Workers' compensation - Application for leave to appeal and appeal heard together - Whether applicant a 'worker' for purposes of Workers' Compensation and Injury Management Act - Extended definition of worker - Principles for determining whether the remuneration of a contractor is 'in substance' for his personal manual labour or services - Delay in arbitrator's decision - Whether arbitrator's decision that an applicant not a 'worker' involved a question of law - Whether failure to take into account submissions involved a question of law - Arbitrator's reference to a decision not referred to by the parties - Adequacy of arbitrator's reasons - Late application by respondent to raise a ground of contention not dealt with in hearing below

Workers' Compensation and Injury Management Act 1981

Leave to respondent to raise a new ground of contention refused

Abebe v Genalysis Laboratory Services Pty Ltd [2010] WACC C13-2011

Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17

Australian Institute of Management v Rossi [2004] WASCA 302

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225

Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399

Catholic Education Office (WA) v Granitto [2012] WASCA 266

Duffy v Notch Pty Ltd t/as Foxline Express Network CM19/96

Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189

Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210

Minniti & Son Builders v Luigi De Cinque [2008] WACC C26-2008

Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729

Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273

O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310

Rankilor v Circuit Travel [2013] WASCA 148

Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94

Scope Investigation Services Pty Ltd v Kelly CM65/99

Smith v McCusker QC [2010] WASCA 55

SNF (Australia) Pty Ltd v Jones [2008] WASCA 121

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Summit Homes v Lucev (1996) 16 WAR 566

Velez Pty Ltd v Tudor [2011] WASCA 218

WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630

1 DAVIS DCJ: In 2010 the applicant, Mr Rekabe, was working as a delivery driver for the respondent, Foxline. He had signed an independent contractor agreement on 23 July 2009.

2 On 17 March 2010 Mr Rekabe suffered an injury to his lumbar spine. Mr Rekabe made a claim for worker's compensation to be paid by Foxline for this injury.

3 Foxline disputed it was liable to pay workers' compensation to Mr Rekabe. After an unsuccessful conciliation conference, the matter was referred to arbitration pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (the Act).

4 The issue to be determined on arbitration was whether Mr Rekabe was a 'worker' as defined in s 5(1) of the Act. It was conceded on Mr Rekabe's behalf that he was not under a contract of service within s 5(1), however, it was submitted that he was a worker within what is commonly described as the extended definition of worker in s 5(1)(b):

(b) any person engaged by another person to work for the purpose of the other person's trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services.

5 On 30 October 2012 Arbitrator Wendy Powles delivered a decision in which she found that Mr Rekabe was not a worker as defined in s 5(1)(b) of the Act and dismissed Mr Rekabe's application.

6 Mr Rekabe now seeks leave to appeal from this decision. Foxline has also sought leave to cross-appeal, although for reasons which I discuss later, this is more properly described as a notice of contention since Foxline is seeking to uphold the decision of the arbitrator.

Principles on an application for leave to appeal

7 Section 247 of the Act provides that a party may, with leave of the District Court, appeal to the District Court against an arbitrator's written decision. Pursuant to s 247(2) the District Court is not to grant leave unless:

(a) in the case of an appeal in which an amount of compensation is at issue -

(i) a question of law is involved and the amount at issue in the appeal is both -

(I) at least $5,000 or such other amount as may be prescribed by the regulations; and

(II) at least 20% of the amount awarded in the decision appealed against;

(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;

and

(b) in any other case, a question of law is involved.

8 An appeal will 'involve' a question of law if the arbitrator has made an error of law or an error of mixed law and fact: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].

9 A ground that asserts the decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. An arbitrator does not make an error of law merely because he or she finds a fact wrongly or upon a doubtful basis: see Atanasoska [21].

10 An arbitrator does not make an error of law simply because he or she prefers one version of the evidence or one set of inferences over another version of evidence or set of inferences: BHP Billiton [5].

11 Furthermore, a decision does not 'involve' an error of law unless the error is material to the decision, in the sense that it contributes to it, so that but for the error, the decision would or might have been different: BHP Billiton [15].

12 If a ground of appeal, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position: Atanasoska [21].

13 If no question of law is involved, there is no jurisdiction to grant leave to appeal: Catholic Education Office (WA) v Granitto [2012] WASCA 266 [53] - [54].

14 It has been suggested by the Court of Appeal in BHP Billiton that the proper approach, particularly when the application for leave to appeal and the appeal are heard together, is that the question of leave be dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, then the court will be in a position at the end of the hearing to either grant leave and uphold or dismiss the appeal or refuse leave to appeal: BHP Billiton [14] (Pullen JA, Wheeler and Buss JJ agreeing); see also Atanasoska [32].

15 Orders were made in this matter that the application for leave and the appeal be disposed of at the one hearing and I heard the application for leave to appeal and the appeal together. Accordingly, the approach that I will follow is that suggested by BHP Billiton. (When I refer to 'this appeal', I am referring to the application for leave to appeal and the appeal.)

16 It was not in dispute that Mr Rekabe purchased a 5.5 tonne truck specifically in order to provide delivery services to Foxline and that the independent contractor agreement required that he meet the costs of fuel, registration, vehicle maintenance and insurance.

17 Clause 2 of sch 1 to the independent contractor agreement specified the manner in which the fee payable to Mr Rekabe would be calculated, which was summarised by the arbitrator in her reasons [54] as follows (and there is no suggestion that this is not an accurate summary):

On 15th of each month he was paid for runs completed during the proceeding calendar month. The run rate would be calculated by taking 80% of the monthly gross amount that Foxline invoiced its clients, less any operational expense incurred by the parcel delivery system (the system). Mr Rekabe's gross fee would be the run rate, plus an allowance based on the tonnage of his truck, multiplied by the number of runs completed.

18 It is apparent from reading both the arbitrator's reasons and the transcript of the hearing that a major issue was the allowance which Mr Rekabe received based on the tonnage of his truck, multiplied by the number of runs which he completed. In the documents showing the pay received by Mr Rekabe, this allowance was referred to as 'other income' although this has been sometimes referred to as 'the tonnage'. Each of the parties addressed the 'other income' component of Mr Rekabe's remuneration, as well as other costs and expenses, and the percentage proportion these bore to the total Mr Rekabe received each month. (I will refer to the proportion of expenses to total income as the 'cost-to-remuneration ratio'.)

19 In her reasons for decision [6] - [11], the arbitrator set out the principles from the relevant authorities dealing with the meaning of the term 'worker' in the extended definition. There was reference to the relevant authorities of Marshall v Whittaker's Building Supply Co [1963] HCA 26; (1963) 109 CLR 210; Summit Homes v Lucev (1996) 16 WAR 566; Australian Institute of Management v Rossi [2004] WASCA 302 and Minniti & Son Builders v Luigi De Cinque [2008] WACC C26-2008 [15] - [20].

20 The arbitrator set out a summary of the evidence of Mr Rekabe, and a summary of the evidence adduced by the respondent, Foxline, which included the independent contractor agreement and schedule and witness statements from two officers of Foxline, Bruce Saxild and Brett Andrews, as well as some of the evidence which they gave orally during the arbitration hearing.

