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[2016] WASCA 112
General information, not legal advice.
Court of Appeal (WA)
2016-07-05
Newnes JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : ERCEG -v- GALATI NOMINEES PTY LTD [2016] WASCA 112
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Workers' compensation - Claim for compensation by appellant - Whether appellant's employment had terminated before alleged accident - Turns on its own facts
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Catholic Education Office of WA v Granitto [2012] WASCA 266
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300
1 JUDGMENT OF THE COURT: This is an appeal from a decision of Herron DCJ in the District Court, who dismissed the appellant's appeal from the decision of an arbitrator under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The appeal is before the court on a registrar's notice to attend:
2 It is necessary before dealing with the issues that arise in respect of the registrar's notice to describe the relevant background to the appeal.
3 The appellant had been employed by the respondent as a team leader in its market gardening business. He had worked on and off for the respondent for many years. On this occasion, he had worked for about 8 years up to June 2013.
4 It was common ground that there was a telephone conversation between the appellant and Mr Tony Galati, the managing director of the respondent, on 6 June 2013. What occurred in the course of that conversation was in dispute before the arbitrator. The respondent alleged that the appellant had resigned from his employment. That was denied by the appellant. It was also common ground that the following day the respondent had paid the sum of $9,525.27 to the appellant. The respondent said it was payment for hours worked, and annual and long service leave upon the termination of the appellant's employment. The appellant, on the other hand, said that it was six months of bonus payments owed to him by the respondent.
5 On 10 June 2013, the appellant consulted his general practitioner, Dr De Almeida, and told her that he had slipped over and injured himself at work that morning. He complained of severe pain in his lower back, radiating down his left thigh. A CT scan revealed a disc protrusion and nerve root impingement.
6 On the same day, the appellant gave an envelope containing a hand-written letter and a medical certificate for a worker's compensation claim to Ms Sindy Goodhew, the commercial manager for the Galati group. In the letter, the appellant stated that if the respondent did not 'put this workers comp through', he would become a whistle-blower and report various alleged incidents to Worksafe and the Department of Immigration. The appellant demanded payment of $10,000 for his 'loyalty (silence)'. In the letter the appellant said, among other things:
I could not believe that after eight years of loyal service and working my guts out that [Mr Galati] has done this ... I am still in shock he has done this ... [Mr Galati] will find out in the next few weeks when it is busy how much I was really worth.
7 The respondent reported the matter to the police. The appellant was subsequently charged with demanding property by written threats. On 11 February 2014, he pleaded guilty to the offence in the District Court and was fined $3,500.00. Counsel for the appellant told the court that the appellant accepted the prosecution's statement of material facts. Those facts included a statement that, on 6 June 2013, the appellant had a heated verbal argument with one of the owners of the respondent 'resulting in the [appellant] walking off the job, indicating that he no longer wished to work for the company. The [appellant] was paid out including his long service leave.'
8 In the meantime, the appellant had applied for workers' compensation in respect of the injury he alleged he had suffered on 10 June 2013. The respondent denied liability and the matter proceeded to arbitration before Arbitrator Powles on 27 and 28 November 2014.
9 The appellant's evidence before the arbitrator was that he telephoned Mr Galati on 6 June 2013 to raise concerns about the behaviour of some backpackers employed by the respondent. Although he admitted that the conversation turned into a 'yelling match', the appellant denied that he resigned or that his employment was terminated. The appellant said the payment of $9,525.27 made to him on 7 June 2013 was not a termination payment but payment of six months of bonuses pursuant to an arrangement he had previously made with Mr Galati. He rejected the respondent's contention that that was not borne out by the respondent's time records, claiming that the clocking-in device at the respondent's premises was unreliable and a cause of complaint by the respondent's employees. The appellant said that the sum of $10,000 he had demanded in the letter of 10 June 2013 was the balance of the bonus payments owing to him.
10 Mr Galati's evidence was that a telephone conversation had taken place on 6 June 2013 but that it had concerned an allegation that the appellant was charging the backpackers a fee to drive them to and from work. According to Mr Galati, in the course of the conversation the appellant resigned. Staff of the respondent immediately calculated the termination payment to which the appellant was entitled, an amount of $9,525.27, and it was paid to him the following day.
11 Mr Galati was cross-examined about inconsistencies between his witness statement in the proceedings and a statement, dated 28 June 2013, that he had made to police in connection with the criminal prosecution of the appellant. In the police statement, Mr Galati said that the appellant had telephoned him on 6 June 2013 to discuss his current work related activities, and Mr Galati told the appellant that he would no longer be paying him a bonus of $10 per hour. He said the dispute over the bonuses resulted in the appellant's resignation. Mr Galati told the arbitrator that the version in his witness statement in the proceedings was correct.
12 The arbitrator found that the appellant had ceased to be employed by the respondent after 7 June 2013 and dismissed the claim.
13 The arbitrator noted that the primary issue in the arbitration was a factual question as to whether the appellant's employment had been terminated prior to 10 June 2013.
