Akhter v MHS (Concord) Pty Ltd

[2006] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Akhter v MHS (Concord) Pty Ltd [2006] NSWWCCPD 29

APPELLANT:  Jamil Akhter

RESPONDENT:  MHS (Concord) Pty Ltd

INSURER:CGU Workers Compensation (NSW) (No. 2) Pty Ltd

FILE NUMBER:  WCC6929-04

DATE OF ARBITRATOR’S DECISION:          7 October 2004

DATE OF APPEAL DECISION:  27 February 2006

SUBJECT MATTER OF DECISION:                Issue estoppel

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:24 February 2006

REPRESENTATION:  Appellant:      Self-represented

Respondent:   Shaw McDonald

ORDERS MADE ON APPEAL:  Leave to appeal is granted.

The decision of the Arbitrator is confirmed.

No order as to costs.

BACKGROUND TO THE APPEAL

1. Jamil Akhter commenced working for MHS (Concord) Pty Ltd (‘MHS’) in 2000 as a chemical machine maker.  He was employed at a factory operated by McNeall Industrial Technologies Pty Limited (‘McNeall’).  Mr Akhter alleges that, on 18 December 2000, he suffered an injury to his back and left leg when lifting a machine weighing approximately 35 kilograms. 

1. CGU Workers Compensation (NSW)(No. 2) Pty Limited (‘Insurer’) is the employer’s workers compensation insurer. 

1. On 1 June 2001 Mr Akhter made a claim for compensation by way of weekly benefits and medical expenses.  The Insurer made payments of provisional weekly benefits and medical expenses from 18 December 2000 to 16 January 2004.

1. On 16 January 2004, the Insurer ceased these payments following the decision by Judge Cooper in the District Court of New South Wales in relation to a separate damages claim by Mr Akhter.

1. On 30 April 2004, Mr Akhter filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission.  This dispute was determined in the employer’s favour by a Commission Arbitrator on 7 October 2004. 

1. The Arbitrator found that the District Court had decided the question of whether Mr Akhter had suffered an injury in the course of his employment on 18 December 2000, and therefore the Commission could not decide that matter again.  The legal principle underlying the decision is called ‘issue estoppel’.  As a result, the Arbitrator dismissed Mr Akhter’s claim for weekly compensation and medical expenses.

1. Mr Akhter filed an ‘Application – Appeal Against Decision of Arbitrator’ on 4 November 2004.  This is the determination of that appeal.

1. Mr Akhter’s appeal was filed by his solicitor, however, the Commission was later advised that he was self-represented.  I have taken into account the submissions of his former solicitor and his own submissions on the appeal.

LEAVE TO APPEAL

1. Leave to appeal is required when a party wants to appeal from the decision of an Arbitrator. The requirements to be granted leave are found in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘1998 Act’).

1. The appeal was filed within time.

1. The parties’ submissions did not address the issue of leave. With respect to section 352(2), I note that the appeal challenges the determination by the Arbitrator that the Commission has no jurisdiction. That determination put in issue the whole of Mr Akhter’s claim for weekly compensation payments and medical expense (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5). This is an amount in excess of $5000.

1. Leave to appeal is granted.

ISSUE IN DISPUTE ON APPEAL

1. The basis of appeal to the Commission from the decision of an arbitrator is that the arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; The King Island Company Limited v Deery [2005] NSW WCC PD 1). If such an error is established, and it is such that, but for it, a different decision would have been made (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at paragraph 4), then the Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator concerned or a different arbitrator for re-determination in accordance with the decision on appeal (section 352 of the 1998 Act).

1. The submissions filed by Mr Akhter’s former solicitors submit that the Arbitrator erred in finding that an issue estoppel arose.  The submissions seek the matter be remitted to an Arbitrator for further determination.  MHS opposes the appeal and supports the determination of the Arbitrator regarding issue estoppel. 

1. Therefore, the single issue for determination on appeal is: Was the Arbitrator wrong in determining that Mr Akhter was estopped from asserting that he suffered an injury as alleged in his claim?