21 The arbitrator then made the following specific findings of fact:

(a) It was an essential requirement for Mr Rekabe to undertake the parcel delivery work (with Foxline), that he have his own truck and meet costs for fuel, registration, vehicle maintenance and insurance: [51].

(b) Mr Rekabe purchased a 5.5 tonne truck specifically in order to provide parcel delivery services for Foxline and he used the truck exclusively for that purpose: [52].

(c) Mr Rekabe was required to do a specified delivery run at particular times of the day on four occasions on each business day. It was open to him to have another driver operate his truck to do these runs, but he never employed anyone to work with him: [53].

(d) Clause 2 to sch 1 to the independent contractor agreement specified the manner in which the fee to Mr Rekabe was payable, which the arbitrator summarised: [54] and see [17] above.

22 There then followed discussion of the issue of what should be considered as Mr Rekabe's 'remuneration', including some of each party's submissions as to the costs and expenses which he had incurred. One of the difficulties in this case was that Mr Rekabe was inexperienced and kept either poor business records or no records at all, produced no receipts or income tax returns to substantiate his costs and had little understanding of business or the relationship he had with Foxline. After discussing this [62], the arbitrator observed that Mr Rekabe's lack of understanding of the nature and legal consequences of the relationship he entered into with Foxline did not change its essential character. That essential character, as the arbitrator went on to explain, was that:

1. ... Mr Rekabe was required to have a truck of a particular capacity to perform the parcel delivery work. He had to meet all costs associated with running and maintaining the vehicle. The remuneration he received for the work he did included a component (described as other income) that was calculated based on the size of the truck.

23 The arbitrator recorded the parties' different submissions on whether Mr Rekabe's capital outlay of the truck should be taken into account when looking at the issue of whether he was, in substance, being remunerated for his personal manual labour or services. Foxline submitted that Mr Rekabe was not remunerated in substance for his personal manual labour or services because he provided plant and equipment including the truck and radio equipment, and that the costs of the vehicle included the purchase cost and registration, fuel, servicing, tyres, repairs and insurance: [63]. On behalf of Mr Rekabe it was submitted that the truck purchase should not be taken into account, as the truck was purchased for cash, there were no loan payments and it was sold (after his injury) for the same price: [64]. The arbitrator, however, made the following observation which, in the context of this appeal, is important:

1. I accept that I should have regard to Mr Rekabe's particular situation. However, I do not consider the capital cost for the truck should be ignored simply because Mr Rekabe had the means to pay cash for it. Consistent with the decision in Jakupovic, the capital cost should not be a main focus. It is nonetheless a factor to consider in determining for what the applicant was being remunerated.

24 The arbitrator then recorded each party's submission on a particular case referred to by Foxline, Duffy v Notch Pty Ltd t/as Foxline Express Network CM19/96 and noted as follows:

1. While Duffy is relevant as an example of application of the law relating to the extended definition of worker to a particular factual situation, my task is to consider the facts of this case and to determine whether Mr Rekabe was being remunerated in substance for his personal manual labour or services or not.

25 The arbitrator turned then to Mr Rekabe's remuneration, recording the different approaches taken by each party to the 'other income', Mr Rekabe's costs and expenses and the cost-to-remuneration ratio of these: [69] - [72].

26 The arbitrator then concluded [73] - [76] with her findings as follows:

1. The different approaches adopted by the parties draw attention to the difficulty of relying on either approach. This was highlighted by Compensation Magistrate Heath in Scope Investigation Services Pty Ltd v Kelly CM65/99, where he directed the decision maker to focus the enquiry on what the contract between the parties requires the independent contractor to provide in order to satisfy the contract. He observed: 'The review officer was required to consider the particular relationship and circumstances between the appellant and the respondent. He needed to determine for what the respondent was being remunerated. That did not require the review officer to dissect the payment being made to the respondent in order to attribute part of the payment for manual labour and other parts for other items. This would be an artificial accounting exercise which like costs incurred by the respondent in carrying out the activities is irrelevant. This can be demonstrated by comparing the respondent's position with that of a person employed on identical terms who for whatever reason was using equipment that cost, or would have attributed to it a cost of $19.00 per hour. It is not the intention of the Act that a person is deemed a worker or not a worker on the basis of their efficiency or profit margin.' (at paragraph 16).
2. Applying the legal principles outlined above I find firstly, that Mr Rekabe was not being remunerated for personal manual labour or services alone. Secondly, he was being remunerated for providing parcel delivery services, which in addition to personal manual labour or services included the provision of a truck, the meeting of the running expenses of that vehicle and the provision of his own insurance. I find that the provision of the truck by Mr Rekabe was an integral and indispensable part of providing the parcel delivery service. That was at least as important as the applicant's own personal labour in the performance of the tasks he was contracted to complete. It was incumbent on him to meet the operating expenses for the vehicle and associated expenses such as insurance.
3. I find the applicant's remuneration provided recompense to him for providing a truck for which he had to meet all expenses. I do not accept that what the applicant was required to provide, including a vehicle for which he met all costs, radio and insurance, was so insignificant that in reality he was paid in substance for his personal manual labour or services. I find a significant component of the payment from Foxline to Mr Rekabe for the contractual services he provided was remuneration to Mr Rekabe for equipping himself with a delivery truck, which he had to run and maintain. I find the remuneration Mr Rekabe received was not in substance for the personal manual labour or services he provided.
4. I conclude Mr Rekabe is not a worker within the extended definition. The application is dismissed.

Principles for determining whether the remuneration of a contractor is 'in substance' for his personal manual labour or services

27 For the purpose of this appeal, it is necessary to set out the relevant principles for determining whether a person falls within the extended definition of worker pursuant to s 5(1)(b), which I will do by way of my own summary of the authorities.

28 Whether a contractor's remuneration is 'in substance for his personal manual labour or services' is determined by a three step process identified in Summit Homes v Lucev (576) by Ipp J, confirmed in Rossi and Minniti:

(a) The first step is to determine whether the contractor was being remunerated for his personal manual labour or services alone. If the answer to that is no, it is then necessary to move to the next two steps;

(b) The second step is to make findings as to the extent to which the contractor was remunerated for personal manual labour or services on the one hand and for other matters which cannot be classified as the provision of personal manual labour or services;

(c) The third step requires a judgment to be made as to whether the remuneration, overall, was 'in substance' for the personal manual labour or services provided (notwithstanding the provision of the other matters).

29 In relation to the third step the words 'in substance' do not mean 'to any substantial extent'. Their function is to enlarge the description which the words immediately following provide, so that the definition may apply not only where the remuneration is a return for manual labour and for nothing else, but also where, although the remuneration is a return for something else also, the something else is comparatively so insignificant that in reality it is a return for manual labour: Marshall (214).

