that the respondent had fabricated a case against the appellant to get him off Barrow Island while he was on leave in Perth and then put the plan into action as soon as he returned to Barrow Island'.) See also appeal ts 17.
The primary judge's findings
The primary judge commenced his findings by observing that the appellant's claim depended on him proving two factual matters:[59]
1.First, that the respondent, by its representatives, was responsible for or involved in the decisions made on 31 July 2015 and following, ie among other things, the referral to Dr Gannon, Dr Gannon's psychiatric examination referral and transport order and Dr Fenner's involuntary patient order. The primary judge expressed this in terms that the appellant had to establish as a matter of fact that the respondent instructed and directed the relevant persons to take the actions which were taken.
2.Second, if the respondent was responsible for and involved in the decisions which were made, that those decisions and actions were unreasonable, unjustified and improper.
[59] Primary reasons [228].
The primary judge accepted the evidence of the respondent's witnesses.[60] These included Mr Zvetan, Mr Driscoll, Mr Lord, Dr Gannon and Dr Fenner. The primary judge noted that, other than the expressed reasons given for taking the actions that were taken, there was generally no significant conflict between the respondent's witnesses' evidence as to what happened and that of the appellant.[61]
[60] Primary reasons [229].
[61] Primary reasons [229].
The primary judge was satisfied that the actions taken on 31 July 2015, and subsequently, regarding the appellant were taken by people acting independently of the respondent.[62] His Honour found that the appellant had not proven that the respondent was responsible for, or involved in, those decisions.[63] In support of those ultimate conclusions the primary judge made intermediate factual findings that:
1.The issues the appellant raised with Mr Zvetan were issues relating to the appellant's employment with Kentz and had nothing to do with the respondent.[64] That finding is challenged by Ground 3.
2.The decision to meet with and speak to the appellant about the text messages to Mr Zvetan was made by Kentz (primarily through Mr Driscoll).[65] The appellant was employed by Kentz and subject to its directions and instructions.[66] Kentz made the decision to direct the appellant to attend upon Dr Gannon. The respondent was not involved.[67]
3.Dr Gannon was not directed or influenced by Mr Driscoll, or anyone else, when he made the psychiatric examination referral and issued the transport order.[68] Further, the decisions were taken by Dr Gannon independently of and without reference to the respondent. Dr Gannon made his decisions and took his actions solely based upon his independent assessment as a medical practitioner.[69]
4.Dr Fenner was not directed or instructed to take any action regarding the appellant. In particular, he had no communication with anyone from the respondent.[70] The decision to declare that the appellant be detained as an involuntary patient was based solely upon Dr Fenner's assessment as a psychiatrist.[71] Neither Dr Fenner nor anyone at Fiona Stanley Hospital (nor the Alma Street Centre) were directed or instructed by the respondent.[72]
[62] Primary reasons [232]. See also [9], [229] (a finding that is challenged on appeal), [247], [249], [256] - [258].
[63] Primary reasons [9], [229] (a finding that is challenged on appeal), [256].
[64] Primary reasons [230].
[65] Primary reasons [230]. See also at [243], [257].
[66] Primary reasons [254].
[67] Primary reasons [254]. See also at [243], [257].
[68] Primary reasons [234]. See also at [241], [243].
[69] Primary reasons [257].
[70] Primary reasons [244]. See also at [245].
[71] Primary reasons [258].
[72] Primary reasons [258].
The primary judge held that the respondent's only involvement was in Mr Zvetan forwarding the appellant's unsolicited text messages. However, Mr Zvetan did not know who was sending the messages until Mr Zvetan received the first text message on 29 July 2015. Nor did Mr Zvetan know who the appellant was. Further, his Honour accepted that Mr Zvetan did not know precisely who was dealing with the issues raised by the text messages and how they were being dealt with.[73]
[73] Primary reasons [231]. See also at [248] - [249].
The primary judge also found that Mr Zvetan did not know that the appellant had been directed to attend a medical appointment with Dr Gannon, nor of the transport order and admission to Fiona Stanley Hospital, until after it had happened.[74] That finding is challenged by Ground 5. So too, by Ground 4, the appellant challenges a finding by the primary judge that Mr Zvetan was not responsible for and had no involvement in the appellant being moved from the accommodation on the Europa.[75] However, a more general finding that Mr Zvetan had no involvement in, and had no knowledge of the decisions which were subsequently taken regarding the appellant on 31 July 2015,[76] is unchallenged on appeal (despite a similar finding being the subject of Ground 5).
[74] Primary reasons [231]. See also at [256] (a finding that is unchallenged on appeal).
[75] Primary reasons [248].
[76] Primary reasons [249].
As to the second substantial issue, the primary judge held that the actions taken on 31 July 2015, and subsequently, were fully justified and reasonable. His Honour concluded that the actions were taken because people, acting in good faith, properly and reasonably believed those actions were necessary for the health and welfare of the appellant.[77]
[77] Primary reasons [233]. See also at [10], [250], [255], [259] - [260].
In support of this ultimate conclusion the primary judge made intermediate findings that:
1.The concerns expressed by Mr Driscoll as to the appellant's health, and the safety threat he posed, were well founded and justified having regard to the text messages and the 31 July 2015 meetings.[78] For that reason Mr Driscoll quite properly formed the view that the appellant needed to be referred to Dr Gannon for medical assessment.[79]
2.The appellant was agitated and, to an extent, aggressive, during his meetings with Mr Lord and Mr Driscoll on 31 July 2015.[80]
3.The text messages and emails were 'bizarre, alarming, threatening' and did not reflect reality.[81] Had the primary judge been the appellant's employer he would have had significant concerns about the state of the appellant's mental health from the volume and content of the text messages. Those concerns would have been amplified because of the appellant's uncooperative and confrontational attitude when spoken to by Mr Lord and Mr Driscoll.[82]
4.The appellant's presentation during his consultation with Dr Gannon reinforced the content of the text messages and fully justified the actions taken by Dr Gannon.[83] His Honour accepted that Dr Gannon reasonably suspected that the appellant was exhibiting the early signs of psychosis and therefore reasonably suspected that the appellant should be an involuntary patient.[84] The primary judge was satisfied that Dr Gannon acted properly in accordance with the relevant provisions of the Mental Health Act in referring the appellant for psychiatric examination and making the transport order.[85]
5.Dr Fenner's examination findings were properly and reasonably made as was Dr Fenner's assessment that the appellant's judgement was unsound and that he needed protection from his own behaviour.[86] The primary judge was satisfied that Dr Fenner acted properly in accordance with the relevant provisions of the Mental Health Act in making the involuntary patient order.[87]
6.The subsequent decisions to keep the appellant in Fiona Stanley Hospital and later to transfer him to the Alma Street Centre were reasonable and proper.[88]
[78] Primary reasons [242]. See also at [255].
[79] Primary reasons [255].
[80] Primary reasons [242].
[81] Primary reasons [242]. See also at [251], [259].
[82] Primary reasons [255]. See also at [259] (as to the text messages and emails).
[83] Primary reasons [234].
[84] Primary reasons [238]. See also at [239] - [241].
[85] Primary reasons [239] - [240].
[86] Primary reasons [244]. See also at [245].
[87] Primary reasons [245].
[88] Primary reasons [246].
The appellant's new case on appeal
The appellant's case on appeal
Integral to the appellant's case on appeal was the proposition that the primary judge had failed to consider an alternate case - the new 'flight ban' case as formulated on appeal. This was said to be a 'much simpler case' - one that had 'great attraction in its simplicity and obviousness'. The gravamen of the alternate case - as formed the bedrock of the appeal - was that the respondent breached a duty owed to the appellant by failing to impose a flight ban on him returning to Barrow Island pre-31 July 2015. The appellant argued that the respondent should have imposed a flight ban unless he first consulted a general practitioner in person and obtained medical clearance.[89]
[89] Appellant's submissions par 6 WAB 8. See also pars 20 - 23, 33, 48V, 48ZD, 48ZO WAB 14 - 16, 23, 25. Grounds of appeal par 2 WAB 2. See also appeal ts 25, 32, 41.
