ARMET -v- CFC CONSOLIDATED PTY LTD [2019] WASCA 165 (30 October 2019)

1. The application of 28 August 2019 seeks to adduce, in effect, the following evidence in the appeal:
   1. Mr Armet's Freedom of Information application to WorkCover and WorkCover's decision to grant access to the documents requested.
   2. Documents by which Mr Armet, in effect, questions the conduct and decisions of the arbitrator.
   3. 'Sections of interest' identified by Mr Armet.
   4. Documents prepared by Mr Armet alleging irregularities within WorkCover's files provided to the District Court.
   5. Letters from Mr Armet for the arbitrator's consideration.
   6. Correspondence between the employer's solicitors and medical practitioners, correspondence between Mr Armet and medical practitioners, correspondence between the employer's insurer and medical practitioners, correspondence between the employer's insurer and Mr Armet, and correspondence between Mr Armet and Perth City Legal.
   7. Documents filed by the employer and Mr Armet for the arbitration heard between 21 and 24 February 2017 in A34043, A34818 and A36114.
   8. Orders made by the arbitrator.
   9. Tax invoices and receipts, spreadsheets of costs, Medicare statements, certain expert and medical reports, medical certificates, checklists, records and forms maintained by the employer.
   10. Mr Armet's resume.
   11. Reference letters from previous employers.
   12. A 'Hazard / Near Miss' report.
   13. Workers' compensation claim forms.
   14. Workers' compensation progress certificates.
   15. Certain webpages, brochures and documents containing practices and procedures.

1. The application of 23 September 2019 seeks to adduce about 105 documents as evidence in the appeal and in support of the application to stay the court's orders of 13 September 2019. The documents are, in effect:
   1. Web, academic and journal articles.
   2. Brochures, blog posts, and checklists.
   3. The arbitrator's reasons for decision in A36114.
   4. Documents prepared by Mr Armet alleging breaches of law by the employer, certain medical practitioners and the arbitrator.
   5. Draft amended notices of appeal in relation to two of the arbitrator's decisions.
   6. Submissions filed in the District Court.
   7. Medical certificates, expert and medical reports and medical forms.
   8. The employer's and Mr Armet's incident notification reports and forms.
   9. Letters from Mr Armet 'to whom it may concern' and to the arbitrator.
   10. WorkCover certificates of capacity, WorkCover medical certificates, workers' compensation claim forms, and a 'Hazard / Near Miss' report.
   11. Correspondence between Stephen Browne Lawyers and Mr Armet.
   12. Photographs of Mr Armet's feet, scalp and certain machinery.
   13. Reference letters from previous employers.
   14. Tax invoices and receipts.
   15. Correspondence between Mr Armet and medical practitioners.
   16. Correspondence between Mr Armet and the employer's insurer.
   17. The arbitrator's reasons for decision in A34042.
   18. Extracts of an occupational health and safety code of conduct.
   19. Correspondence between Mr Armet and manufacturers of machinery.
   20. Statements filed by the employer for the arbitration.
   21. Correspondence between the employer's solicitors and experts.
   22. A curriculum vitae of Pam Gabriels, an audiologist.
   23. A 'WorkSafe Investigation Report'.
   24. Mr Armet's Freedom of Information application to WorkCover.
   25. WorkCover's decision to grant access to the documents requested.

1. The application of 4 October 2019 seeks to adduce as evidence in the appeal a disparate range of documents, including:
   1. 'Final written plea'.
   2. The Australian Constitution and various documents relating to various legal topics, including the Civil Liability Act 2002 (WA).
   3. Various documents relating to human rights and international conventions, including the 'Convention on the Rights of Persons with Disabilities'.

1. By this application, which Mr Armet attempted to file after the hearing of the appeal, Mr Armet, in effect, asked the court to receive as part of his case a document marked 'A.1' comprising nine pages, together with another document and accompanying email marked 'A.2', which referred, in terms, to 'Counter‑action Towards Cover‑up Operations at WorkCover WA'. The first document was an aide‑memoire handed up to this court by Mr Armet in the course of his oral submissions read by the coram.