30 The task of determining whether the remuneration of a contractor is in substance for his personal manual labour or services is not an exercise of characterising the nature of the work done by the contractor: Rossi [29] - [31] (McLure J), [59] - [60] (Le Miere J).

31 When looking at the issue of whether the contractor's remuneration is a return for 'other matters' (as referred to in Summit Homes v Lucev), or 'something else' (as referred to in Marshall and which is the term I will use) apart from his personal manual labour or services, and the significance of that something else, it is relevant to look at evidence of the costs incurred by the contractor in performing the contractual task or equipping for it and the extent to which he is remunerated for those costs. This was discussed and explained by each of McLure J and Le Miere J in Rossi, in different ways.

32 McLure J (with whom Malcolm CJ agreed) [21] - [23] discussed Summit Homes v Lucev in which Ipp J had been critical of a review officer who in determining whether a contractor was a worker within the extended definition, relied upon the annual expenses of the contractor as shown in his taxation returns when there was little evidence of and no findings made by the Review Officer as to the actual equipment used by the contractor for the particular job, and there was no evidence of any correlation or connection between the remuneration for that job and the expenses deducted from his annual income. At [23] and [24] McLure J continued:

... As Ipp J noted, the respondent had provided bricklaying services to an indeterminate number of employees over the financial year; the expenses represented by the deductions might be incurred erratically over that period and more may be incurred for one job than another; and in that context, the items claimed as deductions by the respondent in his taxation return were, without more, irrelevant to the determination of the issue of whether the remuneration received by the respondent was in substance for his personal manual labour or services. The Judge's comments and observations relating to annual costs and expenses cannot properly be described as stating any legal principle, general or otherwise.

The relevance of, and weight to be given to, a matter may vary according to the broader evidential context in which it is adduced. For example, if it is open on the evidence to find, whether by direct evidence or inference, that the amount an independent contractor is paid for his contractual services includes (in whole or in part) the cost to him of equipping himself for the contractual task, then the first question will be answered in the affirmative. The extent to which the costs incurred in performing the contractual task in question are reflected in the remuneration will then be relevant to determining the extent to which he is being remunerated for matters other than his personal manual labour or services.

33 The word 'equipping' when referring to the expenses incurred by a contractor is not confined to the provision of tools and equipment: Minniti [18] (Commissioner McCann).

34 Le Miere J in Rossi said [60] that the task of determining whether the remuneration of a person is in substance for his personal manual labour or services involves an analysis or dissection, from an economic and accounting point of view, of what the contractor's remuneration was a return for. However, as Le Miere J went on to say:

It may be difficult, if not impossible, to precisely dissect the person's remuneration into remuneration that is in return for manual labour and remuneration that is a return for something else. A broad view may be taken of the evidence. Nevertheless, the decision-maker must determine the extent to which the remuneration is a return for his personal manual labour or services and the extent to which it is a return for bringing something else to the undertaking for which he is being remunerated.

35 Commissioner McCann in Minniti [20] tied together these two different statements of McLure J and Le Miere J in Rossi:

In my respectful view, Summit Homes, as explained in Rossi, establishes that evidence (and findings therefrom) of a general nature as to the economic or financial affairs of a contractor's business is potentially relevant to determining the particular issue as to what he was remunerated for pursuant to the relevant contract. To put it plainly, evidence of the general position is potentially relevant because it is capable of establishing what the contractor did for a living and therefore what he was remunerated for in the particular case. The weight to be given to the evidence and findings will depend on all the circumstances of the case and sight should not be lost of the ultimate questions, namely was the contractor remunerated for something else besides his manual labour and, if so, what was the relative significance of the former to the latter? In some cases the cost-to-remuneration ratio of a particular job, or business generally, might not be particularly relevant at all because that ratio might simply indicate the profitability of the job or business and say very little about whether the 'something else' that the contractor brought to the performance of the work (besides his own labour) in the particular case was of any significance. As McLure J said in Rossi at [23], the correlation between the two might be quite erratic. Similarly, the relevance and weight of a finding that the contractor employed labour in addition to his own labour may vary from case to case.

36 The principles which I take from Summit Homes v Lucev, Marshall, Rossi and Minitti are that, in applying the three step process identified in Summit Homes v Lucev, when an arbitrator is considering the extent to which a contractor is remunerated for something else besides his personal manual labour or services, and the significance of that something else:

(a) It will be relevant to consider evidence of the contractor's costs of performing and equipping himself to perform the contract.

(b) The costs of 'equipping' for a contract are not confined to the provision of tools and equipment.

(c) The arbitrator should analyse, from an economic and accounting point of view, how much the contractor's remuneration is in return for his personal manual labour or services and how much remuneration is a return for 'something else' besides his personal manual labour or services. The latter analysis will often involve considering the contractor's costs of performing and equipping himself for the contract and calculating the proportion of those costs to the total remuneration received by the contractor - described by Commissioner McCann in Minniti as the cost-to-remuneration ratio.

(d) Such a financial analysis, however, may not be possible in all cases. Depending on the evidence, in some cases it may be difficult, if not impossible, to precisely analyse or dissect how much the contractor's remuneration for a particular contract is in return for personal manual labour or services and how much is a return for something else.

(e) Even if it is possible to ascertain a cost-to-remuneration ratio, this may not, in the end, be of assistance to the arbitrator in determining the significance of the something else that the contractor has brought, besides his own labour, to the performance of the contract.

(f) Depending on the circumstances of the case, the extent to which the contractor is remunerated for something else he has brought to the performance of the contract may need to be considered in a broader evidential context.

(g) The weight to be given to the evidence and findings will depend on all the circumstances of the case.

(h) The ultimate question, which should not be lost sight of is: was the contractor remunerated for something else besides his personal manual labour or services and, if so, what was the relative significance of the former to the latter?

(i) The relative significance of the something else for which the contractor is remunerated is a matter of judgment for the arbitrator.

37 The grounds of appeal, which were amended during the course of the hearing before me, are as follows:

1. The arbitrator erred in law by allowing a miscarriage of justice to occur in failing to determine the matter promptly.
2. The arbitrator erred in law by:

(a) wrongly deciding that 'other income' was not 'remuneration by whatever means of the person so working being in substance for his personal manual labour or services'; or alternatively

(b) deciding that 'other income' was not 'remuneration ... in substance for his personal manual labour or services' by failing to taking into consideration the whole of the evidence.

(a) by failing to take into account a relevant consideration, namely the alternative arguments as to the meaning of remuneration; and

(b) further and in the alternative, in failing to give adequate reasons for decision in determining the alternative arguments.

1. The arbitrator erred in law by denying the parties procedural fairness in deciding the issue of 'remuneration ... in substance for his personal manual labour or services' by reference to an authority not raised with the parties at arbitration.
2. The arbitrator erred in law by failing to provide any, or any adequate, reasons for concluding that 'a significant component of the payment from Foxline to Mr Rekabe ... was remuneration to Mr Rekabe for equipping himself with the delivery truck, which he had to run and maintain'.

