Workers' compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Substantial injustice

Interpretation Act 1984 s 18, s 43(1)

Workers Compensation and Injury Management Act 1981 (WA) s 3, s 61, s 176, s 177, s 181, s 182E, s 182ZO, s 182ZT, s 182ZU, s 247

Workers Compensation and Injury Management Arbitration Rules 2011 r 23, r 24

Workers Compensation and Injury Management Regulations 1982 r 7

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 83 ALJR 1152

Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009

Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113

SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138

St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37

The State of Western Australia v Bond Corporation Holdings Pty Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

1 On 21 June 2011 Karen June Soliven suffered personal injury by accident arising out of or in the course of her employment with Amana Living. Ms Soliven made a claim for weekly payments of compensation pursuant to the Workers Compensation and Injury Management Act 1981 (the Act) in relation to her injuries. Liability was admitted and payments commenced.

2 By notice dated 7 November 2012 Amana Living sought to discontinue or reduce the weekly payments of compensation. Reliance was placed upon s 61 of the Act.

3 Ms Soliven did not accept that Amana Living was entitled to reduce or discontinue her payments. The dispute could not be resolved by conciliation under the Act. Ms Soliven then made application for the dispute to be determined by an arbitrator.

4 Ms Soliven's application came before an arbitrator for directions. There were submissions concerning whether there had been compliance with the 21-day time period for the making of an application prescribed by s 61 of the Act. In written reasons the arbitrator concluded that the application had been made within time and, accordingly, that 'Amana was not entitled to stop payments of compensation'.

5 Amana Living has now sought leave to appeal the decision of the arbitrator and for his orders and decision to be quashed.

1. The arbitrator has made an error in law in directing himself to consider whether the respondent's (applicant's) application for arbitration was filed within time, in [2] of his reasons, when the question put to him for determination on 18 February 2013 and as set out in his directions orders dated 19 February 2013 was whether he could grant leave to apply out of time as the consensus between the parties was that the respondent's (applicant's) application for arbitration was not filed within time pursuant to s 61(3) of the Workers Compensation and Injury Management Act (the WCIMA).
2. The arbitrator has made an error in law in finding, at [38] of his reasons, that the respondent's (applicant's) application for arbitration was filed within time for the purposes of s 61(3) of the Act when:

(a) The respondent's (applicant's) application for conciliation was filed 14 days after receipt of the respondent's (applicant's) notice of intention to discontinue weekly payments for the purposes of s 61(1) of the Act.

(b) The respondent's (applicant's) application for arbitration was filed 21 clear days after the conciliation officer issued his certificate of outcome; and

(c) Regulation 7(3) of the Workers Compensation and Injury Management Regulations 1982 (the regulations) specifically excludes the period commencing on the making of an application for conciliation of a dispute about the intention of an employer to discontinue or reduce weekly payments to a worker and ending when a certificate under s 182O is issued in respect of the dispute when calculating the time within which the worker may apply for an order of an arbitrator under s 61(3) of the WCIMA.

1. The arbitrator has made an error in law in finding, at [27] and [28] of his reasons, that reg 7(3) of the regulations is inconsistent with the terms of s 61 of the WCIMA and consequently is of no effect when:

(a) reg 7(3) of the regulations was inserted in November 2011 to address the way in which the notice for the purposes of s 61(1) and s 61(3) of the WCIMA should be calculated as a result of the amendments to the WCIMA which came into effect in December 2011 and resulted in the requirement for a dispute to be conciliated on the separate and initial application of a party to the dispute prior to the determination of the dispute at arbitration on a further and separate application.

1. The arbitrator has made an error in law in finding, at [26] of his reasons, that the Workers Compensation and Injury Management Arbitration Rules 2011 (the rules) precludes an extension of the time allowed for an application for arbitration to be filed in the normal course of events and that consequently reg 7(3) frustrates the efficient operation of the arbitration service by further shortening that period when:

(a) Rule 24 of the rules specifically allows for an extension of time in extenuating circumstances.