1. Stone DCJ's order to strike out the primary proceedings was not a judgment, order or determination in proceedings in the District Court under pt XIII of the Act for the purposes of s 254 of the Act. Part XIII of the Act deals with appeals to a District Court against an arbitrator's decision under pt XI of the Act. Stone DCJ's orders were not to that effect.
2. Accordingly, the appeal to this court arises under s 79(1) of the District Court Act 1969 (WA), which provides:

(1) A party to an action or matter who is dissatisfied with -

(a) a final judgment, may appeal from that judgment to the Court of Appeal;

(b) a judgment that is not a final judgment or an order remitting any action or matter from one court to another, may by leave of the Court of Appeal, appeal to the Court of Appeal,

notwithstanding that the action or matter to which the final judgment or judgment relates may have been brought in the Court by consent as provided in this Act.

1. Although neither party directed attention to whether the orders of Stone DCJ were interlocutory or final, in the case of Re Luck,[68] the High Court held, in effect, that an order dismissing an action because it is frivolous, vexatious or an abuse of process, or does not disclose a reasonable cause of action, is an interlocutory order for appeal purposes.[69] The same must be true of an order to strike out on those grounds. On this basis, Mr Armet required leave to appeal under s 79(1)(b) of the District Court Act. Albeit in the context of an application for leave to appeal under s 254 of the Act, the following observations in Engine Protection Equipment Pty Ltd v Miller[70] are apposite:

Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. Relevant matters include, but are not limited to, whether the decision below was wrong, or attended with sufficient doubt to justify leave, and whether a substantial injustice would be done by leaving the decision unreversed. (footnotes omitted)

The statutory scheme - constraints on the award of damages

1. The statutory scheme in div 2 of pt IV of the Act is to be read consistently with the general principle that where the common law of tort gives the worker well‑established rights, they are not to be abrogated by statutory intervention in the absence of clear words or a necessary implication to that effect.[71]
2. An evident purpose of div 2 of pt IV of the Act is to deter the litigation of small, disproportionately costly, claims for damages in respect of workplace accidents.[72] On the other hand, s 93C in div 2 does not preclude the bringing or instituting of an action in circumstances where the Act does not permit the award of damages. The prohibition in s 93C is directed to the stage of the award of damages, rather than the institution of the action.[73]
3. Further, another purpose of the Act is to make provision for disputes between parties involved in workers' compensation matters to be determined fairly, justly, economically, informally and quickly.[74] Although that object has particular relevance to pt XI ('Dispute resolution'), it has broader application in the context of div 2 of pt IV of the Act, read with div 2 of pt VII of the Act, insofar as provision is made for, in effect, the resolution of disputes by medical specialists as to the worker's degree of permanent whole of person impairment in accordance with particular timeframes.
4. The statutory scheme of subdiv 3 of div 2 of pt IV of the Act was summarised by Newnes JA (McLure P & Edelman J agreeing) in Acebrook Corporation Pty Ltd v McEwan,[75] from which the following is to a considerable extent taken.
5. Pursuant to s 93K(4), damages in respect of an injury can only be awarded if, among other things, the worker elects in the prescribed manner to retain the right to seek damages and the Director registers the election.[76]
6. By s 93L(2) of the Act, the right to elect only arises if (1) the worker and the employer agree that the worker's 'degree of permanent whole of person impairment' is at least 15% and as to whether or not the worker's 'degree of permanent whole of person impairment' is at least 25%, or (2) the whole of person impairment has been so assessed to be a percentage that is not less than 15%, and (3) the Director has, at the worker's written request, recorded that agreement or assessment.
7. By s 93H of the Act, the worker's 'degree of permanent whole of person impairment' is evaluated in accordance with s 146A and s 146C.
8. By s 93L(4) of the Act, where a claim has been made for compensation by way of weekly payments, an election to retain the right to seek damages cannot be made after the 'termination day'.[77]
9. The 'termination day' is defined in s 93M(1) to mean 'the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made', unless an extension of that time is granted by the Director under s 93M(4).[78]
10. There are four circumstances in which an extension of the termination day may be granted under s 93M(4). They are, broadly speaking:[79]
    1. Where before the termination day, an approved medical specialist[80] has certified that the worker's condition has not sufficiently stabilised for a 'normal evaluation' of the worker's degree of whole of person impairment to be assessed, and recommends some extended termination date: s 93M(4)(a).
    2. The Director is satisfied that the employer has failed to comply with the notice requirements of s 93O: s 93M(4)(b).
    3. The Director is satisfied that an approved medical specialist requires, or has required, more time (more than the time provided for in s 93O(1)(d) - effectively six weeks[81]) to provide the documents required by s 146H in relation to the worker's degree of whole of person impairment: s 93M(4)(c).
    4. The Director is satisfied that:

