Cramer v Geraldton Building Co
[2004] WASCA 289
•3 DECEMBER 2004
CRAMER -v- GERALDTON BUILDING CO [2004] WASCA 289
| (2004) 29 WAR 410 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 289 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:2234/2003 | 9 JUNE 2004 | |
| Coram: | MCLURE J EM HEENAN J LE MIERE J | 3/12/04 | |
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Case stated answered Application for extension of time for leave to appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | MAX CRAMER GERALDTON BUILDING CO |
Catchwords: | Workers' Compensation Compensation Magistrate's Court Case stated Application for leave to appeal Referral by Review Officer to Compensation Magistrate of issue of law Decision of Compensation Magistrate on question of law remitted to Review Officer Subsequent appeal to Compensation Review Officer Competency of appeal from decision of Compensation Magistrate Final or interlocutory decision Mesothelioma Last employer ordered to pay compensation Last employer seeking contribution from earlier employer Claim for damages at common law Settlement of claim Avoidance of double compensation Relevance of worker's recovery by settlement to employer's rights of contribution Section 41(4) and s 92(c) Statutory charge for compensation paid on judgment in common law proceedings |
Legislation: | Federal Court of Australia Act 1976 (Cth), s 24 Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (1947) Workers' Compensation and Rehabilitation Act 1981, s 41, s 84ZM, s 84ZN, s 84ZO, s 84ZU, s 84ZW, s 92, s 93 |
Case References: | Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 Geraldton Building Co v Cramer [2001] WASCA 244 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Gray v Motor Accident Commission (1998) 196 CLR 1 Hall v Busst (1960) 104 CLR 206 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Hay v Liverpool City Raceway Pty Ltd (1980) 143 CLR 672 Higgins v Jackson (1976) 135 CLR 174 Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 John Holland Construction & Engineering v Eskic [2003] WASCA 48 Landsal Pty Ltd v REI Building Society (1993) 113 ALR 643 Manser v Spry (1994) 181 CLR 428 Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Nguyen v Nguyen (1990) 169 CLR 245 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 R v Rigby (1956) 100 CLR 146 Scott v Bowyer [1998] 1 VR 207 The Motor Vehicles Insurance Trust v Forbes, Brambles Holdings Ltd & White [1985] WAR 50 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 Town v Australian Telecommunications Commission (1983) 47 ALR 137 Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436 United Construction Pty Ltd v Maketic [2003] WASCA 138 Watson v Newcastle Corporation (1962) 106 CLR 426 Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Barnes v Australian Telecommunications Corp [1996] 2 Qd R 1 Gallo v Dawson (1990) 93 ALR 479 Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177 Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988 Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253 Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520 Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CRAMER -v- GERALDTON BUILDING CO [2004] WASCA 289 CORAM : MCLURE J
- EM HEENAN J
LE MIERE J
- Appellant/Applicant
AND
GERALDTON BUILDING CO
Respondent/Respondent
BETWEEN : MAX CRAMER
- Applicant/Plaintiff
AND
GERALDTON BUILDING CO
Respondent/Defendant
(Page 2)
ON APPEAL FROM:
For File No : CIV 1693 of 2004
Jurisdiction : COMPENSATION MAGISTRATE'S COURT
Coram : MAGISTRATE P M HOGAN CM
Citation : CRAMER -v- GERALDTON BUILDING CO
File No : CM 175 of 2002
Result : Application dismissed
Catchwords:
Workers' Compensation - Compensation Magistrate's Court - Case stated - Application for leave to appeal - Referral by Review Officer to Compensation Magistrate of issue of law - Decision of Compensation Magistrate on question of law remitted to Review Officer - Subsequent appeal to Compensation Review Officer - Competency of appeal from decision of Compensation Magistrate - Final or interlocutory decision - Mesothelioma - Last employer ordered to pay compensation - Last employer seeking contribution from earlier employer - Claim for damages at common law - Settlement of claim - Avoidance of double compensation - Relevance of worker's recovery by settlement to employer's rights of contribution - Section 41(4) and s 92(c) - Statutory charge for compensation paid on judgment in common law proceedings
Legislation:
Federal Court of Australia Act 1976 (Cth), s 24
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (1947)
Workers' Compensation and Rehabilitation Act 1981, s 41, s 84ZM, s 84ZN, s 84ZO, s 84ZU, s 84ZW, s 92, s 93
Result:
Case stated answered
Application for extension of time for leave to appeal dismissed
(Page 3)
Category: A
Representation:
CIV 2234 of 2003
Counsel:
Appellant/Applicant : Mr M L Williams
Respondent/Respondent : Mr J R Ludlow
Solicitors:
Appellant/Applicant : Phillips Fox
Respondent/Respondent : Dibbs Barker Gosling
CIV 1693 of 2004
Counsel:
Applicant/Plaintiff : Mr M L Williams
Respondent/Defendant : Mr J R Ludlow
Solicitors:
Applicant/Plaintiff : Phillips Fox
Respondent/Defendant : Dibbs Barker Gosling
Case(s) referred to in judgment(s):
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1
Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467
David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346
Geraldton Building Co v Cramer [2001] WASCA 244
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Gray v Motor Accident Commission (1998) 196 CLR 1
Hall v Busst (1960) 104 CLR 206
Harris v Commercial Minerals Ltd (1996) 186 CLR 1
Hay v Liverpool City Raceway Pty Ltd (1980) 143 CLR 672
Higgins v Jackson (1976) 135 CLR 174
(Page 4)
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
John Holland Construction & Engineering v Eskic [2003] WASCA 48
Landsal Pty Ltd v REI Building Society (1993) 113 ALR 643
Manser v Spry (1994) 181 CLR 428
Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Nguyen v Nguyen (1990) 169 CLR 245
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626
R v Rigby (1956) 100 CLR 146
Scott v Bowyer [1998] 1 VR 207
The Motor Vehicles Insurance Trust v Forbes, Brambles Holdings Ltd & White [1985] WAR 50
Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
Town v Australian Telecommunications Commission (1983) 47 ALR 137
Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436
United Construction Pty Ltd v Maketic [2003] WASCA 138
Watson v Newcastle Corporation (1962) 106 CLR 426
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Xpolitos v Sutton Tools Pty Ltd (1977) 136 CLR 418
Case(s) also cited:
Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399
Barnes v Australian Telecommunications Corp [1996] 2 Qd R 1
Gallo v Dawson (1990) 93 ALR 479
Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257
Raeside Pty Ltd v Jymcroe Valley Pty Ltd, unreported; FCt SCt of WA; Library No 7196; 18 July 1988
Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253
Victorian Workcover Authority v Esso Australia Ltd (2001) 207 CLR 520
Western Mining Corporation Ltd v N B Little & Sons Pty Ltd (1993) 10 WAR 237
(Page 5)
1 MCLURE J: I have had the advantage of reading in draft form the judgment of E M Heenan J. I agree with his proposed orders and answers. I also rely on his statement of the facts and issues except to the extent necessary for an understanding of these reasons.
2 A Compensation Magistrate has stated a case for the decision of this Court pursuant to s 84ZU of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act"). In the alternative, the appellant (applicant) applies for an extension of time and leave to appeal from an earlier decision of a different compensation magistrate. The primary substantive question in issue concerns the proper construction of s 92(c) of the Act, which in broad terms prohibits the double recovery of common law damages and compensation under the Act. However, the respondent contends that there are procedural and jurisdictional impediments to this Court determining the matters before it.
3 In order to understand these reasons it is necessary to provide a summary of the history of the proceedings. The following information is extracted from the agreed facts forming part of the case stated.
4 Mr Rex Starr ("Starr") contracted mesothelioma. He was employed by the respondent, Geraldton Building Co ("GBC"), between 1956 to 1962/63 and was subsequently employed by, amongst others, the appellant, Mr Max Cramer ("Cramer") in the period 1965 to 1967.
5 In 1998, Starr lodged an application for workers' compensation payments against Cramer on the ground that he contracted mesothelioma while employed by Cramer. On 19 October 1998 Review Officer Cocker found, under s 41(1) of the Act, that Cramer was the employer who last employed Starr in the employment to the nature of which his mesothelioma was due. Cramer was ordered to pay Starr a lump sum of $99,529.70. Cramer paid Starr that sum.
6 On 14 July 1998 Starr commenced proceedings in the Supreme Court against James Hardie & Co Pty Ltd (James Hardie) and GBC seeking damages as a result of contracting mesothelioma. There is no evidence that Starr was ever employed by James Hardie. The claim between Starr and James Hardie was settled by way of an undated Deed of Mutual Release and Covenant Not to Sue ("Deed").
7 On 19 October 1998 Cramer applied under s 41(4) of the Act for an order requiring GBC to make contribution towards Cramer's liability to pay workers' compensation to Starr. On 18 November 1999, Review Officer Cocker ordered pursuant to s 41(4) that GBC pay Cramer
(Page 6)
- 75 per cent of all workers' compensation paid to Starr by Cramer, a figure of $74,647.27.
8 On 17 December 1999 GBC appealed to the Compensation Magistrates' Court against the contribution order. Its grounds of appeal included, among other things, that the Review Officer erred in finding that Cramer's entitlement to contribution under s 41(4) was not subject to s 92(c) of the Act. On 28 March 2000 Compensation Magistrate Cockram dismissed the appeal.
9 Cramer then applied to, and obtained leave from, the Full Court of the Supreme Court of Western Australia for leave to appeal against Magistrate Cockram's order dismissing the appeal. The Full Court allowed the appeal. It held that s 41(4) was subject to s 92(c) of the Act: Geraldton Building Co v Cramer [2001] WASCA 244. The only information before the Full Court was that Starr had pursued a common law claim for damages that had been settled pursuant to which he had received damages. On the limited information available, the Full Court was unable to determine whether s 92(c) applied. The Full Court remitted the matter back to the Review Officer "so that the true position concerning Starr's common law claim against Hardie can be ascertained". Pursuant to that order, the matter was remitted to Review Officer Cocker.
10 On 3 October 2002 the Review Officer referred the question of "what is the true position concerning the worker's claim against James Hardie & Co Pty Ltd" to the Compensation Magistrates' Court.
11 On 16 April 2003 Compensation Magistrate Hogan (in application number CM175/02) concluded that s 92(c) applied to the settlement the subject of the Deed and that Cramer should first look to James Hardie before claiming contributions under s 41(4) of the Act. On the same day (16 April 2003) Compensation Magistrate Hogan made an order remitting the matter to the Review Officer for decision in light of her answer to the question referred. The application was referred back to Review Officer Cocker for a final determination.
12 On 13 May 2003 Review Officer Cocker dismissed Cramer's application under s 41(4) for an order requiring GBC to make a contribution towards Cramer's liability to pay workers' compensation to Starr. The reasons for decision were delivered on 14 June 2003.
13 Cramer appealed Review Officer Cocker's decision to the Compensation Magistrates' Court and requested the matter be stated for
(Page 7)
- the decision of this Court. It is convenient at this point to refer to the relevant sections of the Act.
The Act
14 Division 3 of Pt III of the Act contains provisions relating to specified industrial diseases, including mesothelioma. There is a recognition that mesothelioma can develop over a long period and the disease may be caused by exposure to asbestos during employment with more than one employer. Section 41(1) of the Act provides that where a worker becomes entitled to workers' compensation as a result of having contracted, among other things, mesothelioma, the last employer is liable to pay the benefits but may join other employers in the proceedings or may seek a contribution from them. Of particular relevance is s 41(4) which provides:
"If the disease is of such a nature as to be contracted by a gradual process, any other employers who … employed the worker in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in proceedings under this Act for settling the amount of compensation."