(b) The allowance of 28 days to file an application for arbitration pursuant to r 23 of the rules is not prescriptive whilst the requirement to dispute an employer's intention to discontinue or reduce weekly payments within 21 days is prescriptive with no allowances for an extension of time when notice has been properly given.

(c) The parties to a dispute will know the issues to be determined as a result of the requirement to file a certificate setting out those issues that have not been resolved by conciliation with an application for arbitration pursuant to s 182ZU of the WCIMA.

(d) A purpose of the WCIMA is to ensure that disputes are heard and determined justly, fairly, economically and quickly pursuant to s 3(d) of the WCIMA.

(e) It would not be just or fair to only require a worker to file an application for conciliation within the prescribed 21-day notice period in order to comply with s 61(3) of the WCIMA when there is no requirement for the worker to proceed with an application for arbitration to obtain a final order of an arbitrator.

1. The arbitrator has made an error of law in failing to provide the parties with an opportunity to provide submissions and authorities in relation to the correct computation of the notice period set out in s 61(1) of the WCIMA when this was not the dispute that the parties had requested he determine.

7 Section 3 of the Act reads:

(a) to establish a workers' compensation scheme for Western Australia dealing with -

(i) compensation payable to or in respect of workers who suffer an injury; and

(ii) the management of workers' injuries in a manner directed at enabling injured workers to return to work; and

(iii) specialised retraining programs for injured workers; and

(b) to establish WorkCover WA to oversee the operation of the workers' compensation scheme; and

(c) to provide for the resolution of disputes under this Act; and

(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick.

8 Section 61 of the Act reads:

Discontinuing or reducing weekly payments without order

(1) Subject to subsections (7) and (8) and section 84, where weekly payments of compensation for total or partial incapacity are made to a worker under this Act, they shall not be discontinued or reduced without the consent of the worker or an order of an arbitrator unless the worker has returned to work or a medical practitioner has certified that the worker has total or partial capacity for work or that the incapacity is no longer a result of the injury and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with at least 21 clear days' prior notice of the intention of the employer to discontinue the weekly payments or to reduce them by such amount as is stated in the notice, has been served by the employer upon the worker and unless within that period the worker has not made an application under subsection (3).

(2) Weekly payments of compensation for total or partial incapacity shall not be discontinued or reduced pursuant to subsection (1) unless the notice referred to in that subsection contains a clear statement -

(a) informing the worker of the effect of failing to make an application under subsection (3) within the time referred to therein; and

(b) informing the worker that he may obtain information from WorkCover WA as to the ways and means available to him to establish or protect his rights in respect of his injury; and

(c) containing such other information as may be prescribed.

(2a) If a person is required to give notice under subsection (1) and -

(a) fails to give the notice within the period referred to in that subsection; or

(b) gives a notice that does not comply with subsection (2),

(3) A worker who disputes the right of his employer to discontinue or reduce the weekly payments referred to in subsection (1) may, within the period of notice given under that subsection or, if the employer fails to give the notice required under that subsection, within the period of 21 days or such further time as an arbitrator may allow from the day on which the weekly payments were discontinued or reduced, apply for an order of an arbitrator that the weekly payment shall not be discontinued or reduced.

(4) Upon the hearing of an application referred to in subsection (3) an arbitrator shall -

(a) adjourn the application on such terms as the arbitrator thinks fit; or

(b) dismiss the application in which case the weekly payments may be discontinued or reduced, as the case may be; or

(c) make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.

(4aa) A reference in subsection (1), (3) or (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer's insurer.

(4a) Upon the hearing of an application referred to in subsection (3) an arbitrator -

(a) may, where the case requires, take into account whether -

(i) a return to work program has been established for the worker under section 155C(1); and

(ii) the establishment, content and implementation of the return to work program are in accordance with the code as defined in section 155; and

(iii) the worker has participated in the return to work program,

and for the purposes of determining the application accordingly treat the worker's incapacity as being of such degree as the arbitrator sees fit; and

(b) shall, where the case requires, take into account matters referred to in clause 8.

(5) Subject to subsections (7) and (8), weekly payments shall not be discontinued or reduced otherwise than in accordance with this Act.

