Cooper v Forestry Tasmania
[2006] TASSC 65
•20 September 2006
[2006] TASSC 65
CITATION: Cooper v Forestry Tasmania [2006] TASSC 65
PARTIES: COOPER, Stephen Robert
v
FORESTRY TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1381/1998
DELIVERED ON: 20 September 2006
DELIVERED AT: Hobart
HEARING DATE: 11 September 2006
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Amendments – Defence – Discretion – Whether proposed amendment is futile because it is obviously bad in law.
Aust Dig Procedure [276]
Estoppel – Former Adjudication and Matters of Record or Quasi of Record – Former Adjudication – Judgment Inter Partes – Issue Estoppel – Identity of Issues – In General – Whether issue determined in workers compensation proceedings identical to issue raised between the same parties in a personal injuries action.
Aust Dig Estoppel [14]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips
Defendant: D J Gunson SC
Solicitors:
Plaintiff: Phillips Taglieri
Defendant: Gunson Williams
Judgment Number: [2006] TASSC 65
Number of paragraphs: 18
Serial No 65/2006
File No 1381/1998
STEPHEN ROBERT COOPER v FORESTRY TASMANIA
REASONS FOR DECISION MASTER S J HOLT
20 September 2006
The plaintiff claims an award of damages in respect of a back injury suffered in a fall at work on 1 March 1994, alleged to be due to the fault of his employer. The injury is said to be "Injury to the lumbar spine, bulging of L3-4 and L4-5 lumbar discs, pain and suffering" resulting in loss of earning capacity. The writ issued in 1998. In 2001 the Workers Rehabilitation and Compensation Tribunal determined that the defendant had been entitled to terminate weekly workers compensation payments because in the fall the plaintiff had suffered a "soft tissue injury only" from which he "had wholly recovered" and the back condition which caused a partial incapacity for work did "not result from the soft tissue injury sustained in his fall, but instead is attributable to early degenerative changes of the lumbar spine". The defendant has applied for an order granting leave to amend the defence so as to plead the matters necessary to found an estoppel in respect of these determinations of the Tribunal.
Counsel for the plaintiff opposed the making of an order granting leave to amend on four grounds. In short, the submissions were as follows. Firstly, the plea includes a claim of res judicata when such a plea cannot possibly be sustained. Secondly, an issue estoppel cannot arise as the findings of fact on which the proposed plea is based were not findings of ultimate fact which the Tribunal was required to determine. Thirdly, the drafting of the plea is unsatisfactory. Fourthly, there has been delay in bringing the application.
The proposed plea of res judicata is futile and the defendant acknowledged this during the course of the hearing and abandoned it in favour of relying solely on the claim of issue estoppel. The Tribunal's determination that the plaintiff had recovered from the back injury sustained in the fall could not possibly have exhausted a cause of action for damages for personal injury and accordingly the proposed plea of res judicata was without basis The nature of res judicata is explained in Blair v Curran (1939) 62 CLR 464. There Dixon J (as he then was) said at 532:
"The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, 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."
The circumstances in which an issue estoppel may arise were set out in Kuligowski v Metrobus (2004) 220 CLR 363. The judgment of the Court included the following:
"In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:
'(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.'
… it was common ground that (Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 per Gibbs J):
'The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.'
…
… A 'final' decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 454, per Gibbs J. It must be 'final and conclusive on the merits': 'the cause of action must be extinguished by the decision which is said to create the estoppel' Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] (1967) 1 AC 853 at 935, per Lord Guest.
Same question?
In Ramsay v Pigram (1968) 118 CLR 271 at 276, Barwick CJ encapsulated what was involved in answering that question by saying:
'Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.'"
Counsel for the plaintiff submitted that the Tribunal's findings of fact, the subject of the proposed plea, were not findings as to ultimate facts which had to be determined by the Tribunal and so the claimed issue estoppel could not arise. This is a pleading application and not the trial of a question of law and, accordingly, the question is whether the proposed plea raises an issue which ought to be tried. It is not whether the estoppel claim ought not to succeed. Only if it is obvious that the plea as a matter of law cannot succeed should the amendment be disallowed on this ground. This is made clear by Dawson J in Commonwealth of Australia v Verwayen (1990) 170 CLR 394 where he said at 456:
The rules of court have always provided that leave to amend pleadings may be given for the purpose of determining the real question in controversy between the parties … and an amendment should ordinarily be allowed if any harm arising from so doing can be compensated for by the imposition of terms upon the party asking for the amendment: … In granting leave to amend, a court is concerned with the raising of issues and not with their merits. Of course, an amendment which is futile because it is obviously bad in law will not be allowed. But it is no ground for refusing an amendment that it raises a claim or defence which ought not to succeed. That will be an issue upon trial."
