EMIRGE PTY LTD -v- DE COPPI [2025] WADC 23
Catchwords:Contract – Whether oral gentlemen’s agreement or side deal varied written contract – Turns on own factsPenalty – Whether clause providing for interest is a penalty – Turns on own facts [2025] WADC 23[2025] WADC 23 [MH] Page 1JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIAIN CIVILLOCATION : PERTHCITATION : EMIRGE PTY LTD -v- DE COPPI [2025] WADC 23CORAM : CHRISTIAN DCJHEARD : 12-13 DECEMBER 2024DELIVERED : 10 APRIL 2025FILE NO/S : CIV 3822 of 2023BETWEEN : EMIRGE PTY LTDPlaintiffANDTONY DE COPPIDefendantCatchwords:Contract – Whether oral gentlemen’s agreement or side deal varied written contract – Turns on own factsPenalty – Whether clause providing for interest is a penalty – Turns on own factsLegislation:Nil[2025] WADC 23[2025] WADC 23 [MH] Page 2Result:Judgment for the plaintiffRepresentation:Counsel:Plaintiff:Mr A P HershowitzDefendant:In personSolicitors:Plaintiff:Paiker & OvermeireDefendant:Not applicableCase(s) referred to in decision(s):Coyne v GSC Contracting Pty Ltd [2022] WADC 115Ringrow Pty Ltd v BP Australian Pty Ltd [2005] HCA 71; (2005) 224 CLR 656Spiers Earthworks Pty Ltd v Landtec Projects Corporations Pty Ltd [No 2] [2012] WASCA 53[2025] WADC 23CHRISTIAN DCJ[2025] WADC 23 [MH] Page 3CHRISTIAN DCJ:Introduction1This action concerns an amount of money which remains unpaid pursuant to a contract. On 20 June 2022 Emirge Pty Ltd (Emirge) and Mr De Coppi entered into a Residential Building Works Contract (the Written Contract) for the construction of a new house at 52 Saltriver Street, Ellenbrook. Mr De Coppi agreed to pay Emirge the sum of $450,000 to build the house. Pursuant to the Written Contract, tax invoices for five progress claims were submitted by Emirge to Mr De Coppi totalling $204,750. Emirge was paid $75,750 in respect of the progress claims by Mr De Coppi’s lender, Pepper Money (Pepper), on 12 April 2023. The $129,000 difference between those two amounts is the subject of this action.Issues for resolution2It is not disputed by Mr De Coppi that Emirge submitted five progress claims. Nor is there any dispute that the sum of $129,000 remains unpaid.3There are two issues for determination. The first is whether pursuant to some gentlemen’s agreement or side deal Mr De Coppi was not required to pay the sum of $129,000.4The second only arises if I find in favour of Emirge in relation to the first issue. It is whether the interest charged pursuant to the contract constitutes a penalty.Was there a gentlemen’s agreement or side deal?Relevant contractual terms of the Written Contract5There is no dispute that the Written Contract required Mr De Coppi to pay $450,000.6Clause 25 of the Written Contract sets out the terms of payment of the $450,000, which was to be by way of progressive payments upon the submission by Emirge to Mr De Coppi of claims in accordance with completion of works as detailed in a schedule which formed part of the Written Contract.7Item 7 of Appendix 1 of the Written Contract refers to the method of progress claims. Item 7 consists of a separate document, which was[2025] WADC 23CHRISTIAN DCJ[2025] WADC 23 [MH] Page 4signed by both MrDye, a director of Emirge, and Mr De Coppi on 20 June 2022 (the Progress Claim Schedule). By way of a table, the Progress Claim Schedule has 10 items which are stages of construction. In respect of each item a percentage of the total contract amount is specified and there are two columns each containing a separate dollar amount. The columns are headed ‘Amount (Bank Finance)’ and ‘Clients deposit held / released to builder’. The total of the bank finance amount is $325,000 and the total of the client’s deposit amount is $125,000, which together add up to the Written Contract amount of $450,000.Nature of the gentlemen’s agreement or side deal8At the time the Written Contract was entered into Mr De Coppi was employed by Emirge as a project manager. He had previously worked for Emirge in 2016 and was re-employed in 2022. The evidence before me varied as to precisely when he was re-employed. Mr Dye said it was April 2022 and Mr De Coppi said