Workers' Compensation and Injury Management Act 1981 (WA), s 246, s 247

1 This is an application for leave to appeal against a decision of a commissioner pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). On 27 June 2007, Pullin JA ordered that the application for leave be heard together with the appeal.

2 There were originally three grounds of the proposed appeal. However, two of them were abandoned prior to hearing. There remains therefore only one ground. That is ground 2, which reads:

The learned commissioner erred in law by misconstruing section 247 of the Act and in particular the phrase 'where a question of law is involved' and should have found that he could review the arbitrator's decision and make any decision which should have been made on the evidence before the arbitrator.

3 It is important, for the purposes of the application for leave to appeal, to understand how that ground of appeal arose. On 7 June 2006, an arbitrator made a determination that the relevant level of the respondent's permanent disability was not less than 16%. That followed what could reasonably be described as a very ordinary dispute concerning the level of disability and the permanency of disability, arising out of what seems to have been a back injury, in circumstances where medical practitioners had differing views.

4 The respondent had relied upon his own evidence, concerning conversations which he had had with a Mr Watson, a neurosurgeon; the thrust of that evidence was directed, it appears, to the reasonableness of the respondent's view that he was not prepared to undergo surgery. He also relied upon medical reports, including that of Mr Popovic, also a neurosurgeon, and of a Dr Adams, a general practitioner with particular expertise in the area of sexual health. The employer relied upon reports by Dr Dare, a consultant occupational physician, Mr Thomas, a neurosurgeon, Dr Warner, another occupational physician, and Professor Cohen, clinical professor of medicine, whose view was relied upon particularly in relation to alleged sexual dysfunction.

5 The arbitrator considered, for reasons which he set out, and which centred largely upon the extent of the respondent's symptoms, that Dr Dare's assessment was too conservative. He considered that Mr Thomas had assessed the worker's impairment in a way which did not appear to be consistent with the Act and which the arbitrator, in any event, did not understand. Although he did not reject the assessment by Professor Cohen, he noted that, in some respects, it was consistent with evidence upon which the respondent relied, while, in other respects, it was based upon factual assumptions inconsistent with the evidence before the arbitrator. In effect, because of his rejection of the other medical reports, the arbitrator therefore preferred the assessments of Mr Popovic and Dr Warner.

6 Out of this resolution of an apparently straightforward factual dispute, the appellant managed to winkle nine grounds of appeal to the commissioner which, with their particulars, extend over more than nine pages. Each of them, save for ground 9, alleged errors of law. For example, it was alleged that there was a failure to give adequate reasons in a number of respects, that the report of Mr Popovic did not comply with the requirements of s 93D(2) of the Act, that irrelevant considerations were taken into account, and so on. It is not necessary, however, to describe any of these grounds in more detail. Each of them was considered and rejected by the commissioner, for reasons which he gave. There is no appeal from the commissioner's decision in respect of eight of them. That leaves only ground 9 as relevant to the present proceedings.

7 Before I turn to ground 9, it should be noted that the commissioner's jurisdiction to hear and determine appeals from an arbitrator arises out of s 247 of the Act, which, relevantly, reads:

(1) A party to a dispute may, with the leave of the Commissioner, appeal to the Commissioner against a decision in respect of the dispute by an arbitrator under Part XI.

(2) ...

(3) The Commissioner may grant leave to appeal from a decision of an arbitrator on a matter referred under section 93D(10) if the appeal involves a question of law.

(4) ...

(5) An appeal under this section is to be by way of review of the decision appealed against.

(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the Commissioner except with the leave of the Commissioner.

(7) On hearing an appeal made under this section, the Commissioner may -

(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and

(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the Commissioner thinks fit.

1. The Arbitrator's decision that the worker's degree of disability was not less than 16% was manifestly wrong having regard to the evidence of Mr Thomas and Dr Dare and the Arbitrator should have accepted that evidence and made a finding that the worker had not discharged his onus of proof in establishing that his degree of disability was not less than 16%.

(i) The Applicant says that the 'question of law' involved in this appeal as required by section 247(3) of the Act is the Arbitrator's determination that the worker's degree of permanent disability is not less than 16%.

