Australia: Speedy and fair conduct of Workcover WA proceedings

Last Updated: 11 November 2015
Article by Ashley Crisp

BHP Billiton Iron Ore Pty Ltd and Walls [2015] WADC 113 on appeal from the Workers Compensation and Arbitration Service (WA).

Mr Walls claimed workers compensation as a result of an alleged psychiatric injury allegedly sustained in the course of his employment with BHP Billiton between November 2012 and May 2013 and the employer denied liability.

In 2013 the worker commenced Arbitration proceedings at WorkCover WA.

In October 2013 following an application by the employer Arbitrator Sharp made orders that the worker –

  1. "Cease and immediately desist from communicating with and/or contacting the appellant's witnesses without the leave of the Arbitrator;
  2. Immediately cease and desist from interfering with or attempting to influence the evidence to be given by the appellant's witnesses at the hearing;
  3. No contact or communicate in any way with the family or friends of the appellant's witnesses without the leave of the Arbitrator."

The case was set down for hearing between 19 and 23 October 2015.

As the hearing approached two witnesses became concerned about being involved in the hearing due to alleged "threatening and abusive overtures" made by the worker toward them.

In light of this development the employer applied to Arbitrator Nunn seeking directions under section 190(1) of the Act that –

  1. "The respondent (worker) cease and immediately desist from communicating and/or contacting (two witnesses) of East Coast Pipelines, without leave of the Arbitrator;
  2. The respondent (worker) immediately cease and desist from interfering with or attempting to influence the evidence to be given by the appellant's witnesses at the hearing;
  3. The respondent (worker) do not contact or communicate in any way with the colleagues, family or friends of the respondent's (appellant's) witnesses without leave of the Arbitrator; and
  4. Any further orders which the Arbitrator deems appropriate in the circumstances."

There was some overlap in orders (ii) and (iii) above with the previous orders of Arbitrator Sharp and an affidavit and submissions were filed in support of the application before Arbitrator Nunn.

Arbitrator Nunn decided the application "on the papers", as he was entitled to do. He dismissed the application on the basis that the employer had failed to satisfy him that making the directions was required for the 'speedy' conduct of the proceedings but he accepted that "...directions to cease harassing witnesses may be necessary for the fair conduct of a proceeding".

The learned Arbitrator said there "is no evidence the orders sought are necessary for the 'speedy and fair' progress of the hearing" and decided he lacked "...discretionary make orders pursuant to s190 of the Act" as sought by the employer.

The employer sought leave to appeal Arbitrator Nunn's decision on grounds including a denial of procedural fairness, misconstruction of the phrase "speedy and fair" and that he overlooked evidence which would enable the "speedy" progress of the action.

District Court Judge McCann granted leave to appeal and found the employer's appeal should succeed.

His Honour referred to section 3(d) of the Act which states that the Act is to make "provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick" and Section 188(2)(b) where an Arbitrator " to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms".

As to "speedy and fair" and section 190(1), which allows an Arbitrator to give directions " any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding" his Honour found the words "speedy and fair" "...should be construed in the disjunctive rather than the conjunctive such that both needed to be made out in an application for directions".

Judge McCann then examined the Arbitrator's analysis of a number of legal authorities, statutory construction and cases involving an analysis of the phrase "speedy and fair" in various contexts and observed "...I suspect that he fell into error when he said ([29]) that 'the Act is remedial legislation and should be given a beneficial and wide interpretation' and that 'where two constructions are possible, that which is favourable to the worker should be preferred'".

His Honour then said "Having regard to the legislative scheme as a whole, and its long history of implementation in this state (it has been regularly reviewed and amended), it cannot be the intention of the legislature that an Arbitrator is always required to be affirmatively satisfied that some 'speediness' will be achieved by proposed directions (in addition to fairness)."

As to the construction to be placed upon the word "speedy" His Honour also said "I should stress that I have not sought in these reasons to place a construction on the word 'speedy' itself (nor upon the word 'quick' for that matter). They are words of ordinary usage and should be applied as the circumstances of each case require".

This decision supports the view, as Judge McCann observed, that " cannot be the intention of the legislature that an Arbitrator is always required to be affirmatively satisfied that some 'speediness' will be achieved by proposed directions (in addition to fairness)."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ashley Crisp
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