it was in February 2022. It is unnecessary for me to determine exactly when Mr De Coppi was re-employed. However, I am satisfied it was before the Written Contract was entered into on 20 June 2022.9In his affidavit sworn 20 October 2023, which by order of the court stands as Mr De Coppi’s defence1 (the Defence), Mr De Coppi pleaded that prior to the construction of the house, Mr Dye verbally offered him a discounted side deal to build the house at ‘cost plus’.10Further, he pleaded that the offer by Mr Dye was formalised in writing in approximately early February 2023 by way of an email to his Emirge email address in which Mr Dye offered for Emirge to build the house on a cost plus 3% basis. Mr De Coppi pleaded he accepted the offer by return email. No such emails were produced in evidence at the trial. Mr De Coppi’s position at trial in relation to the existence of such emails was somewhat inconsistent with the Defence. He suggested there were some emails dealing with parts of the agreement but predominantly it was their word.11Mr De Coppi gave evidence that, prior to his re-employment, he had discussed with Mr Dye an arrangement he had with his previous employer whereby that employer was willing to build his house on a cost basis and Mr De Coppi would build the house and take care of all the construction. In evidence Mr De Coppi said Mr Dye agreed Emirge1 Order made by Principal Registrar McGivern on 29 July 2024.[2025] WADC 23CHRISTIAN DCJ[2025] WADC 23 [MH] Page 5would do the same thing.However, in cross-examination Mr De Coppi accepted no agreement relating to construction of his house was reached with Mr Dye prior to him being re-employed.12Mr De Coppi’s oral evidence as to the nature of the gentlemen’s agreement or side deal varied. Mr De Coppi initially said a gentlemen’s agreement was reached that Emirge would build the house at cost price and he would contribute money to the build and do
EBELING -v- THE OWNERS OF CHATEAU RIVERSDALE STRATA PLAN 14729 [2025] WASC 110
Catchwords:Administrative law – Judicial review application from decision of the State Administrative Tribunal – Whether the Member erred in making her Orders – Application dismissed [2025] WASC 110Page 1JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIAIN CIVILCITATION : EBELING -v- THE OWNERS OF CHATEAU RIVERSDALE STRATA PLAN 14729 [2025] WASC 110CORAM : HOWARD JHEARD : 30 JANUARY AND 14 FEBRUARY 2025DELIVERED : 9 APRIL 2025FILE NO/S : CIV 2317 of 2024BETWEEN : THOMAS CHARLES EBELINGApplicantANDTHE OWNERS OF CHATEAU RIVERSDALE STRATA PLAN 14729 (ABN 20 625 170 308)RespondentCatchwords:Administrative law – Judicial review application from decision of the State Administrative Tribunal – Whether the Member erred in making her Orders – Application dismissedLegislation:Commonwealth ConstitutionDisability Discrimination Act 1992 (Cth)Privacy Act 1998 (Cth)[2025] WASC 110Page 2Rules of the Supreme Court 1971 (WA)State Administrative Tribunal Act 2004 (WA)Strata Titles Act 1985 (WA)Result:Application dismissedCategory: BRepresentation:Counsel:Applicant:In personRespondent:Mr P A MonacoSolicitors:Applicant:In personRespondent:GV LawyersCases referred to in decision(s):Attorney-General (NSW) v Quin (1990) 170 CLR 1Burns v Corbett [2018] HCA 15, (2018) 265 CLR 304Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216CSL Australia v Formosa [2009] NSWCA 363; (2009) 261 ALR 441DPP (WA) v Mansfield [2008] WASCA 5; (2008) 35 WAR 431Eberstaller v Poulos [2014] NSWCA 211; (2014) 85 NSWLR 688Elisha v Vision Australia Limited [2024] HCA 50GS v MS [2019] WASC 255, (2019) 344 FLR 386Hanssen Pty Ltd v Owners of Strata Plan 58161 [2024] WASCA 87Huynh v Attorney-General (NSW) [2021] NSWCA 297, (2021) 107 NSWLR 75Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44LNC Industries v BMW (Australia) Ltd (1983) 151 CLR 575Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273Mustac v Medical Board of Western Australia [2007] WASCA 128[2025] WASC 110Page 3Paspaley Pearling Company Pty Ltd & Anor and Delegate of the Chief of the Chief Executive Officer of the Department of Primary Industries & Regional