(ii) The Applicant says that once a question of law is 'involved' as required by section 247 of the Act then the Commissioner is entitled to review the Arbitrator's decision and can set it aside where it is contrary to the evidence or the weight of the evidence as questions of fact may then be ventilated and determined by the Commissioner on the Appeal. The Applicant invites the Commissioner to substitute his own finding on the evidence that the respondent's degree of disability was less than the relevant level of not less than 16%. (Emphasis supplied)

9 The commissioner, as is apparently the usual practice, heard together the application for leave and the appeal. There was a dispute before us concerning what had occurred at the hearing before the commissioner in relation to ground 9, and as to the way in which that ground was put. For that reason, the argument before the commissioner was transcribed and, with the consent of both parties, a copy of that transcript was supplied to us.

Ground 9 - issues presented to the commissioner

10 It is plain from the transcript that what was urged upon the commissioner in relation to ground 9 was that it was open to him to review the decisions of arbitrators "at large", provided only that there was, somewhere in the grounds of appeal, a question of law. The existence of a question of law was said to be simply a "threshold test" and, once the threshold was passed, it was open to the commissioner to consider the entire matter afresh, without any error on the part of the arbitrator being identified, and to substitute his own views for the views of the arbitrator.

11 In keeping with this submission, the arguments placed before the commissioner in relation to ground 9 simply urged upon him the view that the decision of the arbitrator was "manifestly wrong", having regard to the evidence of Mr Thomas and Dr Dare, which it was asserted the arbitrator should have accepted (ts 34). The commissioner was invited to substitute his own decision for that of the arbitrator (ts 35).

12 The commissioner was told by counsel for the appellant at the review that the submissions supporting ground 9 were essentially those contained at par 76 through to par 80 of the written submissions. In those written submissions, par 76 asserts that the arbitrator's decision was "manifestly wrong". Paragraphs 77 and 78 repeat the submission that, once a question of law is involved, the commissioner is free to reach his own view. Paragraphs 79 and 80 read as follows:

The employer submits that it is clear that this arbitrator's decision is so manifestly wrong that the Commissioner must review it and make his own findings. There was no reason for the arbitrator to reject the evidence of Mr Thomas and Dr Dare. The employer submits that the Commissioner is entitled to review the arbitrator's decision as a question of law is clearly involved and in that context questions of fact may be ventilated. It was absurd and manifestly wrong for the arbitrator not to have accepted the evidence of Mr Thomas and Dr Dare.

The employer invites the Commissioner to substitute his own finding on the evidence that the worker's degree of disability was less than the relevant level of not less than 16%.

13 Once it is recalled that the arbitrator had given reasons for rejecting both the evidence of Mr Thomas and that of Dr Dare, it becomes plain that the only reason for suggesting that the commissioner should overturn the finding of the arbitrator is that the commissioner might, approaching the matter afresh, possibly reach a different view. While other grounds of appeal asserted specific errors of law said to have been made by the arbitrator in relation to the evidence of Mr Thomas and the evidence of Dr Dare, the commissioner found that the arbitrator had not erred in the respects asserted, and, as I have noted, there is no appeal from those findings.

14 Since ground 9 was the centrepiece of the appellant's argument, the commissioner dealt with it at some length. It is not, I think, necessary to traverse the whole of his Honour's discussion of the authorities. It is submitted that the error which his Honour made can be found clearly expressed in [29] and [30] of his reasons:

The structure of the Act suggests to me that whilst the appeal is by way of review of the decision appealed against, Parliament did not intend such a review be open ended such that it could be said, as the appellant here argues, that I approach the matter afresh unrestricted by the findings of an arbitrator. This is because decisions of arbitrators are final and binding on the parties and not subject to appeal and are not to be vitiated because of any informality or want of form: s 187. True, an arbitrator may review a decision if new information becomes available within the circumstances described in s 186 however, as already noted, appeals from arbitrators are only with my leave if they come within the provisions of s 247. When these provisions are taken with s 3(d) it could not be said that Parliament intended that every party to a determination made by an arbitrator was entitled to another full 'go' before me. In these circumstances I am of the opinion that my jurisdiction on appeal by way of review of the decision appealed against is circumscribed by the following:

1. There first has to be a question of law involved before leave can be granted.
2. The question of law must relate either to a pure question of law in the sense that an arbitrator has made an error of law which has caused his decision to go awry or has made an error of law which has caused him to make a finding of fact that he could not or would not otherwise have made, or may not have made. In either case I can proceed to correct the error and make the findings I think should have been made.
3. Where an arbitrator has made a finding of fact simpliciter based solely upon his or her evaluation of the evidence, then such finding is not amenable to correction by me.