(a) the worker, in accordance with the Regulations, has requested an assessment of the degree of their whole of person impairment within a specified time[82] which gives the medical specialist the opportunity to make the assessment and give the requisite documents under s 146H to the worker at least seven days before the termination day; and

(b) the worker was not given, or it was not practicable to give, the requisite documents required by s 146H at least seven days before the termination day: s 93M(4)(d).[83]

1. Section 93N relates to 'special evaluations' and provides, in effect, that if, after the expiration of six months after the day that would have been the termination day had there been no extension under s 93M(4), an approved medical specialist certifies that the worker's condition has not stabilised sufficiently for a 'normal evaluation' of their degree of permanent whole of person impairment (under s 146A and s 146C), then:
   1. the worker may request a 'special evaluation' (in accordance with s 146A and s 146C) of the worker's degree of permanent whole of person impairment;
   2. such request is to be made in accordance with the Regulations not later than eight weeks before the termination day, and is to be accompanied by the certificate referred to in subsection (1) to the effect that the worker's condition has not stabilised sufficiently for a 'normal evaluation'; and
   3. the approved medical specialist is to make the 'special evaluation' (in accordance with s 146A and s 146C), unless by then the worker's condition has stabilised to the extent required for a 'normal evaluation', in which case the approved medical specialist is to make a 'normal evaluation' in accordance with those sections.
2. Under s 93O of the Act, about six months prior to the termination day the employer is required to notify the worker in writing of various matters, including (1) the day that would be the termination day if no later day were to be fixed under s 93M(4),[84] and (2) the amount of time that, according to the Regulations, an approved medical specialist can reasonably be expected to take to give the worker the documents required under s 146H after the worker has requested an assessment of the worker's degree of permanent whole of person impairment.
3. By reg 23(6), if an application is made to the Director in the circumstances described in s 93M(4)(d)(i) or (ii) of the Act, the application must be accompanied by a copy of the worker's request for an assessment of the worker's degree of permanent whole of person impairment and, if the specialist has notified the worker that it would be impractical to give the documents required by s 146H within seven days of the termination day, the worker must also provide that notice to the Director.
4. By s 93M(8) of the Act, an extension of the termination day may be granted even though the termination day has passed.[85] Thus, for example, an extension might be sought if the termination day expired without the worker having been informed of the termination day and its future expiry in accordance with s 93O(1)(a) and (b). Although there is power to grant an extension of the termination day even though the termination day has passed, any application for an extension must still be in accordance with the Act and the Director has no power to extend other than in accordance with the provisions of the Act.
5. The extent to which the Director can extend the termination day under s 93M(4) is not unlimited. Section 93M(6) provides that, except in the circumstances described in s 93M(4)(d), an extension under s 93M(4) 'is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection'. That is, the time cannot be extended under any of s 93M(4)(a), (b) or (c) beyond one year after the day on which the termination day would have fallen if no extension had been granted.[86]
6. In general terms, the effect of s 94M(6) in its application to s 93M(4)(a), (b) and (c), is that the legislature has considered that an additional year, beyond what would otherwise have been the termination day, but no more, is sufficient to enable the worker to make an election in circumstances where:
   1. An approved medical specialist had certified that an extension was required because the worker's condition had not, at the time of the certification, stabilised sufficiently for the purposes of making an election, and had recommended that a further specified time was necessary for that purpose (s 93M(4)(a)).
   2. The worker was not given the requisite notice by the employer containing information relevant to the making of an election (s 93M(4)(b)).
   3. The worker had requested the requisite documents, but the approved medical specialist required or indicated that they required, more than the specified time (of six weeks) to provide the requisite documents.
7. On the other hand, the effect of s 93M(6), in its application to s 93M(4)(d), is to allow the Director to extend the termination day (even beyond the one‑year period in relation to applications under s 93M(4)(a), (b) and (c)), 'for as long as the Director considers necessary to give the worker an opportunity to make an election'. It indicates that, in the contemplation of the legislature, where s 93M(4)(d) applies, the worker has not had a proper opportunity to make an election. The circumstances which enliven the power under s 93M(4)(d) are, broadly speaking, where the Director is satisfied that the worker has (effectively through no fault of his or her own) sought the requisite documents within time and in accordance with the Regulations, but the requisite documents are not made available to the worker at least seven days before the termination day, thereby effectively prejudicing the worker's ability to consider whether to make an election, and to make one, before the termination day.