That case was not pleaded before the primary judge (see [33] to [34] above). Its explication in the appellant's written submissions in support of the appeal lacked the precision of a pleading. No better clarification was provided in the course of oral submissions.[90] Indeed, at one point counsel for the appellant stated that the appellant would probably need pre-action discovery before he could plead his new case.[91]
[90] Appeal ts 22 - 30, 32 - 36, 38 - 41.
[91] Appeal ts 41.
In substance the suggested claim appeared to be to the following effect:
1.The respondent owed a duty to use reasonable care in organising the Gorgon Project to avoid unnecessary risk of injury to, or to minimise the risk of injury to, the appellant and other workers.[92] Alternatively, the duty was a more general one to take all reasonably practicable steps to prevent an act or omission creating a risk, or increasing an existing risk, to the occupational safety and health of the appellant and other workers.[93]
(As will be seen, however, the duty was put in various other ways relying on multiple statutory provisions to which it was said the respondent was subject. Whatever the nature and source of the putative duty, the practical content of the scope of the alleged duty for the purposes of the appeal was the same: the appellant claimed that the respondent should have prevented him from returning to Barrow Island without prior medical clearance.)
2.The appellant's text messages - as were said to raise the possibility the appellant was suffering mental illness - were sent directly to the health, environment and safety manager employed by the respondent on the Gorgon Project (Mr Zvetan).[94] Implicit in this (although disavowed by counsel for the appellant)[95] is a factual contention that by reason of the text messages the respondent knew or ought to have known that the appellant was or might be suffering from a mental health issue such that, were he to attend Barrow Island, he might pose a health or safety risk to himself or others.
3.There was a reasonable foreseeable risk of injury to the appellant that he would be sedated and transferred back from Barrow Island involuntarily under a transport order.[96]
4.In those circumstances the respondent should have instructed Kentz to direct the appellant, or alternatively the respondent should have instructed the appellant directly, not to return to Barrow Island, but instead to consult a medical practitioner in Perth as a condition of returning to work.[97]
5.Pending such medical clearance the respondent should have imposed a flight ban preventing the appellant returning to Barrow Island.[98]
6.The failure to take the actions in [47.4] and [47.5] above constituted a breach of the alleged duty in [47.1] above. (The alleged breach was also formulated in terms of failing to ensure that the appellant's employer, Kentz, and others cooperated to place a flight ban on the appellant before he returned to Barrow Island.)[99]
7.Had a flight ban been imposed none of the events of 31 July 2015, or those following, would have occurred.[100] (The implicit contention is that the alleged breach of duty caused the referral to Dr Gannon, Dr Gannon's psychiatric examination referral and transport order and Dr Fenner's eventual decision that the appellant be detained as an involuntary patient.)
[92] Appellant's submissions pars 21, 23 WAB 15. See also pars 4, 14(v) WAB 8, 12. During the oral hearing counsel for the appellant suggested that this formulation of the duty was advanced by the respondent at trial: appeal ts 11 - 12. Later counsel for the appellant said that it was not his formulated duty: appeal ts 23. But ultimately counsel for the appellant adopted this formulation saying that the duty as so posited was breached by the respondent (suggesting, however, that there was a 'substantially greater' duty): appeal ts 24.
[93] Appellant's submissions par 48T WAB 23. Appeal ts 24.
[94] Appellant's submissions pars 3, 20(xv), 33, 35, 48V, 48ZD WAB 8, 14, 16, 17, 23, 25. See also par 14(ix) WAB 12.
[95] Appeal ts 23, 27 - 29.
[96] Appeal ts 25, 26.
[97] Appellant's submissions par 20 WAB 14.
[98] Appellant's submissions par 6, 20(xxiii), 33 WAB 8, 15, 16.
[99] Appeal ts 32, 41.
[100] Appellant's submissions par 6 WAB 8. See also appellant's submissions par 51 WAB 25.
The appellant's articulation of the putative duty had variations. So too there were various differing strands that were said to ground the alleged duty. One common contention was that the Gorgon Project operated under the respondent's control.[101] The appellant's written submissions, particularly those in support of Ground 7, focussed on the respondent's status as operator of the Gorgon Project and the plethora of statutory obligations that arose as a consequence in connection with worker safety and safety in general.[102] By reference to the various legislative instruments the appellant referred to obligations to ensure worker safety and health[103] and to devise and comply with a safety management system.[104] In oral submissions counsel for the appellant made specific reference to cl 1, cl 7(1), cl 7(2)(a), (b), (d), (g) and (i)(i) and cl 13(1)(a) and (b) of sch 1 of the Petroleum and Geothermal Energy Resources Act 1967 (WA) (Petroleum and Geothermal Energy Resources Act) and reg 7, reg 10, reg 17, reg 44 and reg 45 of the Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA) (Petroleum and Geothermal Energy Resources (Management of Safety) Regulations).[105]
[101] Appellant's submissions par 26, 48C, 48R, 48ZC WAB 15, 19, 22, 24.
[102] See eg appellant's submissions par 48E WAB 19.
[103] See eg appellant's submissions pars 48E, 48I, 48L - 48R, 48T, 52A WAB 19 - 23, 26.
[104] Appellant's submissions pars 48X - 48Z, 48C, 48ZD WAB 23 - 25.
[105] Appeal ts 32 - 40.
The text of those provisions is reproduced in annexure 'A'.
Before this court the appellant contended that the various statutory provisions explained and enlarged the general duty of care that the respondent owed to the appellant.[106] Counsel for the appellant referred to the text of the statutory provisions relied on. There was, however, no explicit statement that asserted with precision the nature and content of the alleged relevant duty or duties said to be owed by the respondent to the appellant. Counsel for the appellant did no more than read out the statutory provisions or invite the court to read the provisions for itself. There was no attempt to formulate the relevant duty or duties in terms of a duty to take particular action, or refrain from taking particular action, or to exercise reasonable care in taking or refraining from taking such action, such as might be found in a pleaded case.
Grounds of appeal
[106] Appeal ts 41.
The appellant relied on seven grounds of appeal, some with distinct sub-grounds. In summary the Grounds raised the following issues:
1.Whether the primary judge erred in law in failing to inform the appellant of his 'responsibility' to call expert psychiatric opinion evidence (Ground 1) and industrial relations opinion evidence (Ground 2).
2.Whether the primary judge erred in fact in finding that:
(a)the issues the appellant raised with Mr Zvetan were issues relating to the appellant's employment with Kentz and had nothing to do with the respondent (Ground 3);
(b)Mr Zvetan was not involved in moving the appellant from the ship accommodation (Ground 4);
(c)Mr Zvetan did not know that the appellant was directed to attend the medical appointment with Dr Gannon, or of the fact of the transport order, until after the event; and that the respondent had no involvement in those decisions (Ground 5).
3.Whether the primary judge should have made contrary factual findings to those challenged in [51.2] above (Grounds 3, 4 and 5) and also that:
(a)Mr Zvetan was involved in the police visiting the appellant at his home in April 2015 (Ground 4);
(b)Mr Zvetan knew there was a risk that the appellant might be the subject of a referral under s 29 of the Mental Health Act (Ground 5(ii));
(c)Mr Zvetan knew that the conditions specified in s 29 had not been satisfied (Ground 5(iii));
(d)Mr Zvetan should have permitted the appellant to leave Barrow Island on 31 July 2015 (Ground 5(iv)).