The reasons published by the Tribunal were put in evidence. On the face of that document weekly payments had been terminated by the defendant on 14 May 2000. This was following the defendant serving on the plaintiff a medical practitioner's certificate. The certificate (which was also put in evidence) included the following:
"I CERTIFY that in my opinion Stephen Robert Cooper has wholly recovered from the effects of the injury in respect of the accident of the 1st March 1994 and in respect of which payments of weekly compensation are being made and I further certify that any incapacity from which he is suffering is not as a result of the injury that occurred on the 1st March 1994. It is my opinion any incapacity or disability from which Mr Cooper is suffering is no longer due wholly or substantially to the claimed injury of the 1st March 1994."
The plaintiff disputed the termination and referred the matter to the Tribunal. The relevant provision of the Workers Rehabilitation and Compensation Act 1988 is s86, which includes the following:
"(1)Except in pursuance of a determination made by the Tribunal under section 88(2), an employer may, subject to this section, terminate or reduce a weekly payment made to a worker only where –
(c)an accredited medical practitioner who has examined the worker has certified that, in his opinion, the worker has wholly recovered or substantially recovered, from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due, wholly or substantially, to that injury;
(4) A worker… who wishes to dispute the termination or reduction of the weekly payments being made to him may within a period of 60 days from the date on which the weekly payments were terminated or reduced, refer the matter to the Tribunal for determination."
The Tribunal dismissed the referral. It did so after directing itself that the employer carried the onus of justifying the termination referring to Ryan v McCain Foods (Aust) Pty Ltd (1995) 4 Tas R 101, where Zeeman J said at 109 and following:
"What s86(4) permits is a judicial review of a decision of the employer to terminate or reduce a weekly payment upon an identified basis, namely, the basis disclosed by the certificate. On a reference under s86(4) a worker carries no onus of establishing his basic entitlement to weekly compensation under the Act, s25(1) because that entitlement has been established by the commencement of the weekly payment. The entire onus is upon the employer to establish, if he can, that, within the parameters of the 'matter' referred to the Commissioner, the circumstances are such as to justify the termination or reduction of the weekly payment (Commonwealth v Muratore (1978) 141 CLR 296 at 302)."
According to the Tribunal's reasons the defendant's medical advisers, in support of the matters referred to in the s86 certificate which led to the termination of payments, gave evidence that the plaintiff's ongoing problems at the time of the termination were due to degenerative changes in the spine unrelated to the fall at work. This evidence was in conflict with the medical evidence presented on behalf of the plaintiff. According to the Tribunal's reasons a consultant neurosurgeon gave evidence for the plaintiff that "the clinical features and radiological findings were consistent with a diagnosis of lumbar discogenic pain syndrome without neurological deficit which condition was initially caused by the worker's fall" and that the "mechanical circumstance" of the fall could "cause a disruption to an endplate" and that "the disruption to the endplate probably set in train a degenerative cascade whereby the two discs at L3/4 and L4/5 became degenerated, causing 'mechanical back pain'".
The Tribunal said: "To begin, it is necessary … to determine the actual injury suffered on 1 March 1994". The reasons went on to say that the Tribunal had: "come to the conclusion that the worker's fall did not cause any injury to an endplate" and that "the evidence firmly establishes that … the worker had wholly … recovered from the effects of his soft tissue injuries" suffered in the fall.