1. Ground 1, and the oral and written submissions in support of it, are ultimately to the effect that (1) Mr Armet's failure to make an election and to have the election registered for the purposes of s 93K(4)(a) and (b) of the Act was the fault of Mr Armet's former solicitors and/or the Director, and (2) the application of s 93K(4) would not produce a fair or just result to Mr Armet in the circumstances and, accordingly, s 93K(4) should not be taken to apply to the circumstances of his case.
2. These arguments have no merit. Section 93K(4) applies according to its terms, irrespective of the reasons why the election was not made and registered in accordance with the Act. Mr Armet's rights are governed by the provisions of the Act, and there is no broader consideration of justice which Mr Armet can invoke in order to circumvent the operation of the Act. On the proper construction of the Act, the Director did not owe Mr Armet any duties alleged by Mr Armet. In any event, there was no evidence of any impropriety or neglect by the Director or Mr Armet's former solicitors. In relation to Mr Armet's former solicitors, they effectively sought an extension of the termination day to 12 February 2017 consistently with the approved medical specialist's recommendation that the termination day be extended to that date.
3. The true question remains, however, whether Stone DCJ was correct to strike out Mr Armet's proceedings in the circumstances.
4. In Gable, Deputy Registrar Hewitt referred to, and distinguished, the decision of this court in St John of God Health Care Inc v Austin,[87] which was decided at a time when s 93K(4) was materially differently worded. In Austin, the worker alleged that she was injured on 18 June 2008. At that time, s 93K(4) of the Act provided:[88]

(4) Damages in respect of an injury can only be awarded if -

(a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and

(b) the Director registers the election in accordance with the regulations; and

(c) court proceedings seeking the damages are commenced within -

(i) the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or

(ii) any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;

(d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. (emphasis added)

1. In Austin, the majority held that under s 93K(4)(c)(i) of the Act (as it then stood) proceedings were required to be commenced by no later than 30 days after the Director gave the worker notice that the election had been registered. Proceedings were not required to be commenced during the 30‑day period commencing with the giving of the Director's notice that the election had been registered and expiring 30 days after that date. Accordingly, it was held that s 93K(4)(c)(i), as it then stood, did not preclude the recovery of damages in proceedings commenced prior to the making and registration of an election. The only limitation was that any proceedings had to be commenced by no later than 30 days after the Director gave the worker written notice of the registration of the election.
2. Section 93K(4) had been amended to its current form prior to the decision in Austin. The amendment was effected by s 96 of the Workers' Compensation and Injury Management Amendment Act 2011 (WA) as follows:
   1. Section 93K amended

Delete section 93K(4)(c) and 'and' after it and insert:

(c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election[.]