38 On the afternoon of the hearing on 3 April 2013, after I had heard submissions relating to Mr Rekabe's case, counsel for Foxline gave notice it intended to cross-appeal. A number of issues related to the giving of this notice arose, which I will discuss later in my reasons, and about which I directed the parties to file written submissions subsequent to the appeal hearing.

39 The proposed ground raised by Foxline, filed on 10 April 2013, is that:

1. The respondent contends that the arbitrator's decision should be affirmed on the alternate grounds that the run income component of the appellant's remuneration was not remuneration in substance for the personal manual labour or services of the appellant but was remuneration based on the combined activity of 60 of the respondents' contractors supplying vehicles and providing cartage services.

40 The hearing of the arbitration took place on 31 January 2012 and 9 February 2012. The arbitrator delivered her decision on 30 October 2012.

41 It was submitted that this delay of over eight months was an inordinate delay, particularly having regard to the requirement in s 3(d) of the Act to have disputes determined 'in a manner that is fair, just, economical, informal and quick'. Counsel for Mr Rekabe also referred to the Supreme Court of Western Australia Consolidated Practice Directions 2009 [8.1.3] which provides that generally in a case of civil actions the aim is to deliver decisions within three months of the action being heard, and the District Court of Western Australia 2011 Annual Review which reported the District Court finalised cases after trial within 23 weeks or just under six months. Reliance was also placed on a Federal Court decision of Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 and a decision of the New South Wales Court of Appeal, Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729. Those cases were relied on by counsel for Mr Rekabe for the proposition that a question of law is involved in the issue of whether a judicial officer has allowed a miscarriage of justice to occur by delay in delivering reasons.

42 In Monie v Commonwealth of Australia, however, Hunt J [44] stated that delay in delivering a decision does not, of itself, justify upholding an appeal against the judgment given. Error on the part of the judicial officer must still be established.

43 Counsel for Mr Rekabe did not refer to decisions in this jurisdiction, in particular the workers' compensation jurisdiction, which have dealt with the issue of delay in giving reasons. I raised two particular decisions during the hearing of this appeal.

44 The first was Aziz v Tempo Services Ltd [2009] WACC C6-2009 in which Commissioner McCann outlined the principles relevant to a delay by an arbitrator delivering his or her decision. Commissioner McCann [51], after referring to the requirements of the Act for quick, speedy and timely determinations, noted there was no provision in the Act which prescribed the time limit for the making of determinations by an arbitrator. That is for good reason because it was the experience of the law that the time required to decide disputes varies from case to case. Some matters can be determined in quite a short timeframe, whereas others might take a considerable period of time, even months. Commissioner McCann also explained [54]:

Delay in delivering a judgment is not in itself a ground of appeal, nor does it amount to a miscarriage of justice or indicate that a judgment is unsafe, or that there are grounds for suspecting bias. For a delay to amount to an appellable error it must be shown that the judgment contains errors that are probably, or even possibly, attributable to the delay, and that the judgment is unsafe and therefore should not be allowed to stand. If there has been delay the trial judge should ensure that the reasons include a comprehensive statement of the relevant evidence, and an analysis of the same, in order to establish to the parties and the public that the delay has not affected the decision-making process. (See R v Maxwell (1998) 217 ALR 452, per the New South Wales Court of Appeal at 462-3 and Mount Lawley Pty Ltd v West Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [30] to [34], Marshall v Lockyer [2006] WASCA 58 per Roberts-Smith JA at [153] and also Mastronardi v New South Wales [2007] NSWCA 54.)

45 In Aziz the delay was more than 12 months. The appeal on this ground was dismissed. (Aziz was taken on appeal to the Court of Appeal, but not on this ground of the issue of delay.)

46 The second decision is Abebe v Genalysis Laboratory Services Pty Ltd [2010] WACC C13-2011, where there was a delay of over two years between the arbitration and the giving of the decision, which was described as 'extraordinary, inexplicable and unacceptable in a jurisdiction which expects expeditious decision-making': Abebe [93]. In addressing this delay Commissioner McCann considered that there were three aspects which needed to be addressed. First, whether the effluxion of time bespeaks any reluctance or inability to make a decision on the part of the arbitrator. Second, whether the arbitrator placed himself under undue pressure to make a decision. Third, whether the effluxion of time adversely and materially impacted on the arbitrator's ability to make findings of fact: Abebe [95]. That is a relevant consideration in a case which turns on the credibility of witnesses: Abebe [98]; see also Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225 [48].

47 Applying those principles in this case there is nothing in the effluxion of time which shows any reluctance or inability on the part of the arbitrator to make a decision. There is nothing which indicates that the arbitrator placed herself under undue pressure to make a decision. In relation to the final factor, in this case very little turned on the credibility of Mr Rekabe. It was largely a documentary evidence case based on the independent contractor agreement, receipts and invoices rendered by Foxline. While submissions were made about the credibility of the evidence which Mr Rekabe himself gave about his expenses, the arbitrator in her reasons addressed this and decided this did not affect the outcome. Thus, this was not a case which turned on Mr Rekabe's credibility. As it was not necessary to compare Mr Rekabe's evidence or his manner of giving it with any other witness, this was not a case where the delay in giving judgment weakened the arbitrator's advantage in having seen and heard the witnesses.

48 Counsel for Mr Rekabe could not point to any errors that were probably or even possibly attributable to delay, other than the rest of the grounds of appeal.

49 Lengthy delay in the giving of a decision is not of itself a sufficient ground to interfere with the decision and I am not satisfied that it was rendered unsafe in this case. In the circumstances of this case and for the other reasons relating to the other grounds of appeal, I do not consider the delay of over eight months can be shown to have caused any injustice to Mr Rekabe.

50 This ground of appeal does not, in itself, involve a question of law and is without merit.

Appeal ground 2 - The arbitrator erred in deciding that 'other income' was not remuneration in substance for Mr Rekabe's personal manual labour or services and failed to take into consideration all of the evidence

51 There are two parts to ground 2, namely that the arbitrator erred in law by:

(a) wrongly deciding that 'other income' was not remuneration for Mr Rekabe's personal manual labour or services; or alternatively

(b) deciding that 'other income' was not remuneration in substance for his personal manual labour or services by failing to take into consideration the whole of the evidence.

52 The submissions made by counsel for Mr Rekabe relating to the first part of this ground of appeal emphasised that the 'other income' payable to Mr Rekabe was calculated by reference to the number of runs he completed. It was submitted that the arbitrator came to the view that 'other income' was not remuneration in substance for personal manual labour or services and that it related to 'something else' and in coming to that conclusion the arbitrator fell into error. This appeal ground and the submissions appear to have arisen from the arbitrator's reference at certain places in her reasons, to the 'other income' being dependent upon or calculated on the tonnage of Mr Rekabe's truck. In the written appeal submissions par 10 it was said that from a fair reading of the arbitrator's reasons it appeared that the arbitrator concluded that the 'other income' or 'tonnage' was a something else, or remuneration that was not in substance for his personal manual labour or services. The submission was made that because the 'other income' was not a fixed amount and depended on the number of runs performed by Mr Rekabe, it formed part of the remuneration which flowed from his personal manual labour or services and that by failing to consider it as such the arbitrator failed to consider relevant evidence and fell into error.