HEARING OF THE APPEAL

1. Given the legal nature of the issues raised by the appeal and the fact that Mr Akhter is self-represented and requires the assistance of an interpreter, it was appropriate for a hearing to be held in this matter.  It is noted that Mr Akhter’s former solicitors also submitted that a hearing was appropriate in this matter. 

1. Mr Akhter appeared for himself at the hearing on 24 February 2006.  He was assisted by an Interpreter in the Urdu language, provided by the Commission.  The Insurer was legally represented.

FRESH EVIDENCE

1. ‘Fresh evidence’ is evidence that was not available to the Arbitrator. 

1. Leave is required when a party wants to admit fresh evidence or evidence in addition to that which was before the Arbitrator (section 352(6) of the 1998 Act).  The requirements of section 352(6) of the 1998 Act are addressed in the Practice Direction No. 6.  This provides that a party is seeking to rely upon new evidence on appeal must file with the Commission and serve on the other parties:

   ·a copy of the new evidence;

   ·a brief outline of the new evidence and the reasons why it was not given in proceedings before the Arbitrator; and

   ·submissions as to why the new evidence should be admitted.

2. The President’s Direction further provides that:

   “In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. The principles relevant to the exercise of the discretion to admit fresh evidence were discussed in relation to proceedings before the Commission in the matter of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7.

1. Mr Akhter has sought to present two types of ‘fresh evidence’ for the hearing of this appeal.  As he is self-represented he has been granted latitude in terms of compliance with the procedural requirements of the President’s Practice Direction.

1. The first type of evidence is a further report from Dr Ellis who provided an initial medico-legal report in April 2002.  This earlier report was annexed to Mr Akhter’s ‘Application to Resolve a Dispute’.  The further report dated 21 September 2004 appears to be in response to a request by Mr Akhter’s former solicitors and seeks to correct the record of history of injury and updates the medical information.

1. In support of the admission of the fresh evidence, it was argued that given the Commission’s wide powers in terms of receipt of evidence Mr Akhter seeks the opportunity to update the medical position.

1. The second type of fresh evidence was lodged by Mr Akhter as a self-represented litigant and comprises:

   ·           a statement signed by Mr Akhter written by his wife Tallat Siddiqui;

   ·           a copy of a NSW Workers Compensation Certificate dated 27 July 2004;

   ·a document dated 20 October 2005 relating to Mr Akhter’s attendance at English classes in Burwood;

   ·birth details in relation to one of Mr Akhter’s children; and

   ·an extract from the District Court transcript with highlighting.

1. In support of the submission of the fresh evidence, Mr Akhter argues that he did not know what evidence his solicitor provided before the Arbitrator and that he “seeks justice”.

1. The fresh evidence presented on the appeal by Mr Akhter is not relevant to the issue to be decided, namely; does issue estoppel arise from the proceedings in the District Court between the same parties?  I do not expect Mr Akhter to be across the technicalities of the admissibility of this fresh evidence.  I accept that Mr Akhter firmly believes that a substantial injustice would be occasioned to him if the fresh evidence was not admitted on the appeal.  Although the additional evidence was capable of being filed before the Arbitrator, I accept Mr Akhter’s claim that he believed (albeit incorrectly) that his former solicitor had not filed evidence on his behalf in the Commission proceedings.  I propose to allow the fresh evidence to be given on the appeal because to not do so, when Mr Akhter is unrepresented, would be a substantial injustice in this particular case.  I will give the fresh evidence weight according to its relevance and probity as to the issue to be decided.  This much was explained to Mr Akhter at the oral hearing of the appeal.