14 The appellant's contention that the payment of $9,525.27 was in respect of bonus payments was not accepted by the arbitrator, who noted that the amount the appellant was paid accorded with the amount the respondent's records showed he was entitled to on termination for ordinary hours worked and annual and long service leave. The arbitrator observed that an assertion by the appellant that those records were fabricated was not supported by any other evidence. She accepted that the records were authentic.
15 The arbitrator accepted the evidence of Mr Stewart, a former employee of the respondent, that on Saturday, 8 June 2013, he and the appellant had gone to a property where market gardening was carried on by the respondent, but did not accept Mr Stewart's evidence that the appellant had assisted Mr Galati to load a truck or that the appellant had been told by Mr Galati what work he was to do on the following Monday. The arbitrator noted that Mr Stewart did not see what the appellant was doing while they were at the property and was simply relying on what he was told by the appellant. The arbitrator was not satisfied that the appellant assisted in the loading of a truck or received instructions about work on the following Monday. The arbitrator also noted that even if the appellant had met with Mr Galati that day, that did not establish that the appellant was still an employee.
16 The arbitrator also referred to evidence from another former employee of the respondent, Mr Finlayson, concerning the unreliability of the respondent's finger scanning device for clocking on and off for work. The arbitrator accepted that that equipment was sometimes inaccurate but noted that, on 10 June 2013, it had recorded the starting and finishing time of 61 other employees and considered it would be an extraordinary coincidence if on that occasion it had omitted only the appellant's attendance.
17 A claim by the appellant that if his employment had been terminated on 6 June 2013 he would still be working out his period of notice on 10 June 2013 was rejected by the arbitrator. The arbitrator found that the contents of the letter the appellant gave to Ms Goodhew on 10 June 2013 and the facts admitted by the appellant at the time of sentencing in the District Court were consistent with his employment relationship having terminated prior to 10 June 2013 [54].
18 The arbitrator described the evidence that the appellant had resigned on 6 June 2013 as 'compelling'. The arbitrator concluded that the appellant had not established that he was employed by the respondent after 7 June 2013 [55] - [56].
19 Although in light of that finding it was unnecessary to do so, the arbitrator went on to say that she was also not persuaded the appellant was present at work on 10 June 2013 when the accident was said to have occurred. The arbitrator noted that there were no witnesses who saw him at work that day and the daily time sheet report from the finger scanning machine did not record that he clocked on that day.
21 On 18 April 2015, the appellant filed a notice of appeal in the District Court. The respondent applied to strike out the grounds of appeal, contending that they did not involve any question of law as required by s 247(2) of the Act. The appellant was given leave to file and serve amended grounds of appeal within 21 days. Amended grounds of appeal having been filed, the respondent again applied to strike them out on the same basis.
22 On 18 November 2015, the respondent's application came before the primary judge. His Honour directed that the matter proceed as the hearing of an application for leave to appeal, and if leave was granted, a hearing of the appeal. At the conclusion of the hearing, his Honour dismissed the appellant's appeal.
23 The primary judge observed that the notice of appeal did not appear to identify any question of law but considered that the following grounds of appeal emerged from the appellant's oral submissions:
24 The primary judge found that all of the material findings of the arbitrator were findings of fact only. An appeal in respect of those findings would involve a question of law only if there was no evidence to support them. The appellant had failed to establish that. His Honour rejected the appellant's contentions that the arbitrator had failed to give adequate reasons for accepting Mr Galati's evidence in preference to the appellant's and that the arbitrator had failed to consider the inconsistencies between Mr Galati's witness statement and his statement to police. His Honour considered it was clear from the reasons that in accepting Mr Galati's evidence the arbitrator had relied on the other evidence which corroborated it. The finding that the appellant had resigned in the course of the telephone conversation was a finding of fact that was open to the arbitrator on the evidence. His Honour also found that the appellant's assertion that the respondent's records were fabricated had been expressly addressed, and rejected, by the arbitrator at [51].
25 The appellant's contention that the arbitrator had denied the appellant procedural fairness by ruling that the computer and business records of the respondent were admissible in evidence and by relying on those records, was also rejected. The primary judge gave three reasons why he rejected that contention. First, the records were admissible under s 79C of the Evidence Act 1906 (WA) without the author being called; second, they were sufficiently proved through Ms Goodhew; and third, the arbitrator was not bound by the rules of evidence in any event. His Honour also observed that there was simply no evidence that the records were fabricated.
26 The appellant also insisted that the arbitrator had misunderstood the evidence presented to her and pressed the primary judge to undertake a review of it. That was rejected. His Honour considered that such an approach was not permissible on an appeal from the decision of an arbitrator. He also noted that the appellant had failed to identify any error by the arbitrator. His Honour described the arbitrator's reasons as providing a very detailed and careful analysis of the evidence and observed that her findings of fact were strongly supported by the evidence.
27 His Honour concluded that the appellant had failed to show that the appeal involved a question of law and accordingly he refused leave to appeal and dismissed the appeal.