(6) A conviction for an offence that is a contravention of subsection (5) shall not affect any liability for the making of weekly payments of compensation under this Act.

(7) Subsections (1) and (2) do not apply to a discontinuance of payments -

(a) on payment in full of the prescribed amount; or

(b) if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, on the worker reaching the age at which his entitlement to compensation ceases; or

(ba) if section 93E(8) or 93P(2)(b) applies to the payment of compensation; or

(c) on suspension of payments in accordance with section 72, or 145D; or

(d) on failure to comply with section 69 by a worker who does not reside in the State.

(8) Subsections (1) and (2) do not apply to a discontinuance or reduction of weekly payments of compensation under section 59(7).

9 Part XI of the Act deals with dispute resolution. Subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes (s 176(2)). A dispute relevantly means a dispute in connection with a claim for compensation, or the liability to pay compensation, under the Act (s 176).

10 Section 177 of the Act deals with the object of the dispute resolution part of the Act and provides:

(1) The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that -

(b) is accessible, approachable and professional; and

(d) in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and

(e) in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.

(2) Dispute resolution authorities and officers of WorkCover WA mentioned in section 181(2)(b)(ii) or 182ZO(2)(b)(ii) are to have regard to the object of this Part when they perform their functions.

11 Division 3 of pt XI deals with conciliation. The Worker's Compensation and Conciliation Service is established by s 181. The division deals with the application for conciliation, the acceptance of the application and what occurs subsequent to a conciliation.

(1) A party to a dispute (referred to in this Division as the dispute) may apply to the Director in accordance with this Act and the conciliation rules for resolution of the dispute by conciliation.

(2) Subsection (1) and section 182ZU(1) have effect despite any other provision of this Act -

(a) enabling or requiring a party to make application for a dispute or matter to be heard and determined by an arbitrator; or

(b) authorising an arbitrator to determine a dispute or matter.

Note: For example, if an employer is ordered by the Director under section 58(2a) to make an application for an arbitrator to hear and determine the question of liability to make weekly payments, the employer must first make an application for conciliation.

(1) An application for conciliation cannot be accepted by the Director unless the Director is satisfied -

(a) that it relates to a dispute as defined in section 176; and

(b) that reasonable attempts have been made to resolve the dispute by negotiation with the other party or parties to the dispute.

(2) The onus is on the applicant to satisfy the Director for the purposes of subsection (1).

(3) The Director may reject an application for conciliation if it does not comply with the conciliation rules.

(4) Conciliation commences when an application for conciliation is accepted by the Director.

Conclusion of conciliation and certificate of outcome

(a) agreement is reached by the parties on all matters in dispute; or

(b) the conciliation officer believes that there is minimal chance of agreement or further agreement, as the case may be, being reached; or

(c) the time limit for conciliation, as provided or extended under the conciliation rules, has expired.

(2) At the end of conciliation of the dispute the conciliation officer is to issue a certificate in accordance with the conciliation rules setting out -

(b) the terms of any direction currently in force under section 182K or 182L.

(3) The terms of an agreement reached by the parties are not to be included in the conciliation officer's certificate unless they are terms that -

(a) are of the kind that an arbitrator could determine; and

15 Section 182ZO of the Act establishes the Workers' Compensation Arbitration Service.

Application for arbitration

If a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with this Act and the arbitration rules for determination of the dispute by arbitration.

(1) An application for arbitration cannot be accepted by the Registrar unless it is accompanied by -

(a) a certificate issued by the Director under section 182H stating that no matter in dispute is suitable for conciliation; or

(b) a certificate issued by a conciliation officer under section 182O identifying the matter or matters in dispute that have not been resolved by conciliation.

(2) The Registrar may reject an application for arbitration if it does not comply with the arbitration rules.

(3) Arbitration commences when an application for arbitration is accepted by the Registrar.

18 Rule 4 of the Workers Compensation and Injury Management Arbitration Rules 2011 reads:

(1) An arbitrator may, in a particular case, as the arbitrator thinks is necessary in the interests of justice or otherwise to give effect to the Act -

(a) extend or abridge a time limit for doing any thing under these rules, or the commencement of any thing under these rules; or

(b) waive compliance with any other procedural requirement or prohibition under these rules.

