BHP BILLITON IRON ORE PTY LTD -v- BRADY [2008] WASCA 250 (4 December 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BHP BILLITON IRON ORE PTY LTD -v- BRADY [2008] WASCA 250

Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA

Workers' compensation - Appeal to commissioner from arbitrator's decision about respondent's degree of disability - Whether there was a question of law involved - Whether the commissioner should have granted leave to appeal

Workers' Compensation and Injury Management Act 1981 (WA), s 247, s 254

2 PULLIN JA: This is an application pursuant to s 254 of the Workers Compensation and Injury Management Act 1981 (WA) ('the Act') for leave to appeal against a decision of Commissioner Nisbet who dismissed an appeal from an arbitrator's decision. The arbitrator made a finding that, within the meaning of s 93E of the Act, the respondent's degree of disability as a result of a workplace injury was 'not less than 16%'. This gave the respondent a right, subject to the provisions of the Act, to a possible award of common law damages.

The appellant had to demonstrate that a 'question of law was involved'

3 The appellant wished to appeal the arbitrator's decision but s 247(1) of the Act states that a party to a dispute may appeal only with the leave of the commissioner. Section 247(3) of the Act states that the commissioner may grant leave to appeal from a decision of an arbitrator on a matter referred under s 93D(10) if the appeal 'involves a question of law'. To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred. See Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [34] and Woolworths (WA) Ltd v Liquorland (Australia) Pty Ltd (Unreported, WASCA, Library No 940553, 7 October 1994) (Anderson J).

4 The relevant facts can be stated in just a few sentences. The respondent alleged that he was injured at work. A dispute arose about the extent of the resultant disability and the arbitrator had to decide whether or not the respondent's degree of disability as a result of the injury was 'not less than 16%'. He had before him medical reports from Dr Kennedy, Dr Kagi and Dr Silbert. Different opinions were expressed by these doctors about the respondent's degree of disability. If the arbitrator accepted Dr Kennedy's report in preference to the other reports, then he would find that the respondent's degree of disability was not less than 16%. If the arbitrator preferred the opinions of Dr Kagi or Dr Silbert (either together or any one of them) in preference to Dr Kennedy's report, then he would find that the degree of disability was less than 16%. The arbitrator considered all of the reports, preferred Dr Kennedy's opinion that the degree of disability was more than 16% and expressed the opinion that Dr Kagi and Dr Silbert's reports were of 'little assistance' to him. In other words the arbitrator gave the opinions of Dr Kagi and Dr Silbert little weight.

The alleged error by the arbitrator was an alleged error of fact

5 The finding made by the arbitrator about the level of disability was a finding of fact based on an assessment of the weight to be given to the competing reports. The appellant, in effect, sought to demonstrate that the arbitrator's assessment of the weight to be given to the reports of Dr Kagi and Dr Silbert was erroneous. If such an error were made, it was not an error of law. As Brennan J said in Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54, 77 'There is no error of law simply in making a wrong finding of fact'. See also R v District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, 654. Both of those authorities were cited with approval by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356. See also Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 where Kirby P said:

If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another.

To similar effect see Glass JA, 155 - 156, Samuels JA agreeing.

6 The commissioner at the beginning of his reasons said:

The applicant submitted that there were four questions of law involved, namely:

1. Whether the arbitrator had sufficient evidence before him to make a determination that the respondent had a level of disability of not less than 16%.
2. Whether the arbitrator's reasons were adequate.
3. Whether the applicant was denied natural justice.
4. Whether or not the arbitrator's determination was so arbitrary as to be wholly unreasonable in the Wednesbury sense of unreasonableness.

These are indeed questions of law and I am accordingly bound to grant leave to appeal pursuant to the provisions of s 247(2) of the Act. [3] - [4]

7 Under s 247(3) of the Act, the commissioner had a discretion as to whether or not he would grant leave. The commissioner was not 'bound' to grant leave. The grant of leave was somewhat surprising, particularly in relation to the third 'question', because in [6] of his reasons the commissioner recorded that at the commencement of the hearing of the appeal the ground alleging a failure to afford the appellant natural justice was abandoned. The grant of leave was also surprising in view of the commissioner's reasons for dismissing the appeal as revealed below.

8 The appellant's grounds of appeal before the commissioner read:

1. The arbitrator erred in law in making a finding unsupported by any evidence, in holding that the reports of Dr Joel Silbert (and assessments of permanent disability contained within) were unreliable and should be ignored because of the reference to deterioration, given that:

(a) there was no evidence Dr Silbert failed to factor this deterioration into his assessment;

(b) there has always been a recognition that permanence is to be dealt with in the context of the (then) current condition of the worker.

1. The arbitrator erred in law in failing to provide adequate reasons (in fact any reasons at all) for failing to have regard to the assessment of permanent disability of Mr John Kagi contained in his report dated 27 May 2003.
2. [Natural justice ground abandoned]
3. The arbitrator erred in law in making a decision that the evidence satisfied the statutory criterion of not less than 16% degree of permanent disability according to section 93D(2) and (10) of the Act, on the basis that it was so arbitrary as to be wholly unreasonable, such that it could not be considered to be a decision properly made under that section.