In its terms therefore the ninth ground of appeal must fail because it challenges a bare finding of fact namely that the respondent's level of disability was not less than 16%. I will now return to the other grounds of appeal.

15 For reasons which can be shortly developed, it appears to me that the views expressed by the learned commissioner in some respects too narrowly confine the scope of the review which is open to him once an error of law has been identified and he has granted leave.

16 The starting-point is, of course, the relevant legislation. The true character of an appeal will depend upon the interpretation of the particular legislation conferring the right of appeal, in an endeavour to ascertain the legislative intent: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 621 - 622 (Mason J, Barwick CJ and Stephen J agreeing).

17 As has been noted on many occasions, the purposes of the Act include the resolution of disputes in a way which is fair and which is also expeditious, informal and inexpensive (s 3(d)). The primary fact-finder in the event of a dispute is, clearly, the arbitrator. The arbitrator may refer novel or complex questions of law to the commissioner (s 246). In some circumstances, the legislative intention appears to be that the commissioner's jurisdiction can be invoked only where there is, not only a question of law, but a question of law of some significance in terms either of its general importance in the administration of the Act, or in its impact upon a litigant (s 247(2)(a)). No doubt because of the potential economic impact of a decision that a worker is, or is not, entitled to take common law proceedings, the Act does not provide for an additional test of importance on appeal from an arbitrator's decision pursuant to s 93D(10). In respect of those matters, provided only that there is a question of law "involved", leave may be granted. If no question of law whatever can be identified as arising from an arbitrator's decision, there is of course no jurisdiction in the commissioner to grant leave to appeal. The statutory framework indicates that the correction of errors of law is the commissioner's primary, but not sole, function.

18 The legislative use of the term "involved" indicates that the commissioner's role is not confined to the determination of pure questions of law. Plainly, it extends to questions of mixed fact and law. Further, in other contexts, it has been held that, if an appeal is provided for where a question of law is "involved", the result is that if some question of law is involved, the whole of the decision appealed from is open to review, and not merely the question of law: Ruhamah Property Co Ltd v The Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 151 (Knox CJ, Gavan Duffy, Powers and Starke JJ), XCO Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1971] HCA 37; (1971) 124 CLR 343, 348 (Income Tax Assessment Act 1922, 1936 (Cth)); Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199; (2001) 115 LGERA 152 [12] (McLure J) (Town Planning and Development Act 1928 (WA)). The commissioner's function on a review differs from that of this court, to which an appeal under the Act may only be brought "on a question of law": Fitzgerald v Smorgon Steel Pty Ltd [2004] WASCA 185 [3] (Murray J).

19 To the extent that the commissioner's reasons might be understood as suggesting that the commissioner is precluded from considering or reviewing errors of fact, he has, in my respectful view, erroneously confused a necessary precondition to the grant of leave (the existence of a question of law) with the task to be undertaken during the course of a review.

20 As to the question of what a "review" entails, it is to be noted that the review is ordinarily conducted on the materials before the arbitrator: s 247(6). It is not a hearing de novo. So far as the content of a "review" is concerned, there is authority, both in New South Wales and in this court, in the context of workers' compensation legislation. In Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, the Court of Appeal of New South Wales considered the nature of a "review" by a judge of a commissioner, pursuant to the Compensation Court Act 1984 (NSW). In reasons with which Waddell and Samuels AJJA agreed, Kirby P repeated the view that he expressed in an earlier decision, which was to the effect that a review was wider than an appeal in the strict sense, and wider than the usual kind of narrow appeal from discretionary decisions which required some error of principle to be shown before the decision could be overturned (586). His Honour also noted, however, that the fact that there is a decision which is being "reviewed" postulates that the judge (in that case) would start not with a blank page, but with a formal decision and that, unless the "review" persuaded the judge that the order being reviewed should be varied, discharged, or otherwise disturbed, it would stand. His Honour had said in his earlier decision, and repeated:

This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.

21 The policy reasons which, in part, led Kirby P to the conclusions which he reached in Boston are considerations which are largely relevant here. His Honour pointed out that the decisions made affected substantial rights. His Honour referred also to the training, experience and office of the judge of the Compensation Court (587). Under the Act, too, substantial rights are affected, and the commissioner is a judge of the District Court (s 281).