(2) The extension or waiver may be given even though the time for complying has passed.

(3) This rule does not apply in relation to the time limit for lodging an application for arbitration.

19 Rule 23 of the Rules reads:

Time limit for lodging application for arbitration

(1) An application for determination of a dispute by arbitration may be lodged within 28 days after the day on which -

(a) a certificate in respect of the dispute is issued by the Director under section 182H stating that no matter in dispute is suitable for conciliation; or

(b) a certificate in respect of the dispute is issued by a conciliation officer under section 182O identifying the matter or matters in dispute that have not been resolved by conciliation.

(2) If an application for arbitration lodged within the period of time allowed under this rule or rule 24 is rejected by the Registrar under rule 13, the applicant may, within the 28 day period referred to in subrule (1), rectify the application and lodge it again.

20 Rule 24 of the Rules reads:

Registrar may extend time for lodging application for arbitration

(1) The Registrar may, on application by a party, extend the period of time allowed by rule 23(1) for lodging an application for arbitration if the Registrar is satisfied that extenuating circumstances exist in which it is proper to do so.

(2) Section 182 applies to the application as if it were an application for arbitration.

(3) Any party on whom the application for extension is served, may, within 7 days after the application is served, make a written submission to the Registrar as to the extension of the period.

(4) A party who makes a submission under subrule (3) must serve a copy of the submission on the applicant for the extension and each person served with a copy of the application.

(5) The extension may be given even though the time for lodging the application for arbitration has passed.

(6) In making a decision for the purposes of subrule (1) the Registrar must have regard to the circumstances of the particular case, including any submissions made to the Registrar.

21 Regulation 7 of the Workers Compensation and Injury Management Regulations 1982 (the regulations) reads:

Discontinuance or reduction of weekly payments

(1) The medical certificate required by section 61 of the Act, before discontinuance of weekly payments, shall be in the form of Form 4 in Appendix I, or in the form of Form 3 in Appendix I if that form has been marked to indicate that it is to be regarded as both a first and final medical certificate.

(2) Notice to the worker referred to in section 61 of the Act shall be in the form of Form 5 in Appendix I.

(3) The period commencing on the making of an application for conciliation of a dispute about the intention of an employer to discontinue or reduce weekly payments to a worker and ending when a certificate under section 182H or 182O is issued in respect of the dispute is to be disregarded for the following purposes -

(a) calculating the period of notice of the intention of the employer under section 61(1);

(b) calculating the time within which the worker may apply for an order of an arbitrator under section 61(3).

22 Section 247 of the Act enables a party with leave to appeal an arbitrator's decision to the District Court.

Appeal against arbitrator's decision made under Part XI

(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.

(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless -

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

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

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

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

(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;

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

24 Amana Living relies upon s 247(2)(a)(ii) of the Act and contends that a question of law is involved and the matter is of such importance that, in the public interest, an appeal should lie. It is conceded by counsel for Ms Soliven that a question of law does arise.

25 The decision of the arbitrator is interlocutory.

26 The principles applicable at common law to interlocutory appeals and the requirements for the grant of leave are in addition to those specified in s 247 of the Act: Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009; St John Ambulance Australia (WA) Inc v Annesley [2013] WADC 37.

27 The principles which apply to an interlocutory appeal are well settled. Generally, the appellant must show that the original decision was wrong, or at least attended by sufficient doubt to justify the grant of leave, and that substantial injustice would be done if the decision was not reversed: Wilson v Metaxas [1989] WAR 285, 294. Those principles are not, however, inviolable and leave may be granted whenever the interests of justice require it: The State of Western Australia v Bond Corporation Holdings Pty Ltd (1991) 5 WAR 40, 56 - 57; Hismelt Corporation Pty Ltd v Pratt [2007] WASCA 192 [14]; SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138.