1. In Kieronski, referred to by Mr Armet in his submissions, Deputy Registrar Harman declined to apply the reasoning in the two Gable cases. In Kieronski, the plaintiff commenced proceedings seeking damages for alleged psychiatric injury suffered in the course of her employment. No election had been made or registered. The plaintiff contended, in effect, that the reasoning in Gable No 2 was inapplicable because (1) s 93B(1) provided that div 2 of pt IV applied where, relevantly, 'compensation has been paid or is payable' in respect of the injury under the Act, and (2) the plaintiff in that case had not received compensation, and compensation was not 'payable', as she was awaiting a determination as to whether she had any entitlement to compensation. Deputy Registrar Harman accepted the plaintiff's contentions, and said:[89]

The defendant proposed that the reasons for decision of Parry J [sic] in Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 provides support for the proposition that it should succeed in the application. In that case the court awarded summary judgment to a defendant in circumstances where the plaintiff had not complied with s 93K(4). There is nothing in the reasons for decision that suggest consideration had been given to s 93B(1). The defendant did not suggest that the determination was binding.

1. Deputy Registrar Harman was apparently not referred to the decision of this court in Mokta v Metro Meat International Ltd.[90] In that case, the court considered the proper construction and application of s 93B(1) of the Act as it then stood. Section 93B(1) was then in materially identical terms to its present form, save that it referred to 'disability' rather than 'injury'. Section 93B(1) then provided:

(1) This Division applies to the awarding of damages against a worker's employer independently of this Act in respect of a disability suffered by a worker if -

(a) the disability was caused by the negligence or other tort of the worker's employer; and

(b) compensation has been paid or is payable in respect of the disability under this Act, or would have been paid or be payable but for section 22.

1. In Mokta, the plaintiff brought proceedings in the District Court for common law damages in respect of alleged injuries suffered in the course of her employment caused by the negligence of the employer.[91] At the time, s 93C, read with s 93E, prohibited a court from awarding damages unless the worker's disability was agreed or determined to be 16% or more.[92] The plaintiff alleged that she suffered a disability of more than 16%. This was disputed by the employer, and the plaintiff said she would refer the dispute for determination. The plaintiff did not, however, refer the dispute for determination and no determination was made. She then filed the writ in the action, and the employer applied to strike it out. The primary judge initially stayed the proceedings to allow the plaintiff to have her level of disability determined.[93] The plaintiff then applied to the Director to determine her entitlement to compensation. Her application was dismissed by a Review Officer on the basis of non‑compliance with s 84I of the Act as it then stood (requirement to give notice) and s 64 of the Act as it then stood (failure to submit to a medical examination).[94]
2. After the claim for compensation was dismissed, the plaintiff then sought, in effect, to revive the proceedings which she had commenced. She contended that the constraints on the award of damages in div 2 of pt IV of the Act did not apply to her. That was because compensation was not 'payable' within the meaning of s 93B(1) because the Review Officer had rejected her claim for compensation as a result of her non‑compliance with s 64(1) and s 84I.[95] The court rejected the plaintiff's argument and said, in effect, that the plaintiff's right to compensation was not 'enforceable' by reason of s 64(1) and s 84I, but that this did not mean that compensation was not 'payable' for the purposes of s 93B(1).[96] Pullin JA (with whom Steytler P & Wheeler JA agreed) said:[97]

Sections 18 and 21 of the Act have the effect that an employer comes under a 'liability to pay' compensation ipso facto from the date of incapacity resulting from the disability. Once such incapacity is suffered, compensation is 'payable' instanter.

1. Similar reasoning is applicable to s 93B(1) in its current form. Section 93B(1) does not mean that the provisions of subdiv 3 of div 2 of pt IV of the Act are not applicable unless and until either compensation had been paid under the Act, or there is a determination that the worker is entitled to be paid compensation. In particular, compensation is 'payable' for the purposes of s 93B(1)(b) if and as soon as the worker has suffered an 'injury' (as defined in s 5) resulting in total or partial incapacity.[98] Those matters may be admitted or proven in proceedings in which they are a relevant issue between the parties, prior to payment of compensation, or without a determination under the Act that the worker is entitled to recover compensation under the Act.
2. Two further decisions should be mentioned, although they were not referred to by the parties. In Gordon v Berowra Holdings Pty Ltd,[99] the New South Wales Court of Appeal addressed the operation of s 151C(1) of the Workers' Compensation Act 1987 (NSW), which provided:

A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

1. In that case, the worker commenced proceedings prior to the expiration of the six‑month period after which notice of the injury had been given to the defendant. No point was taken by the defendant, and the parties ultimately settled the proceedings pursuant to an offer of compromise, which was accepted. After the acceptance of the offer, the defendant sought to file a defence pleading a contravention of s 151C(1) and contended that the proceedings were a nullity. The Court of Appeal found that the proceedings were not a nullity. Nevertheless, the court said:[100]

A defendant faced with a clear breach may move for summary dismissal. The court has no power to excuse non-compliance or to grant leave for the proceedings to continue. Most of the cases referred to above involved clear cases with no suggestion of waiver on the defendant's part. In many of them the only issue was whether the facts fell within the exceptional categories provided in s 151C(2) and its counterparts.

It is, however, fallacious to conclude that proceedings in breach have failed to engage the jurisdiction of the court, or are a nullity. The remarks of Glass JA in National Mutual Fire Co Ltd, referred to by the primary judge and relied on in this Court by the defendant, recognise that an additional inquiry must always be made. This is whether one can discern from the legislative scheme an intention that invalidity or nullity will be the consequence of non-compliance with a prohibition, however clearly it is expressed. Glass JA observed that the word 'mandatory' can be used in differing senses.

1. An appeal to the High Court was dismissed: Berowra Holdings Pty Ltd v Gordon.[101] The plurality said:[102]

The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.

The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The 'right' which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.

Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a 'nullity'. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is 'rights' in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.

The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms. (footnote omitted)

1. In this case, s 93K(4) of the Act was applicable, pursuant to s 93B(1), given that it was common ground that (1) Mr Armet was a worker within the meaning of the Act, and (2) he had suffered an injury (within the meaning of s 5) to his lower back on or about 18 March 2015, resulting in incapacity.
2. Mr Armet's cause of action, on which he sued the employer, was complete on or about 18 March 2015, when he suffered the back injury in the course of his employment allegedly through the negligence of the employer. The other injuries alleged in the statement of claim were alleged to be consequential upon the back injury. The applicable limitation period to the cause of action was three years.[103]
3. Section 93K(4)(c) of the Act provides that damages can only be awarded if proceedings are 'commenced after' the Director gives the worker written notice of the registration of the election. The Director can only in turn give written notice after an election has been made and registered: s 93K(4)(a) and (b). There is no dispute that in this case, the primary proceedings were commenced by Mr Armet before Mr Armet had made an election and had it registered in accordance with the Act.
4. Whilst s 93C of the Act does not preclude a worker from commencing an action for damages,[104] s 93C, read with s 93K(4)(c), provides, in effect, that the court is not to award damages unless the proceedings in which the damages are claimed are commenced after the Director gives the worker written notice that the Director has registered the requisite election. It is unnecessary to decide for present purposes (there being no debate on the matter) whether s 93K(4)(c) operates as a substantive prohibition directed to the court in which the damages are claimed, or whether it operates to give the employer the right to require any such proceedings to be brought in conformity with s 93K(4) to be exercised in accordance with the procedural rules of court.[105]
5. In this case, at least once the point was taken by the employer that s 93K(4) of the Act had not been complied with, Mr Armet could not properly continue to use the court's processes in the primary proceedings to obtain an award of damages contrary to s 93K(4). The continuation of the primary proceedings contrary to the legislative scheme governing the award of such damages would bring the administration of justice into disrepute.[106] In other words, at least once the point was taken by the employer in the circumstances of this case, the continuation of the primary proceedings constituted an abuse of process[107] and the proceedings were amenable to being struck out.[108] Stone DCJ was correct to strike out the primary proceedings.
6. That is sufficient to dispose of ground 1, although it may also be observed that as at 31 October 2018, Mr Armet had, in any event, lost any prospect of making an election and having it registered in accordance with s 93K(4)(a) and (b) of the Act. By s 93M(6), there could be no extension beyond one year after the day that would have been the termination day had there been no extension - in this case 30 July 2016 - unless the circumstances in s 93M(4)(d) applied, and the circumstances which would enliven the Director's power to extend time under s 93M(4)(d) did not apply. Mr Armet had obtained an extension of the termination day to 12 February 2017. That date became the termination day for the purposes of any application for a further extension under s 93M(4)(d) of the Act. Mr Armet did not, however, request either a 'normal evaluation' in the time and in accordance with the Regulations as required under s 94M(d)(i), or a 'special evaluation' in the time and in accordance with the Regulations as required under s 94M(d)(ii) and in accordance with the provisions of s 93N(1) and (4).
7. There is no merit in ground 2. Having considered the transcript of the hearing, both before Deputy Registrar Hewitt and Stone DCJ, there is no basis upon which it could arguably be said that Mr Armet was not afforded procedural fairness. In particular, there is no evidence of bias or apprehended bias.
8. Ground 3 also lacks merit. The single issue before Stone DCJ concerned the proper construction and application of s 93K(4) of the Act, against a background in which the material facts were not in dispute. There was no material error in not referring to other affidavits of Mr Armet, or in failing to take into account allegations such as negligence, wrongdoing, past misconduct and financial hardship to Mr Armet. There was no discretion in the District Court to, in effect, waive the operation of s 93K(4) of the Act. None of the matters referred to by Mr Armet in relation to ground 3 has any bearing on the proper disposition of the appeal.