22 In this court, in Sotico Pty Ltd v Wilson [2007] WASCA 112, Pullin JA, in considering the powers of a commissioner, made the following observation at [46]:

Once a question of law is identified, leave is granted and an error of law is held to have occurred (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [14]), then the Commissioner is obliged 'within the constraints marked out by the nature of the appellate process ... to conduct a real review ...': Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25].

23 His Honour's reasons differed from those of the majority in some respects, but his analysis of the statutory framework was not inconsistent with the majority reasons.

24 In my view, the statutory framework, and the policy considerations to which Kirby P referred, support the conclusion that a review pursuant to s 247 is not limited merely to the correction of errors of law. It is broader than an appeal in the strict sense. As Pullin JA said in Sotico, once leave is granted the commissioner is obliged to conduct a "real review".

25 I would not understand Pullin JA to have held that it is a necessary precondition to the conduct of the "real review" that an error of law has been held to have occurred; rather, his Honour was making a broad observation about the statutory framework. That does not mean that the existence or otherwise of a question of law is irrelevant, however. As I noted earlier, the commissioner can, and I understand often does, consider in a single hearing both the application for leave and the appeal itself. If, on such a hearing, it is the commissioner's view that, although a question of law is "involved", there has been no relevant error of law, that may be a factor which the commissioner will consider relevant to the question of whether leave should be granted. To take an extreme case, should an appellant raise a number of issues which were plainly questions of law, but were equally plainly unarguable, in an attempt to persuade the commissioner to engage in a pure factual review, the commissioner might consider that that was not appropriate, having regard to the legislative focus upon the correction of errors of law as the commissioner's principal, but not only, task.

26 The consideration which is fatal to this appeal, however, is the requirement that the aggrieved party provide some "proper basis" for disturbing the decision under challenge (Boston at 586) or, put differently, the constraints marked out by the nature of the appellate process. That is because it is plain from the way in which the proceedings were conducted before the commissioner that this appellant, in seeking a "review" of the facts, was doing no more than requesting the commissioner to trawl again through all of the facts which were before the arbitrator, with a view to substituting his own decision for that of the arbitrator. There was no error, either of fact, or law, or logic, which was pointed to either in ground 9 or in the submissions in support of it, which was additional to the alleged errors, which were not made out, identified by grounds 1 to 8 inclusive. Before us, the appellant was not able to point to any "proper basis" for disturbing the decision of the arbitrator, in addition to those identified in grounds 1 to 8 inclusive. Rather, it was suggested, speculatively, that if the commissioner had undertaken a "review" in the sense contended for by the appellant - that is, if the commissioner had just ignored the arbitrator's decision and started again - the commissioner might have arrived at a view different from that of the arbitrator. That is not a proper basis for a review.

"Commissioner's error" irrelevant to outcome

27 Although the commissioner in the present case expressed a view of his function which appears, on its face, to be too narrow, he did so in responding to a contention made by the appellant which urged upon him an unduly broad view of his function. It may be that, understood against the particular background of the submissions made to him, the commissioner's conclusion reflects no more than an infelicity of language, rather than an error of law. However, even if there was an error of law, it is one which would make no difference to the outcome of the present proceedings, there having been no proper basis before the commissioner upon which he could have embarked upon a review of the arbitrator's factual findings.

28 I made certain observations in Sotico about the requirement that an appeal to this court can be brought only by leave. Adapted somewhat to the present circumstances, they read:

Pursuant to s 254 of the Act, a party to a proceeding before the Commissioner requires leave of this Court to appeal from a decision of the Commissioner 'on a question of law'. [Little] attention has been given in this case to the issue of what purpose the leave requirement serves, or of what criteria the Court should apply in determining whether or not leave should be granted. It may be arguable that, notwithstanding that the ... Commissioner ... erred ... leave ought not to be granted because the appellant has suffered no injustice ... However, that issue was not argued, and it would be inappropriate to determine it in this appeal. [29]

29 Notwithstanding that the commissioner's unduly narrow formulation of the review function caused no injustice to the appellant, it may be arguable that it is appropriate to grant leave where an error of law is one touching some area of practical significance in the working of the Act. That was a submission made, although not developed, by the appellant. Assuming, without deciding, that this submission is correct, I would grant leave. I would, however, dismiss the appeal.