Barrister John Brooksby discusses the practical and legal issues in bringing Workers’ Compensation appeals to the District Court of Western Australia, including recent unusual developments in the state. John gave a seminar presentation on this topic for Legalwise Seminars.
The right to appeal an Arbitrator’s decision under the Workers’ Compensation and Injury Management (WCIM) Act is provided by Section 247 of the Act.
The most important element is that any Appeal must involve a question of law (Section 247(2)(i).
The District Court Rules dealing with Appeals from an Arbitrator require that in any Notice of Appeal the question of law must be identified and the error alleged to have been made by the Arbitrator must be set out.
In the case of Hoe v Manningham City Council [2011] VSC at 37 the importance of identifying the precise error of law was emphasized as follows:
‘The need to identify precisely an error of law is important also to identify and define the subject matter and ambit of any appeal to this Court and thus to ensure that the statutory appellate jurisdiction of this Court is lawfully engaged, defined and circumscribed…
Unfortunately those requirements are ‘more honour’d in the breach than th’observance (Hamlet Act 1 Scene IV).
The problem with those requirements is that what constitutes a question of law is has never been satisfactorily answered.
In the work Judicial Review of Administrative Action 3rd Ed. (Lawbook Co 2004, 184) the authors Aronson, Dyer and Groves state:
‘Secondary literature abounds with derision and scorn for those who attempt to find objective criteria for distinguishing between errors of fact and law. The distinction certainly admits of a degree of manipulability. At the same time as saying that the distinction is “vital” in many legal contexts, the High Court has acknowledged that “no satisfactory test of universal application has yet been formulated”.
…
It is not therefore surprising to find statements of despair or even cynicism littered through the law reports. Professor Endicott asserts that “Lord Denning …followed an unswerving rule of calling a question a ‘question of law’ when he wanted to.” … the distinction between error of law and fact has been called slippery, elusive, too easily manipulated, “sterile and technical”, and something which can generate “artificial, if not illusory” distinctions. Some have wondered whether it might not be meaningless.’
Perhaps the closest the Courts have come recently to identifying what constitutes an error of law was the decision of the Full Bench of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] 43 FCR.
I set out the full text of the Federal Court’s analysis in my paper. The High Court considered the Pozzolanic decision in Collector of Customs v Agfa-Gevaert Ltd [1996] 186 CLR at 389. The Court offered some muted criticism but on balance supported the analysis, and offered the comment that ‘such general expositions of the law are helpful in many circumstances but were of limited utility when applied to complex phrases’
There are many scholarly papers on line dealing with the vexed question of the error of law/error of fact dichotomy and in my paper I drew on the paper by Ian Ellis-Jones entitled The Ever Elusive Fact/law Distinction. In his paper the learned author provides details of a vast number of cases, each with a supporting reference, in which Courts have identified questions of fact. The learned author’s paper is well worth reviewing by anyone charged with the task of identifying whether a particular error is an error of fact or law.
Of immediate concern however in the particular jurisdiction in which I practise is the recent decision of Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147.
In that case the Arbitrator had found, relevantly, that the worker had been disciplined by his employer Pilbara, but that the discipline was ‘unreasonable and harsh’; he set out the facts which drew him to that conclusion, and awarded him compensation.
The employer appealed on a number of grounds (none of which identified an error of law) but His Honour Judge Herron, having decided the words should be given their ordinary meaning (a question of fact) then went on to say:
‘…the true scope of the inquiry that is to be undertaken by a review officer in deciding whether the worker’s discipline is unreasonable and harsh on the part of the employer, pursuant to the relevant provisions of the Act, must be ascertained upon a proper construction of the Act, and therefore does involve a question of law…’
(Jenkins v West Australian Department of Training [1999] WASCA 199).
Notwithstanding his (correct) statement that the term ‘unreasonable and harsh’ was a question of fact, (from which no appeal would lie) he turned it into a question of law by reliance on the phrases ‘scope of enquiry’ and ‘construction of the Act’, which he had borrowed, out of context, from the case of Jenkins.
Having thus determined that a question of law was ‘involved’, (without identifying it) he carried out a ‘review’ of the decision (Sotico Pty Ltd v Wilson [2007] WASCA 112) on the merits. He defined how ‘unreasonable and harsh’ should be understood (thus removing the discretion of the Arbitrator) and set out his analysis of the evidence necessary to establish whether conduct was indeed ‘unreasonable and harsh’.
Notwithstanding that the excluded conduct in the Act must be ‘unreasonable and harsh ‘on the part of the employer’ (emphasis mine) His Honour determined that the term ‘harsh’ was more focussed on the consequences to the employee. Given that the employee who will be bringing the application is likely to be suffering from stress, will not receiving be receiving compensation and has probably lost his job, it would be a courageous employer who would try to argue that the consequences were not harsh.
His Honour did not properly identify what the error of law was (other than setting out certain elements of the evidence which the Arbitrator did not consider (i.e. not an error of law)) but on Appeal, the Full Court decided not simply that ‘scope of enquiry’ involved a question of law, but that the Arbitrator had ‘misunderstood’ the scope of his enquiry, without identifying the ‘misunderstanding’, what he was enquiring into or the ‘scope’ of that enquiry.
The problem with the decision (quite apart from the fact that it is inconsistent with House of Lords and High Court authority) could be far reaching as it means that words which would normally bear their ordinary meaning have now become questions of law, and indeed, given that ’scope of enquiry’ appears itself to be a discrete question of law which can be used to open up any decision to appellate review, it is arguable that in the West Australian jurisdiction there is now no such thing as an error of fact.
It is often said in this area of law that you can always find a question of law if you are a smart enough lawyer; perhaps we are just smarter in the West.
John Brooksby was originally admitted to practice in the United Kingdom. He worked in the West End of London with Manches & Co, before emigrating to Australia. John worked with Dwyer Durack & Dunphy for 2 years prior to joining Peter Dowding at Paterson & Dowding with a brief to set up a union based industrial and litigation practice. As a partner in Paterson & Dowding, John set up a significant practice in representing individuals and unions in various industrial tribunals. He also built up a substantial personal injury and general plaintiff orientated practice dealing with all aspects of workers compensation, industrial law and civil and personal injury litigation. In 1988 John set up an insurance based practice with Mark Greenland at Greenland Brooksby. Greenland Brooksby operated for a period of 18 years until John was appointed a Director and In-House Counsel at WHL Legal. John joined John Toohey Chambers in July 2011. John is available to accept briefs for opinion work, advice, trial and Appellate advocacy in personal injuries, civil and commercial litigation, industrial (Fair Work and WAIRC) and all Family Provision and insurance matters. Contact John at jbrooksby@johntooheychambers.net.au or visit his website.