15 Although the primary focus in this case is on par (c) of s 92, it is necessary to consider the whole of the section which relevantly provides:
"92. Both damages and compensation not recoverable
Where in respect of a disability an action is brought by a worker for damages independently of this Act against his employer or against some other person (referred to in this section as 'the defendant') or against both of them -
(a) if the court decides the action should succeed, then after damages have been ascertained but before judgment is entered for the worker in the action, the worker shall be given a reasonable opportunity to elect whether to have judgment or to discontinue the action;
(b) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer only or against the employer
(Page 8)
- and the defendant, there shall be deducted from the amount of the judgment and be paid to the employer a sum representing the amount (after apportionment in respect of any contributory negligence of the worker) actually recoverable by the worker by way of weekly or lump sum compensation, medical and other expenses paid pursuant to this Act, but where liability is apportioned between the employer and the defendant the defendant’s liability to pay to the worker shall be reduced accordingly;
- (c) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payments and expenses referred to in paragraph (b) shall be a first charge on the judgment or the amount of money paid into court and the defendant shall be bound to pay the amount of the compensation, and medical and other expenses to the employer and the judgment shall be pro tanto discharged by such payment, or the amount due under the charge shall be paid out of court to the employer or his authorised agent, as the case may be;
(d) if the action is discontinued the worker shall pay the costs of the employer or of the defendant or of each of them or such part of those costs as the court thinks fit;
(e) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the employer or the defendant or both or is settled by the acceptance of money paid into court by the employer or the defendant or by both of them, the worker shall not commence or continue proceedings for, or in relation to, compensation under this Act in respect of the same disability;
(f) if a worker’s claim for damages against the employer or the defendant is settled by agreement otherwise than by a judgment, an acceptance of an offer to
(Page 9)
- consent to judgment, or an acceptance of money paid into court -
(i) the employer or the defendant shall file a memorandum of the terms of the settlement with the Directorate within 3 months of the date of its execution by the worker;
(ii) the worker shall not commence or continue a claim for compensation under this Act in respect of the same disability unless the Director disapproves of the settlement within 6 weeks of the agreement for settlement being filed with the Directorate;
(iii) the Director shall not disapprove of the agreement unless he is satisfied the agreement was induced by fraud or misrepresentation or that it would clearly be for the worker’s benefit to disapprove of it;
(iv) the Director if he disapproves of the settlement shall serve notice in writing of his disapproval on each of the parties to the settlement of his decision and of the reasons for his disapproval by pre-paid post to the address of the party set out in the settlement or the last known address of a party, within 14 days of the making of his decision;
- (g) where a claim for compensation is commenced or continued after the Director disapproves of a settlement referred to in paragraph (f), the amount recovered or recoverable under such settlement shall be brought into account in reduction of the worker’s entitlement to compensation;
- …".
16 For the purposes of s 92, James Hardie is "the defendant". Paragraph (b) applies where the judgment is against the employer only or against the employer and the defendant. In that event, the amount of compensation paid to the worker under the Act must be deducted from the amount of the judgment and be paid to the employer. Paragraph (c)
(Page 10)
- applies to judgment against the defendant only. In that event, a statutory charge arises.
17 Owen J (with whom Malcolm CJ and Wallwork J agreed) gave the leading judgment in Geraldton Building Co v Cramer (supra) (the "Full Court Appeal"). Owen J describes the effect of s 92(c) as follows:
"Section 92(c) operates as a statutory charge on the moneys payable by the defendant to the worker in an amount equal to the total of the workers compensation benefits (and medical expenses) paid to or on behalf of the worker by an employer (other than the defendant) under the Act. It also creates a statutory obligation on the defendant to pay the amount so calculated to the employer. …
Section 92(c) only applies where the common law claim is finalised in one of two ways. First, by a formal court judgment, including acceptance of an offer to consent to judgment. Secondly, by the worker accepting moneys paid into court. I will refer to these two possibilities as 'extended judgment'."
18 Owen J also points out that a claim for damages can be finalised in ways that are not contemplated by s 92(c). He continues:
"Under s 92(f) if the worker's action for damages against the defendant is settled by agreement otherwise than by an extended judgment the only obligation is to advise the Directorate of the terms of settlement. There is no obligation on the defendant to pay any part of the judgment sum to any other employer and there is no mention of a charge. The only consequence is that, unless the Director disapproves of the settlement, the worker cannot commence or continue with a claim for compensation under this Act in respect of the same disability."
19 Finally, the Judge notes that under s 92(c) the payment of benefits under the Act must have been made before the common law claim is finalised because if that were not the case, it would be difficult to see how the statutory obligation to pay could arise. The timing of the payment of compensation under the Act and execution of, and payment under, the Deed were not addressed in the agreed facts accompanying the case stated. However, it was conceded by both parties that the payment under the Act preceded finalisation of the Deed and receipt by Starr of payments under it.
(Page 11)
Case Stated Questions
20 The questions in the case stated are as follows:
1. Can the appellant appeal the decision of Review Officer Cocker made 13 May 2003?
2. Alternatively, does the appellant have the right, in this appeal [CM 85 of 2003], to attack the decision of this court in matter CM 175/02 delivered on 16 April 2003?
3. If the answer to question 1 and/or 2 is yes, then what is the true position concerning Starr's common law claim against James Hardie?
4. If the answer to question 1 and/or 2 is yes, is the respondent liable to pay the appellant 75 per cent of the workers' compensation paid to Starr by the appellant in accordance with the order dated 19 October 1998, namely $74,647.27?
Questions 1 and 2
21 Questions 1 and 2 overlap. As I understand them, GBC's contentions are to the following effect. The decision of Compensation Magistrate Hogan made on 16 April 2003 is interlocutory; the decision of Review Officer Cocker made on 13 May 2003 is interlocutory; if Review Officer Cocker's decision was final, Compensation Magistrate Hogan's interlocutory decision could (having regard to Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478) be the subject of challenge in appeal CM 85/2003 to the Compensation Magistrate's Court (the "Appeal"); however, because Review Officer Cocker's decision is interlocutory, the decision of Compensation Magistrate Hogan cannot be challenged in the Appeal (or, by extension, be the subject of a case stated to this Court).
22 It is not in dispute that s 84ZN(2) of the Act entitles a party, where a question of law is involved, to appeal to a Compensation Magistrate's Court against an interlocutory and final decision of a review officer. GBC does not challenge the competency of the Appeal and concedes the answer to question 1 should be in the affirmative. However, it is contended that the Compensation Magistrate's Court does not have power in the Appeal to review the correctness of the decision of Compensation Magistrate Hogan. In light of these submissions, Cramer belatedly brought an application in the Court for an extension of time and leave to
(Page 12)
- appeal from the decision of Compensation Magistrate Hogan. GBC contends that application should be dismissed on the ground that this Court does not have jurisdiction under s 84ZW of the Act to hear an appeal from an interlocutory decision, relying on the decision of this Court in John Holland Construction & Engineering v Eskic [2003] WASCA 48 at [16]. The combined effect of GBC's submissions is that Cramer is prevented from challenging the correctness of the construction of s 92(c) upheld by Compensation Magistrate Hogan and applied by Review Officer Cramer unless and until, if ever, there is a final determination of Cramer's right to a contribution against GBC under s 41(4) of the Act. Such an outcome would indeed be surprising.
23 There are a number of preliminary issues that must be addressed. I start with Compensation Magistrate Hogan's decision on 16 April 2003. She reached conclusions and ruled on all the substantive issues that had to be addressed in order to determine Cramer's application under s 41(4) of the Act ("the rulings"). Her answer to the question, in effect, dictated the decision of Review Officer Cocker made on 13 May 2003. Neither party challenges the order made by Compensation Magistrate Hogan remitting the matter back to the Review Officer or her jurisdiction to make it. Cramer is seeking a procedural avenue to challenge the correctness of her rulings, which admittedly involve questions of law.
24 The next question is whether the rulings bind the Review Officer to whom she remitted the matter and the Compensation Magistrate's Court hearing the Appeal. The parties' submissions proceed on the assumption that Compensation Magistrate Hogan's rulings constitute a decision, that the decision binds the Review Officer so that it remains, in effect, her decision which can be the subject of an appeal to the Compensation Magistrate's Court (albeit only if incorporated in a final decision according to GBC). I will assume for present purposes that the rulings constitute a decision (leaving aside whether it is interlocutory or final). If Compensation Magistrate Hogan's decision is binding on the Review Officer, the reference, rulings and remittal procedure is indistinguishable from a case stated procedure. Questions then arise as to whether the decision can be challenged in an appeal to the Compensation Magistrate's Court, which requires consideration of ss 115, 117 and 118 of the Act. If the decision is not binding on the Review Officer, he would, in effect, make (be responsible for) the decision as he adopted and applied the rulings. In the latter event, the challenge to the rulings properly arises for determination in the Appeal.
(Page 13)
25 At first sight (and on reflection) it seems unlikely the legislature intended that a review officer could refer a matter, whether in whole or in part, to the Compensation Magistrate's Court, be bound (or even less likely, not be bound) by the determination of part of the matter by that Court, on a remittal, apply the Court's determination to determine the whole matter and then for the Compensation Magistrate's Court's determination to be challenged on appeal in the Compensation Magistrate's Court.
26 Of course, the situation that has eventuated would not have arisen if the whole matter had been referred to, and determined by, the Compensation Magistrate's Court. It appears from the agreed facts that the Review Officer did not refer the entire matter. Even if he did, the Compensation Magistrate did not determine the whole matter. As already noted, no party to these proceedings has at any stage challenged the validity of the reference or the failure of the Compensation Magistrate to fully determine the matter. The reference power is contained in s 84ZM of the Act which provides:
"Where a question of law arises in the proceedings or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may elect not to make an order and, in accordance with the regulations, refer the matter to a compensation magistrate's court for determination."
27 This Court has held that a reference under s 84ZM may only be a reference of the whole matter that is before the Review Officer whether it is by virtue of a question of law or complexity of issues: United Construction Pty Ltd v Maketic [2003] WASCA 138. It reached that decision having regard to ss 84ZO, 115 and 85ZU of the Act. Section 84ZO concerns the Compensation Magistrate's jurisdiction in relation to referred matters. It provides:
"On hearing a matter referred to it under section 84ZM, a compensation magistrate's court has jurisdiction to make such orders as it thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it."
28 Section 115(1) confers on a Compensation Magistrate's Court jurisdiction to "hear and determine" any case referred under s 84ZM. Section 84ZU empowers the Compensation Magistrate's Court, when a question of law arises in any proceedings, to state a case for the decision of this Court on that question. The absence of a similarly worded
(Page 14)
- provision empowering a review officer to state a case to the Compensation Magistrate's Court supported the conclusion that the reference under s 84ZM must be of the whole matter.
29 The Full Court in Maketic did not directly address whether, having been referred the whole matter, the Compensation Magistrate's Court could determine an issue of law and remit the balance of the matter to a review officer. However, it is implicit in the Court's reasoning and clear from the terms of the statutory provisions to which it referred that the whole matter must be referred to and the whole matter determined by the Compensation Magistrate's Court. It follows that the decision of Compensation Magistrate Hogan was not binding on Review Officer Cocker. As he adopted and gave effect to the decision of Compensation Magistrate Hogan, it can be challenged in the Appeal. For these reasons, I would answer yes to questions 1 and 2.