Counsel for the plaintiff made the following submission "The sole matter for determination before the Workers Rehabilitation and Compensation Tribunal was whether at a certain date, that date being the date of the (s86) certificate … the worker had, in the words of the Act, wholly recovered or substantially recovered from the effects of the injury in respect of which the payment is being made or that the worker's incapacity is no longer due wholly or substantially to that injury … section 86 of the Workers Rehabilitation Act is concerned, not with disabilities in a general sense or incapacities in a general sense. It is confined to the termination or reduction of a weekly payment of compensation and nothing more nothing less … no issue estoppel could arise because what my learned friend is endeavouring to do is to raise evidentiary facts to ultimate facts and that the courts do not permit us to do".
In my view, it is open to a court to find that the subject of the Tribunal's determination for the purpose of considering whether the claimed issue estoppel arises, is not confined in the way which counsel suggests. An issue estoppel arises not only in respect of the final conclusion, but extends to matters which were necessary to decide and which were actually decided as the groundwork for the conclusion. These matters, properly categorised, are, at least arguably, not merely evidentiary facts, as counsel for the plaintiff suggests, but for the purpose of the doctrine are ultimate facts. In Blair v Curran (supra), Dixon J said at 532:
"Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter, (1855) 4 E & B 780 at 794 [119 ER 288 at 203], the judicial determination concludes not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of the fact' must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation (1926) AC 155). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion."
The findings of the Tribunal which the defendant claims give rise to an estoppel are arguably findings which, having regard to the way in which the dispute before the Tribunal was run, were indispensable to the conclusion reached, and so were findings as to ultimate facts.
Egri v DRG Australia Ltd (1988) 19 NSWLR 600, is an example of a case not unlike the present. There a worker asserted an incapacity for work as a result of a disc lesion suffered at work and claimed compensation in the Workers Compensation Commission. The Commission rejected the claim finding that there was no disc lesion. The defendant employer in a personal injuries action in the Supreme Court successfully claimed that the worker was estopped from recovering damages for a disc lesion. The result was that the trial judge (who would have found the existence of a disc lesion on the evidence before him) regretfully assessed damages on the basis that there was no disc lesion. On appeal, McHugh JA said at 604 and 605:
"The nature of the injury which the worker sustained was one of the two ultimate issues litigated in the Workers' Compensation Commission. The worker asserted that the injury which he sustained was a disc lesion. The employer not only denied that proposition – it asserted that the nature of the injury sustained by the worker was a low and upper back strain. His Honour determined the conflict by holding that the nature of the injury sustained was a lower and upper back strain.
Unfortunately, from the worker's point of view, the finding of the Workers' Compensation Commission as to the nature of the injury sustained on 12 July 1982 precludes the worker, as between himself and the employer, from ever again asserting the contrary in litigation between them.
…
… In the present case the finding that there was no disc lesion was fundamental in determining what was the nature of the injury and whether the worker was still incapacitated after 7 September 1983."
The proposed plea should not be disallowed on the claimed ground, namely, that as a matter of law it is obvious that it cannot succeed. On the contrary the proposed plea raises an issue which warrants trial.
Next counsel for the plaintiff submitted that the draft of the proposed plea is defective in that it is prolix, contains irrelevant material and inserts material facts under the heading "Particulars". These complaints have substance, but I will not disallow the proposed amendment because of them. I do not need to set out the plea. In my view, it clearly enough puts the plaintiff on notice of what is alleged to be the subject of issue estoppels and why. The plaintiff did not submit to the contrary. "The function of pleadings is to state with sufficient clarity the case that must be met". Banque Commerciale S.A. (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286. This object has been met.
Finally, counsel for the plaintiff submitted that the proposed amendment should be refused because of delay in bringing the application. Counsel, however, did not claim that there were disentitling features associated with the delay, nor that any adverse consequence would or might result to the plaintiff because of delay if the pleading is permitted. Amendments should ordinarily be allowed if they can be accommodated without harm to the other party. There being no extraordinary circumstances and no claimed harm as a result of delay leave to amend will not be withheld because of it.
Counsel for the defendant advised during the course of the hearing that it was not proposed to maintain a previously pleaded counterclaim and there was no opposition to the counterclaim being deleted. Accordingly, the order will be that the defendant has leave to amend the defence by deleting the counterclaim and adding the plea proposed in the application, but substituting for the words "the Plaintiff is estopped by the doctrine of equitable estoppel or alternatively by the doctrine of res judicata", the words "the plaintiff is estopped by the doctrine of issue estoppel".
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