1. In response to Mr Akhter’s request to give fresh evidence MHS sought to give fresh evidence in the form of: a copy of the ‘Ordinary Statement of Claim’ filed on 23 November 2001 by Mr Akhter in the District Court proceedings, and, a copy of the decision of the Court of Appeal in Mr Akhter’s appeal from the decision of Judge Cooper in the District Court.  Having allowed Mr Akhter to file his additional statement and, in particular, an extract of the transcript of the District Court proceedings, I accept that a substantial injustice would flow to MHS if its fresh evidence were not also admitted.  I allowed this evidence to be given as ‘new evidence’ on the appeal.

WAS THE ARBITRATOR WRONG IN DETERMINING THAT MR AKHTER WAS ESTOPPED FROM ASSERTING HE SUFFERED AN INJURY AS ALLEGED IN HIS CLAIM?

1. Issue estoppel arises when:

   “For the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” (Dixon J in Blair v Curran (1939) 62 CLR 464) (See discussion of issue estoppel in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43; JP Cordukes Pty Ltd v Mangarelli [2005] NSW WCC PD 52).

2. The High Court, in the recent decision of Kuligowski v Metrobus [2004] 220 CLR 363, (‘Kuligowski’) affirmed the requirements for an issue estoppel as set out in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No. 2] [1967] 1 AC 853 namely:

   1.   that the same question has been decided;

   2.   that the judicial decision which is said to create the estoppel was final; and

   3.   that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

1. After applying these requirements to this matter, the Arbitrator found that precisely the same question was determined in the District Court proceedings namely, whether on 18 December 2000 Mr Akhter ‘received an injury’.  Notwithstanding that the judicial decision of the District Court was subject to appeal, it was nonetheless final and binding.  The parties to the decision in the District Court were Mr Akhter, MHS and McNeall.  It is not in dispute that MHS hired out Mr Akhter’s services to McNeall.  I note the submission by Mr Akhter’s former solicitors that the parties in these proceedings were not the same because the parties in the District Court included McNeall, the special employer or occupier.  This does not detract from the fact that Mr Akhter and MHS were parties to the District Court proceedings and it was sufficient that Judge Cooper determined the issue of injury as between them.  The Arbitrator correctly applied the principles set out in the High Court decision of Kuligowski.

1. The submissions filed in support of the appeal by Mr Akhter’s former solicitor may be summarised as follows:

   ·The issue that was before the District Court was whether or not any injuries sustained by Mr Akhter were caused or materially contributed to by the defendents, MHS and McNeall.

   ·It is plainly wrong that the precise issue that was before the District Court was to be decided by the Arbitrator.  The District Court was exercising a function of the common law, whereas the Commission is exercising a statutory power of inquiry to determine a dispute under the Workers Compensation Act 1987 (‘the1987 Act’).

   ·The Commission is a creature of statute.  Its procedure provisions in section 354 of the 1998 Act make it abundantly clear that questions such as estoppel or issue estoppel do not fall within the jurisdiction of the Commission to determine. 

   ·It is outside the jurisdiction of the Commission conferred by Chapter 7 of Part 9 of the 1998 Act to declare an issue estoppel. 

   ·The Arbitrator misapplied Kuligowski and the requirements set out in that case were not met.

   ·The Arbitrator did not address the fact that MHS had been voluntarily making payments of workers compensation.

2. The submissions filed on behalf of MHS may be summarised as follows:

   ·The issue for determination in the District Court involved three elements; existence of a breach of duty of care; breach of that duty and damage flowing from the breach.  A finding of fact as to the occurrence of an injury was essential to the determination of the ultimate issue in the District Court proceedings.

   ·The common element in the two sets of proceedings was whether or not Mr Akhter was injured during the course of his employment in the manner alleged.

   ·The fact that the Commission is not a court does not entitle it to disregard the factual decisions of courts binding parties subsequently appearing in proceedings before the Commission.

1. The Arbitrator was correct to find that issue estoppel arose in relation to the issue to be determined before her.  Judge Cooper, at page 11 of his judgment, states that:

   “The question to be determined by this court is has the plaintiff [Mr Akhter] satisfied it on the balance of probabilities that his back was injured in the manner stated in his evidence” (sic).