30 Having regard to the way in which the case was conducted before us, I also propose to consider the matter on the basis that I am wrong and the Compensation Magistrate's Court did have jurisdiction to determine the legal issues and remit the balance of the matter to the Review Officer. The first question is whether there is a relevant "decision" and, if so, whether it is final or interlocutory. In general, an appeal lies against a judgment or order and not against the reasons for it. It is the judgment or order that is characterised as final or interlocutory. However, the absence of a formal order does not prevent the determination of an issue from being a decision from which an appeal will lie if a decision can be implied: Hall v Busst (1960) 104 CLR 206 at 218; Town v Australian Telecommunications Commission (1983) 47 ALR 137; Landsal Pty Ltd v REI Building Society (1993) 113 ALR 643. Further, in rare cases, a party who does not challenge the judgment or order may appeal to correct errors in the reasons. This occurred where a lower court remitted a matter to a tribunal for rehearing in accordance with reasons which themselves contained an error of law: Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 at 482, 491 and 499. Baxter concerned an appeal (it would seem as of right) to the Full Federal Court from a single judge of that court on appeal from the Administrative Appeals Tribunal. The Full Federal Court has jurisdiction to hear and determine appeals from judgments (defined as a judgment, decree or order) of a single judge and leave is required to appeal from an interlocutory judgment of a single judge of the Federal Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The Full Court upheld an appeal from the Judge's erroneous conclusions of law, noting that the
(Page 15)
- conclusions could have been expressed in the form of declarations which would have been set aside.
31 If, contrary to my view, Compensation Magistrate Hogan acted within jurisdiction, she decided all substantive issues and the decision is in substance a decision on a case stated. A decision (express or implied) on a case stated is final: Hall v Busst (above) at 218. Accordingly, any error (assuming it is within jurisdiction) can, and should, be rectified in an appeal to this Court before being relied on and incorporated into subsequent decisions.
Question 3
32 Matters relating to the Deed are canvassed in the agreed facts. Under the Deed, Starr:
(1) agreed to instruct his solicitors to prepare and sign a minute of consent orders that Starr's action against James Hardie be dismissed and there be no order as to costs; and
(2) acknowledged that Hardie's solicitors had, on Hardie's behalf, paid to Starr's solicitor at the request and direction of Starr the sum of:
(a) $150,000 exclusive of workers' compensation payments paid or payable under the Act or by agreement; and
(b) $40,000 in respect of costs and disbursements
without any admission of liability in respect of the allegations made in the action and in full and final satisfaction and discharged of, in essence, any liability James Hardie had to Starr in respect of his mesothelioma.
34 Notwithstanding the terms of the Deed, as at April 2003 the Supreme Court had not made any order dismissing Starr's action against James Hardie and no judgment was ever entered against James Hardie in Starr's favour.
35 Cramer has not received any payments from James Hardie pursuant to ss 92 or 93 of the Act or otherwise in relation to the claim.
(Page 16)
36 The question referred to Compensation Magistrate Hogan is in substantially the same terms as question 3 in the case stated. Her answer to the question referred is that:
"the true position concerning Starr's claim against Hardie is that, as a consequence of the terms of the Deed (which fall within the notion of 'extended judgment' as explained by Owen J) the amount recoverable by Starr pursuant to the Act … is deemed by section 92(c) to be a first charge on the extended judgment. Whilst section 41(4) of the Act entitles the applicant to seek contribution from the respondent in relation to any compensation recoverable from the applicant by Starr, the applicant should first look to Hardie for recovery of the debt created by section 92(c)."
37 The answer to the question depends upon the proper construction of the phrase "if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only …".
38 The Compensation Magistrate accepted the submissions put on behalf of GBC, in particular, that s 92(c) applies when the common law claim is finalised in one of three ways, being:
(1) if the action proceeds to judgment against the defendant only;
(2) if the action proceeds to the acceptance of an offer to consent to judgment;
(3) by acceptance of money paid into court.
39 This is inconsistent with Owen J's description of the effect of s 92(c) as applying where the common law claim is finalised in one of two ways; first, by a formal court judgment and, second, by the worker accepting moneys paid into court, both of which possibilities he defines as "extended judgment". Owen J's construction is consistent with the balance of s 92(c) which refers to there being a first charge "on the judgment or the amount of money paid into court". Further, when the opening phrase of par (c) is seen in the context of par (a), which contemplates entry of judgment after trial, it appears the clumsily worded opening phrase in par (c) is intended to include a judgment by consent.
40 There is another impediment to the application of s 92(c) to the settlement effected by the Deed. Even if the opening phrase is read
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- disjunctively so that indeed there are three possibilities, the language strongly suggests that the judgment or offer to consent to judgment must be "against the defendant". To meet this point, it is contended on behalf of GBC that the second alternative should be interpreted to mean "if the action proceeds to the acceptance, against the defendant only, of an offer to consent to judgment". In that way, so it is said, an offer to consent to the dismissal of the action suffices. I do not accept this. The charge is intended to operate on the judgment which requires that the judgment be for a sum of money payable by the defendant. It cannot be intended to apply to a judgment dismissing the worker's common law claim.
41 It is the case that s 92(f) refers to a claim being settled by agreement otherwise "than by a judgment, an acceptance of an offer to consent to judgment, or an acceptance of money paid into court". However, in the context of s 92 as a whole that intended to be a shorthand reference to the introductory phrase in each of pars (b), (c) and (e) of s 92. As correctly observed by Owen J, a common law claim for damages can be finalised in a number of ways that are not contemplated by s 92(c). This is one of those cases.
42 I have noted E M Heenan J's discussion on matters relating to s 93 of the Act. I wish to reserve my position on whether James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 applies to an indemnity claim under s 93 (1)(b) of the Act. However, I agree that the answer to question 3 is not intended to foreclose any avenue that GBC has or may have under that section. I agree with the answer to question 2 formulated by E M Heenan J.
Question 4
43 I also agree with the answer to question 4 formulated by E M Heenan J for the reasons he gives.
Extension of time and leave to appeal
44 Cramer seeks an extension of time and a grant of leave to appeal under s 84ZW of the Act from the decision of Compensation Magistrate Hogan made on 16 April 2003. The primary ground of appeal is that the Compensation Magistrate erred in law in the determination of the issue "What is the true position concerning the worker's claim against James Hardie?"
45 The orders sought in the appeal are that the appeal be allowed, the decision of Compensation Magistrate Hogan made on 16 April 2003 be
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- set aside, that this Court declare, in effect, that the Deed does not fall within the ambit of s 92(c) of the Act and that GBC is liable to pay Cramer 75 per cent of all workers' compensation paid to Starr by Cramer in accordance with the order of Review Officer Cockram on 19 October 1998. As can be seen, the substantive issues in questions 3 and 4 of the case stated also arise for determination in the proposed appeal.
46 GBC opposes the grant of an extension of time and leave to appeal on a number of grounds. Firstly, it says the Compensation Magistrate's decision was interlocutory and there can be no appeal to this Court from an interlocutory decision of the Compensation Magistrate's Court under s 84ZW of the Act, relying on the decision of Murray and Miller JJ in John Holland Construction & Engineering v Eskic (supra). I agree with E M Heenan J's observations concerning this case. However, as already noted, if the decision of Compensation Magistrate Hogan is valid, it would be characterised as final and, subject to the grant of an extension of time and leave to appeal, the appeal to this Court would be competent.
47 GBC also contends that no adequate reason has been given by Cramer for failing to apply within time for leave to appeal, that the decision has been acted on, having been remitted to and determined by the Review Officer adversely to the applicant and is the subject of an appeal to the Compensation Magistrate's Court raising essentially the same issues. The applicant explains that he did not seek leave to appeal within time on the basis that, it being an "interim decision", s 84ZW did not apply, as so held in John Holland Construction. When GBC took the position that the decision of Compensation Magistrate Hogan could not be challenged in the Appeal, this application was made as a precautionary measure. If Compensation Magistrate Hogan's decision could not have been challenged in the Appeal, I would have granted an extension of time and leave to appeal and upheld so much of the appeal as reflects the answers in the case stated. However, in view of the answers to the case stated, I would dismiss this application.
48 EM HEENAN J: The proceedings before the Workers' Compensation Review Officer, which have resulted in the case stated and the application for leave to appeal both now before this Court, involve a claim by the appellant/applicant against the respondent under s 41(4) of the Workers' Compensation and Rehabilitation Act 1981 for contribution from the respondent towards compensation of $99,529.70 which the appellant/applicant was ordered to pay to Mr Rex Starr ("Starr"), for disability occasioned by mesothelioma, when the appellant was the last
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- employer of Starr in the employment to the nature of which the disease of mesothelioma was due - s 41(1).
49 By order dated 18 November 1999 a Review Officer ordered that the respondent, Geraldton Building Co, should pay to the appellant/applicant Mr Max Cramer 75 per cent of the moneys paid by Cramer to Starr for workers' compensation due in respect of the latter's mesothelioma. In that way the respondent was ordered to pay to the appellant/applicant $74,647.28.
50 An appeal to the Compensation Magistrate's Court from that order was instituted by the respondent but was dismissed by the decision of his Worship Mr Cockram CM of 28 March 2000. From that decision an appeal was brought to this Court by the respondent and, by a unanimous decision of 17 August 2001, this Court comprised by Malcolm CJ, Wallwork and Owen JJ ordered that the appeal should be allowed and that the orders of the Conciliation and Review Directorate made on 18 November 1999 and of the Compensation Magistrate's Court of 28 March 2000 be set aside and that the matter be remitted to the Review Officer for further consideration. The present applicant/appellant, Cramer, was ordered to pay the costs of Geraldton Building Co of the appeal from the Conciliation and Review Directorate to the Compensation Magistrate's Court.
51 The point which had divided the parties to that stage of the proceedings and which led the Full Court to allow the appeal and refer the matter to the Review Officer for further consideration was the potential significance of the terms of settlement of a claim which the worker, Starr, had negotiated with another former employer James Hardie & Co Pty Ltd ("James Hardie"), for the resolution of an action for common law damages which Starr had instituted in the Supreme Court (1795 of 1998), seeking damages and exemplary damages apparently for alleged negligence or other breach of duty which caused, so it was alleged, Starr to contract asbestosis, mesothelioma or lung cancer.
52 It is vital to appreciate that, at these earlier stages of the proceedings including at the determination of the appeal by this Court on 17 August 2001, the details of the settlement of the proceedings brought by Starr against James Hardie were not known and that the only evidence of such a settlement was the following testimony from Starr on 19 January 1999 before the Review Officer on Cramer's application for contribution from the respondent under s 41(4):
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- "Mr Starr, you've pursued a common law claim for damages in respect of your injury as well, haven't you?---Mm.
Have you settled the common law claim?---Yeah.
Did you receive damages for that claim?---Yeah.
So you've received damages in respect of your claim for mesothelioma?---Against, against Hardies, yeah.
And has that claim now been resolved?---Well, up to a point. There's still some outstanding monies for you blokes, I think, your costs."
- As observed by Owen J in the earlier appeal to this Court, there was no other information in the materials then before the court or which had been adduced in the proceedings before the Workers' Compensation Review Officer or the Compensation Magistrate to that date, as to the form the claim against James Hardie took or as to the amount or the manner of any payment by James Hardie to Starr.