Development & Anor [2023] WASAT 116Rock v Henderson (No 2) [2025] NSWCA 47[2025] WASC 110HOWARD JPage 4HOWARD J:1By an application filed 6 November 2024 in this Court (Review Application), Mr Ebeling made application for judicial review of a decision made by the State Administrative Tribunal (SAT). Mr Ebeling sought that the matter be brought on for hearing urgently.2The Review Application was made pursuant to the Rules of the Supreme Court 1971 (WA) (RSC) O 56 r 2. Mr Ebeling did not seek to appeal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).The SAT Application3Mr Ebeling lives in a complex which is strata titled in Rivervale in this State (Property). At the risk of over simplification, the matter before the SAT broadly concerned whether the presence of Mr Ebeling’s dog, Buddy, at the Property contravened by-laws of the respondent and sections of the Strata Titles Act 1985 (WA) (ST Act).4On 12 October 2023, the strata company for the Property brought an application against Mr Ebeling in the SAT (SAT Application). From here, I have referred to the applicant in the SAT and the respondent in this Court as the ‘respondent’ or the ‘Strata Company’.5The SAT Application was brought pursuant to s 47(1)(b) of the ST Act seeking an order to enforce scheme by-laws.6The relevant powers of the SAT were set out in s 47(5) of the ST Act.7Sections 47(6), (7), (8) and (9) of the ST Act make further provision as to penalties and other amounts which could be ordered to be paid.8The SAT Application read as follows:Summary
WANG and BUILDING COMMISSIONER [2025] WASAT 29
Catchwords:Disciplinary matter – Review of decision by Building Commissioner to refuse to accept complaint – Whether the decision was wrong, or sufficiently open to doubt – Turns on own facts [2025] WASAT 29Page 1JURISDICTION : STATE ADMINISTRATIVE TRIBUNALACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)CITATION : WANG and BUILDING COMMISSIONER [2025] WASAT 29MEMBER : MS N OLDFIELD, MEMBERHEARD : DETERMINED ON THE DOCUMENTSDELIVERED : 9 APRIL 2025FILE NO/S : CC 675 of 2024BETWEEN : LEI WANGApplicantANDBUILDING COMMISSIONERRespondentCatchwords:Disciplinary matter – Review of decision by Building Commissioner to refuse to accept complaint – Whether the decision was wrong, or sufficiently open to doubt – Turns on own factsLegislation:Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 15(1), s 16(1), s 16(2), s 57(2)Building Services (Registration) Act 2011 (WA), s 53, s 53(1), s 53(1)(a)(i),[2025] WASAT 29Page 2s 53(1)(a)(ii), s 53(1)(i), s 53(1)(j)Home Building Contracts Act 1991 (WA), s 9(1), s 9(1)(a), s 13, s 13(1), s 13(4), s 14, s 14(1), s 25D(1)(e), s 25D(1)(e)(i), s 28(1), s 28(3), s 31(3)Home Building Contracts Regulations 1992 (WA), reg 7BInterpretation Act 1984 (WA), s 61State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3), s 31Result:Application dismissedCategory: BRepresentation:Counsel:Applicant:N/ARespondent:N/ASolicitors:Applicant:N/ARespondent:Department Of Mines, Industry Regulation And Safety – Legal Services DirectorateCase(s) referred to in decision(s):Wilson v Metaxas [1989] WAR 285[2025] WASAT 29Page 3REASONS FOR DECISION OF THE TRIBUNAL:Introduction1Lei Wang and Zhiyong Chen lodged with the Building Commissioner (the Commissioner) a disciplinary complaint in relation to Intrinsic Project Pty Ltd (Intrinsic). The Commissioner refused to accept the complaint.2Ms Wang sought a review of the Commissioner’s decision. On 12 February 2025 the Tribunal ordered this matter would be determined on the documents, without a hearing.Issues to be determined3The issues to be determined in this proceeding were:(a) Should the Tribunal grant leave to review the decision of the Commissioner?