53 As to the second part of appeal ground 2, the submission was made that the arbitrator fell into error by failing to consider other evidence that the remuneration Mr Rekabe received was intrinsically linked to his physical exertions. The evidence that 'other income' was connected to or arose from Mr Rekabe's personal manual labour or services was said to be:

(a) The Foxline independent contractor agreement cl 6.1 which provided that Mr Rekabe would be paid a fee for providing his vehicle 'in and for each of your parcel deliveries' but then went on to say in cl 6.1.2 'but you understand and acknowledge that if you do not successfully complete a delivery then you will not be paid the fee for providing your vehicle or otherwise payable for the requested delivery'.

(b) Clause 2(B) of sch 1 to the independent contractor agreement which provided 'your gross amount will be the run rate, as determined in par (a) of the schedule, plus any pre-agreed tonnage allowance, multiplied the number of runs completed by you ...'.

(c) The transcript evidence of Mr Andrews that plus other income referred only to larger vehicles and that was calculated based on the fact that the contractor had to run and operate a larger vehicle (AB 207).

(d) A further document marked 'BA1' entitled 'Foxline express parcels' (AB 409) which provided that payment for services was 'dependant on the performance of the contract services' and drivers were rewarded based on results achieved.

(e) An analysis of the pay documents which reveal that the plus other income figure was the result of multiplying the amount of runs completed for the pay period by $20.

54 The submissions made by Foxline in relation to both parts of this appeal ground 2 were that this did not involve any question of law, but only a question of fact. In any event, there was no finding by the arbitrator that 'other income' was not remuneration and the issue of 'other income' was not material to the arbitrator's finding that Mr Rekabe's remuneration was not in substance for his personal manual labour or services.

55 In considering this ground of appeal, it is necessary to look at exactly what the findings of the arbitrator were in light of the evidence and arguments in the arbitration.

56 There was a focus of the parties during the arbitration on the 'other income', and Mr Rekabe's costs and expenses.

57 During the hearing of this appeal I was taken to the 'Recipient Created Tax Invoice' for the month of September 2009 which recorded the payment to Mr Rekabe as follows (with an explanation for some of the items noted in parenthesis):

Less claim fund (damage to parcels in Foxline's system)

58 During the arbitration, submissions were made on Foxline's behalf that the capital cost of Mr Rekabe's truck should be considered when looking at his costs and expenses. Counsel for Foxline highlighted that the 'other income' amount was a payment calculated on the tonnage of Mr Rekabe's vehicle and that other drivers of smaller vehicles did not receive this payment. The other income of $1,680 for the month of September amounted to 26% of the total amount paid to Mr Rekabe. In addition, there were other costs, including signage and GST, which would result in a cost-to-remuneration ratio of up to 35%: see the arbitrator's reasons: [69] - [70] and [72].

59 On the other hand, counsel for Mr Rekabe submitted that the capital cost of the truck should not be considered when looking at Mr Rekabe's costs and expenses, and that his costs and expenses were confined to fuel, registration, servicing and insurance. These amounted to about $554 per month which for one particular month produced a cost-to-remuneration ratio of less than 10%: arbitrator's reasons [59]. Later in her reasons the arbitrator summarised the cost-to-remuneration ratios submitted on Mr Rekabe's behalf, as being between 10% and 20%: [72].

60 The arbitrator identified the issues in relation to remuneration and 'other income' and also canvassed the parties' different approaches to the calculation of the cost-to-remuneration ratio, however, she ultimately concluded that there was a difficulty in relying on the approach taken by either party: arbitrator's reasons [73].

61 I consider it is clear from her reasons that the arbitrator concluded that she needed to take into account the costs which Mr Rekabe had incurred in equipping himself for his contract with Foxline, namely the capital cost of his purchase of the truck. There has been no appeal from the approach taken by the arbitrator, in her reasons [65], that she could not ignore the capital cost for the truck and that while this should not be a main focus, it was a factor to consider in determining for what Mr Rekabe was being remunerated. Indeed, during the hearing of this appeal, counsel for Mr Rekabe agreed that it was necessary to look at this capital cost (ts 46).

62 During submissions at the hearing of this appeal, counsel for Mr Rekabe produced and addressed a table of other cases in which a detailed comparison of each case was made with Mr Rekabe's situation. Ultimately the submission made to me was that the authorities place a cost-to-remuneration ratio for expenses which are 'minimal' or insignificant at somewhere between 20 and 30%. At the arbitration hearing the submissions made on Mr Rekabe's behalf (both written and oral) were to the effect that a cost-to-remuneration ratio of less than 20% meant that a contractor would fall within the extended definition of worker.

63 It was submitted that Mr Rekabe's expenses were fuel, registration, radio, insurance and maintenance which were comparatively insignificant and on certain calculations the cost-to-remuneration ratio could have been as low as 9%. (I should observe that at arbitration Mr Rekabe's counsel conceded that the costs for these expenses were estimates only, as there was no supporting documentation (AB 270). I should also observe that in written submissions for this appeal, par 29, there was a proposition that Mr Rekabe's expenses were only fuel, registration and maintenance, which was a mere 5.5% of his earnings). Whatever expenses counsel for Mr Rekabe may choose to rely upon, these expenses do not, of course include the capital cost of the truck.

64 The arbitrator made a finding of fact that the provision of the truck by Mr Rekabe was an integral and indispensible part of providing the services to Foxline. She was, on the authorities and principles as I have discussed in [28] to [36] above**,** entitled to consider the cost to Mr Rekabe of equipping himself to perform the independent contractor agreement. That cost was not confined, as was argued both at the arbitration hearing and this appeal, to expenses such as fuel, registration, radio, insurance and maintenance for the truck.

(a) Mr Rekabe was not being remunerated for personal manual labour or services alone: [74].

(b) Mr Rekabe was being remunerated for providing parcel delivery services, which in addition to personal manual labour or services included the provision of a truck and the meeting of the running expenses of that vehicle [74].

(c) The provision of the truck by Mr Rekabe was an integral and indispensable part of providing the parcel delivery service [74].

(d) The provision of the truck was 'at least as important' as Mr Rekabe's own personal labour in the performance of the tasks he was contracted to complete [74].

(e) What Mr Rekabe was required to provide, including a vehicle for which he met all costs, radio and insurance, was not so insignificant that in reality he was paid in substance for his personal manual labour or services [75].

(f) A significant component of the payment from Foxline to Mr Rekabe for the contractual services he provided was remuneration to Mr Rekabe for equipping himself with a delivery truck, which he had to run and maintain [75];

(g) The remuneration Mr Rekabe received was not in substance for the personal manual labour or services he provided: [75].