28 In Silbert and Addison as Executors and Trustees of the Estate of Gerte Hoffman v Steinberg as Executor of the Estate of Morris Steinberg [2010] WASCA 113, Martin CJ reiterated and reinforced the principles governing the grant of leave to appeal against interlocutory decisions and referred to and relied upon Wilson v Metaxas: (294). His Honour noted that it was pertinent to emphasise that the availability of an avenue of appeal from interlocutory decisions, subject to the grant of leave, should not be seen as providing an unrestricted opportunity for the lengthy re-ventilation of arguments which failed at first instance. The determination of whether the decision from which leave to appeal is sought was wrong, or attended with sufficient doubt to justify the grant of leave to appeal should not ordinarily require or involve argument of the complexity and duration of the argument presented at first instance. Ordinarily, the court determining whether or not to grant leave to appeal will take a broad approach to that question, informed by the various principles to which I have referred. Where it determines that the decision at first instance is not wrong or attended with sufficient doubt to justify the grant of leave, elaborate reasons for that conclusion, of the kind customarily given at first instance, will not ordinarily be necessary or even appropriate: [7].

Background to the claim and the hearing before the arbitrator

29 On 8 November 2012 Ms Soliven was served with the s 61 notice.

30 On 22 November 2012 Ms Soliven filed an application for conciliation.

31 On 18 December 2012 the conciliation conference took place. The issue in dispute was whether weekly payments should cease in accordance with the s 61 Notice. There was no resolution and on that day the conciliation officer issued a certificate pursuant to s 182O of the Act.

32 On 9 January 2013 weekly payments of compensation ceased.

33 On 14 January 2013 Ms Soliven filed an application for arbitration naming Amana Living as respondent.

34 By its reply dated 25 January 2013 Amana Living raised two principal issues. First, that Ms Soliven had failed to file the application for arbitration within the 21-day period as required under the Act. It was contended that because of that 'the Respondent will be required to obtain an extension of time to proceed with the Application'. Secondly, that Ms Soliven's incapacity was no longer a result of her left knee injury and therefore her weekly payments should not recommence. Amana Living referred to reg 7 and contended that Ms Soliven was required to satisfy the registrar that there were extenuating circumstances which justify the late filing of the application. It was further contended that Ms Soliven had fully recovered from her workplace injury.

35 On 18 February 2013 Arbitrator Nunn conducted a directions hearing in relation to Ms Soliven's application for arbitration. There is no transcript. However it is agreed that the issue as to compliance with the time limit prescribed by s 61 was raised. There was an acceptance at that stage by the parties that the application was out of time. An oral application for an extension of time to file the application was made at the hearing on behalf of Ms Soliven and each party thereafter filed written submissions.

36 Amana Living submitted that Ms Soliven had not demonstrated exceptional circumstances to justify the late filing of the application. Ms Soliven submitted the arbitrator had a discretion to allow further time.

37 On the hearing of the appeal the position of each party changed. Ms Soliven contended that an extension of time was not required. Amana Living contended that the application was out of time and no extension could be granted.

38 The arbitrator provided written reasons dated 20 March 2013.

39 The arbitrator noted that it had been submitted on Ms Soliven's behalf that there was a general discretion to extend time and that by not doing so she would be denied natural justice. The arbitrator did not accept the submission and correctly concluded that the discretion contained in s 61(3) of the Act is enlivened only where an employer has failed to give appropriate notice. As notice had been appropriately given, the discretion could not be exercised in Ms Soliven's favour. The arbitrator then proceeded to consider whether the application was made within time as prescribed by s 61 of the Act.

40 By ground 1 of the notice of appeal it is contended that the arbitrator made an error in law in directing himself to consider whether Ms Soliven's application for arbitration was filed within time. Notwithstanding the way in which the arbitrator proceeded to deal with the matter, counsel for Amana Living on appeal submitted that the court should determine whether Ms Soliven had complied with s 61 of the Act.

41 The arbitrator in his reasons examined the nature of dispute resolution under the Act and correctly observed that it is not possible to apply directly to an arbitrator as a means of resolving a dispute and that conciliation must have occurred or the dispute must have been certified as not appropriate for conciliation before a party can have recourse to arbitration. His conclusion in that regard accords with s 182ZT and s 182ZU(1) of the Act.

