78 Accordingly, it is clear that when dealing with the matter on 16 November 2012 and giving the December decision the arbitrator was dealing with the same application as is the subject of this appeal.

79 Many of the matters referred for arbitration and before the arbitrator are not matters that I need deal with for the purposes of the present exercise, for example whether or not the report of Dr Ecker was a medical certificate for the purposes of the section.

80 The arbitrator considered in detail the onus of proof of incapacity. The arbitrator also explored in detail the medical evidence relevant to the worker. He set out in detail the relevant submissions made by the parties noting the difference of medical opinion between that of Dr Ecker and a Dr Kennedy as to the extent of any permanent impairment. He went on to say:

... but I do not consider it necessary when deciding the capacity for work issue included in this arbitration to determine the issue of the extent of any permanent impairment the applicant may have suffered. (emphasis added)

81 At [37] the arbitrator expressed his findings as follows:

I therefore accept Mr Ecker's opinion as regards the applicant's work capacity as at 24 January and 12 May 2012 and consider that by not making any attempt to find full-time, or even part-time employment, involving administrative duties, the applicant has put herself in a position of not being able to meet the onus upon her to show that she has been, or is, either totally or partially incapacitated for work as a result of the injury on 4 October 2007 such as to be entitled to weekly payments on either basis as from the time when they were terminated on 4 April 2012 (emphasis added).

82 The arbitrator dismissed the worker's application that weekly payments should not be discontinued and, returning to the application for arbitration, it follows that she was not entitled to commencement of payments from 04/04/12 and ongoing.

83 Counsel for the worker argued that the December decision was a final order in favour of the employer and, given that that matter was determined in favour of the employer and there is no appeal against that decision, the appeal against the interlocutory decision about the validity of the application therefore became futile. It is said that there could be no miscarriage of justice and therefore an appeal does not lie to correct a wrong interlocutory ruling, assuming that it was incorrect: see, for example, comments in MTI v Sul [2008] WASCA 261; MTI v Sul [2009] WASCA 70; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22.

84 Counsel for the worker argued that the arbitrator having now delivered a final decision on the s 61 application which determined the capacity for work for the period from 4 April 2012 and onwards no party was entitled to return to the arbitrator in respect of that issue unless a fresh application was made showing changed circumstances (s 62). It follows, according to counsel for the respondent, that the question of entitlement to weekly payments during this disputed period was foreclosed against the worker.

85 Counsel for the employer in supplementary submissions argued that at the hearing on 16 November 2012 the worker had sought weekly payments for the period from 4 April 2012. So much is clear from the transcript of that hearing. Counsel for the worker submitted on that day:

... I am not sure whether you are able to deal with it today ... as you have previously determined that the application before you today was made within time, the respondent should not have discontinued the weekly payments to the applicant in April and whatever decision you make today on her application before you, we would contend that those payments should be made up until that decision if not beyond and therefore we would be or we are asking an order that the payments to date are made forthwith.

86 Counsel for the employer argued that the arbitrator did not make any orders in respect of that period having noted that his decision as to the validity of the application was the subject of the current appeal. It is said that all that the arbitrator did was to dismiss the application. It was argued that he did not make any specific orders in relation to the period 4 April to 18 December 2012 and as a result it is still open to the worker to make a further application to seek payments for that disputed period.

87 I do not agree. It is quite clear from the application for arbitration that the dispute before the arbitrator included the right to payments from 4 April 2012 and counsel in argument before the arbitrator specifically made that claim. The matters agitated before the arbitrator were clearly those which related to the application that weekly payments should not be discontinued as they had been. The decision of the arbitrator is unequivocal. The application was dismissed and encompassed any claim including the claim from 4 April 2012. As the arbitrator clearly put it, the worker had not met the onus of proof to show that she was totally or partially incapacitated such as to be entitled to weekly payments as from the time that they were terminated on 4 April 2012.

88 In the circumstances I find that there is no residual claim for this disputed period and therefore the appellant has failed to satisfy me pursuant to s 247 of the Act that the amount in issue is as required.

89 That however is not the end of the matter so far as s 247 is concerned. That section provides a number of pathways to the granting of leave to appeal. My reasoning so far disposes of the application under s 247(2)(a)(i).

90 Section 247(2)(a)(ii) is the provision by which leave may be granted where 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. This would provide a pathway where there is an important point of law involved which in the public interest should be agitated but where the amount in issue does not reach the thresholds set out in s 247(2)(a)(i). Nevertheless for that pathway to be opened it is still necessary under s 247(2)(a) for there to be an amount of compensation in issue.

91 By reason of my findings in relation to the December decision there is no amount of compensation in issue. Accordingly, the appellant fails on the application under s 247(2)(a)(ii).

92 Finally, the last route to leave to appeal is under s 247(2)(b) which provides, 'In any other case, a question of law is involved'.

93 Clearly in this case questions of law are involved, as I have noted previously. They relate to the timing of the making of an application for arbitration and what steps are involved and how those steps and when those steps should be taken having regard to a proper construction of the Act and the rules and regulations. Issues also arise as to the impact of the rules and regulations upon the time prescribed in s 61.

94 The arbitrator found that reg 7(3) was, as subsidiary legislation, inconsistent with s 61 of the Act and void. Further, whilst it has not been specifically raised in this appeal, similar arguments might be raised in relation to r 23 Arbitration Rules which provides for the application for determination of a dispute by arbitration to be lodged within 28 days after the relevant certificate in respect of conciliation has been issued. Such an expansion of the time provided by s 61 might again create some difficulties in relation to inconsistency between the rules and the statutory provision.

95 Whilst these are questions of law that arise, in my view the present case is not a suitable vehicle in which to agitate them. It is a case where the respondent has successfully argued in respect of the futility of the appeal rather than directing detailed argument such as might come from a contradictor in relation to the effects of these rules and regulations upon the statutory provisions.

96 In those circumstances I would not grant leave to appeal under s 247(2)(b).

97 In reaching this decision I have not found it necessary to determine these issues of law that arise. That is not to say that they are not important. It seems to me that the time limit for bringing an application for arbitration under s 61, whilst clear on its face, is beset with difficulties in its application. The Act sets out a procedure for arbitration. It would appear to be a two-stage process; first conciliation and then when that fails or is unsuitable it proceeds to arbitration. Clearly, there may well be difficulties facing a worker in bringing an application for an order that the employer not cease payments or reduce them when all of these steps need to be followed.

98 It seems that reg 7(3) and r 23 Arbitration Rules are recognition of those difficulties and an attempt to try to overcome them by expanding the relevant time limit. However as can be seen this of itself poses its own problems of inconsistencies between substantive and subsidiary legislation.

99 It is to be hoped that these apparent anomalies in the procedures can be rectified so that workers in need of continuing weekly payments will not be prejudiced.

100 However, the present case is one that involves what is essentially an interlocutory application where access to the necessary pathways to leave to appeal has not been proved. Given that the issues that arise in these sorts of applications under s 61 of the Act can ultimately be dealt with on a substantive hearing it may be that an applicant for leave to appeal would find himself or herself in some difficulty. Nevertheless, it is axiomatic that each case must be considered on its merits.

101 The appellant's application for leave to appeal is dismissed.