66 Having regard to her reasons as a whole, it is apparent to me that the arbitrator took the view that it was too difficult to precisely dissect Mr Rekabe's monthly pay into remuneration that was in return for his manual labour and remuneration that was a return for 'something else'. In the circumstances the arbitrator was, as a matter of law, entitled to take a broad approach to all of the evidence. In doing so she focussed on the questions, (correctly in my view): was Mr Rekabe remunerated for something else besides his manual labour and, if so, what was the relative significance of the former to the latter?

67 I turn now to the second part of the appeal ground 2, which is the failure to take into account 'other evidence'. While it could be said that some particular aspects of the 'other evidence' identified by Mr Rekabe were not specifically addressed in her reasons, pursuant to s 213(4) of the Act the arbitrator was entitled to confine her findings and reasons to those facts and circumstances which did impact on her reasoning and conclusion: see also Velez Pty Ltd v Tudor [2011] WASCA 218.

68 In any event, dealing with the matters of 'other evidence' which it is said the arbitrator did not consider, I make the following observations.

69 In relation to cl 6.1.2 of the independent contractor agreement upon which counsel for Mr Rekabe relied in [53](a) above, the arbitrator took into account the whole of the Foxline independent contractor agreement.

70 There is, in my view, no basis to say that the arbitrator failed to take into account cl 2(B) of sch 1 to the independent contractor agreement, as set out in [53](b) above. The arbitrator specifically referred to cl 2 of sch 1 to the independent contractor agreement and adequately summarised the basis upon which the other income was calculated, including what cl 2(B) of sch 1 provided, in her reasons [54].

71 In respect to the alleged failures to take into account the evidence set out in [53](c) and (d), while the arbitrator did not recite the evidence of Mr Andrews, nor specifically refer to the further document marked 'BA1' entitled 'Foxline express parcels', she summarised the evidence of Mr Saxild that the independent contractor was paid depending on the number of runs he did and subject to the tonnage of the vehicle he was using: [42].

72 In any event, the evidence referred to in the appeal submissions relating to the second part of appeal ground 2, particularly that from Mr Andrews, tends to confirm that the 'other income' was calculated by reference to both the tonnage of the truck and the number of runs Mr Rekabe did with the truck.

73 The 'other income' was not only based on Mr Rekabe's exertions. As the arbitrator found [71], a component of the 'other income' was a sum which Foxline paid based on the tonnage of Mr Rekabe's truck, a finding which was open to her.

74 Finally, in relation to the evidence in [53](e) which it is said that the arbitrator failed to take into account, the arbitrator in her reasons did refer to the pay documents and how the 'other income' was calculated, including, as I have already observed, in her reasons [54] that this was based on both the tonnage of the truck and the number of runs done by Mr Rekabe. It is thus neither accurate nor fair to say, as was submitted to me by counsel for Mr Rekabe, that the arbitrator did not have regard to evidence that the 'other income' was based on the number of runs completed by Mr Rekabe.

75 Returning back to the overall thrust of the appeal ground 2, after having regard to all of the submissions made by counsel for Mr Rekabe and the matters I have addressed above, what was being sought on Mr Rekabe's behalf was to have this court accept his cost-to-remuneration ratio arguments, without taking into account the cost of the truck he purchased in order to equip himself to carry out the independent contractor agreement.

76 The relative significance or relevance of the contractor's costs of equipping himself to perform the relevant contract was a question of fact for the arbitrator: Minniti [26]. Further, a ground which asserts the decision is against the evidence or the weight of the evidence does not raise an issue involving a question of law: Atanasoska [21].

77 I find that the appeal ground 2 is 'dressed-up' as involving a question of law when it really involves a challenge to the findings of fact by the arbitrator. What is being sought is an impermissible review of the merits and whether the arbitrator's decision was correct or not. There was no error in law or error of mixed law and fact in the arbitrator's approach in looking at the capital expense of the truck when assessing whether Mr Rekabe was being remunerated for something else besides his manual labour or services and, if so, what was the relative significance of the former to the latter. There was no error of law or mixed error of law and fact in the arbitrator's approach in light of the authorities as I have discussed in [28] - [36] above. The assessment of the evidence and its weight and her judgment of the extent to which Mr Rekabe was being remunerated for something else other than his manual labour or services do not involve questions of law which can be challenged on appeal.

78 In my view there is no error of law or any error involving a matter of law raised in ground 2.

79 If I am wrong in that view, having regard to the matters I have set out in [57] - [74] and [77] above, I find that there was no error of law by the arbitrator and there was sufficient evidence to enable the arbitrator to make the findings that she did.

80 On the whole of the evidence the findings made by the arbitrator were open, as was her conclusion that Mr Rekabe was not a worker within the extended definition.

Appeal ground 3(a) - failure to take into account submissions

82 The appeal ground 3(a) arises because while the arbitrator addressed the approach taken on behalf of Mr Rekabe in relation to the cost-to-remuneration ratio in her reasons, the cost-to-remuneration ratio mentioned in [72] of between 10% and 20% reflected only the written submissions which had been filed. She did not record in her reasons some further oral submissions, which were made at the arbitration by counsel for Mr Rekabe during closing (AB 274). In these oral submissions counsel suggested three alternative ways of calculating the cost-to-remuneration ratio which produced a lower percentage proportion of less than 10%.

83 The point made by counsel for Mr Rekabe in relation to this appeal ground 3 was that the percentages set out in the arbitrator's reasons change 'if remuneration is one of the alternatives put by us at closing submissions' (ts 29).

84 A judicial officer does not have to repeat every single argument put to him or her during the course of submissions by a party. That is made clear in the Act, s 213(4).

85 The failure to consider submissions is an error of law only if the submissions are of substance and, if accepted, they are capable of affecting the outcome of a case: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 [46]; Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399, 403.

86 The difficulty with this ground of appeal is that in the oral submissions before the arbitrator, counsel for Mr Rekabe was asking the arbitrator to construe the evidence in a certain way.

87 In my view the appeal ground 3 is 'dressed-up' as involving a matter of law when it really involves a challenge to the findings of fact by the arbitrator and the weight which she gave to the submissions made by counsel for Mr Rekabe about the cost-to-remuneration ratio. This does not involve any question of law.

88 This appeal ground 3 is also another way of putting what has been argued in relation to appeal ground 2 and it cannot succeed because, for the reasons I have already given in relation to appeal ground 2, the additional oral submissions made on behalf of Mr Rekabe would not change the outcome.

89 There is, in my view, no merit in this ground of appeal.

Appeal ground 4 - the arbitrator's reference to an authority not raised with the parties at arbitration

90 Section 188(1) of the Act provides that arbitrators are bound by the rules of natural justice, except to the extent that the Act authorises a departure from those rules. Section 188(2)(b) requires arbitrators to determine matters in a manner that is fair, just, and in accordance with 'equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'.

91 It has been held that the principles of procedural fairness require an arbitrator to invite submissions from the parties if he or she intends to rely upon principles of law or make findings on a point which has not, in substance, been raised or canvassed during the hearing: see Nardi [63] and see also Atanasoska [61].