(b) If the answer to (a) is yes, was the correct and preferable decision to refuse or accept the complaint?4For the reasons which follow, my decision is to refuse leave to review the Commissioner’s decision.Relevant legislationBSCRA Act5The Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) provides that a person may complain to the Commissioner regarding the alleged occurrence of a disciplinary matter in relation to a registered builder (disciplinary complaint).16A ‘disciplinary matter’ is defined by reference to the Building Services (Registration) Act 2011 (WA) (the BSR Act) – see paragraph [9] below.27After receiving a disciplinary complaint, the Commissioner must decide whether to accept or refuse to accept the complaint.3 The Commissioner may refuse to accept a complaint if:41 BSCRA Act, s 5(1), s 5(2) and s 15(1).2 BSCRA Act s 3.3 BSCRA Act, s 16(1).4 BSCRA Act, s 16(2).[2025] WASAT 29Page 4(a) the complaint was not in accordance with the BSCRA Act;(b) the complaint was made more than 6 years after the alleged occurrence of the disciplinary matter;(c) the complaint was vexatious, misconceived, frivolous or without substance;(d) the matter was the subject of another complaint under the BSCRA Act;(e) an arbitrator or other person or a court or other body has made an order, judgment or other finding about the matter; or(f) the matter had previously been refused by the Commissioner.8If the Commissioner refuses to accept a disciplinary complaint, the person aggrieved may apply to the Tribunal for a review of that decision, but only if the Tribunal grants leave.5BSR Act9A ‘disciplinary matter’ in relation to a registered building service provider is defined by s 53 of the BSR Act. Section 53(1) contains list of things which are disciplinary matters, the most relevant of which to these proceedings are as follows:(a) that after registration the registered building service provider has been convicted —(ii) of an offence against this Act, the Building Services (Complaint Resolution and Administration) Act 2011, the Building Act 2011, the Building and Construction Industry (Security of Payment) Act 2021, the Local Government (Miscellaneous Provisions) Act 1960 or the Home Building Contracts Act 1991……(i) that the registered building service provider has engaged in fraudulent conduct in connection with the carrying out or completion of a building service;5 BSCRA Act, s 57(2).[2025] WASAT 29Page 5(j) that the registered building service provider has engaged in conduct that is harsh, unconscionable, oppressive, misleading or deceptive in connection with —(i) a contract for the carrying out or completion of a building service or a variation of that contract; or(ii) the carrying out or completion of a building service;SAT Act10Pursuant to the provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a review by the Tribunal is a fresh reconsideration. The purpose is to determine the best and preferable decision as at the time of the review.611The Tribunal is not restricted to the information before the original decision-maker and can consider new information.7 The Tribunal exercises the functions and discretions of the original decision-maker and may in its discretion affirm, vary or set aside the original decision.8 The decision-maker may also be invited to reconsider their decision.9Background12The relevant facts in this matter have not been expressly agreed by the parties, but neither is it clear that any significant disagreement exists.13Ms Wang alleged:10(a) On 27 December 2020 she and Intrinsic contracted for the construction of a house. The price was $339,000 and the contract included a ‘turnkey finish’ clause and a set of design drawings approved by Ms Wang.(b) Without her consent, Intrinsic split this amount into the sum of $237,300 in the construction contract and a variation amount of $101,700 and removed from the contract the turnkey finish clause and the requirement to obtain a building permit within 45 days.6 SAT Act, s 27(1) and (2).7 SAT Act, s 27(1).8 SAT Act, s 29(1) and (3).9 SAT Act, s 31.10 Applicant’s Statement of Issues, Facts and Contentions (ASIFC) lodged 27 January 2025 at paras 4 – 11.[2025] WASAT 29Page 6(c) Ms Wang signed the variation on 30 December 2020, but Intrinsic re-sent the variation on or about 1 February 2021 to attempt to change the
BIDAS -v- REDINK HOMES PTY LTD [2025] WADC 21