28 The appellant appeals from his Honour's decision.
29 The appellant relied on three grounds of appeal. They were, in substance, that:
(a) TG4 Daily Time Sheet Finger Scanner machine 10-6-2013
(b) TG2 'True Copy' Earnings History Report 3-7-2014
(c) TG3 Staff Time Card Report 365 George Erceg 1-6-2013 to 10-6-2013.
30 Under s 247 of the Act, a party may appeal to the District Court against the decision of an arbitrator only if a question of law is involved.
31 An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20]. An error of law will be involved where, among other things, findings of fact have been made or inferences drawn without any evidence to support them, but no error of law is involved in making a wrong finding or inference of fact on the evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355 - 356. An error of fact alone is insufficient.
32 As McHugh JA pointed out in Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300, 310 - 311:
If the only question in the case is whether evidence ought to be accepted ... no question of law is involved ...
It is not a rule of law that a tribunal of fact must accept the evidence of one side because it is uncontradicted or superior in cogency to the evidence of the other side ... If no more appeared in a case than that the tribunal of fact preferred the evidence of a witness of unsavoury reputation to the evidence of six bishops, no question of law would arise.
33 An appellant in an appeal to the District Court must provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20], [26]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] - [57].
34 Under s 254 of the Act, a party wishing to appeal to this court from a decision of the District Court must obtain leave and the appeal 'must relate' to a question of law: Catholic Education Office [64].
35 Against that background, we turn to the grounds of appeal.
36 We take this ground of appeal to be in fact a contention that the primary judge should have found that the arbitrator erred in admitting the documents into evidence and that she should have found they were forgeries. Plainly enough, the documents went into evidence in the proceedings before the arbitrator, not on the appeal to the primary judge. But that ground, even recast as we have suggested, has no prospect of success. First, the authenticity of the documents was a question of fact for the arbitrator. The arbitrator rejected the appellant's contentions that they were forged, as she was entitled to do. Second, there was not a scintilla of evidence before the arbitrator that the documents were forged. The highest the evidence went was that the finger scanning machine was not always reliable and therefore the respondent's time records were not always reliable. The assertion of fabrication by the appellant was no more than an assertion, without any support in the evidence.
37 It is not clear what this ground is intended to mean and regrettably the appellant's written submissions, whilst copious, cast little light on it. So far as we can make it out from the written submissions, the appellant's contention is that the primary judge should have found that in light of the inconsistencies between Mr Galati's statement to police and his statement of evidence in the arbitration, the arbitrator erred in accepting his evidence that the appellant had resigned in the telephone conversation on 6 June 2013.
38 That ground again has no prospect of success. As the primary judge observed, the finding that the appellant had resigned in the course of the telephone conversation was a finding of fact, and one that was amply supported by other evidence. It was a finding that was clearly open to the arbitrator. The appeal against the finding did not involve a question of law, as the primary judge found.
39 This ground, to the extent it is explicable, is entirely misconceived. As we understand it, it arises out of the following circumstances. In the District Court appeal, the appellant filed a document described as 'appellant's extra more detailed submissions'. In that document the appellant said that Mr Galati and Ms Goodhew had failed to disclose in their statements of evidence in the arbitration that they were in a personal relationship, that fact emerging only in the course of the appellant's cross-examination of Ms Goodhew. The appellant submitted that as that personal relationship had not been disclosed before the hearing, Ms Goodhew's evidence as to the respondent's records should have been rejected. Reference was made to an English case involving a failure to disclose a pre-existing relationship between the defendant and an expert witness.
40 In submissions in reply in the District Court appeal, the respondent submitted that this was not an issue raised in the arbitration and that it raised a new issue on the appeal. It opposed the appellant having leave to raise it on the appeal.
41 It appears the appellant has misconstrued the respondent's submission to mean that the subject of the personal relationship between Mr Galati and Ms Goodhew was not raised in the arbitration. That clearly is not what it meant. The issue that the respondent submitted had not been raised in the arbitration was whether the lack of any reference to the relationship in the respondent's witness statements meant that Ms Goodhew's evidence should not be accepted. Whether or not that issue had been raised was a matter to be determined from the record of the proceedings before the arbitrator. Our own examination of the record bears out the respondent's submission that it had not. Nor, we should add, was the contention that Ms Goodhew's evidence should not have been accepted because of the non-disclosure, the subject of a ground of appeal before the primary judge.
42 In any event, the ground of appeal identifies no error by the primary judge. Even if it were the case that the respondent's submission was false and misleading (and on the material before this court it clearly was not), that would not establish any error by the primary judge.
43 In our view, none of the grounds of appeal has any reasonable prospect of success. Accordingly, leave to appeal should be refused and the appeal dismissed. It follows that it is unnecessary to consider the appellant's application dated 4 January 2016 to adduce additional evidence on the appeal. That application must be dismissed.
(a) dismiss the appellant's application dated 4 January 2016;
Atanasoska
Inghams Enterprises Pty Ltd
(1990) 170 CLR 321