In the circumstances therefore it is a little difficult to see why the arbitrator attached little or no weight to Dr Silbert's opinion. Certainly, I would not have disregarded or attached as little weight to it as the arbitrator appears to have done. The consequences of this are a different matter entirely and I will deal with them later in this judgment. [13]

I would not have discounted Dr Kagi's first opinion in the manner in which the arbitrator seems to have done. In other words I would have attached different weight to it than the arbitrator has. Again however what the consequence of this is will be seen later in this judgment. [19]

As can be seen from these reasons I agree with the applicant's complaints about the arbitrator's analysis of the reports of each of Drs Silbert and Kagi but the fact of the matter was that he had cogent, clear, unequivocal evidence before him upon which he was entitled to rely, if he so chose, to find that the respondent had a level of disability of not less than 16%. [23]

12 Then at [25] the commissioner, dealing with all the grounds, said:

[T]he choice was between Dr Kennedy's opinion on the one hand, and opinions he chose not to attach much weight to if at all. Even if the decision to attach no or little weight to the other competing opinions was for reasons which look a little surprising upon a close analysis of them, the only way in which the arbitrator's decision can be overturned is if there was no evidence upon which he could have acted. This cannot be said in this case and accordingly ... the arbitrator's decision must stand and the appeal will be dismissed. [25]

13 The commissioner's conclusion was in effect, that there was no question of law involved. That conclusion was correct. The conclusion meant that the commissioner should have refused leave to appeal rather than have granted leave. If the commissioner had considered the proposed grounds first and reached the conclusion that he did, namely that there was no question of law involved, he should have then concluded his reasons by rejecting the appellant's assertions about what questions of law were involved and refused leave to appeal.

14 In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either:

(a) grant leave and uphold or dismiss the appeal, or

15 The commissioner erred in granting leave on the basis that 'a question of law was involved' in relation to the four points which were asserted by the appellant. The commissioner was not bound to accept that questions of law were involved merely because the appellant asserted there were such questions. In another but analogous context, namely whether a notice should be given under s 78B of the Judiciary Act 1903 (Cth), a case does not 'involve' a matter arising under the constitution or

involving its interpretation merely because someone asserts that it does. See Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [14] (Gummow, Hayne & Callinan JJ). Furthermore, a decision does not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond, 353.

16 The appellant's assertion that there were questions of law involved should have been rejected by the commissioner once he concluded that, in effect, there was no question of law involved in the complaint that the arbitrator erred in rejecting the opinions of Drs Silbert and Kagi. If the commissioner had not dealt with the leave application first but waited until he had formulated his reasons on the proposed grounds of appeal, he would have refused leave.

17 If the respondent had cross-appealed against the grant of leave, that appeal would have succeeded and in lieu there would have been an order refusing the appellant's application for leave to appeal to the commissioner. However, there was no cross-appeal, so the grant of leave remains. That does not assist the appellant in this court because the order of the commissioner dismissing the appeal was correct. It was correct because the commissioner decided, not in these words, but in effect that, contrary to his grant of leave, there was no question of law involved in the appeal. In effect, the commissioner concluded that the appellant was only trying to raise questions of fact.

18 The appellant's grounds of appeal allege that the commissioner erred in finding the arbitrator 'mistreated' the reports of Drs Silbert and Kagi, that the commissioner misconstrued s 247 of the Act and 'should have found' that he could review the arbitrator's decision. The commissioner correctly concluded that the issues raised on appeal involved questions of fact and the arbitrator did not 'mistreat' the reports of the two doctors, but merely made a finding of fact. The commissioner was correct to find that he could not review the arbitrator's decision. As a result, the appeal to this court is not 'on a question of law' as required by s 254(1) of the Act. As a result, leave to appeal to this court should be refused.

19 BUSS JA: I agree with Pullin JA that leave to appeal should be refused. Subject to the observations set out below, I agree with his Honour's reasons.

20 Section 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) conferred on the appellant a conditional right to appeal to the commissioner against the decision of the arbitrator. The right of appeal was conditional on the commissioner granting leave. Section 247(3) applied to the appellant's application to the commissioner for leave. Compare s 247(2). By s 247(3), the commissioner may grant leave to appeal from a decision of an arbitrator on a matter referred under s 93D(10) if the appeal involves a question of law. The power to grant leave under s 247(3) is conferred in general terms. It is qualified only by the requirement that the appeal involve a question of law. It is unnecessary, in this appeal, to determine the nature or extent of the commissioner's discretion under s 247(3) to grant or refuse leave where he or she is satisfied that the appeal involves a question of law. The point was not argued before this court. My preliminary view is that if there is a question of law involved, the commissioner should grant leave under s 247(3) if, in all the circumstances of the particular case, it is in the interests of justice that there be a grant of leave.