1. The first six interlocutory applications of Mr Armet to adduce further evidence in this appeal should be dismissed. The documents referred to in [93.1] and [94] are already within the Green Appeal Book. The document referred to in [93.2] is in the Blue Appeal Book. The documents referred to in [93.3], [95], [96] and [99] are not evidence of anything. The documents referred to in [9[109]] and [98] are, at least for the most part, not fresh evidence109 or relevant to any issue in the appeal. Further, there is nothing to indica[110]that there was a significant possibility that the materials would lead to a different result if admitted.110
2. Also, Mr Armet's application filed 23 September 2019 has no merit insofar as it is alleged that the documents justify the grant of a stay of this court's orders of 13 September 2019. The documents are irrelevant to the operation of this court's orders of 13 September 2019.
3. As to the application dated 11 October 2019, the document marked 'A.1' may be received as part of Mr Armet's submissions. The document marked 'A.2' has no relevance and should not be received.

1. None of the grounds of appeal has any reasonable prospect of succeeding, and none of Mr Armet's interlocutory applications to adduce additional evidence has any merit. The orders should be:
   1. The appellant's applications filed 2 January 2019, 13 February 2019, 19 July 2019, 28 August 2019, 23 September 2019 and 4 October 2019 are dismissed.
   2. The appellant have leave to file the application dated 11 October 2019 and rely on the document marked 'A.1' referred to in that application, and that application is otherwise dismissed.
   3. Leave to appeal is refused.
   4. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] The primary decision appears at ts 140 - 150, 31/10/18 (primary decision ts).

[2] Armet v CFC Consolidated Pty Ltd [2018] WADC 71 (Armet).

[4] No orders were formally extracted: see the letter of Acting Principal Registrar Kingsley to Mr Armet dated 20 July 2018, the handwritten notes of Deputy Registrar Hewitt on the Case Management Hearing Information Sheet dated 5 July 2018, and ts 38, 05/07/18.

[5] Orders of Stone DCJ in chambers dated 31 October 2018; BB 1.

[6] Section 5 of the Act defines 'Director' as the officer of WorkCover WA designated as the Director, Conciliation.

[11] Primary decision ts 142; GB 147 - 148.

[12] Primary decision ts 142; GB 150 - 160.

[15] Primary decision ts 141; Armet [1].

[16] Primary decision ts 141; statement of claim filed 26 February 2018; BB 11 - 15.

[19] Amended statement of claim filed 3 September 2018, annexure A, par 3, BB 21.

[28] Gable v Steel Cap Recruitment Pty Ltd [2016] WADC 151. An appeal to Parry DCJ was dismissed: Gable v Steel Cap Recruitment Pty Ltd [No 2] [2017] WADC 10 (Gable No 2).