42 The arbitrator further noted that s 61(1) of the Act makes no provision for a person to apply to a conciliator for orders and that it would be of little effect if it did given that conciliators have restricted powers. The arbitrator correctly observed that the last amendment to s 61 was in 2004 and that the division of dispute resolution services into conciliation and arbitration had occurred in 2011.

43 The arbitrator concluded that the 21 days which a worker is granted under s 61 to apply for an order of an arbitrator is preserved once the dispute is accepted for conciliation. This was, in his view, the first step to applying 'for an order of an arbitrator'. No other mechanism allowed access to arbitration. He described the second step required to obtain the relief or remedy sought as the application for arbitration and to then come before an arbitrator for determination of the order sought. In his view, whilst the next step of perfecting the application for an order of an arbitrator is separated from the initial step, it did not invalidate the initial step or make the initial step something other than an application for an order of an arbitrator.

44 The arbitrator concluded that the application for conciliation was an application for an order of an arbitrator, albeit only the first step required to secure the desired order. As Ms Soliven had applied for conciliation within 21 days of the s 61 notice, her application was within time. She would only be barred from taking the next step in the process and applying for an order of an arbitrator if she failed to make application for arbitration of the dispute within the 28 day period prescribed by r 23_._

45 The arbitrator proceeded to consider the effect of reg 7(3) and concluded it was of no effect as it was inconsistent with s 61(3) of the Act. In his view it purported to interrupt and extend the prescribed period of 21 clear days referred to in s 61(3) within which a worker intending to dispute the employer's notice may apply for an order of an arbitrator. Reliance was placed upon s 43(1) of the Interpretation Act 1984 which reads:

Subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.

46 The arbitrator further noted that the objects of s 3(d) of the Act would best be promoted by allowing the 21 clear day period prescribed by s 61(3) to run without interruption or extension.

47 The arbitrator then considered the differences between the phrases 'apply for an order of an arbitrator' and 'an application for arbitration'. He noted that the Act does not use the phrases interchangeably. The phrase 'apply for an order of an arbitrator' is only used in s 59(10), s 61(3), s 71(1) and s 156B(1) of the Act.

48 The arbitrator's view was that the phrase 'apply for an order of an arbitrator' had a twofold effect. Firstly, it required the necessary steps to invoking an arbitrator's power to make such an order be properly followed. Secondly, the effect of the phrase was to confine rather than expand the powers that may be exercised by an arbitrator under that section of the Act. He noted that:

Even if the difference is only subtle, it is nevertheless telling in that it indicates how the parties to a dispute may seek a specific remedy to that dispute under the Act.

49 The arbitrator expressed his conclusions as follows:

1. Having regard to the operation of s 61 and the circumstances of this case, by virtue of the worker's application for conciliation being accepted within the 21 day period prescribed by s 61 the worker did apply for an order of an arbitrator within the prescribed period, albeit this being only the initial step required to access the power of an arbitrator to make one of the specific orders contemplated by s 61(4).
2. That the worker may need to do more (after conciliation) to perfect that application for an order of an arbitrator is a separate matter.
3. By virtue of having application for conciliation the worker has in effect applied for an order of an arbitration within the 21 days required by s 61. Furthermore, the worker's application for the dispute to be determined by an arbitrator having occurred within the 28 day period allowed by r 23, the arbitration before me is valid and can be progressed towards determination.
4. The immediate effect of this is that the Respondent was not entitled to stop payments of compensation to Ms Soliven. Whether payments will ultimately be discontinued, reduced or otherwise varied will be determined as a result of the substantive hearing in accordance with s 61(4) of the Act but, for the time being, payments must resume until that determination is made.

50 Counsel for Amana Living's submission is that Ms Soliven had 21 clear days (subject to reg 7(3) of the regulations) to apply for an order of an arbitrator. A party may apply for conciliation, but if it does not then apply for arbitration the matter does not come before an arbitrator for determination. Accordingly, it was submitted that it cannot be said that an application for conciliation is an application for an order of an arbitrator. Unless and until an application for arbitration is made there cannot be said to be an application for an order of an arbitrator. It was submitted the processes of conciliation and arbitration under the Act were quite distinct. Conciliation was 'merely a procedural step that needs to be addressed before an Application for an Order of an Arbitrator can be made'.