Catchwords:Practice and procedure – Pleadings – Application to strike out statement of claim – Plaintiff unrepresented – Approach to be adopted where party is unrepresented – Lack of jurisdiction asserted – Whether jurisdictional objection raises a pleadings point – Principles to be applied – Pleadings rolled up and inadequate – Leave to re-plead – Turns on own facts [2025] WADC 21[2025] WADC 21 [HC] Page 1JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIAIN CHAMBERSLOCATION : PERTHCITATION : BIDAS -v- REDINK HOMES PTY LTD [2025] WADC 21CORAM : PRINCIPAL REGISTRAR MCGIVERNHEARD : 11 FEBRUARY 2025DELIVERED : 9 APRIL 2025FILE NO/S : CIV 4806 of 2024BETWEEN : JAN BIDASPlaintiffANDREDINK HOMES PTY LTDDefendantCatchwords:Practice and procedure – Pleadings – Application to strike out statement of claim – Plaintiff unrepresented – Approach to be adopted where party is unrepresented – Lack of jurisdiction asserted – Whether jurisdictional objection raises a pleadings point – Principles to be applied – Pleadings rolled up and inadequate – Leave to re-plead – Turns on own factsLegislation:Rules of the Supreme Court 1971 (WA), O 20 r 19(1)[2025] WADC 21[2025] WADC 21 [HC] Page 2Result:Application allowedRepresentation:Counsel:Plaintiff:In personDefendant:Ms A SultanaSolicitors:Plaintiff:Not applicableDefendant:LavanCase(s) referred to in decision(s):Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82Dare v Pulham (1982) 148 CLR 658English v Vantage Holdings Group Pty Ltd [2021] WASCA 47Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87Lewis v Garvey [2017] WADC 76McGavin v McGavin [2024] WASC 408Northern Territory of Australia v John Holland Pty Ltd (formerly known as John Holland Construction & Engineering Pty Ltd) [2008] NTSC 4Nyoni v Patterson [2012] WASCA 171Pigozzo v Mineral Resources Ltd [2022] FCA 1166Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213Re Rules of the Supreme Court 1971 (WA); Ex parte Ruba [2020] WASC 237Snelgrove v Great Southern Managers Australia Ltd (in liq) (Receiver and Manager Appointed) [2011] WASC 103Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14Tobin v Dodd [2004] WASCA 288Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398[2025] WADC 21PRINCIPAL REGISTRAR MCGIVERN[2025] WADC 21 [HC] Page 3PRINCIPAL REGISTRAR MCGIVERN:1Mr Bidas is unrepresented. He has commenced an action against Redink Homes Pty Ltd (Redink). In broad terms, Mr Bidas alleges that Redink was contracted to build a home for him and, by failing to build that home, Redink has breached the contract and has caused him to suffer various losses.2Redink has applied1 to strike out Mr Bidas’s statement of claim,2 on the grounds that:(a) the District Court lacks jurisdiction to deal with the subject matter of the action (jurisdictional objection); and(b) the plaintiff’s pleadings are inadequate or improper (inadequacy objections).3In dealing with the application, I will consider the following issues:(a) What version of the statement of claim is the application concerned with?(b) What is the proper approach to a strike-out application when, as here, the plaintiff is unrepresented?(c) Is the jurisdictional objection properly dealt with in an application to strike out the statement of claim?(d) Are any of the inadequacy objections made out and, if so, to what extent?(e) If all or part of the statement of claim is struck out, should Mr Bidas be given leave to re-plead?4For the reasons that follow, the statement of claim is struck out and Mr Bidas has leave to file a further statement of claim.What version of the statement of claim is the application concerned with?5Mr Bidas commenced proceedings by filing a writ indorsed with a statement of claim on 22 October 2024.1 Pursuant to O 20 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC). In these reasons, any reference to a rule is a reference to the RSC unless otherwise specified.2 As outlined below, the application is taken to be an application to strike out the amended statement of claim filed on 11 December 2024.[2025] WADC 21PRINCIPAL REGISTRAR MCGIVERN[2025] WADC 21 [HC] Page 46Redink has filed an unconditional appearance, but has not filed a defence. Rather, on 12 November 2024, Redink applied to strike out the whole of the statement of claim. The grounds for the application, as set out in the chamber summons, are that:If allowed to stand in its present form, the Statement of Claim disclose [sic] no reasonable cause of action, alternatively, is scandalous, frivolous or vexatious, alternatively may prejudice, embarrass or delay the fair trial of the action, alternatively it is otherwise an abuse of the process of the Court in the terms of Order 20 rule 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of the Supreme Court 1971 (WA).7On 11 December 2024 (that is, after the application was filed), Mr Bidas filed an amended statement of claim (ASOC).38The application was heard at a special appointment, at which hearing:(a) Redink’s counsel submitted that:(i) the ASOC did not materially differ from the statement of claim and its objections to the pleadings remained essentially the same; and(ii) the application should be treated as an application to strike out the ASOC; and(b) Mr Bidas did not object to that submission.9Noting that each of the parties had filed their written submissions in the application after the date of the ASOC,4 and addressed the later pleading, I accepted Redink’s submission and the hearing proceeded on that basis.10Accordingly, the application is to strike out the ASOC which, for ease of reference, is annexed to these reasons.3 At the hearing of the application, the defendant clarified that the same pleadings objections arose and the application should be treated as an application to strike out the ASOC. I accepted that submission and proceeded on that basis.4 The defendant’s outline of submissions was filed 24 January 2025 (defendant’s written submissions); and the plaintiff’s outline of submissions was filed 2 February 2025 (plaintiff’s written submissions).[2025] WADC 21PRINCIPAL REGISTRAR MCGIVERN[2025] WADC 21 [HC] Page 5What approach should be taken in dealing with the application?11The court may strike out a pleading under O 20 r 19(1), on the grounds that:(a) it discloses no reasonable cause of action or defence, as the
LOUREY -v- WA COUNTRY HEALTH SERVICE [2025] WADC 19
Catchwords:Workers compensation – Appeal – Costs orders against employee’s representatives – Procedural fairness – Costs ‘unreasonably incurred by representative’ – Costs incurred ‘without reasonable cause’ [2025] WADC 19[2025] WADC 19 (MW) Page 1JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIAIN CIVILLOCATION : PERTHCITATION : LOUREY -v- WA COUNTRY HEALTH SERVICE [2025] WADC 19CORAM : CORMANN DCJHEARD : 4 FEBRUARY 2025DELIVERED : 9 APRIL 2025FILE NO/S : APP 36 of 2024BETWEEN : MICHAEL JOSEPH LOUREYFirst AppellantTRISTA LEE SAVILLESecond AppellantANDWA COUNTRY HEALTH SERVICERespondentON APPEAL FROM:Jurisdiction : WORKERS COMPENSATION ARBITRATION SERVICECoram : ARBITRATOR FLETCHERFile Number : A123181 & A123182[2025] WADC 19[2025] WADC 19 (MW) Page 2Catchwords:Workers compensation – Appeal – Costs orders against employee’s representatives – Procedural fairness – Costs ‘unreasonably incurred by representative’ – Costs incurred ‘without reasonable cause’Legislation:Workers’ Compensation and Injury Management Act 1981 (WA), s 188, s 247, s 265(1)(c)Workers Compensation and Injury Management Act 2023 (WA), s 391, s 542, s 546Result:Leave to appeal in respect of ground 1 is refusedLeave to appeal in respect of ground 2 is grantedThe appeal is otherwise dismissedRepresentation:Counsel:First Appellant:Mr P V LansellSecond Appellant:In personRespondent:Mr L E M BaylySolicitors:First Appellant:Lansell LegalSecond Appellant:Not applicableRespondent:HWL Ebsworth LawyersCase(s) referred to in decision(s):Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250Cameron v Cole [1944] HCA 5; (1994) 68 CLR 571Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576[2025] WADC 19[2025] WADC 19 (MW) Page 3Cullen v Woodside Energy Ltd [2021] WADC 56Davie v Manuel [2024] WASCA 21Defendi v Szigligeti [2019] WASCA 115Frigger v Frigger [2023] WASCA 103Johnson v Denwest Nominees Pty Ltd t/as Cunderdin Roadhouse [2017] WASCA 200Kanan v Australian Postal and Telecommunications Union [1992] FCA 539LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12Marks v Coles Supermarkets [2021] WASCA 176McKay v Commissioner of Main Roads [2013] WASCA 135National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296Osgood v Wham [2007] WASCA 178Pacific Industrial Co v Jakovljevic [2008] WASCA 60Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212Rodgers v Amcor Ltd [2018] WADC 134SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152Wellstead Building & Renovating v Wellstead CM 25/99, 20 June 1999Zamora v OCS Services Pty Ltd [2024] WADC 77[2025] WADC 19CORMANN DCJ[2025] WADC 19 (MW) Page 4CORMANN DCJ:Introduction and background1This appeal was brought pursuant to s 247 of the Workers’ Compensation and Injury Management Act 1981 (repealed 1 July 2024) (Repealed Act).2The appeal relates to two decisions delivered on 1 May 2024 by an arbitrator of the Workers Compensation Arbitration Service. The decisions were made in two applications brought by an employee of the respondent arising from an injury sustained in the course of her employment on 17 March 2017.3The appellants were employed by then legal firm, Chapmans Barristers and Solicitors, and were the employee’s representatives in the proceedings.4The arbitrator dismissed both applications. He also made orders under s 265(1)(c) of the Repealed Act that the appellants indemnify the respondent for costs incurred under various items of the scale in the Workers’ Compensation (Legal Profession and Registered Agents) Costs Determination 2018 (Determination).5It is only the costs orders that are the subject of this appeal.6The appellants contend that the arbitrator erred in law in:(a) incorrectly interpreting and applying s 265(1)(c); or(b) denying the appellants procedural fairness prior to making the orders under s 265(1)(c).7For the reasons that follow:(a) leave to appeal in respect of ground 1 is refused;(b) leave to appeal in respect of ground 2 is granted; and(c) the appeal is otherwise dismissed.[2025] WADC 19CORMANN DCJ[2025] WADC 19 (MW) Page 5The appeal to this court8This appeal was commenced by Notice filed on 28 May 2024. An Amended Appeal Notice was filed on 30 May 2024. A Re-Amended Appeal Notice was filed on 19 August 2024 which set out the grounds of appeal ultimately argued at the hearing on 4 February 2025.9On 1 July 2024, the Workers Compensation and Injury Management Act 2023 (WA) (2023 Act) was enacted. According to s 546(1) and s 546(2) of the 2023 Act:(a) the 2023 Act operates as a ‘continuation of the former Act and a pending matter continues and must be dealt with under this Act as if it arose under this Act’; and(b) anything commenced ‘under a provision of the former Act for the purposes of or in connection with a pending matter is taken to have been commenced, and is to continue, under the corresponding provision of this Act’.10Pursuant to s 542 of the 2023 Act, a ‘pending matter’ means:a claim, assessment, proceeding, dispute or other matter commenced or arising under the former Act before commencement day that is pending, current or continuing under the former Act immediately before commencement day.11This appeal is a ‘pending matter’ within the meaning of s 542 of the 2023 Act and therefore it falls to be determined under the 2023 Act.12By s 391(1) of the 2023 Act, this appeal can only be brought with leave. As no amount of compensation is in issue, the only prerequisite for the grant of leave is that ‘a question of law is involved’ (s 391(2)). Even if a question of law is involved, the grant still lies in the discretion of the court.13If the court forms the view that, although a question of law is ‘involved’ but there has not been a relevant error of law, this is a factor which the court may consider relevant to the question of whether leave should be granted.114A failure to award procedural fairness arising from a failure to put a party on notice of a fact or issue when the decision-maker’s evaluation1 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17], [25].[2025] WADC 19CORMANN DCJ[2025] WADC 19 (MW) Page 6or conclusion of that fact or issue is one that could not reasonably beanticipated, may be an