4.Whether the primary judge erred in law in refusing the appellant's tender of a letter from Sonic Health dated 1 December 2017. Alternatively, whether the primary judge should have allowed the appellant to issue a further subpoena to Sonic Health (Ground 6).
5.Whether the primary judge erred in law in failing to find that the respondent owed the appellant duties arising under the Petroleum and Geothermal Energy Resources Act, the Petroleum and Geothermal Energy Resources (Management of Safety) Regulations and the Petroleum and Geothermal Energy Resources (Occupational Safety and Health) Regulations 2010 (WA) (Petroleum and Geothermal Energy Resources (Occupational Safety and Health) Regulations), or alternatively, related legislation (Ground 7).[107] (The Ground did not specify the nature and content of the alleged duties.)
[107] Reference being made to a 'related interface of legislation set out in the submissions': Grounds of appeal par 7 WAB 7. In addition to the legislation identified in Ground 7 the appellant's written submissions referred to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), the Offshore Petroleum And Greenhouse Gas Storage (Safety) Regulations 2009 (Cth), the Dangerous Goods Safety Act 2004 (WA), the Dangerous Goods Safety (Major Hazards Facilities) Regulations 2007 (WA), the Dangerous Goods Safety (Storage and Handling of Non Explosives) Regulations 2007 (WA), the Petroleum (Submerged Lands) Act 1982 (WA) and the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities) Regulations 2007 (WA). It was also contended that the Occupational Safety and Health Act 1984 (WA) and the Occupational Safety and Health Regulations 1996 (WA) applied to Barrow Island and the Europa.
The appellant sought a new trial.[108]
[108] Appellant's submissions par 53 WAB 26; Orders wanted par 3 WAB 29.
It is convenient to outline the appellant's submissions in support of the various Grounds when turning to the Grounds individually. There are, however, some general observations that should be made. First, on a number of occasions the matters raised in the appellant's written submissions went beyond the Grounds. For example, there were complaints as to the primary judge's factual findings, or failure to make other factual findings, outside the scope of Grounds 3, 4 and 5.[109] Also, on two occasions the appellant complained about the extent of the respondent's discovery.[110] Second, the submissions make reference to evidentiary matters without identifying whether the primary judge made findings in those terms, or alternatively, whether it was contended that the primary judge should have made findings in those terms.[111] In the latter case no consideration was given to whether the contention fell within the Grounds. Also, on some occasions the appellant's submissions asserted particular things as facts where no such findings had been made,[112] or alternatively, overstated the evidence or a concession.[113]
[109] Appellant's submissions pars 31 - 33, 39 WAB 16 - 17.
[110] Appellant's submissions pars 48W, 48Z WAB 23, 24.
[111] Appellant's submissions pars 14, 16, 20, 26, 27, 31, 34, 41 WAB 9 - 17.
[112] See eg appellant's submissions par 20(xviii) WAB 14. (There was no finding that Mr Zvetan had 'caused' police to attend the appellant at his home in April 2015. Nor was such a finding sought by Ground 4. The appellant only sought a finding that Mr Zvetan was 'involved' in that matter.) See also the appellant's submissions pars 20(xix), (xx), (xxi), 48G (the involuntary patient order was made while the appellant was at Fiona Stanley Hospital, not when he was at Barrow Island) WAB 14, 20.
[113] See eg appellant's submissions pars 2 (the actual concession was that there was no suggestion that the appellant 'has not made an effort to tell the truth'), 26 (Mr Driscoll did not give evidence as an expert witness), 29 (Mr Driscoll did not accept that the Europa was 'unfit for accommodation'; his evidence was that, the vessel wasn't built for climatic conditions in … the Pilbara': ts 389), 35 (Mr Driscoll's evidence was that KJV - not the respondent - instructed him to get the appellant off the Eurpoa: ts 388) WAB 8, 15, 16, 17.
Related to the last matter, at one point the appellant's written submissions asserted that the primary judge addressed a question that the appellant did not ask, namely, whether - once it was too late to impose a flight ban - the respondent breached its duty on 31 July 2015.[114] It is difficult to understand that submission. The appellant's submissions had already referred to such a case being advanced at trial and the primary judge considering the case on that basis.[115]
[114] Appellant's submissions par 22 WAB 15.
[115] Appellant's submissions pars 4 - 6 WAB 8.
This court considers whether there was error in the primary court by reference to grounds of appeal. The extraneous complaints in the appellant's written submissions were an unnecessary distraction. They could not provide a basis for success on the appeal. So too the second feature of the appellant's written submissions was unhelpful. Unless asserting factual error, or where necessary to explain factual findings, it suffices - and is preferable - to refer to the facts by the findings made at first instance. In no circumstances should submissions misstate the factual findings of the primary court or the evidence.
The respondent's answer and notice of contention
The respondent made an overriding observation in answer to the appeal. The respondent contended that success on one or more of Grounds 3 to 7 would be insufficient for the appellant to succeed on his appeal. Instead, to be successful, the appellant had to succeed on one or both of Grounds 1 or 2. This was due to the primary judge's unchallenged finding at [259] that:
the decisions made and actions taken by everyone involved were reasonable, sensible and taken out of genuine concern for [the appellant's] health and welfare. Each of the decisions made were soundly based and justified.
The primary judge made similar findings elsewhere.[116] Those findings are also not the subject of any ground of appeal and must be taken to be unchallenged on appeal.
[116] Primary reasons [10], [233], [238], [240] - [241], [242], [244] - [246], [251], [255], [260].
Counsel for the appellant said nothing in answer to this contention in the course of his oral address to the court.
More generally, the respondent argued that the appellant's case on appeal was not the case that the appellant put at trial - and, indeed, was inconsistent with the case at trial. Among other things the respondent submitted that:
1.At trial the appellant had not claimed that the respondent acted in breach of a duty owed to the appellant by failing to impose a flight ban on him returning to Barrow Island. The possibility of a flight ban was said not to have been advanced as a separate cause of action but instead as demonstrating that the events of 31 July 2015 had been planned by the respondent.[117]
2.The appellant conducted the trial on the basis that the material decisions and events (ie his referral to Dr Gannon for assessment, Dr Gannon's psychiatric examination referral and transport order and Dr Fenner's decision to admit the appellant as an involuntary patient) were all unreasonable. The appellant claimed that he did not suffer, and had never suffered, from a mental health issue; and there was no evidence that he was or might be suffering from a mental health issue.[118]
[117] Respondent's submissions par 6 WAB 39. See also pars 59 - 61, 67(c) WAB 54, 56.
[118] Respondent's submissions par 7 WAB 39 - 40. See also par 57 WAB 53.
These submissions must be accepted. Notwithstanding the initial contrary suggestion in the appellant's written submissions (see [7] above), at the oral hearing, counsel for the appellant conceded that the appellant was advancing a new case on appeal (see [8] above). That concession was properly made. A new case emerges where a different duty of care is asserted.[119] So too a new case emerges where a different ground of negligence is asserted.[120] Here the different case on appeal is readily apparent by comparing the appellant's case at trial (see [32] to [37] above) with the appellant's case on appeal (see [45] to [50] above). Among other things, the case on appeal was inconsistent with the case at trial as the alleged reasonable foreseeable risk of injury to the appellant was dependent on demonstrating that the respondent knew or ought to have known that the appellant was or might be suffering from a mental health issue. At trial the appellant denied that he had a mental health condition and said that there was no basis for the action taken on 31 July 2015 and thereafter.
[119] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 501 - 502.
[120] Water Board v Moustakas (502).
The respondent further submitted that the case the appellant sought to advance on appeal was not the subject of argument or evidence at trial. In particular, the respondent contended that there was no examination of whether:
1.The text messages meant that the respondent knew or ought to have known that the appellant was or might be suffering from a mental health issue such that he might pose a health and safety risk.[121]
2.An entity in the respondent's position, acting reasonably, would have prevented the appellant from returning to Barrow Island based on the text messages.[122]
[121] Respondent's submissions par 8(a), 67(c) WAB 40, 56.