92 This ground of appeal alleges an error of law by a denial of procedural fairness because of the reference by the arbitrator to the authority of Scope Investigation Services Pty Ltd v Kelly CM65/99 (the 1999 Scope decision) referred to in [73] of the arbitrator's reasons, which I have set out in full above [26]. It is true that neither party raised this authority with the arbitrator, however, there is, in my view, no merit to this ground of appeal for a number of reasons.

93 First, the 1999 Scope decision did not raise any new issues which had not, in substance, been raised or canvassed in the parties' written submissions or during the hearing.

94 Secondly, the ground of appeal appears to arise because of the reference to the words at the beginning of the following paragraph [74], 'Applying the legal principles outlined above'. This has been taken by counsel for Mr Rekabe as referring only to the 1999 Scope decision. In my view, on a reading of the arbitrator's reasons as a whole, the reference in [74] to 'the legal principles outlined above' is a reference to the earlier authorities which she canvassed in the reasons [6] to [11]. It is also apparent that the arbitrator followed the three step process outlined in Summit Homes v Lucev, Rossi and Minniti.

95 It was also submitted to me that the 1999 Scope decision was a critical component of the arbitrator's reasons and 'it is the only authority from which the arbitrator quoted.' That is plainly a submission which it is not open to make, given what is contained in the earlier parts of the arbitrator's reasons when she referred to and quoted from the relevant authorities on the extended definition of a worker.

96 Thirdly, it was put to me that the 1999 Scope decision, although post Summit Homes v Lucev, was pre Rossi. Counsel for Mr Rekabe suggested that 'if we had been told that this is what - that the arbitrator was going to cast to one side the math, to put it very bluntly, and go down this - well, this broader view, then I would have had an opportunity to raise the Rossi decision'. The difficulty with these submissions is that Rossi followed but explained Summit Homes v Lucev and made it clear that the broader view can be taken.

97 Finally, and in any event, a departure from the rules of natural justice will not always result in upholding the appeal and setting aside the order under review. After hearing the submissions the parties wish to make, the appeal court may be satisfied that those submissions would not produce any different outcome: see Smith v McCusker QC [2010] WASCA 55 [59], [61]; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145.

98 I am not satisfied that the submissions made by counsel for Mr Rekabe in this case produce any different outcome, for the reasons I have already addressed in relation to the appeal grounds 2 and 3.

99 While this appeal ground on the face of it does involve a question of law, I consider it is another way of challenging the arbitrator's factual findings. Further, I do not consider there is any merit to this ground of appeal.

Appeal grounds 3(b) and 5 - the alleged inadequacy of the arbitrator's reasons

100 The appeal ground 3(b) proceeds on the basis that the arbitrator made a determination on the 'other income'.

101 The appeal ground 5 relates to the arbitrator's findings in her reasons [74] and [75], based upon the failure to undertake a mathematical calculation of the respective proportions of what, in substance, Mr Rekabe was being paid for his personal manual labour or services and what he was being paid for something else. It was suggested that it was not clear what the arbitrator took into account when she concluded that a significant component of Mr Rekabe's remuneration related to equipping himself with the truck, which he had to run and maintain.

102 The failure of an arbitrator to give reasons, or adequate reasons, for a decision, is an error of law: Summit Homes v Lucev (569); Nardi [26] - [31].

103 The common law position is that a function of reasons is to provide procedural fairness to a litigant who is entitled to know why he or she has been successful or unsuccessful, and to allow an appeal court to determine whether the decision was based on an appealable error. The reasoning process which led to the result must be disclosed with sufficient certainty to achieve those ends: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].

104 This has been modified, however, by the provisions of s 213(4) of the Act, as was discussed by Commissioner McCann in Nardi [29] - [31] and the Court of Appeal in Velez Pty Ltd v Tudor [57] - [70]. Section 213(4) only requires the arbitrator to identify the facts accepted and give reasons for doing so, however, the arbitrator is still obliged to expose the reasoning process linking them and justifying the ultimate result: Velez Pty Ltd v Tudor [70].

105 In my view the arbitrator's reasons were adequate. Going through the requirements of s 213(4) of the Act, the facts she accepted were identified, as were her reasons for doing so: s 213(4)(a). The law was applied and her reasoning process applying the law to the facts has been exposed: s 213(4)(b). She did not have to canvass all of the evidence, nor all of the factual and legal arguments or issues arising in the case: s 213(4)(c) and s 213(4)(d). The basis for her decision is apparent as I have already discussed when addressing the appeal ground 2.

106 This was a case where the arbitrator concluded it was not easy to determine exactly the extent to which Mr Rekabe was being remunerated for 'something else' besides his personal manual labour or services and the relative significance of the former to the latter. The arbitrator in her reasons made it clear that in the circumstances of this case she was not adopting either of the parties' mathematical calculations of the cost-to-remuneration ratio and gave reasons for not doing so. The arbitrator explained that the 'something else' besides his personal manual labour or services for which Mr Rekabe was being remunerated was the provision of the truck which he had to run and maintain, and that was at least as significant as the provision of his manual labour. That was a matter of judgment for her to make.

Foxline's proposed 'cross-appeal' or grounds upon which it seeks to uphold the arbitrator's decision

108 Given my findings on the application for leave to appeal and the appeal, it is not necessary for me to deal with Foxline's proposed cross-appeal.

109 However, the proposed cross-appeal does raise some other issues, including procedural issues, the relevant rules which apply, and whether in any event I could consider the cross-appeal, which I should address and record.

110 Foxline's application for leave to bring a cross-appeal arose out of matters which were discussed when I questioned the basis for the 'run income' part of Mr Rekabe's remuneration in the 'Recipient Created Tax Invoice' for the month of September 2009.

111 The run income of $4,324.32 was explained in another document 'Payment Advice for September 2009'. That Payment Advice set out the calculation of the revenue per driver (as it is described in that document) or the run income as it is described in the Recipient Created Tax Invoice of $4,324.32. The Payment Advice set out all of the Foxline delivery revenue details for the month, the actual number of runs undertaken by all drivers in the month and the value per run which in the month of September 2009 was $51.48, but otherwise varied from month to month. The value per run was then multiplied by the number of runs completed by Mr Rekabe to arrive at the run income.

112 The evidence was, and this was a matter which was conceded by counsel for Mr Rekabe on the appeal (ts 20 - 21), that the value per run did not relate solely to Mr Rekabe but took into account other drivers' deliveries, as well as Foxline's operational expenses. Accordingly, the run income of $4,324.32, which made up the bulk of the payment in September 2009, and also the bulk of the payment in other months, was not solely related to Mr Rekabe's exertions but, as counsel for Mr Rekabe conceded, 'it is linked to his and other, or the entire fleet' (ts 22).

113 It was with this in mind that Foxline, at the end of the hearing of the appeal, sought leave to file a cross-appeal. There then arose an issue as to whether Foxline could now do so, particularly given the time limitation for the bringing of an appeal. I directed Foxline to file a minute of proposed cross-appeal and both parties to file and serve written submissions concerning both the issue of time and the substantive merits of the proposed cross-appeal. A 'Respondent's Notice of Cross Appeal' and written submissions were filed by Foxline on 10 April 2013. Submissions in response were filed on behalf of Mr Rekabe on 6 May 2013.