51 Counsel for Amana Living further submitted that reg 7(3) is not inconsistent with the terms of s 61(3). Regulations 7(3) acknowledges the existence of the two tiers of the dispute resolution process, namely conciliation and arbitration.

52 Counsel for Amana Living further submitted that the purpose of s 61(1) of the Act is to set a fixed time limit within which the respondent could apply for an order of an arbitrator. Regulation 7(3) specifically dealt with the computation of time pursuant to s 61(1) of the Act, and rather than being inconsistent actually promotes the objects of that section. The application for arbitration was out of time and there was no power to extend.

53 Counsel for Ms Soliven submitted that the scheme of the Act was that arbitrators have exclusive jurisdiction to examine, hear and determine all disputes. It is an object of the Act and a principle repeated in s 177 and s 188 that dispute resolution should be informal, on the substantial merits and without technicalities.

54 Counsel for Ms Soliven referred to and adopted the reasoning of the arbitrator that the arbitration process had to begin by the filing of a conciliation application. Reference was made to the arbitrator's conclusions that:

(a) s 61 was not amended to deal with a system involving conciliation and arbitration;

(b) the application for conciliation is indeed the first step in an application for arbitration; the Rules internally provided for time limits after that.

(c) regulation 7(3) is inconsistent with the s 61 of the Act.

55 Counsel for Ms Soliven submitted that Amana Living had not established a basis for the grant of leave to appeal. As the authorities note, the principles in relation to the grant of leave are not inviolable.

56 The arbitrator's decision did not deal with the issues as to whether Ms Soliven remained incapacitated or whether her incapacity was as a result of the injury sustained in the course of her employment. Those matters remained to be determined at a hearing in the event the application was found to have been made within time. Further, as was accepted by each counsel Ms Soliven was able to make a further application pursuant to the Act for weekly payments at a substantive hearing in the event the s 61 application was dismissed.

57 Counsel for Amana Living submitted that there would be unnecessary cost incurred if a further hearing of the s 61 application was required. Even if Ms Soliven's s 61 application was successful before the arbitrator, Amana Living would have an opportunity to dispute the entitlement to weekly payments at a full hearing. In the circumstances I am not satisfied that substantial injustice would be done if the decision was not set aside.

58 The task of statutory construction begins with a consideration of the text itself. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision , in particular the mischief it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 83 ALJR 1152 [47].

59 Section 18 of the Interpretation Act 1984 provides that in the interpretation of a written law a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote the purpose or object.

60 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69],[70].

61 I would make the following points in relation to the arbitrator's construction of the time provision contained within s 61 of the Act.

62 Firstly, the construction adopted by the arbitrator to treat a conciliation as a necessary first step in obtaining an order of an arbitrator under s 61 of the Act promotes one of the expressed purposes of the Act, namely the provision for the hearing and determination of disputes in a manner that is fair, just, economical, informal and quick.

63 Secondly, the object of the dispute resolution part of the Act as expressed in s 177 of the Act namely the provision of a fair and cost-effective system is promoted. Section 177(1)(e) of Act states an express object in the case of arbitration as being to enable disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.

64 Thirdly, the construction provides certainty as to the time prescription contained within s 61 of the Act and to the circumstances in which an application for an order of an arbitrator pursuant to s 61 is made.

65 Fourthly, I accept as the arbitrator found that that the obtaining of an order of an arbitrator is effectively a two-step process which must commence with a conciliation.

66 Fifthly, the construction provides certainty as to the time for filing of a conciliation and in combination with r 24 the time for filing of an application for arbitration.

67 The decision of the arbitrator is not wrong or attended with sufficient doubt to justify the grant of leave.

68 I am not satisfied that the interests of justice justify or require a grant of leave in this case.

1. Leave to appeal is refused.
2. The appeal is dismissed.