[122] Respondent's submissions par 8(b), 67(c) WAB 40, 56.
This submission is best assessed in the context of addressing whether the appellant should be permitted to run a new case on appeal. Accordingly, it is addressed at [164] to [165] below.
The respondent also filed a notice of contention. It sought to uphold the primary judge's decision on the following additional grounds:
1.The respondent was not liable for the acts or omissions of its independent contractors.
2.The respondent was not liable for the acts or omissions of the Fiona Stanley Hospital or Dr Fenner because there was no evidence that the respondent had any commercial or other relationship with them.
3.The respondent was not liable for the acts or omissions of Dr Gannon or Dr Fenner because each was executing an independent statutory function under the Mental Health Act.
4.The respondent was not liable for damages for false and unlawful imprisonment, assault or trespass on the basis that:
(a)there was no evidence anyone forced the appellant against his will to return to his accommodation, to attend the medical centre, to consult with Dr Gannon or to allow Dr Gannon to insert the cannula;
(b)the insertion of the cannula and the evacuation from Barrow Island were pursuant to the psychiatric examination referral and transport order issued by Dr Gannon.
5.Arranging for the appellant to be reviewed by Dr Gannon did not cause Dr Gannon to require the appellant to leave Barrow Island for the purpose of a psychiatric assessment or the appellant's admission as an involuntary patient
6.The scope of the respondent's liability should not extend to the harm alleged having regard, among other things, to the need to encourage operators and employers to err on the side of safety in the context of projects such as that being conducted and the nature of the work the appellant was performing.
The respondent's answer did not contain any written submissions in support of the various contentions in the notice of contention.[123] Nor, as counsel for the respondent was not called on at the hearing, were the contentions the subject of any oral submissions. For the reasons provided below the appellant has not made out any of his Grounds. On that basis the appeal should be dismissed in any event. It is thus unnecessary to discuss the matters raised by the notice of contention any further.
[123] cf Supreme Court (Court of Appeal) Rules 2005 (WA), r 33(7)(b).
Ought the appellant be permitted to advance a new case on appeal?
The relevant principles
In some jurisdictions it is suggested that, without a grant of leave, an appellate court will not allow a party to rely on an argument not relied on at first instance.[124] It has not been this court's practice to require or formally grant such leave. There is no statutory provision requiring such leave.[125] Appeals such as the present are brought as of right.[126] They are appeals by way of rehearing.[127] While an appeal by way of rehearing is ordinarily for the correction of error,[128] error in the primary court's final determination does not necessarily involve error in the process of reasoning of the primary court.[129] Accordingly, there are exceptional circumstances, sometimes referred to as 'most exceptional'[130] or 'very exceptional',[131] in which this court, conducting an appeal by way of rehearing, will undertake its task of correcting error by reference to a new point not advanced before the primary court. However, this court, while not requiring leave to advance a new point, will not allow the appeal on such a ground unless the new case is one where, in accordance with well-established principles, the new point may be entertained.
[124] See eg Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 [11], [44].
[125] cf Supreme Court Act 1935 (WA), s 60(1)(e) and (f).
[126] District Court of Western Australia Act 1969 (WA), s 79(1)(a).
[127] Supreme Court (Court of Appeal) Rules 2005 (WA), r 25.
[128] Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
[129] Crampton v R [2000] HCA 60; (2000) 206 CLR 161 [12].
[130] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483.
[131] Water Board v Moustakas (498).
The general principles relating to the exceptional cases in which a party may advance a new case on appeal are well known.[132] In summary:
1.An appellant is bound by the conduct of his or her case at trial.[133] The opportunity to assert a new case at another trial should only be granted where the interests of justice 'require it' and such a course can be taken without prejudice to the other party.[134]
2.The circumstance that an appeal is by way of rehearing does not mean that the issues and the evidence are considered at large.[135] Other than in exceptional circumstances it is contrary to principle to allow a party to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the trial when there was an opportunity to do so.[136] It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial.[137]
3.A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at the trial.[138] (In that respect a statement by counsel that he or she would have led evidence on the point will be given weight unless it is unreasonable or improbable.)[139]
4.However, an appellate court may allow a new point to be raised on appeal where it is both 'expedient and in the interests of justice' to entertain the new point and '[w]here all the facts have been established beyond controversy or … the point is one of construction or of law'.[140]
5.Even if no question of further evidence arises it may not be in the interests of justice to allow a new point to be raised on appeal - particularly if it will require a further trial of the action.[141]
6.Before any new point is allowed the court should be satisfied that the raising of it could work no injustice to the other party and it is otherwise in the interests of justice to allow the new point to be raised.[142]
7.In deciding whether a point was raised at trial no narrow or technical view should be taken.[143] The pleadings may not be decisive where the evidence has been allowed to travel beyond them or fresh issues are raised.[144] Indeed, a point may be a new point even though it is within the pleading or particulars.[145] It is necessary to look at the actual conduct of the proceedings to see whether a point was taken at trial, especially where a particular is equivocal.[146] Usually the reasons of the trial judge are the best indication of what matters were in issue between the parties at trial.[147]
8.If an appellate court is satisfied that the appellant is seeking to advance a new case on appeal there is no residual discretion under which the court may permit the new case to be run 'in the interests of justice'. Rather, the interests of justice are encapsulated in the principles previously discussed.[148]
[132] See generally Rizhao Steel Holding Group Pty Ltd v Koolan Iron Ore Pty Ltd (2012) WASCA 50; (2012) 43 WAR 91 [48] ‑ [54]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [33] - [39]; McLennan v McCallum [2010] WASCA 45 [80] - [88]. As to the practical application of the principles it is useful to consider NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 [73] - [77]. There Hill J (albeit in dissent) sets out the five types of case in which a question has arisen as to whether a new point should be allowed to be raised on appeal.
[133] University of Wollongong v Metwally [No 2] (483); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8; Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 [44]; Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317 [34].
[134] Water Board v Moustakas (498).
[135] Coulton v Holcombe (7).
[136] University of Wollongong v Metwally [No 2] (483).
[137] Coulton v Holcombe (7).
[138] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 438; Coulton v Holcombe (7 - 8); Water Board v Moustakas (497 ‑ 498); Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51]; Park v Brothers [34]; Rizhao Steel Holding Group Pty Ltd v Koolan Iron Ore Pty Ltd [53].
[139] Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89, 114. See also NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [80], [82].
[140] Water Board v Moustakas (497). See also O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319 (reference there being made to 'facts either admitted or proved beyond controversy'). See also the formulation in Banque Commerciale SA, en liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 284.
[141] Whisprun Pty Ltd v Dixon [51]; Rizhao Steel Holding Group Pty Ltd v Koolan Iron Ore Pty Ltd [53].
[142] Rizhao Steel Holding Group Pty Ltd v Koolan Iron Ore Pty Ltd [52]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [38] (Allsop J there discussing the variety of relevant considerations for an appellate court when faced with a party raising a new point). See also Francuziak v Minister for Justice [11].
[143] Water Board v Moustakas (497).
[144] Water Board v Moustakas (497).
[145] Whisprun Pty Ltd v Dixon [52].
[146] Water Board v Moustakas (497); Whisprun Pty Ltd v Dixon [52]; Park v Brothers [34].
[147] Whisprun Pty Ltd v Dixon [50].
[148] McLennan v McCallum [88] (referring to Findlay v State of Victoria [2009] VSCA 294 [169]).
The juridical basis of these principles is in part grounded in public policy considerations: the need to ensure finality in litigation.[149] The finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked.[150] The principles are also grounded in the doctrine of estoppel by election in the conduct of litigation.[151] To the extent that the principles have their origin in estoppel by election the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position.[152] So a new point of law cannot be taken if, had it been taken at trial, the course of the proceedings could have been altered - whether by the adducing of other evidence or otherwise.[153] The possibility that the hearing would have taken a different course may suffice to deny raising the new point.[154]
Application of the principles to the appeal
[149] McLennan v McCallum [87]. See generally Crampton v R [15] - [16], [157] ('Appeal is for the correction of error at trial. It is not an opportunity to make some second, different, case …').
[150] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [38].
[151] McLennan v McCallum [87].
[152] Banque Commerciale SA, en liquidation v Akhil Holdings Ltd (284).
[153] Crampton v R [150].
[154] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [38].
The authorities reflecting the principles referred to above were drawn to the attention of counsel appearing for the appellant at the hearing of the appeal.[155] Counsel was asked how the appellant contended he should have a new trial on the basis of running a new case that was not run before the primary judge. Three things were suggested in answer. First, that this was an exceptional case[156] (although there was no explanation as to why the case was exceptional). Second, that the appellant was self-represented.[157] Third, there was some suggestion - at least as to the expert evidence and the alternative duties the subject of Ground 7 - that more should have been done by the primary judge.[158]
[155] Appeal ts 15. See also at appeal ts 13 - 14.
[156] Appeal ts 19, 37.
[157] Appeal ts 13 (expressed as being 'unrepresented'). See also at appeal ts 32.
[158] Appeal ts 19. See also at appeal ts 21, 32, 37.
In the absence of any particularity the first response can get no higher than the latter two responses. Insofar as, on the third response, it was suggested that the primary judge should have done more, it will be necessary to give further specific consideration to that in relation to Grounds 1 and 2. But the suggestion should be rejected summarily as to the additional alleged duties the subject of Ground 7. It is entirely antithetical to the notions of judicial independence and impartiality which are a feature of the adversarial procedure of the common law. A trial judge, of his or her own motion, cannot be bound to identify and address a case which is both different to the facts as pleaded and as is contended for by the plaintiff at trial. Indeed, had the primary judge done so - finding for the appellant on a basis which had not been advanced at trial - his Honour would have been in error. The relief which may be granted to a party must be founded on the case litigated at trial.
Nor, in our view, does the appellant's status in the primary court as a self-represented litigant affect the principles that apply to whether an appellate court should entertain a new case on appeal.
General considerations which apply given the appellant's status as a self-represented litigant are addressed in relation to Grounds 1 and 2 (see [74] to [76] below). There is nothing in those general considerations which would call for modification to the usual principles that apply to litigants in seeking to advance a new case on appeal. A trial judge's duty to a self‑represented litigant does not extend to giving judicial advice to, or conducting the case on behalf of, the self-represented litigant. That confirms there is nothing in the suggestion, already disposed of, that the primary judge should have done more in relation to identifying the new case now advanced on appeal. Further, a self‑represented litigant is subject to the practice and procedure of the court as much as any other litigant. The principles relating to the advancing of a new case on appeal are part of the practice and procedure of the court. Finally, as set out at [66.2] above, the principles apply to new arguments not raised 'whether deliberately or by inadvertence'. Inadvertence - whether due to the appellant's status as a self-represented litigant or otherwise - is irrelevant.
It is convenient to examine the merits of the appellant's Grounds 1 to 6 and, after doing so, further consider whether the appellant should be permitted to advance his proposed new case in the appeal in the context of Ground 7. It is by Ground 7 that the appellant contends that the primary judge should have found additional duties were owed to him. That consideration must apply the usual principles as to whether an appellate court should entertain a new case on appeal (and whether it should order a new trial).
Grounds 1 and 2: Alleged lack of procedural fairness
Grounds 1 and 2 depend on acceptance of the proposition that, because the appellant was a self-represented litigant, the primary judge was obliged to inform the appellant of his 'responsibility' to obtain expert evidence. At the hearing of the appeal counsel for the appellant expressed the submission in terms that the primary judge had to advise the appellant that he, the appellant, should have called the expert evidence.[159]
[159] Appeal ts 21.
There are a number of recent occasions in which this court has examined what should be done by a trial judge to ensure a fair and just trial where one of the parties is a self-represented litigant.[160] The subject has been considered countless times in the New South Wales Court of Appeal[161] and, in the important decision of In the Marriage of Johnson,[162] by the Full Court of the Family Court of Australia. The application of the general principles varies depending on the particular circumstances of the case; for example, the nature of the case and the nature of the litigant including his or her understanding of the case. One abiding difficulty is the tension between the duty of a trial judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties.[163] At all times a trial judge must remain an impartial adjudicator measured against the touchstone of fairness.[164] For this reason the assistance a self-represented litigant ought to receive should be limited, ordinarily, to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a self-represented litigant faces by reason of not being legally trained.[165]
[160] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [50] ‑ [55] (esp [51]); Stone v Braun [2015] WASCA 103 [62] ‑ [69]; Woodley v Woodley [2018] WASCA 149 [76] ‑ [77].
[161] See eg Rajski v Scitec Corp Pty Ltd [1986] NSWCA 1 [14], [27]; Hamod v The State of New South Wales [2011] NSWCA 375 [309] - [316]; Bauskis v Liew [2013] NSWCA 297 [66] ‑ [70]; Cicek v Estate of the Late Mark Solomon [2014] NSWCA 278 [125] ‑ [130].
[162] In the Marriage of Johnson (1997) 139 FLR 384, 405 ‑ 407.
[163] Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [29] (see generally at [26] - [33]); Bauskis v Liew [68]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [51]; Stone v Braun [64].
[164] Hamod v The State of New South Wales [316].
[165] Rajski v Scitec Corp Pty Ltd [14]; Moleirinho v Talbot & Olivier Lawyers Pty Ltd [51].
Having regard to the settled principles of appellate review in relation to factual findings there is no basis for setting aside the primary judge's finding that Mr Zvetan did not know of the events concerning the appellant on Barrow Island as they unfolded on 31 July 2015. Nor the finding that the respondent was not responsible for or involved in those decisions. This aspect of Ground 5 should be dismissed.
Ground 5 also alleges that there were an additional four factual findings that the primary judge should have made.
Ground 5(i) concerns whether the primary judge should have found that that Mr Zvetan was part of a team of four people who provided facts to Dr Gannon for him to base his referral under s 29. There was no evidence that Mr Zvetan spoke with Dr Gannon. Nor was this suggested in cross-examination of either Mr Zvetan or Dr Gannon. Otherwise the primary judge expressly referred to Dr Gannon's evidence that he referred to the text messages the appellant had sent to Mr Zvetan in order to assist in making an assessment of the appellant.[250] The primary judge also recorded that the form that Dr Gannon completed under the Mental Health Act stated under the heading '[m]atters observed by the referrer':
States smoking safety issues, hindering him from working with his company, evidence of chaotic but consistent messages to head of Chevron regarding safety.[251]
[250] Primary reasons [176]. See also at [234].
[251] Primary reasons [179].
The primary judge also mentioned Dr Gannon's evidence that the text messages were a factor in his diagnosis and decision to refer the appellant.[252]
[252] Primary reasons [197].
The evidence went no higher than that Dr Gannon referred to and relied on the text messages in deciding to refer the appellant for psychiatric examination. The primary judge accepted that evidence.[253] To the extent that Ground 5(i) is suggesting that the primary judge should have found that Dr Gannon relied on information in the form of the text message as passed on by Mr Zvetan the primary judge made a finding to that effect. To the extent Ground 5(i) is seeking to suggest that the primary judge should have found that there was more contact whereby Mr Zvetan provided unspecified 'facts' to Dr Gannon, there was no evidence to support the assertion. Either way Ground 5(i) does not identify any error on the part of the primary judge.
[253] Primary reasons [229].