[29] Armet [3] - [4] citing Gable [2] - [3].

[32] Deputy Registrar Hewitt was presumably intending to refer to s 93E(6) of the Act. However, s 93E is in subdiv (2) of div 2 of pt IV and not subdiv (3) of div 2 of pt IV of the Act.

[37] Primary decision ts 65, 68 - 70, 72 - 73, 79 - 80.

[46] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [49] ‑ [54].

[47] Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171, 178; Catholic Education Office of WA v Granitto [2012] WASCA 266 [22].

[48] By the Government Gazette WA (42 of 2004) dated 31 December 2004, s 79 of the Workers' Compensation Reform Act 2004 (WA) came into operation on 1 July 2005.

[49] Appellant's written submissions, pars (b), (d), (e); WB 8.

[50] Appellant's written submissions, pars (a) - (c); WB 9.

[51] Appellant's written submissions, par (d), WB 9 - 10 citing Nocton v Lord Ashburton [1914] AC 932.

[52] Appellant's written submissions, par (e); WB 10.

[53] Appellant's written submissions, par (f); WB 10 - 11.

[54] Appellant's written submissions, par (g); WB 11.

[55] Appellant's written submissions, par (a), WB 11.

[56] Appellant's written submissions, pars (c) - (d), WB 12.

[57] Appellant's written submissions, par (a); WB 13 citing, eg, Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

[58] Appellant's written submissions, par (b); WB 13; see also pars (a) - (c); WB 14.

[59] Appellant's written submissions, par 2.4; WB 14.

[60] Appellant's written submissions, par 2.5; WB 15 citing Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

[61] Appellant's written submissions, pars (a) - (e); WB 15 - 17.

[62] Appellant's written submissions, par 3.2; WB 17 citing Kieronski v Woodside Energy Ltd [2017] WADC 151.

[63] Appellant's written submissions, par (a); WB 17.

[64] Appellant's written submissions, par (a); WB 17.

[65] Appellant's written submissions, pars (b) - (f); WB 17.

[66] Appellant's written submissions, pars 3.4; WB 18.

[67] On 13 September 2019, this court ordered (1) that the appellant's application filed 5 September 2019 (in effect to adjourn the hearing of the appeal and vacate the hearing date) is dismissed, and (2) the appellant is to pay the respondent's costs fixed in the sum of $750.

[68] Re Luck [2003] HCA 70; (2003) 203 ALR 1.

[70] Engine Protection Equipment Pty Ltd v Miller [2018] WASCA 55 [46].

[71] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 [21].

[72] cf Thomas Peacock & Sons Pty Ltd v Abreu [2013] WASCA 19 [30].

[73] Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152 [28] ‑ [30].

[75] Acebrook Corporation Pty Ltd v McEwan [2014] WASCA 162 [6] - [10]; Re White; Ex Parte Cunningham [2015] WASC 349 [14].

[80] An 'approved medical specialist' is a medical practitioner who has been designated as such by WorkCoverWA by order published in the Government Gazette: s 146F(1) of the Act.

[81] See s 93O(1)(d) of the Act, read with reg 24.

[82] In the case of a 'normal evaluation', the specified time is effectively six weeks: s 93M(4)(d)(i) and s 93O(1)(d) of the Act, read with reg 24. In the case of a 'special evaluation', the specified time is seven weeks: s 93M(4)(d)(ii) of the Act.

[87] St John of God Health Care Inc v Austin [2014] WASCA 11; (2014) 46 WAR 208.

[90] Mokta v Metro Meat International Ltd [2005] WASCA 143.

[98] See s 18 and s 21 of the Act, and Engine Protection [49] - [54].

[99] Gordon v Berowra Holdings Pty Ltd [2005] NSWCA 27; (2005) 62 NSWLR 427.

[101] Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364.

[102] Berowra Holdings [34] - [37].

[103] Section 14(1) of the Limitation Act 2005 (WA) (unless an extension of time were given: s 39 of the Limitation Act).

[106] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [15].

[108] Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 95.

[109] cf Saunders v The Public Trustee [2015] WASCA 203 [88].