114 Having considered this proposed ground of cross-appeal by Foxline and the written submissions, it is apparent that Foxline is seeking that the decision reached by the arbitrator be upheld upon an additional ground not considered by the arbitrator. Accordingly, I do not consider that this is, in truth, a cross-appeal; rather it is what is sometimes referred to as a 'notice of contention'.

115 The District Court Rules 2005 apply to this application for leave to appeal and appeal: see s 247(5) of the Act. Rule 53 provides that a respondent to an appeal must file a Form 8 (notice of respondent's intention) within 21 days after the date on which the respondent is served with an appeal notice in a WCIMA appeal, namely an appeal under the Workers' Compensation and Injury Management Act 1981 s 247(1). Rule 53 goes on to provide, relevantly, that:

(3) If a respondent intends to seek to uphold the appealable decision on grounds other than those relied on by the primary court that made it, or to vary the decision, or to cross-appeal, the respondent must include in the Form 8 the grounds for doing so.

(4) The Notice of respondent's intention must -

(a) if the respondent seeks to uphold the appealable decision on grounds other than those relied on by the primary court that made it, state the grounds for doing so;

(i) set out the particulars of the appealable decision or that part of it to which the cross-appeal relates; and

....

(6) If a respondent does not file a Form 8 within the 21 days or any extension of that period ordered by the Court, the respondent is not entitled to take part or be heard in the appeal and is not a party to the appeal for the purposes of these rules.

• whether or not the respondent intends to take part in the appeal;
• whether the respondent will argue the primary court's decision should be upheld on the grounds relied on by the primary court in its decision;
• whether the respondent will argue the primary court's decision should be upheld on grounds not relied on by the primary court in its decision, and if so, to specify on what grounds (referred to as 'Other grounds for upholding' ie, a notice of contention);
• whether the respondent applies for the primary court's decision to be varied, and if so to specify on what grounds the respondent will argue that the decision should be varied;
• whether the respondent also appeals against the primary court's decision and, if so, upon what grounds (referred to as 'Cross-appeal'); and
• finally, whether an extension of time for appealing is needed.

117 In this case Foxline filed a Form 8 in which it indicated it would be relying on 'Other grounds for upholding' and set out two grounds upon which it would argue that the arbitrator's decision should be upheld:

1. There was no miscarriage of justice in failing to determine the matter promptly.
2. The finding that 'other income' was not remuneration was immaterial to the arbitrator's finding that the appellant's remuneration was not in substance for his personal manual labour or services.

118 Foxline did not raise in its Form 8 any other grounds upon which it sought to uphold the arbitrator's decision.

119 In order for Foxline to pursue the ground set out in its Respondent's Notice of Cross Appeal, it would need to apply for leave to amend its Form 8. However, from my review of the proceedings before the arbitrator, particularly the submissions of the parties, this ground was not a matter raised before the arbitrator.

120 The question of whether a party can raise a new issue, not raised below, on an appeal has been recently reviewed by the Court of Appeal in two decisions. The first, Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94 related to a new ground raised by two respondents to an appeal, who had already filed a notice of contention, as it is called in the Supreme Court (Court of Appeal) Rules 2005 (WA). In addition to the grounds raised in their notice of contention, the respondents sought leave to amend to add a new ground which was not in issue in the court below. Newnes JA (with whom Pullin and Murphy JJA agreed) addressed this:

1. The respondents also sought to rely on an amended notice of contention to raise a point which was not in issue below. By that notice, the respondents contended that Doric Constructions was not validly joined as a defendant to the action, the purported amendment to the writ under O 21 r 1 to substitute Doric Constructions being ineffective. The defendant to the action therefore remained Doric Group Holdings and Doric Constructions could not, as it had purported to do, join the second respondent as a third party to the action.
2. The respondents require leave to amend the notices of contention. I would refuse leave. The point they seek to raise was not raised below and was raised in the appeal only the day before the hearing. The question of whether the correct defendant to the action is Doric Constructions or Doric Group Holdings is a matter properly to be resolved in the first instance by the District Court. The resolution of that issue does not affect the outcome of this appeal.

121 In Rankilor v Circuit Travel [2013] WASCA 148 the appellant sought to raise a new ground of appeal which had not been raised before. Newnes JA with whom Pullin JA agreed (Buss JA dissenting on this point), set out the relevant principles as follows:

1. This is not a ground of appeal raised before the primary judge. In my view, it is too late to raise it now. In Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481, 483, the High Court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

1. In Coulton v Holcombe [1986] HCA 33; (1986) 65 ALR 656, 661, the High Court referred to the importance of this principle in light of the public interest in:

[T]he finality of litigation, the difficulty of inducing an appeal court to consider new facts, the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (8).

1. The principle applies both to points which were not taken at trial and also to the different stages of the appellate process: see Coulton v Holcombe, 660 - 661.

122 Buss JA in his judgment in Rankilor referred to the same principles, but was of the view that the rule against a new point being raised for the first time on appeal is not absolute, referring to O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, where Mason J (Murphy, Aickin, Wilson & Brennan JJ agreeing) said '[i]n some cases when a question of law is raised for the first time in an ultimate court of appeal ... it is expedient in the interests of justice that the question should be argued and decided'.

123 I hasten to add (in light of the arguments which I heard in this appeal) that the decision of Rankilor is not an authority I have referred to the parties or which the parties have referred to me. However, the principles have, in substance, been addressed by the parties in their written submissions.

124 I am bound by the principles referred to by the majority of the Court of Appeal in Rankilor, which are in essence the same as those stated by the Court of Appeal in Ruby v Doric Constructions. These principles apply to a respondent to an appeal in this court who wishes to raise a matter, not raised in the hearing below, in a Form 8, either as a ground for upholding the primary court's decision or by way of cross-appeal. Accordingly I am therefore not able to consider Foxline's further ground for upholding the decision of the arbitrator.

125 In view of the findings I have reached, however, this makes no difference to the outcome of this appeal.

126 The view of Buss JA in BHP Billiton [20] was that if a question of law is involved leave should be granted if, in all the circumstances of the case, it is in the interests of justice to do so.

127 Having considered all of the grounds of appeal I find that:

(a) grounds 1, 2 and 3 do not involve a question of law;

(b) grounds 4 and 5 arguably involve a question of law, however in substance these two grounds raise questions of fact without raising a seriously arguable case that the arbitrator made any error of law, or mixed fact and law. As I have found, they are without merit.

128 In the circumstances, I consider it is not in the interests of justice to grant leave to appeal and I should refuse leave to appeal.

129 Both the application for leave to appeal and the appeal should be dismissed.

130 Foxline's application to raise a new ground of contention by its Respondent's Notice of Cross-Appeal should also be dismissed.

131 I will hear from the parties as to the appropriate orders and the issue of costs.