As to (ii), (iii) and (iv) of Ground 5, Mr Zvetan was never challenged, in cross-examination, with any questioning to the effect that: (1) he knew there was a risk that the appellant might be the subject of a referral under s 29 of the Mental Health Act; (2) he knew that the conditions under s 29 of the Act had not been satisfied (it would be difficult for Mr Zvetan to come to such a conclusion in any event given his lack of relevant expertise); or (3) he should have permitted Mr Zvetan to leave Barrow Island on one of the three flights scheduled to leave that day. No foundation was laid for the factual findings that, on appeal by Ground 5(ii) to (iv), the appellant says the primary judge should have made. In the absence of any relevant questioning in cross-examination the primary judge was not in error in failing to make the suggested findings.
Ground 5 should be dismissed.
Ground 6: Alleged error in refusing tender of Sonic Health letter
Ground 6 complains about the primary judge's refusal to receive the tender of a letter from Sonic Health to the District Court dated 1 December 2017.
In written submissions the appellant explained that Sonic Health had acquired the business of Dr Gannon's employer, Medibank Solutions.[254] The appellant issued a subpoena to Sonic Health. In the subpoena the appellant included a series of questions. Although not admitted into evidence, Sonic Health's letter to the District Court was included in the appeal books.[255] The letter provided brief responses to the appellant's questions as outlined in the subpoena. Among the responses was a paragraph in response to the question: '[w]ho gave evidence for the referral (How)?'.
[254] Appellant's submissions par 42 WAB 17.
[255] GAB 361 - 362.
The letter was signed by a person on behalf of Sonic Health. However, it was not apparent whether the signatory was purporting to have personal knowledge of the responses. The likelihood is that he did not as the signatory was not mentioned in the evidence as to the events of 31 July 2015.
At trial the respondent objected to the letter being received in evidence on the basis that it was not a business record.[256] The tender was refused. While the primary judge did not give reasons for the refusal, in context, given that the respondent initially objected on the ground that the letter was not a business record, it should be inferred that his Honour was satisfied that the tender was sought on the basis that - at least in part - the letter was to be used as proof of the facts as asserted within it; and the exception in s 79C(2a) of the Evidence Act 1906 (WA) (Evidence Act) did not apply because the letter was not a business record.
[256] ts 233 - 235.
It is in any case apparent from the appellant's written submissions before this court that the appellant seeks to use the letter as evidence establishing as fact certain statements in the letter.[257]
[257] Appellant's submissions pars 45, 47 WAB 18.
An incorrect refusal to admit admissible evidence does not mean that there must be a re-trial. Rather, the appellant must satisfy the court that, if admitted, the evidence wrongly excluded could have affected the outcome.[258] It is difficult to see how that might be so. No attempt was made to explain how, had the Sonic Health letter been admitted into evidence, it would have affected the outcome. But before the inquiry reaches that stage it must be shown that the refusal of the tender was in error.
[258] Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458, 463.
The appellant's submissions went no further than to contend that the Sonic Health letter was relevant stating that it was a letter of 'significant importance'.[259] There was no attempt to explain how, given that the statement relied on plainly offended the rule against hearsay, the letter was a business record and thus admissible in accordance with the exception in s 79C(2a) of the Evidence Act. There was no proper basis for contending that the letter was a business record within the definition set out in s 79B of the Evidence Act. The letter was a one-off piece of correspondence sent to the District Court in answer to a subpoena rather than a document prepared or used in the ordinary course of business for the purpose of recording any matter relating to the business. The primary judge was correct to reject the tender of the Sonic Health letter on the basis that it was not a business record.
[259] Appellant's submissions par 45 WAB 18.
In the alternative the appellant contended that the primary judge should have 'offered' the appellant an order to issue a subpoena directed to Sonic Health.[260] It is difficult to understand that submission. Presumably the suggestion is that, as a matter of procedural fairness, the primary judge should have suggested that the appellant apply for an order to issue a subpoena to attend to give evidence directed to a relevant officer or employee of Sonic Health. There was no articulation as to who that person might have been. In any case the submission is without merit. The appellant was well aware of his entitlement to issue subpoenas to individuals to give evidence. He had done so previously.[261] The appellant explained that he sought to tender the Sonic Health letter without calling any witness because 'if I call them like witness, I have to pay them'[262] - ie the appellant would need to provide conduct money.
[260] Appellant's submissions par 48 WAB 18.
[261] ts 235 -236.
[262] ts 236.
The appellant was well aware that he could, if he wished, seek the issue of a subpoena directed to the relevant officer of Sonic Health. There is no basis whatsoever for the implicit suggestion that the primary judge failed to observe procedural fairness by not suggesting to the appellant that he do so. In any case, for the reasons given in answering Grounds 1 and 2, there was no duty to advise the appellant to seek an order for the issue of such a subpoena.
Ground 6 should be dismissed.
The application for a new trial and Ground 7: Alleged error in failing to find the respondent owed duties arising under legislation
Ground 7 was bound up with the appellant's new 'flight ban' case as advanced on appeal. The Ground was evidently intended to support the application for a new trial. As previously stated, counsel for the appellant accepted that it was 'a new case … a new duty'.[263] The Ground read:
The learned Judge erred in law in failing to find that the Respondent owed the Appellant duties that arose from the Petroleum and Geothermal Energy Resources Act 1967 (WA), the Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA) and the Petroleum and Geothermal Energy Resources (Occupational Safety and Health) Regulations 2010 (WA). Alternatively, the learned Judge erred in law in failing to find that the Respondent owed the Appellant duties that arose from the related interface of legislation set out in the submissions.
[263] Appeal ts 31.
Reference has already been made to the numerous Commonwealth and State enactments referred to in the appellant's submissions.[264]
[264] See fn 107 above.
The discursive nature of the appellant's written submissions in support of Ground 7 would render unprofitable an attempt to fully summarise the argument. The essential propositions as contended for by the appellant were that:
1.Oil and gas exploration and production is subject to a complex interface of Commonwealth and State legislation regarding worker safety.
2.The primary judge was not referred to, and did not himself refer to, the relevant statutory provisions.
3.The respondent, as operator and the person in control of the Gorgon Project, was subject to an extensive regime of duties in favour of workers. Specific statutory provisions capable of application were identified. Those expressly relied on by counsel for the appellant at the hearing of the appeal have already been mentioned (see [48] above) and are reproduced in annexure A. In summary it was contended that the respondent was 'in charge of safety'.[265]
4.The legislative provisions created statutory duties giving rise to a common law cause of action.[266] It was said that the legislative provisions relied on explained and enlarged the general duty of care that the respondent owed to the appellant.[267]
5.The respondent relied on the text messages to contend that it was dangerous to allow the appellant to stay on Barrow Island. On appeal the appellant, by counsel, contended it was more dangerous to allow him to fly to Barrow Island in the first place. Thus, according to the appellant, the respondent breached its duties no matter how the matter was looked at. The respondent was not entitled to simply just refer the texts to Kentz. The texts came directly to the respondent and the respondent had to follow through on them.
6.The respondent should have required the appellant to obtain medical clearance before he returned to Barrow Island.
[265] Appellant's submissions par 48R WAB 22.
[266] Appeal ts 34.
[267] Appeal ts 41.
This gave rise, according to the appellant on appeal, to an alternate case to the one as pursued before the primary judge. The substance of that new case has been described at [45] to [50] above.
In written submissions in support of Ground 7 the appellant also claimed that the primary judge was in error in finding that the respondent did not owe any duties to the workers involved in the Gorgon Project.[268] His Honour made no such finding. Rather, the primary judge found that the appellant did not discharge his onus of proof in seeking to prove that the respondent breached its duty of care to the appellant.[269] Accordingly, it is implicit that his Honour accepted that a duty was owed. Despite what was contended for in his written submissions, in oral submissions counsel for the appellant observed that the primary judge did accept that the respondent owed a duty of care.[270] That belated acceptance was correct. The submission that the primary judge was in error in finding that the respondent did not owe any duties to the workers involved in the Gorgon Project cannot be accepted.
[268] Appellant's submissions pars 48S, 48ZC WAB 22, 24. At par 48S the appellant also claimed error in the primary judge accepting certain matters as to duty in the course of closing addresses. That submission mistakes as findings what was said in the parties' closings. The primary judge's reasons contain no findings as complained of in par 48S. In any case the complaint exceeds the scope of Ground 7. Accordingly, this aspect of the appellant's submissions requires no further consideration.
[269] Primary reasons [256].
[270] Appeal ts 30. See also appeal ts 31.
It is true, however, that the primary judge did not examine the scope and content of the respondent's duty. Nor was there express identification of its source. It was not necessary for his Honour to do so given the way the case was advanced at trial and the factual basis for concluding that the case had not been established.
For its part the respondent took issue with whether the Petroleum and Geothermal Energy Resources Act applied to the respondent in relation to the whole of Barrow Island. The respondent contended that the Act did not apply to the Europa, the area on which the appellant lived after he moved from the Europa, the area on which the contractors were carrying out construction activities or the areas where the respondent met with Kentz's representatives and Dr Gannon. The respondent submitted that, in relation to each of those locations, the respondent was not the operator of or engaged in a 'petroleum operation' or a 'geothermal energy operation' within the meaning and for the purposes of the Act.[271]
[271] Respondent's submissions par 56 WAB 52.
The respondent otherwise complained that the alleged duty or duties the subject of Ground 7, and the appellant's submissions in support, concerned a new case rather than the case that the appellant advanced at trial.[272] The substance of the respondent's contentions in this respect have been outlined at [59] to [61] above.
[272] Respondent's submissions pars 54, 57 - 61 WAB 52 - 54.
We have already accepted that the appellant's 'flight ban' case is a new case and is inconsistent with the case that the appellant ran at trial (see [60] above). Ground 7 thus falls to be considered in an unpromising environment: its acceptance is subject to a pre-condition that the appellant be permitted to advance a new case on appeal. We have also found that, in assessing whether this court should entertain the appellant's new case on appeal, the appellant's status as a self-represented litigant at trial is not an exceptional circumstance warranting a different approach to the settled principles relating to the advancement of a new case on appeal (see [70] to [72] above). Nor can it be accepted that the primary judge should have done more to formulate and conduct a case for the appellant in accordance with the case now posited (see [69] above).
In assessing whether the appellant's new case should be entertained on appeal, and the case for a new trial, the following is also relevant.
First, so far as the appellant relies on the various statutory provisions as previously mentioned, it was effectively assumed that they provided for a private right of action on which the appellant could ground a claim for civil liability. That cannot be assumed. Questions of statutory interpretation arise.[273] Neither party addressed the court on those questions. In the case of the respondent no criticism can be levelled for its failure to do so given the observations made at [162] below. The appellant's failure to explain, beyond assertion, why the statutory provisions provide an actionable duty is another matter. In circumstances where the point was unexplored in submissions the most that can and should be said - having regard to what follows - is that the statutory provisions relied on give rise to questions as to whether actionable statutory duties were owed to the appellant. If so, there are further questions as to the precise scope of the duties.
[273] Byrne v Australia Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 424, 460 - 461.
Second, based on the respondent's answer, there is a threshold question as to whether the primary statute the appellant now relies on is applicable; and, if so, its extent of application. That question - relating as it does to whether at certain locations the respondent was the operator of or engaged in a petroleum operation or geothermal energy operation - could possibly have been met by calling evidence at the trial. In any case it is to be expected that the contention, if raised at trial, could and probably would have seen considerable additional evidence as to the nature and extent of the respondent's operations and activities at those locations.
Third, the appellant's new case is properly described as being embryonic rather than fully developed. At the hearing of the appeal counsel for the appellant eschewed an ability to plead the case without pre-action discovery. There was no precise statement of the nature and content of the alleged duty (even though, at one point, counsel for the appellant was asked to crisply state the alleged actionable duties relied on).[274] The summary of what was being contended for at [45] to [50] and [152] above was only arrived at with some difficulty after picking through what was said in oral and written submissions. No additional evidence of the type foreshadowed by Ground 2, which might have supported the new case, was sought to be adduced on appeal.
[274] Appeal ts 34. See also appeal ts 33.
Fourth, no ground of appeal alleged error in failure to find a breach of the putative duty. Nor was there a ground of appeal alleging error in failing to find that such a breach caused compensable loss. Insofar as error was asserted it stopped short at the question of duty. In that respect the new case on appeal ultimately went nowhere unless there was a new trial at which the appellant was permitted to adduce additional evidence in support of the half-baked new case formulated on appeal. That was self-evident in as much as, in relation to Ground 2, the appellant contemplated adducing expert evidence from an industrial relations expert on the question of breach of duty.
Fifth, closely connected with the last point, neither Ground 7 nor the appellant's new 'flight ban' case seeks relief based simply on findings of fact made by the primary judge or uncontested evidence before the primary judge. The potential issue as to the application of the Petroleum and Geothermal Energy Resources Act has already been adverted to. Otherwise it is apparent that the appellant is pursuing an undeveloped case as to whether there was a reasonably foreseeable risk of injury, breach of duty and causation. It is virtually certain that such a case - if permitted by a new trial - will require the parties to adduce further evidence; or alternatively, that one or both parties will seek to adduce further evidence. In any event the matters raised by the new case are of a type where they could possibly have been met by the respondent calling evidence at the trial.
Two examples of the sort of subject matter on which additional evidence might have been adduced in answer to the new case were provided by the respondent's submissions (see [61] above). There could and probably would have been closer examination of whether, by reason of the text messages alone, the respondent knew or ought to have known that the appellant was, or might have been, suffering from a mental health issue such that there was a reasonably foreseeable risk of injury were he allowed to return to Barrow Island. Also, as is implicit in the appellant's Ground 2, evidence could and probably would have been elicited as to what steps a reasonable person in the respondent's position would have taken on receipt of such text messages.
Sixth, relevant to the case for a new trial, the appellant's new 'flight ban' case contemplates and is dependent on additional evidence; for example, the industrial relations expert evidence. There was no attempt on appeal to adduce further evidence to demonstrate the evidentiary basis available to support the new case. In the absence of any attempt in this respect we are unable to conclude that the evidence already given is capable of sustaining the new case.
Seventh, and also relevant to the case for a new trial, it cannot be concluded that a new trial would be without prejudice to the respondent. Even if a new trial could be rushed through the interlocutory stages to commence in late-2020, there will have been a delay of more than two years. The posited 'flight ban' case is not a simple document case. There is prejudice to the defendant in a delay of more than two years. In any case we cannot be, and are not, positively satisfied that allowing the new case to be advanced could work no injustice on the respondent.
Eighth, and again relevant to the case for a new trial, the appellant's new 'flight ban' case and application for a new trial arises in circumstances where there was a five-day trial before the primary judge which required his Honour to produce substantial written reasons. Permitting the appellant to recast his case on appeal, and then allowing a new trial, offends the public interest that there should be finality in litigation. It would render wholly illusory the emphasis placed on the efficiency and economy in the conduct of litigation that is now part and parcel of the due administration of justice. The new case sought to be advanced on appeal was a case that could and should have been raised before the primary judge. The appellant's inadvertence in not doing so provides no basis to entertain the point on appeal; nor, all the more so, to allow a new trial.
In all the circumstances - and in particular those detailed in [158] to [168] above - the appellant has not made out that his case meets the established criteria whereby error might be corrected on appeal by entertaining a new case not advanced before the primary judge.
