Bol Malek v Remondis Australia Pty Ltd

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 29 May 2015
• Docket Number: File Number(s): SCA 106 of 2013
• Date: 29 May 2015

[2015] ACTSC 135

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number(s): SCA 106 of 2013

Bol Malek

(Appellant)

and

Remondis Australia Pty Limited

(Respondent)

Representation:

Counsel:

Mr D Shillington (Appellant)

Mr A Muller (Respondent)

Cases Cited:

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Fox v Percy (2003) 214 CLR 118

Jones v Dunkel (1959) 101 CLR 298

Lukatela v Birch (2008) 164 ACTR 24

Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342

Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1

Samuels v Flavel [1970] SASR 256

Seers v Exhibition Centre Pty Ltd [2009] ACTSC 85

Shaw v Donaldson (1988) 78 ACTR 1

Taylor v The Queen (1978) 45 FLR 343

Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149

Legislation Cited:

Evidence Act 2011 (ACT), s 144

Magistrates Court Act 1930 (ACT), ss 256, 274(2), Ch 4, Pt 4.5, Div 3.10.2

Workers Compensation Act 1951 (ACT), s 197(1)

Court Procedures Rules 2006 (ACT), r 3903, Ch 2, Pt 3.13

APPEAL — Appeal from the Magistrates Court — Arbitration — Worker's compensation — Causation — Unchallenged expert evidence — Contrary expert evidence

Decision:

1. The appeal be upheld.

2. The order of the Magistrates Court dismissing the Application for Arbitration of Bol Malek dated 21 May 2013 be set aside.

3. The parties be heard as to the other orders to be made.

Refshauge J

1 On 21 February 2013, Bol Malek, the appellant, an employee of Remondis Australia Pty Limited ( Remondis), the respondent, reported a problem with his knee to an officer of his employer. He said he was having trouble because of an incident and, when asked whether the incident occurred at work, he said, ‘No, I did it at home, I fell over in the shower’. Some days later, he was taken to Ballarat Hospital because of the knee injury and was diagnosed as having septic arthritis in the knee.

2 In April 2013, he gave another explanation for the injury to the knee. He said he was removing a plastic bottle from a crate of metal at his employer's place of work. He used a kitchen knife which slipped and stabbed him in the knee.

3 He applied for worker's compensation and, when his claim was rejected, he sought arbitration under the Workers Compensation Act 1951 (ACT).

4 That arbitration took place on 11 November 2013 and, on that day, the learned Chief Magistrate found that he did not suffer an injury in the course of his employment nor a disease to which his employment substantially contributed.

5 Mr Malek has now appealed against that decision.

The proceedings

6 I have set out the process by which applications for arbitration in the workers compensation jurisdiction are made and conducted in Seers v Exhibition Centre Pty Ltd [2009] ACTSC 85 at [20]–[26].

7 Notwithstanding that the hearings are before the Magistrates Court, s 256 of the Magistrates Court Act 1930 (ACT) provides that Ch 4 of that Act, which sets out the procedure applicable to hearings for civil suits, does not apply. Similarly, Ch 2 of the Court Procedures Rules 2006 (ACT), which regulates the conduct of civil proceedings, does not apply; Pt 3.13 of those rules, and any other rules specified under r 3903, applies. There do not appear to be any such rules.

Jurisdiction

8 Section 197(1) of the Workers Compensation Act authorises any party to an arbitration before the Magistrates Court to appeal from the decision, order or award to this Court. Under s 197(2), Pt 4.5 (Civil Appeals) of the Magistrates Court Act 1930 (ACT) applies to such appeals as if they were an appeal from a judgment or order of a kind mentioned in s 274(2) of that Act.

9 Section 197(2) provides:

(2) The Magistrates Court Act 1930, part 4.5 (Civil appeals) applies in relation to an appeal under subsection (1) as if –

• (a) it were an appeal from a judgment or order of a kind mentioned in that Act, section 274(2) (Cases in which appeal may be brought); and

• (b) for an appeal from a decision, order or award of a committee – the decision, order or award were a decision, order or award of the Magistrates Court; and

• (c) any necessary changes, and any changes prescribed by regulation, were made.

10 Within Pt 4.4 of the Magistrates Court Act, s 274(2) permits an appeal to be brought as of right from a judgment or order in which the matter in issue amounts to or is of the value of $2,000 or more. There is no dispute that this is the position here.

11 In Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 at 3, Woodward J held that the appeal under Pt 4.5 of the Magistrates Court Act is by way of rehearing. As it happens, that decision was also an appeal from the Magistrates Court under the Workers Compensation Act. See also Shaw v Donaldson (1988) 78 ACTR 1 at 4–5.

12 I described an appeal by way of rehearing in Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149 at [78] as follows:

Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

13 In Fox v Percy (2003) 214 CLR 118 at 126–7, Gleeson CJ, Gummow and Kirby JJ said:

[T]he appellate court is obliged to conduct a real review of the trial and … of [the trial] judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect” ( Dearman v Dearman (1908) 7 CLR 549 at 564, citing V Glannibanta (1876) 1 Pd 283 at 287).

14 In Lukatela v Birch (2008) 164 ACTR 24 at 29; [21]–[24], Rares J described the nature of an appeal by way of rehearing, although his Honour was there referring to an appeal under Div 3.10.2 of the Magistrates Court Act. The approach, however, is the same. His Honour said:

• 21. And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127–128 [27] per Gleeson CJ, Gummow and Kirby JJ.

• 22. Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on part of the court below: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ. Here, the admission of evidence by consent, which simply confirmed what was before his Honour, thus required the appellant to demonstrate error in the discretionary judgment.

• 23. I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a “re-hearing” does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.

• 24. Where no oral evidence was given below, or the trial judge's findings based on oral evidence are not challenged, the Supreme Court on appeal is in as good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox 214 CLR at 126–127 [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; see too CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 at 252–253 [69]; [2008] HCA 30; 82 ALJR 1135 at 1144 [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

15 In this case, no further evidence was sought to be adduced on the appeal.

The hearing before the Magistrate

16 The relevant documents which might be regarded as constituting the pleadings in such proceedings are the Application for Arbitration by the applicant and the Answer by the respondent. These are prescribed forms. From them, the formal issues may be gleaned as follows.

17 Mr Malek sought weekly compensation for personal injury, namely, the knee injury, and recovery of the costs of medical treatment and other costs. The injury the subject of the application was said to be a penetration injury to his left knee which he said happened at the Hume depot of his employer on 18 February 2013, when he was...