53 The reason why the present respondent, Geraldton Building Co, contended that the settlement of Starr's common law claim was significant, and the reason for the conclusion of the Full Court that the terms of that settlement might, but not necessarily would, be significant was the respondent's argument about the application of s 92(c) of the Act. The respondent contends that Cramer, as an employer who had paid compensation in respect of a disability in respect of which the common law action had been brought, had a charge over the "judgment" and, so the submission went, would be obliged to give credit for that entitlement. The consequence which it was alleged might then follow was that the applicant/appellant Cramer would not be entitled to a contribution towards the compensation which he had paid under the order of 19 October 1998 if that charge entitled him to recover, and he did recover, the amount of the charge in full from James Hardie. That contention involves two distinct elements. First, that Cramer would have no entitlement to contribution from an earlier employer under s 41(4) if he recovered the amount secured by the alleged charge over the settlement moneys received by Starr from James Hardie. The second element is that the right to pursue the claim for contribution against the present respondent, Geraldton Building Co, under s 41(4) must be deferred until attempts have been made to enforce the alleged charge against the settlement moneys derived by Starr from James Hardie but, if for any reason, the alleged charge cannot be enforced or satisfied, then the claim for contribution under s 41(4) can be renewed by
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- the present applicant/appellant against Geraldton Building Co. At the hearing of the current proceedings before this Court the latter, while not the sole position, appeared to be the preferred stance of the respondent.
54 In the earlier appeal Owen J (with whom Malcolm CJ and Wallwork J agreed), accepted (at [19]) that a claim for damages can be finalised in ways that are not contemplated by s 92(c) and in such a case s 92 would have no application at all to a settlement reached. Without knowing precisely the terms of the settlement of the common law action and whether or not it resulted in a judgment to which s 92(c) applied, it was simply not possible then to say whether or not the s 41(4) claim for contribution instituted by Cramer was affected by the provisions of s 92(c) or whether, in the words of the Review Officer and the Compensation Magistrate, "s 92(c) of the Act was not relevant to Cramer's application for contribution under s 41(4)". Once it had been established that there had been a settlement of a common law claim which resulted in the payment of money to Starr it was obviously necessary to determine whether or not this was a judgment to which s 92(c) applied because, if the section did apply, then the applicant/appellant, Cramer, would have had a charge which might have resulted in the recovery of some or all of the compensation which he had paid to Starr, thus possibly diminishing the outlay in respect of which he was seeking contribution. Whether it would necessarily have had that effect in any event, or whether it would have had that effect in the particular circumstances of this case, could not be determined until the details of the settlement had been ascertained and, for that reason, that question was not finally determined by this Court in the earlier appeal.
Proceedings after remission to Workers' Compensation Directorate by order of the Full Court of 17 August 2001
55 When Cramer's application for contribution from the respondent came before the Review Officer again, upon remittal from this Court, evidence of the terms of the settlement between Starr and James Hardie was adduced. This showed that Rex William Starr had commenced Supreme Court action CIV 1795 of 1998 against James Hardie & Co Pty Ltd and others in relation to the disability which became the subject of the order of the Workers' Compensation Review Directorate of 19 October 1988 requiring the applicant/appellant, Cramer, to pay to Starr compensation in the amount of $99,529.70. That action was settled between Starr and James Hardie upon the terms of a deed executed by those two parties apparently some time in 1998 but, otherwise, undated. This instrument is entitled a "Deed of mutual release and a covenant not
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- to sue" (the "Deed") and, materially, recites that James Hardie had denied liability to Starr in respect of the action and that Starr had agreed with James Hardie to consent to the dismissal of the action and to acknowledge that he had no further claim to, or interest in, the relief sought in those proceedings. By the deed Starr covenanted that he would:
"(a) instruct his solicitors to prepare and sign a minute of consent orders that the action against Hardie be dismissed and that there be no order as to costs;
(b) not sue Hardie or issue or initiate or cause to be issued or initiated fresh proceedings or actions or claims or maintain any action in respect to or arising out of the matters referred to in the action ... ."
"5. [James Hardie's solicitors] have, on [its] behalf paid to [Starr's solicitors] at the request of and at the direction of [Starr] the sum of $150,000 ('the settlement sum'), exclusive of any workers' compensation payments paid or payable pursuant to the Workers' Compensation and Rehabilitation Act 1981 or by agreement, plus $40,000 in respect of costs and disbursements which total sum is paid without any admission of liability in respect of the allegations made in the Action, in full satisfaction and discharge of all actions, claims and demands whatsoever of [Starr] against [James Hardie] arising out of and referred to in the Action and in full satisfaction of any claim [Starr] or any person claiming under or through him may now have or may in the future have against [James Hardie] in respect of any injury or disease including (but not limited to) asbestosis, mesothelioma or lung cancer from which he may now suffer or from which he may suffer at any time in the future in any way concerned with or related to the exposure."
57 The evidence produced to the Review Officer also established that James Hardie, by its solicitors, had paid to Starr's solicitors, at his request and direction: $150,000 exclusive of workers' compensation payments paid or payable under the Act or by agreement; and, $40,000 in respect of costs and disbursements. Notwithstanding the terms of the deed no
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- consent or other orders had been made in the Supreme Court action; Starr's claim against James Hardie had not been dismissed; nor had there been any order for costs made in those proceedings. In particular, it was established in the proceedings before the Review Officer that no judgment for damages in favour of Starr against James Hardie had ever been entered in the Supreme Court proceedings. It was also shown that neither the applicant/appellant, Cramer, nor his insurer had ever received any payment from Starr or from James Hardie for reimbursement of the $99,529.70 paid by Cramer to Starr under the order of 19 October 1998 or at all.
58 That undisputed evidence allowed the Review Officer to address the question remitted to him by the Full Court, namely: "What is the true position concerning Mr Rex Starr's claim against James Hardie Ltd?". Rather than determine that question himself, the Review Officer, at the request of the present parties, referred the matter to the Compensation Magistrate's Court for the determination of that question. This referral was made pursuant to s 84ZM of the Act which provides:
"84ZM Case may be referred to Compensation Magistrate's Court
Where a question of law arises in the proceedings or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may elect not to make an order and, in accordance with the regulations, refer the matter to a Compensation Magistrate's Court for determination."
- As will emerge, there is some controversy between the parties over what precisely was "the matter" referred to the Compensation Magistrate's Court or, more particularly, whether the Compensation Magistrate was bound to determine the entire matter referred. At this point it is sufficient to notice that the power of a Compensation Magistrate in the event of such a referral is set out by s 84ZO of the Act, as follows:
"84ZO Referred matters
On hearing a matter referred to it under s 84ZM, a Compensation Magistrate's Court has jurisdiction to make such orders as it thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it."
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- answer to the question referred is that the true position concerning Starr's claim against James Hardie is that, as a consequence of the terms of the Deed (which fall within the notion of "extended judgment" as explained by Owen J [in Geraldton Building Co v Cramer [2001] WASCA 244]) the amount recoverable by Starr pursuant to the Act (as referred to in s 92(b)) is deemed by s 92(c) to be a first charge on the extended judgment. Her Worship held that whilst s 41(4) of the Act entitles the applicant to seek contribution from the respondent in relation to any compensation recoverable from the applicant by Starr, the applicant should first look to James Hardie for recovery of the debt created by s 92(c) - see Workers' Compensation Magistrate's Court Appeal No CM-175/02 par [36].
60 The learned Compensation Magistrate's reasons for decision show that her Worship reached these ultimate decisions after having first concluded that s 92(c) applied to the terms of the settlement reached between Starr and James Hardie because the terms of the settlement provided for a judgment to be entered in the Supreme Court proceedings - notwithstanding that the proposed "judgment" would take the form of consent orders for the action to be dismissed with no order as to costs. The learned Magistrate reasoned that the following words in s 92(c) of the Act, namely:
"92(c) if the action proceeds to judgment, including the acceptance of an offer to consent to judgment, against the defendant only or is settled by the acceptance of money paid into court by the defendant, the payment and expenses referred to in paragraph (b) ... "
- should be read disjunctively so that any judgment entered in the action, regardless of whether it was a judgment against the defendant, would give rise to the statutory charge. This conclusion was preferred to the alternative interpretation of the words of the statute advanced by the applicant/appellant, that the statutory charge would only arise in the event of a money judgment in favour of the claimant worker being entered against the defendant. The reason advanced by the respondent for the former interpretation, and accepted by the learned Magistrate, was that this was more consistent with the policy for the prevention of double recovery of damages and compensation which s 92 and s 93, together, exemplified.
61 It is this decision of her Worship Ms P Hogan CM which is the subject of the application for leave to appeal to this Court in CIV 1693 of 2004. As a number of related procedural issues must be addressed in
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- order to consider the competency of that proposed appeal it is convenient to defer them for attention later in these reasons.
62 However, the learned Compensation Magistrate, having made these decisions about the true position concerning Starr's claim against James Hardie did not proceed to determine the whole matter referred but, relying on the powers available to her under s 84ZO, remitted the matter to the Review Officer for determination. The Review Officer, Mr M C Cocker, completed his review and on 14 June 2003 dismissed the appellant's application for contribution under s 41(4) from the respondent in view of her Worship's finding that the amount recoverable by Starr pursuant to the Act (as referred to in s 92(b)) is deemed by s 92(c) to be a first charge on the "extended judgment", so that Cramer's s 41(4) application for contribution could not proceed further. In doing so the Review Officer did not rule out the possibility of a further application by Cramer to seek contribution from Geraldton Building Co in the future in the event that the charge found to have been created over the settlement proceeds by s 92(c) could not be satisfied.
63 From the order of compensation of Review Officer Cocker of 14 June 2003 dismissing the applicant/appellant's claim for contribution under s 41(4) from the respondent, the applicant/appellant appealed to the Compensation Magistrate's Court pursuant to s 84ZN(2) of the Act. Before dealing with that appeal, and at the request of the parties, the Compensation Magistrate stated a case under s 84ZU for the decision of this Court which is to be heard and determined by a Full Court - s 84ZX and s 84ZY(3).
Case stated for decision of Full Court
64 After reciting the background and setting out agreed facts and the agreed history of the proceedings four questions of law have been posed for the decision of this Court. These are formulated by the learned Compensation Magistrate as follows:
"Under s 84ZU of the Act, I now state a case for the decision of the Full Court of the Supreme Court of Western Australia under ss 84ZX and 84ZY(3) of the Act on the following questions of law:-
1. Can the appellant appeal the decision of Review Officer Crocker made 13 May 2003?
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- 2. Alternatively, does the appellant have the right, in this appeal, to attack the decision of the court in matter CM 175/02 delivered on 16 April 2003?
3. If the answer to question 1 and/or 2 is yes, then what is the true position concerning Starr's common law claim against James Hardie?
4. If the answer to question 1 and/or 2 is yes, is the respondent liable to pay the appellant 75% of the workers' compensation paid to Starr by the appellant in accordance with the order dated 19 October 1998, namely $74,647.27?"
65 Both the case stated and the application by Cramer for leave to appeal from the decision of her Worship Ms P Hogan CM of 16 April 2003 were heard together for obvious reasons of convenience and economy. Counsel submitted they both involve questions of procedural law and of substantive law. The procedural questions are:
• Can the decision of Review Officer Cocker dismissing the applicant/appellant's s 41(4) claim for contribution be the subject of an appeal to the Compensation Magistrate's Court in circumstances where the Review Officer acknowledged that it would be open for the applicant/appellant to apply again for relief under s 41(4) in the event that the charge in his favour found to have been created by s 92(c) over the settlement "judgment" could not be satisfied?
• Whether, on any such appeal to the Compensation Magistrate under s 84ZN(2) it would be open for the appellant to contend, and for the Compensation Magistrate to determine, that no such charge under s 92(c) had been created upon the proceeds of the settlement as an "extended judgment" under s 92(c) notwithstanding the earlier decision of Compensation Magistrate Hogan of 16 April 2003 to the contrary?
• Should the application for leave to appeal to this Court from the decision of Compensation Magistrate Hogan of 16 April 2003 now be granted, when no appeal from that decision was instituted to this Court under s 84ZW within the time prescribed, and when that decision has since
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- been applied by Review Officer Crocker in his decision to dismiss the applicant/appellant's s 41(4) claim on 14 June 2003?
66 As these procedural issues depend, in my view, to a significant extent upon the substantive rights of the parties I consider that it is preferable to deal with the substantive issues of law arising from the matters before this Court first and then to return to deal with the issues of procedural law. As formulated in the case stated these are:
• What is the true position concerning Starr's common law claim against James Hardie? [Essentially the same question remitted by this Court by the order of 17 August 2001 for decision by the Review Officer when determining the earlier appeal to this Court]; and
• Is Geraldton Building Co liable to pay to Cramer 75 per cent of the workers' compensation paid to Starr by Cramer pursuant to the order of the Review Officer of 19 October 1998, namely $74,647.27?
67 It was acknowledged by counsel for the applicant/appellant that if this Court were to decide that at the hearing of the appeal from the decision dismissing the s 41(4) application made by Review Officer Cocker at 16 May 2003, which is now pending before the Compensation Magistrate's Court, it would be open to the applicant/appellant to contend that the earlier decision of her Worship Ms P Hogan CM of 16 April 2003 was wrong in law, or that the appellant was entitled to recover 75 per cent of the workers' compensation paid by the appellant to Starr in accordance with the order of 19 October 1998, it would be unnecessary to deal with the application for leave to appeal in CIV 1693 of 2004. A reason why it may be necessary to deal with the application for leave to appeal in CIV 1693 of 2004 would be if the decision of her Worship of 16 April 2003 was unreviewable in the present pending appeal to the Compensation Magistrate from the decision dismissing the s 44(1) claim made on 16 May 2003.
68 At the hearing of these two matters it was pointed out by the court that to give an affirmative answer to question 4 in the case stated, namely that the respondent is liable to pay $74,647.27 to the appellant, in accordance with the order dated 19 October 1998 would be to determine finally the matter that was remitted by this Court by its judgment of 17 August 2001 on the earlier appeal which, so it was submitted, should
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- be taken as setting aside entirely the order of Review Officer Cocker of 18 November 1999 which required the respondent to pay contribution to the applicant/appellant of $74,647.28. The respondent submitted that to make such an order would be to determine finally the proceedings which had earlier been remitted and which are now the subject of the pending appeal before the Compensation Magistrate. For this reason, according to the respondent's submissions, this is not an answer which could or should be given upon the determination of a case stated. That submission itself involves an additional procedural question about the role of this Court on a case stated which must be determined in these proceedings having regard to the powers conferred under s 84ZY(3).
Procedure on a case stated
69 The form of the case stated to this Court is a succinct summary of the background of the litigation, relevant details of Starr's employment, the institution and settlement of the proceedings in Starr's action against James Hardie for damages in this Court and the history of the proceedings brought, both by Starr against Cramer, and by Cramer against Geraldton Building Co in the workers' compensation jurisdiction. These include three sets of proceedings before the Compensation Magistrate's Court and the earlier appeal to this Court before this present case was stated. In doing so the case stated annexes a series of documents, including:
• the deed of mutual release and covenant not to sue made between Starr and James Hardie in 1998;
• the order of Review Officer Cocker of 19 October 1998 requiring Cramer to pay Starr $99,529.70;
• the reasons for decision of Review Officer Cocker of 18 November 1999 ordering the Geraldton Building Co to pay to Cramer contribution in the amount of $74,647.28;
• the reasons for decision of his Worship Mr P G Cockram CM of 28 March 2000 dismissing the appeal from the order of 18 November 1999;
• the reasons for decision of this Court in Geraldton Building Co v Cramer [2001] WASCA 244 allowing the appeal from the order of Cockram SM dismissing the appeal from the order of 18 November 1999 and remitting the matter to the Review Officer to ascertain the
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- true position concerning Starr's common law claim against James Hardie;
- • the reasons for decision of her Worship Ms P M Hogan CM of 16 April 2003 determining that settlement of the common law action between Starr and James Hardie created a "judgment" to which s 92(c) of the Act applied and created a charge over "the extended judgment";
• the reasons for decision of Review Officer Mr M C Cocker of 14 June 2003 dismissing the applicant/appellant's s 41(4) claim for contribution against Geraldton Building Co but not ruling out the possibility of a further application to contribution in the future.
70 It is therefore necessary to consider what use may be made of these annexed materials by this Court for the determination of the case stated. This elementary task was not addressed in any detail by the parties at the hearing of the case stated but it can give rise to some difficulties.
71 First, and foremost, any court dealing with a case stated is limited to the facts stated in the case and may not draw inferences of fact. In R v Rigby (1956) 100 CLR 146 some of the principles regulating the contents of cases stated were examined. Dixon CJ, MacTiernan, Webb, Kitto and Taylor JJ said at 151:
"Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of the parties. The question may be one of the relevance of evidence and then the nature of the evidence becomes in a sense an ultimate fact for the purpose of that question. But that is not a common case: see Humphryis v Spence (1920) VLR 407, and cf Coughlan v Thompson (1913) VLR 304. The general rule is clearly stated by Isaacs J in ... Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381."
72 This places a premium on the contents of the actual case as stated, but it is frequently experienced that the case stated is augmented by
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- materials annexed as has happened in the present case. Of such a situation Windeyer J spoke in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 217:
"The Board annexed to the case stated a copy of its reasons for its decision. This is a common practice, and it has some qualified approval in New South Wales: Way v Wridley (1958) 76 WN (NSW) 31. But argumentative material cannot be part of a case stated. The Board's reasons can, I think, only be used by the court to the extent that they contain some further express findings of fact in elaboration of the express statements in the case itself. They may, however, be illuminating in a case such as this, where the question is whether the Board's conclusion was open to it on the facts found. That is because the Board's finding, although open to it, may be seen to be unreliable because based on unsound reasoning. A simple answer, favourable to the Board's decision, to the question of law submitted by it can in such a case have misleading consequences for other cases. But it is possible to guard against that. The form that a case stated should take has often been pointed out: see The Queen v Rigby (1956) 100 CLR 146."
74 The mechanism of the settlement was that Starr agreed to instruct his solicitors to prepare and sign a minute of consent orders that Starr's action against James Hardie be dismissed and that there be no order as to costs. It was also a term of the settlement that James Hardie paid to Starr's solicitors at his direction the sum of $150,000 exclusive of workers' compensation payments paid or payable under the Act or by agreement and a further $40,000 in respect of costs and disbursements without any admission of liability in respect of the allegations made in the common
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- law action and in full and final satisfaction and a discharge of, in essence, any liability James Hardie had to Starr in respect of his mesothelioma.
75 The case stated also sets out that, notwithstanding the terms of the Deed, as at April 2003 no order had been made by this Court dismissing Starr's action against James Hardie nor had any judgment ever been entered against James Hardie in favour of Starr. In addition, it has been stated that Cramer, the applicant/appellant, has not received any payments from James Hardie pursuant to s 92 or s 93 of the Act or otherwise in relation to the claim.
The avoidance of double recovery of damages and workers' compensation payments
76 Putting aside exemplary damages which, while sought, were not agreed or awarded in this case, and which are not available for breach of contract: Gray v Motor Accident Commission (1998) 196 CLR 1 at [13], damages recoverable by a worker against an employer for personal injuries and associated loss caused by the employer's negligence, breach of statutory duty or breach of the express or implied terms of the contract of employment are wholly compensatory in nature. It follows from this that there would be an unacceptable duplication of recovery if a successful claimant were to receive in full both damages awarded to him in an action at common law and the workers' compensation entitlements payable to him by his employer in respect of the same injury or disability. Under the Workers' Compensation and Rehabilitation Act, Parliament has made it clear that an employer should be reimbursed for the workers' compensation paid by deduction of that sum from the damages payable, in the event that the employer is the tortfeasor; or by obliging the defendant found liable (if not the employer) to divert a portion of the damages to the employer to repay the workers' compensation benefits paid by the employer. In other cases, this policy is advanced by granting to the employer a right of action against the tortfeasor who caused the loss and damage, which can be pursued by the employer if the employee himself did not make such a claim. These are the principles which underlie s 92 and s 93 of the Act in this State.
77 An employer is entitled to withhold from the damages payable by him (if so liable), an amount equal to all the workers' compensation benefits paid to his employee, or to have so much of the damages paid to him where a third person is liable in damages to the employee. Both of these entitlements are protected by a charge created over the judgment in favour of the employee by s 92. Consequently, the amount of a judgment
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- to be entered in favour of an employee in a successful action should be for the total amount of the damages awarded without reduction for the workers' compensation payments made. This is often referred to as entering judgment for the gross sum because, thereupon, the statutory provisions operate and ensure that the successful employee only recovers the net sum, namely the amount of the judgment less the aggregate of workers' compensation benefits paid. This approach recognizes that the statutory charge and the employer's right to credit or reimbursement of workers' compensation operates as a charge upon the amount of the judgment actually entered in favour of the plaintiff employee - see The Motor Vehicles Insurance Trust v Forbes, Brambles Holdings Ltd & White [1985] WAR 50. The settlement evidenced by this Deed reveals that the payments agreed upon were made exclusive of workers' compensation. This provision, as well as the indemnity which Starr gave James Hardie by the Deed for any workers' compensation payments made to Starr which James Hardie might be required to pay, shows that the parties to the Deed chose a form of settlement which, in this respect at least, was significantly different from that of a judgment in the action for a money sum in favour of the plaintiff.
78 However, even in circumstances where there is no statutory entitlement for an employer to deduct or recover from damages awarded to his employee, the amounts of workers' compensation benefits paid by the employer in respect of the same disability, the approach taken by the courts is to treat the payments of workers' compensation as benefits received by the employee in reduction of his losses and to credit them in reduction of the damages awarded - Manser v Spry (1994) 181 CLR 428; Harris v Commercial Minerals Ltd (1996) 186 CLR 1 and Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 CA.
79 Although subject to some variations because of differences between the legislation applying in different jurisdictions in Australia, the principles underlying these provisions have frequently been examined and explained by the courts - see Watson v Newcastle Corporation (1962) 106 CLR 426 especially per McTiernan J at 432 - 433 and Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 per Barwick CJ at 326 - 329. For an historical account of the development and modification of the employer's statutory right of indemnity for workers' compensation benefits paid see Scott v Bowyer [1998] 1 VR 207 per Winneke P, Brooking and Hayne JJA at 219 - 221.
80 Notwithstanding that, in the given circumstances, credit in one form or another is usually to be given for workers' compensation benefits
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- received when an employee recovers damages for personal injuries arising out of the same disability, the character of the workers' compensation payments and that of the damages payable remain different. When speaking of an injured worker's rights to receive workers' compensation and/or damages at common law in Transport Accident Commission v CMT Construction of Metropolitan Tunnels (1988) 165 CLR 436 at 448, Wilson, Dawson, Toohey and Gaudron JJ said that the injured worker's rights are no longer properly described as alternative rights nor, however, are they properly characterised as cumulative rights. Their Honours pointed out that satisfaction of a common law judgment modifies the worker's rights to compensation in the manner specified by the legislation but that:
"The rights are more properly to be viewed as separate but interdependent rights, each right to the extent of its realisation modifying the realisation of the other."
And, later, at 448:
"The provisions of the Act relevant to the present matter expose an employer, whose worker suffered injury in the course of employment giving rise to a right to recover damages from the employer, to two separate and actual liabilities, albeit that the liabilities are interdependent in the sense that satisfaction (including partial satisfaction) of one modifies the other. Compensation payments are no longer merely advances against whatever liability might be enforced against the employer. They are payments in discharge of a liability imposed by the Act. ... "
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82 In the course of the litigation which has led to the two matters now before this Court Owen J recognized that the statutory charge created by s 92(c) may not be efficacious in every case and that there are sometimes situations which fall outside the words used by the section - Geraldton Building Co v Cramer [2001] WASCA 244 at [20].
83 Because s 92 confers upon the employer, in circumstances where the worker has obtained a judgment for damages at common law or who has accepted an offer to consent to judgment at common law, a charge upon the judgment or the amount of money paid into court, it must follow that the employee actually recovers a judgment against the defendant or accepts a sum which has been paid into court by the defendant and which, therefore becomes payable to him, in order for there to be a fund or other subject matter upon which the charge can operate. If there is no judgment for a money sum in favour of the employee, or if the employee has no entitlement to be paid the proceeds of a fund which has been paid into court by the defendant, there will be nothing that can be charged in favour of the employer. Equally, if there is no judgment or other statutory entitlement to payment established in favour of the employee, the employee will not have recovered damages. In that event there will be no basis upon which the employer could seek to recover workers' compensation benefits from him, or in reduction of any entitlement to damages, because there will have been no determination, by the judgment of any court or by the consent of a tortfeasor, that the employee had or has an entitlement to damages.
84 The respondent pressed the argument that Starr has settled his claim for damages against James Hardie upon the terms of the Deed of 1998. That is, of course, quite obvious but the settlement of the claim for damages did not result in any judgment for damages in favour of Starr, nor the acceptance by him of any amount paid into court by James Hardie. One of those two prerequisites is essential to the operation of the statutory charge contemplated by s 92(c) of the Act. Without either, there is simply no judgment nor any fund upon which the statutory charge can fix, nor would there be any judgment or amount in court due to be paid to the employee which could be deducted in pro tanto satisfaction of the money obligation by the tortfeasor to the successful employee.
85 In my view, what has occurred in the present case is a settlement of Starr's claim for damages by agreement "otherwise than by a judgment, an acceptance of an offer to consent to judgment, or an acceptance of money paid into court ... " a type of resolution of such a claim contemplated by s 92(f). There is nothing in the case stated to suggest that Starr or James
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- Hardie filed a memorandum of the terms of the settlement with the Directorate as contemplated by s 92(f)(i), but whether or not such a memorandum has been filed, or might still be filed, the only potential consequence would be the effect of the Director approving or disapproving the settlement. Such approval or disapproval would have significance only for an attempt by Starr to commence or to continue a claim for compensation under the Act. Neither of those possibilities is of any significance in the present case.
86 Negligence by James Hardie as a cause of the disability suffered by Starr has, of course, never been established or admitted. The Deed expressly recites the denial of such liability and cl 5 confirms that the payment of the two amounts of $150,000 and $40,000 for costs are made without any admission of liability. However, the submissions of the respondent proceed on the footing that James Hardie is liable in damages to Starr and that the whole of the settlement proceeds recovered by Starr under the Deed were damages in respect of that legal liability. This is simply an unjustified assumption and begs the question of whether or not James Hardie was ever under a legal liability to pay damages to Starr for his disability resulting in mesothelioma. As that has never been proved or admitted there is simply no basis to impose upon any person, either James Hardie or Starr, liabilities which might exist only if negligence or other liability at law for damages was proved against or admitted by James Hardie.
87 No doubt the respondent believes that James Hardie may have been legally liable to Starr in respect of the disability resulting in his mesothelioma, but this only means that if Geraldton Building Co become liable to contribute to all or any of the workers' compensation paid by the applicant/appellant to Starr, the respondent will also have the right to pursue James Hardie for a statutory indemnity under s 93(1)(b) of the Act. That the applicant/appellant may already have an opportunity to attempt to enforce a claim for a statutory indemnity under s 93(1)(b) of the Act against James Hardie for the $99,529.70 which he has paid under the order of 19 October 1998, is no reason to conclude that the applicant/appellant must attempt such a claim before pursuing or enforcing the right to contribution under s 41(4) which he has against the respondent.
88 Indeed, the scheme adopted by Pt III Div 3 of the Act and, in particular, by s 32, s 33, s 39, s 41 and s 44 of treating the employer who last employed the disabled worker during a period of one year as being primarily liable to the claimant for the workers' compensation
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- entitlements arising under the Act, but subject to a right of last employer to seek contributions from earlier employers under s 41(4), is obviously designed to avoid the problems of proof of negligence, causation of damage, and the time of the first accrual of any common law right of action which are notoriously associated with industrial diseases of long, slow and imperceptible onset such as mesothelioma. Consistently with the regime adopted by the Act in Pt III Div 3 there can be no gounds for deferring or withholding the last employer's statutory right of indemnity from earlier employers under s 41(4) pending a determination of whether or not the first employer will seek to prove negligence against an earlier employer in order to have access to a different statutory right of indemnity, conditioned upon the existence of a common law liability, under s 93. To insist on that would be to introduce a requirement entirely repugnant to the solution which the Act adopts for cases of the specified industrial diseases dealt with in Pt III Div 3.
89 The respondent also submits that there is an additional reason why the settlement of the common law action reached between Starr and James Hardie set out in the Deed between those parties of April 1998 should be treated as a judgment to which s 92(c) of the Act applies. The submissions in support of this aspect of its argument must be taken in stages. First, it is submitted that the settlement involves an obligation upon Starr to have his solicitors prepare and sign a minute of consent orders in action 1795 of 1998 for that action to be dismissed and for there to be no order as to costs. Although no such minute has been prepared and filed, and no such order has been made dismissing the action that may still happen and, so it is submitted, if and when it does, there will be a "judgment" dismissing the action against the defendant. The second stage of the argument is that in the event of Starr's action against James Hardie being dismissed, whether by consent or otherwise, it will not be open to the respondent or any other former employer of Starr to pursue a claim for a statutory indemnity against the putative tortfeasor James Hardie under s 93(1)(b) because the consent judgment dismissing Starr's action would prevent any finding of negligence by James Hardie involving a breach of its duty to Starr being made in other proceedings, such as a claim by the respondent against James Hardie under s 93(1)(b).
90 The respondent cites the decision in James Hardie & Coy Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 and, in particular, a passage at 69 ([41]) in support of that submission. James Hardie & Coy Pty Ltd v Seltsam Pty Ltd concerned rights of contribution between concurrent tortfeasors under the provisions of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act (1946) NSW, which is in all material
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- respects equivalent to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (1947) of this State. Notwithstanding that difference, it can be accepted that a consent judgment dismissing Starr's claim against James Hardie in action 1759 of 1998 in this Court would, so long as it stood, prevent the respondent or any other employer recovering an indemnity against James Hardie under s 93(1)(b) of the Act. However, such a finish was never inevitable and even now might be prevented or altered.
91 Counsel for the respondent, acknowledged at the hearing that his client, Geraldton Building Co, had been an additional defendant in action 1795 of 1998 brought by Starr against James Hardie but that the plaintiff's claim against the respondent was discontinued before the plaintiff's settlement with James Hardie was effected. As there was always a possibility that the respondent might be required to contribute to compensation which the applicant/appellant might be ordered to pay (and was later ordered to pay) to Starr under s 41, the respondent could have sought in those proceedings a declaration that it was entitled to an indemnity against James Hardie for any compensation to which it may be ordered to contribute under s 41(4) or by making a cross-claim in those proceedings under s 93(1)(b). By this means the respondent would have been in a position to ensure that any settlement of the principal action between Starr and James Hardie did not defeat its contingent right to seek an indemnity for the compensation to which it may be required to contribute.
92 That relief of this kind could and should be given in an appropriate case is recognized by Barwick CJ in Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 at 323 - 327 where the learned Chief Justice said:
"There is obvious and necessary justice in giving the employer, who has been involved in the payment of compensation by the wrongful act of another, a right of recovery against that other but only up to the amount of damage which that other has caused and for which he was legally responsible. It is also necessarily just that the employee shall not be able to defeat that right of recovery. Clearly, the right to indemnity given by s 6(2) [a prototype of s 93(1)(b) of the WA Act] was a right of the compensating employer, in no sense in the control of the injured employee or of his dependants."
- That the situation where a judgment between the parties to litigation may have the effect of barring access by a third party to relief, otherwise
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- available and arising from the same circumstances, may be modified has been recognised on earlier occasions. In a situation dealing with analogous claims for contribution under s 7(1)(c) of the Western Australian Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act (1947) (supra) in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 Brennan J said:
"The shipping company has now sought an order similar to that in Unsworth v The Commissioner for Railways (1958) 101 CLR 73 under O 70, r 29 of the High Court Rules. Such an order would provide for the joining of Hamersley as a respondent with a view to amending the record by having judgment entered in solidum against Pilbara and the shipping company. A similar order should be made here to permit the making of a contribution order unless, the judgment having been satisfied by the shipping company, it is too late to amend the record."
94 This at last enables me to address question 3 in the case stated which, to my mind, is the most fundamental issue raised in these proceedings, namely what is the true position concerning Starr's common law claim against James Hardie? The answer must address the significance of the issue raised in the context of the proceedings before the Director, and the Compensation Magistrate's Court, rather than in any general or abstract
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- sense. The setting reveals that the question is asked and the answer is sought, because of the effect which the issue may have upon the applicant/appellant's claim for contribution under s 41(4) of the Act against the respondent and for no other reason.
95 In this context I would answer the question as follows:
Rex William Starr's claim for damages at common law against James Hardie was settled by an agreement between those parties contained in a Deed which did not result in any judgment or offer to consent to judgment against James Hardie or in the acceptance of money paid into court by James Hardie or in any other judgment or award of damages for any legal liability by James Hardie to Mr Starr. Because of this s 92(c) of the Workers' Compensation and Rehabilitation Act 1981 does not create any charge over any part of the proceeds of the settlement recorded by the Deed nor in any obligation by James Hardie to pay any part of the settlement to any employer or former employer of Mr Starr. Nothing in this answer derogates from or in any way determines, the right of Mr Max Cramer or of any other employer of Mr Rex William Starr to institute or pursue a claim against James Hardie if so advised under s 93(1)(b) of the Act.
Liability of Geraldton Building Co to contribute to the extent of 75 per cent to the workers' compensation paid by Cramer to Starr
96 Notwithstanding that question 4 in the case stated is conditioned upon an affirmative answer to one or both of the procedural questions raised by questions 1 and 2, it is convenient to deal with this fourth question at this point in the light of the answers to be given to questions 1 and 2 later in these reasons. Question 4 is:
"If the answer to question 1 and/or 2 is yes, is the respondent liable to pay the appellant 75 per cent of the workers' compensation paid to Starr by the appellant in accordance with the order dated 19 October 1999 namely $74,647.27?"
- The answer which I consider should be given to question 3 means that the applicant/appellant is entitled to have his claim against the respondent for contribution under s 41(4) determined without regard to the result of the settlement of the common law proceedings brought by Starr against James Hardie and recorded in the Deed between those two parties of 1998.
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97 Whether there should be an order for contribution made against Geraldton Building Co and, if so, the amount of contribution to be ordered is a matter to be decided by the Compensation Magistrate in the course of the present pending appeal from the order of Review Officer Crocker of 14 June 2003 which dismissed that application for contribution (subject always to the right of the learned Compensation Magistrate to make any further or other order, including an order to quash the decision and remit the matter to a Review Officer for further consideration under s 84ZP of the Act). The decision in Geraldton Building Co v Cramer [2001] WASCA 244 resulted in that first appeal to this Court succeeding and in an order remitting the matter to the Review Officer to ascertain the true position concerning Starr's common law claim against James Hardie. This necessarily involved setting aside the order of 18 November 1999 which required the respondent to pay to the applicant/appellant 75 per cent of the moneys paid by the applicant/appellant to Starr, namely $74,647.28.
98 It follows from this that it will be for the Compensation Magistrate in the exercise of the powers under s 84ZP available for the determination of the appeal still pending before him to determine whether an order for the 75 per cent contribution amounting to $74,647.28, or any order for contribution should be made. It is noted that the notice and grounds of appeal filed by the present respondent in the previous appeal to this Court (FUL 93 of 2000) included grounds challenging not merely the entitlement of the present applicant/appellant to any order for contribution under s 41(4) but also the extent of the contribution which had been ordered by Review Officer Cocker under his order of 18 November 1999 and which had been upheld by his Worship Mr Cockram CM by his order of 28 March 2000. Those grounds challenging the extent of the contribution ordered were not addressed by this Court in its decision on the previous appeal ([2001] WASCA 244). Because the order of 18 November 1999 must be taken to have been set aside entirely there is nothing to prevent the respondent from submitting to the learned Compensation Magistrate in the course of the appeal presently pending before him, that in the event of the appeal from the order dismissing the claim for contribution under s 41(4) being allowed some order requiring a different degree of contribution by the respondent should be made. Nothing in the case stated requires or allows this Court on this occasion to make any determination of whether or not the respondent should be ordered under s 41(4) to contribute to the applicant/appellant's liability to pay workers' compensation as ordered to Starr, or of the extent of any such contribution.
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99 Accordingly, I would answer question 4 as follows:
Whether the respondent should pay to the appellant any contribution towards the appellant's liability to pay workers' compensation to Starr, and if so the extent of the contribution which should be ordered, are matters to be decided by the Compensation Magistrate's Court in the appeal presently pending before it or, if the learned Compensation Magistrate should so decide, by a Review Officer on remittal of some or all of those issues to him.
Procedural questions - Right of appeal to Compensation Magistrate's Court from decision of Review Officer Cocker of 13 May 2003 - the decision of (13 May 2003) 14 June 2003
100 The first question posed by the case stated is:
"Can the appellant appeal the decision of Review Officer Cocker made 13 May 2003?"
- This must be regarded as a reference to the decision of Review Officer Cocker of 14 June 2003 dismissing the applicant/appellant's claim for contribution against the respondent under s 41(4) of the Act. That decision, annexed to the case stated, shows that the date of the review was 13 May 2003 but that the date of the decision was 14 June 2003.
101 That decision followed the decision of her Worship Ms P M Hogan CM of 16 April 2003. In reaching his decision the Review Officer concluded, that because her Worship had decided that the proceeds of the settlement recoverable by Starr from the applicant/appellant resulted in a charge under s 92(c) on the "extended judgment" (the proceeds of the settlement obtained from James Hardie) the application for contribution under s 41(4) "cannot proceed any further". The Review Officer then went on to say:
"[13] Clearly the Compensation Magistrate has not ruled out the possibility of a further application to seek contribution from the respondent and therefore without intending to restrict the applicant in this matter from seeking a contribution from the respondent in the future the application is dismissed and I so order."
102 On any view, that decision and the order dismissing the s 41(4) application for contribution comes within the scope of s 84ZN(2) in respect of which an appeal on a question of law will lie as of right to the
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- Compensation Magistrate's Court. The proposed appeal, instituted by notice of appeal filed 9 June 2003, relies on grounds of appeal alleging errors of law and, as such, is competent. This is acknowledged by the respondent in its written and oral submissions to this Court. However, the respondent submits that it is not necessary to answer question 1 in this case stated because such an answer would not resolve the real issue between the parties. Nevertheless, as the question has been stated by the learned Compensation Magistrate and because it is obviously desirable to dispel any possible doubts about the competency of that appeal, I consider that the court should answer that question and that the answer should be in the affirmative. Accordingly, I propose that this Court should deal with the first question stated as follows:
"Can the appellant appeal the decisions of Review Officer Cocker made 13 May 2003?"
Answer: Yes.
103 The respondent submits that there are two reasons why the decision of 16 June 2003 cannot be the subject of the present appeal to the Compensation Magistrate's Court under s 84ZN of the Act; namely that the decision of the Review Officer is not a final decision as it is open to the applicant/appellant to re-apply as acknowledged by the Review Officer; and, secondly, because the decision adopts and applies the ruling made by her Worship Ms P Hogan CM on 16 April 2003 on referral by the Review Officer under s 84ZM from which no appeal was instituted at the time.
104 A notable feature of the decision of her Worship Ms P Hogan CM of 16 April 2003, previously noted, is that her Worship did not deal finally with or dispose of the matter referred but, rather, only provided an answer to "the question referred", namely a question asking what was the true position concerning Starr's claim against James Hardie. It is by no means certain that the Review Officer purported to refer only a question for answer by the Compensation Magistrate as distinct from referring the entire matter to the Compensation Magistrate's Court for determination which appears to be the only option under s 84ZN. But, as already noted, on such a referral the Compensation Magistrate's Court has jurisdiction to make such orders as it thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it. This, too, implies that the Compensation Magistrate on the referral should "determine" the entire matter referred but this was not done and the learned Magistrate
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- does not appear to have been asked, nor did she purport, to dismiss the applicant/appellant's application for contribution in the light of the conclusion which she had reached. A dismissal of the application would have been the only order open in the light of the conclusion which the learned Magistrate reached on the question which she did address. Rather, her Worship contemplated that the "matter" would go back to the Review Officer, as occurred, resulting in the further review before Mr Cocker which took place on 13 May 2003 resulting in his decision to dismiss the application for contribution on 14 June 2003.
105 Whatever may be said about the propriety of the procedure followed it is not, in my view, possible to conclude that the decision of her Worship Ms P Hogan CM of 16 April 2003 was a decision which finally disposed of the matter constituted by the applicant/appellant's claim for contribution under s 41(4). It can only have been a decision by the Compensation Magistrate on a question of law arising in the review and, then acted on and applied by the Review Officer when finally disposing of the matter by the order which she made on 14 June 2003 under s 84ZF. As such, the learned Compensation Magistrate's decision was a decision on a question of law made in the course of proceedings leading to the ultimate decision of the Review Officer on the matter, namely the decision to dismiss the s 41(4) application for contribution.
106 There is authority that even where there has been a ruling made on the separate trial of an issue on an appeal from a later decision terminating the proceedings which applied that interlocutory decision then a challenge can be made to the correctness of the interlocutory decision - David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346. That case was cited with evident approval by Gaudron, McHugh and Hayne JJ in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 484 where their Honours concluded (at 483):
"The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms (see E G Nolan v Clifford (1904) 1 CLR 429 at 431: 'All points ... are open'.) The better view, however, is reflected in the formulation adopted in Spencer, Bower, Turner and Handley (The Doctrine of Res Judicata 3rd ed (1996) pp 79 - 80, par 170) where it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result' (emphasis added).
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- It is necessary to make the qualification, 'which affected the final result', at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. That principle, well-established in the common law (Conway v The Queen (2002) 209 CLR 203) ... ".
107 It follows, therefore, that as the decision which dismissed the applicant/appellant's claim for contribution under s 41(4) was the decision of Review Officer Cocker of 14 June 2003, the appeal which has been instituted from that decision by the present applicant/appellant to the Compensation Magistrate's Court can and, if demanded by the appellant, must examine the correctness of the decision of her Worship Ms P Hogan CM of 16 April 2003 which was an interlocutory decision in the course of the proceedings before the Review Officer and certainly one which affected the final result.
108 There remains an issue of whether or not a Compensation Magistrate's Court, when hearing an appeal under s 84ZN may review and depart from an earlier decision of the Compensation Magistrate's Court made in the same cause such as occurred in this case when the earlier decision was not itself the subject of any further appeal by the party then seeking to question it. The categorization of the earlier decision of her Worship Ms P M Hogan CM in the present case as interlocutory provides a sufficient, but not a complete, answer to this aspect of the issue. The particular provisions of s 117 of the Act which provide that, subject to the Act, "a determination of a Compensation Magistrate's Court is final and conclusive and is not open to question or review in any court ... " require additional consideration. The conclusive effect which, subject to the Act, s 117 confers upon certain decisions of the Compensation Magistrate's Court applies to "a determination of a Compensation Magistrate's Court". A "determination" refers to the jurisdiction of a Compensation Magistrate's Court as described in s 115 which, in the case of a referral under s 84ZM, is a jurisdiction to:
"(a) Hear and determine any case referred to under s 84ZM; ... "
- When these provisions of s 115(1)(a) are read in conjunction with s 84ZM and s 84ZO it is evident that the jurisdiction to "hear and determine any case referred" must mean a decision by the Compensation Magistrate's Court which fully determines the matter in the sense that it concludes all issues in contest between the parties and produces an order fully disposing
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- of the matter which was the subject of review and which had been referred under s 84ZM. As noted, the power of a Compensation Magistrate on such a review to make an order includes the jurisdiction "to make such orders as it thinks fit with regard to the matter ... " (s 84ZO) and in this case the power was exercised so as to make a decision on a particular question in the matter but not in a manner which fully disposed of or determined the matter but which, instead, involved the matter being remitted to the Review Officer for final determination.
109 It is not necessary on this occasion to consider whether or not it is open to a Compensation Magistrate's Court on such a referral to make a decision which does not fully determine the matter because neither of the parties to these proceedings submitted otherwise, and the courses followed by her Worship Ms P M Hogan SM, by the Review Officer Mr C M Cocker after the remittal of the matter to him, by the parties in the course of the appeal then instituted to the Compensation Magistrate's Court from the decision of Review Officer Cocker to dismiss the s 41(4) application for contribution and, indeed, by the decision of his Worship Mr J R Packington SM in the course of the present appeal before the Compensation Magistrate's case to state the present case to this Court, have all accepted the regularity of that procedure. Consequently, it can only be concluded that the decision of her Worship Ms P M Hogan CM of 16 April 2003, while a decision answering a question of law referred to her Worship under s 84ZM, was not a determination of the case referred within the meaning of s 117 and, therefore, is not given the degree of conclusive status which that section confers upon a "determination".
110 However, even if the decision of her Worship Ms P M Hogan CM of 16 April 2003 had been a "determination" within the meaning of s 117, I consider that it would still be open for the learned Compensation Magistrate on the present appeal under s 84ZN from the decision of Review Officer Cocker of 14 June 2003 dismissing the applicant/appellant's s 41(4) claim for contribution to reconsider her Worship's decision about the application of s 92(c) of the Act to the facts of that claim for contribution and to revoke, alter or amend that decision because of the effect of s 118 of the Act.
111 The conclusiveness of a determination of a Compensation Magistrate's Court conferred by s 117 is, as noted, subject to the Act. One way in which a determination or decision of a Compensation Magistrate's Court may be reconsidered, revoked or altered is by a decision of this Court on an appeal duly instituted under s 84ZW. Section 118 recognizes that a Compensation Magistrate's Court may itself reconsider any matter
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- which has been dealt by it and may revoke, alter or amend any decision or order previously made. This confirms that a Compensation Magistrate's Court is not subject to a strict doctrine of legal precedent nor bound by its own previous decisions or rulings as s 116 also makes plain. Counsel for the respondent submitted that s 116 and s 118 did not mean that a Compensation Magistrate's Court was free to ignore the doctrine of stare decisis or was not bound by a decision of this Court or of the High Court of Australia which dealt authoritatively with a point in issue citing, in this regard, the decision of this Court in Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 and, in particular, the judgment of Roberts-Smith J at [37] and [49].
112 There can be no doubt that the Compensation Magistrate's Court is bound by a decision of this Court or by the High Court of Australia which deals authoritatively with a point of law in issue. But this does not mean that it is bound by its own decisions. In my view, the extent to which the Compensation Magistrate's Court regards itself as free to depart from its own previous decisions, a power explicitly recognized by s 118, must be for that court itself to determine. The desirability of ascertaining and applying correct legal principle and of avoiding the perpetuation of error when considering the doctrine of stare decisis has been examined by the High Court in Nguyen v Nguyen (1990) 169 CLR 245 at 268 - 269 and, in the context of a special statutory tribunal established under the Workers' Compensation Act (1958) (Vic), in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 per Mason J at 10 - 13. There the question was whether or not the Full Court of the Supreme Court of Victoria should have overruled an earlier decision of the Workers' Compensation Board of Victoria, which it concluded was wrong in principle, but which was of long-standing and previously frequent application. In deciding that the Full Court of the Supreme Court of Victoria should have overruled that earlier erroneous decision, notwithstanding the doctrine of stare decisis Mason J said, at 13:
"There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute [references omitted]. It is no part of a court's function to perpetuate error
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- and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention ... ".
113 Although, in Babaniaris' case the court was speaking of the duty of an appellate court to overrule an erroneous decision of a statutory tribunal, the High Court also recognized that it was for the Board itself to decide whether or not it should be bound to follow one of its own earlier decisions on a question of law (see per Mason J at 12). This is even more apparent in relation to decisions of a Compensation Magistrate's Court in this State in the light of s 116 and s 118 which make it obvious that a Compensation Magistrate's Court always has the power to depart from one of its own previous decisions. No doubt when considering whether or not it should do so, a Compensation Magistrate's Court will consider all the relevant circumstances including those factors identified in Nguyen v Nguyen (supra) and Babaniaris' case always having regard to the prime duty of ascertaining and applying the intention of Parliament when interpreting any particular statutory provision. This is, therefore, a further reason for concluding that the present applicant/appellant has the right in Appeal No CM 85/03 presently pending before the Compensation Magistrate's Court to challenge the decision of that Court in matter CM 175/02 delivered on 16 April 2003.
114 Consequently, to the second question in the case stated which asks:
"Alternatively does the appellant have the right, in this appeal, to attack the decision of this Court in matter CM 175/02 delivered on 16 April 2003?"
- the following answer should be given:
Yes, the correctness of this decision may be challenged in the pending appeal CM 85 of 2003 before the Compensation Magistrate's Court.
115 The questions posed by the case stated and the answers which I consider should be given have been set out earlier. For convenience, however, they are now repeated together:
"1. Can the appellant appeal the decision of Review Officer Cocker made 13 May 2003?"
- ANSWER: Yes.
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- "2. Alternatively, does the appellant have the right in this appeal to attack the decision of the Court in matter CM 175/02 delivered on 16 April 2003?"
- ANSWER: Yes, the correctness of this decision may be challenged in the pending appeal CM 85 of 2003 before the Compensation Magistrate's Court.
"3. If the answer to question 1 and/or 2 is yes, then what is the true position concerning Starr's common law claim against James Hardie?"
ANSWER: Rex William Starr's claim for damages at common law against James Hardie & Co Pty Ltd was settled by an agreement between those parties contained in a Deed which did not result in any judgment or offer to consent to judgment against James Hardie & Co Pty Ltd or in the acceptance of money paid into court by James Hardie & Co Pty Ltd nor in any other judgment or award of damages for any legal liability by James Hardie & Co Pty Ltd to Mr Starr.
"4. If the answer to question 1 and/or 2 is yes, is the respondent liable to pay the appellant 75 per cent of the workers' compensation paid to Starr by the appellant in accordance with the order dated 19 October 1998, namely $74,647.27?"
ANSWER: Whether the respondent should pay to the appellant any contribution towards the appellant's liability to pay workers' compensation to Starr, and if so the extent of the contribution which should be ordered, are matters to be decided by the Compensation Magistrate's Court in the appeal presently pending before it or, if the learned Compensation Magistrate should so decide, by a Review Officer on remittal of some or all of those issues to him.
Application for leave to appeal from decision of her Worship P M Hogan CM of 16 April 2003
116 By the application for leave to appeal in CIV 1693 of 2004 the applicant/appellant seeks an extension of time (RSC O 64 r 4(4)) and the grant of leave to appeal under s 84ZW of the Act, from the decision of her Worship Ms P M Hogan CM of 16 April 2003. By that decision, her Worship, upon the referral from the Review Officer, decided that the
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- terms of the settlement between Starr and James Hardie constituted an extended judgment within the meaning of s 92(c) with the result that the applicant/appellant was entitled to a charge over the proceeds of that settlement. Her Worship therefore held that Mr Cramer should first look to James Hardie for recovery of the "debt" created by s 92(c) before bringing any claim for contribution under s 41(4) against the respondent.
117 If the time to apply for leave to appeal was extended, and leave to appeal granted, the applicant/appellant would, in the event that the appeal were to be allowed, seek orders that:
(a) the appeal from the decision of her Worship Ms P M Hogan CM of 16 April 2003 be allowed and that decision be set aside;
(b) that this Court declare that the answer to the question referred by the Review Officer under s 84ZM is that the true position concerning Starr's claim against James Hardie is that, as a consequence of the terms of the deed between them (which fall within the notion of 'extended judgment' as explained by Owen J in Geraldton Building Co v Cramer [2001] WASCA 244) the amount recoverable by Starr pursuant to the Workers' Compensation and Rehabilitation Act (as referred to in s 92(b) of the Act) is not deemed by s 92(c) to be a first charge on the extended judgment;
(c) it be declared that s 41(4) of the Act entitles the applicant/appellant to seek contribution from the respondent in relation to any compensation recoverable from the applicant by Starr.
118 The applicant/appellant explains the delay in making application for leave to appeal from her Worship's decision on the basis that, it being an "interim decision" the view was taken that s 84ZW granting the ability to seek leave to appeal to this Court did not apply to such an interim decision - John Holland Construction & Engineering v Eskic [2003] WASCA 48. That was a case where leave to appeal to this Court was sought from a ruling made by a Compensation Magistrate in the course of hearing an appeal under s 84ZN refusing an application for an extension of time to appeal on a new or additional ground. This Court refused leave on the grounds that such a decision was not a final decision, did not involve a question of law and was not a decision attended with sufficient doubt to
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- justify the grant of leave and, in addition, because no substantial injustice would be done by leaving the decision unreversed. As it is clear that leave to appeal in that case was refused for all those reasons, it may still be open to question whether or not the decision is authority for the proposition that leave to appeal under s 84ZW is only available in the case of a "final" decision in circumstances where that has not been expressly stated by the legislation (contrast s 60(1)(f) of the Supreme Court Act 1935). The principles upon which the grant or refusal of leave to appeal from an interlocutory order or decision are granted, as established in Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 54 - 57 were cited in support of the decision of this Court in John Holland Construction & Engineering v Eskic (supra) and these certainly empower this Court to decline leave to appeal from a decision of the Compensation Magistrate's Court in many circumstances.
119 The respondent also opposes the grant of an extension of time or of leave to appeal by submitting that no adequate reason has been given by the applicant for failing to apply within time for leave to appeal and points out that the proceedings which were the subject of her Worship's decision have since been remitted to the Review Officer and have been determined by him adversely to the applicant and that the applicant has instituted an appeal to the Compensation Magistrate's Court raising essentially the same issues.
120 For the applicant/appellant it is acknowledged that the application for an extension of time and for leave to appeal has been made, essentially as a supplementary precautionary measure, against the contingency that it might be decided that the decision of her Worship Ms PM Hogan CM of 16 April 2003 could not be challenged in the new appeal CM 85 of 2003. Counsel for the applicant/appellant has also acknowledged that if the answers given by this Court on the case stated have the effect of determining that the decision of her Worship of 16 April 2003 could be challenged in the new appeal to the Compensation Magistrate's Court, or even more so, if the answers on the case stated determined that the decision given by her Worship on 16 April 2003 was wrong, it would be unnecessary to pursue the application for an extension of time and for leave to appeal.
121 The answers given to the questions posed in the case stated have resulted in this Court concluding that the decision of her Worship on 16 April 2003 was wrong in law and that the true position concerning Starr's common law claim against James Hardie is that settlement of that claim in the manner effected does not involve any charge being created
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- against the proceeds of settlement by s 92(c) of the Act or otherwise so that the applicant/appellant is entitled to have his claim for contribution under s 41(1)(4) finally determined now. That decision must, of course, be followed and applied by the Compensation Magistrate in the pending appeal and doing so will involve departing from the earlier interlocutory decision of her Worship.
122 This renders it unnecessary for the applicant/appellant to appeal against that decision itself or to obtain an extension of time for leave to do so. As the progress of the claim has now passed well beyond the decision of 16 April 2003 and as that decision could, for reasons already given, have been challenged in the present pending appeal even if this case had not been stated, there is no utility of any kind in now granting leave to appeal from that decision. Therefore, because of the lack of any practical advantage in securing leave to appeal from the decision of 16 April 2003, rather than because of any lack of merit in the proposed grounds of appeal, I consider that leave to appeal should be refused and, for that reason, the application for an extension of time to apply for leave to appeal should also be refused.
123 The order which I consider the court should make on this application is that the application for the extension of time for leave to appeal should be refused.
124 LE MIERE J: I have had the advantage of reading in draft the reasons for judgment of E M Heenan J. I agree with the answers his Honour proposes to each of the questions asked in the case stated and his Honour's reasons therefor. I also agree that the application for the extension of time for leave to appeal should be refused for the reasons stated by his Honour.
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