No miscarriage of justice has occurred. The primary judge properly considered and dealt with the case that the appellant ran at trial. That answers any suggestion of miscarriage in the circumstances of this case.[275] The 'flight ban' case for the appellant as now formulated on appeal is not the case as run at trial and is inconsistent with the case at trial. It is, for the reasons given above, a case that could possibly have been met by the respondent calling evidence at the trial. That new case is not, in all the circumstances, something that this court should consider consistent with the generally accepted principles of appellate review. Nor, conformably with authority, does it provide a proper basis for a new trial. It is not merely the position that the interests of justice do not require a new trial. Here, for the reasons enumerated immediately above, the interests of justice positively militate against a new trial. To entertain the appellant's new case, and all the more so to allow a new trial, would be to overlook the importance of the principle that a party is bound by the conduct of his or her case at trial. An appeal cannot be allowed to become a reworking of the case so as to avoid the impediments thrown up by the litigant's failure before the primary judge.[276]
[275] Whisprun Pty Ltd v Dixon [53].
[276] cf Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [36].
Accordingly, Ground 7 should be dismissed. It raises new points which should not be entertained on appeal. So too, consistently with the dismissal of Ground 7 and the refusal to entertain the new case on appeal, the application for a new trial should be dismissed.
Conclusion and orders
For these reasons the order of the court should be that the appeal is dismissed.
On 7 May 2019 the respondent filed an interim application in the appeal seeking that Grounds 1 to 6 be struck out on the ground that they do not have any reasonable prospect of succeeding. The interim application was referred to the hearing of the appeal. However, the interim application was not mentioned at the hearing. There is no need to consider the interim application given the disposition of the appeal.
The interim application dated 7 May 2019 should simply be dismissed.
The parties should be heard on the question of costs.
Annexure A
The Statutory Provisions referred to by the appellant
Petroleum and Geothermal Energy Resources Act 1967 (WA): sch 1
1. Objects
The objects of this Schedule are, in relation to petroleum operations or geothermal energy operations:
(a)to secure the occupational safety and health of persons engaged in those operations; and
(b)to protect persons in the vicinity of those operations at the invitation of, or with the express or implied consent of, the operators of, or persons in control of a part of, those operations from risks to safety and health arising out of those operations; and
(c)to ensure that expert advice is available on occupational safety and health matters in relation to those operations; and
(d)to promote an occupational environment for members of the workforce engaged in those operations that is adapted to their needs relating to safety and health; and
(e)to foster a consultative relationship between all relevant persons concerning the safety and health of members of the workforce engaged in those operations.
7. Duties of operator
(1)The operator of a petroleum operation or geothermal energy operation must take all reasonably practicable steps to ensure that the petroleum operation or geothermal energy operation is carried out in a manner that is safe and without risk to the health of persons engaged in the petroleum operation or geothermal energy operation or other protected persons.
Penalty: a fine of $110,000.
(2)Without limiting the generality of subclause (1), the operator of a petroleum operation or geothermal energy operation must:
(a)provide and maintain a physical environment at the place where the petroleum operation or geothermal energy operation is carried out that is safe and without risk to health; and
(b)provide and maintain adequate amenities for the safety and health of all members of the workforce engaged in the petroleum operation or geothermal energy operation; and
…
(d)implement and maintain systems of work in relation to the petroleum operation or geothermal energy operation that are safe and without risk to health; and
…
(g)monitor the occupational safety and health of all members of the workforce and keep records of that monitoring; and
…
(i)develop, in consultation with members of the workforce and workforce representatives, a policy relating to occupational safety and health that:
(i)will enable the operator and the members of the workforce to cooperate effectively in promoting and developing measures to ensure the occupational safety and health of persons engaged in the petroleum operation or geothermal energy operation; and
13. Duties of persons in relation to occupational safety and health
(1)A person engaged in a petroleum operation or geothermal energy operation must, at all times, take all reasonably practicable steps:
(a)to ensure that the person does not take any action, or make any omission, that creates a risk, or increases an existing risk, to:
(i)the occupational safety and health of that person; or
(ii)the safety and health of any other protected person; and
(b)in respect of any obligation imposed on the operator or on any other person under a listed OSH law - to cooperate with the operator or that other person to the extent necessary to enable the operator or that other person to fulfil that obligation …
Petroleum and Geothermal Energy Resources (Management of Safety) Regulations 2010 (WA)
5. Safety management system required for petroleum operation or geothermal energy operation
A person must not engage in an operation unless there is a safety management system in force for the operation.
Penalty: a fine of $8,800.
7. Compliance with safety management system
(1)A person who engages in an operation must do so in accordance with the safety management system in force for the operation.
Penalty: a fine of $8 800.
(2)Subregulation (1) does not apply to a person who engages in an operation in accordance with the consent given under regulation 31 for the operation to be carried out in a manner that is different from the requirements of the safety management system in force for the operation.
9. Maintaining records for safety management systems
The operator of an operation must ensure that all documents required by the safety management system in force for the operation to be kept are kept in the manner set out in the safety management system.
Penalty: a fine of $3,300.
10. Principal provisions of safety management system
The safety management system for an operation must contain:
(a)a description of the operation; and
(b)an acknowledgment of the duties that various persons have under Schedule 1 Division 2 Subdivision 1 in relation to the operation (obligations); and
(c)a detailed explanation of how the operator proposes to:
(i)meet its obligations; and
(ii)ascertain whether other persons meet their obligations, to the extent that it is practicable for the operator to do so,
including details of the systems and procedures to be used for those purposes; and
(d)a detailed explanation of how compliance with the safety management system would be measured, evaluated and maintained; and
(e)a detailed explanation of how the safety management system would be reviewed.
17. System for safe performance of work
The safety management system for an operation must provide for the operator of the operation to establish and maintain a documented system of coordinating and controlling the safe performance of all work of persons engaged in the operation that:
(a)identifies the persons having responsibility to authorise and supervise work; and
(b)ensures that members of the workforce are competent in the application of the system.
44. Notices of accidents and dangerous occurrences
For the purposes of Schedule 1 clause 70(2)(a), notice of an accident or dangerous occurrence that arises from an operation:
(a)may be oral or written; and
(b)must be provided as soon as practicable:
(i)after the first occurrence of the accident or dangerous occurrence; or
(ii)in the event that the accident or dangerous occurrence is not detected by the operator at the time of its first occurrence, after the operator detects the accident or dangerous occurrence; and
(c)must contain all material details concerning the accident or dangerous occurrence that are reasonably available to the operator at the time of the notification.
45. Reports of accidents and dangerous occurrences
(1)For the purposes of Schedule 1 clause 70(2)(b), a report of an accident or dangerous occurrence arising from an operation:
(a)must be in writing; and
(b)unless otherwise agreed by the Minister, must be provided:
(i)within 3 days after the first occurrence of the accident or dangerous occurrence; or
(ii)in the event that the accident or dangerous occurrence is not detected by the operator at the time of its first occurrence, within 3 days after the operator detects the accident or dangerous occurrence; and
(c)must contain material details concerning the accident or dangerous occurrence of the types determined by the Minister.
(2)A determination mentioned in subregulation (1)(c) must be:
(a)in writing; and
(b)published in the Gazette.
(3)As soon as practicable, but not later than 15 days after the end of each month, the operator of an operation must submit, to the Minister, a written report, for that month, stating:
(a)the number of deaths of persons arising from the operation; and
(b)the number and types of injuries to persons engaged in the operation and other protected persons, other than minor injuries not requiring treatment or requiring treatment only in the nature of first aid; and
(c)the total number of hours that persons engaged in the operation and other protected persons worked during the month; and
(d)the total number of days not worked as a result of injuries to persons engaged in the operation and other protected persons that would have been worked if the injuries had not occurred.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Research Orderly to the Hon Justice Vaughan3 APRIL 2020
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