1. This is precisely the issue for determination in the proceedings in the Commission.  The claim relates to the same injury, namely that on 18 December 2000 Mr Akhter injured his back when lifting a machine in the factory operated by MHS.  The evidence of the claimed injury is the same in both the District Court and Commission proceedings. 
   
   

2. Judge Cooper heard oral evidence from Mr Akhter, who was subject to cross-examination. He considered medical evidence from Dr Coyle and Dr Chew (clinical notes) for Mr Akhter.  He also had evidence before him from Dr Head and a Mr Wong, who was employed by MHS.  He considered the report of the injury and the claim form.  Ultimately he decided, on the evidence, that Mr Akhter did not suffer an injury at work as claimed.  In my view Judge Cooper’s findings give rise to an issue estoppel in the proceedings before the Arbitrator.

1. Mr Akhter’s former legal representative raised a number of issues in submissions filed with the appeal application that should be addressed, although they were technical legal issues and were not pressed by Mr Akhter at the hearing.  It was submitted that the only issue decided by the District Court was, in summary, the negligence of the employer.  While this was the legal basis of Mr Akhter’s cause of action in that court, it was required to determine a range of factual issues necessary to substantiate the claim and justify the remedy of damages.  One of those issues was whether the injury in fact occurred.  It is clear from Judge Cooper’s comments that exactly this issue was decided.

1. Mr Akhter’s formal legal representative also submitted that a Commission Arbitrator does not have the power to determine whether an issue estoppel arises.  The submissions appear to confuse the legal principles applicable to ‘equitable estoppel’ and declaratory relief.  An Arbitrator has only those powers conferred on the Commission by statute.  An Arbitrator does not have the power, pursuant to the Workers Compensation Acts, to award general declaratory relief.  However, the Arbitrator must make findings of fact based upon the evidence and, having made those findings, must then determine any matters of law that arise.  There is no bar to an Arbitrator finding, as a matter of evidence, that an issue estoppel arises. 

1. Mr Akhter’s formal legal representative also submitted that it remained open to the Arbitrator to determine that Mr Akhter suffered an injury arising out of the ‘nature and conditions’ of his employment with MHS.  It was also argued that I could make this finding on appeal.  This argument ignores the fact that this is not the claim Mr Akhter made upon his employer.  He has always claimed to have suffered a frank injury, at work, on 18 December 2000.  His statement, filed in the Commission proceedings, clearly identifies the alleged injury.  It is not open to the Arbitrator, or to a Deputy President on appeal, to overlook the actual claim made by a worker in accordance with the statutory scheme, and to effectively reframe the nature of the injury. 

1. However the application of issue estoppel does not deny the Commission jurisdiction, as stated by the Arbitrator.  The result of this reasoning is that Mr Akhter has not proven his entitlement to compensation under the Workers Compensation Acts.  He has failed to prove that he suffered an injury ‘arising out of or in the course of his employment’ (section 4 of the 1987 Act) with MHS.  Ultimately the Arbitrator’s order that the “Application is Dismissed” achieves the correct result.  

DECISION

1. The decision of the Arbitrator is confirmed.

COSTS

1. Mr Akhter has been unsuccessful on appeal.  MHS seek an order that Mr Akhter pay the costs of the appeal arguing that the costs on appeal had been incurred ‘without proper justification’ (pursuant to section 341(4) of the 1998 Act). 

1. The award of costs of an appeal is governed by Division 3 of Part 8 of the 1998 Act. 

1. I agree with the Arbitrator’s comments that Mr Akhter was ‘entitled to test the question of estoppel in this jurisdiction’.  It cannot be said that his claim, or appeal, were without justification.  Although he was unrepresented at the hearing, he was clearly fortified in his decision to pursue the appeal by the written submissions prepared for him by Counsel and submitted with the ‘Application to Appeal’.

1. In my view the fair and reasonable result should be that each party pay their own costs.  To this end the appropriate order is ‘No order as to costs’.

Dr Gabriel Fleming

Deputy President  

27 February 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE