Detar v Accident Compensation Commission

[1989] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml5 of 1989

B e t w e e n -

ERMINIA DETAR

Applicant

and

ACCIDENT COMPENSATION COMMISSION

Respondent

Application for special

leave to appeal

BRENNAN J
DAWSON J

McHUGH J

Detar

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1989, AT 9.39 AM

Copyright in the High Court of Australia

MlT2/l/RB 1 9/6/89

MR M.E.J. BLACK, QC:  May it please the Court, I appear with

my learned friend, MR D.G. BROOKES, for the

applicant in this matter. (instructed by

Maurice Blackburn & Co)

MR J.D. PHILLIPS, QC:  May it please the Court, I appear with

my learned friend, MR J.L. PARRISH, for the

respondent Corrrrnissioner. (instructed by Hall & Wilcox)

MR BLACK: If the Court pleases, this application raises the

fundamentally important question of the place, if

any, of the principles of cause of action estoppel

in the scheme of accident compensation in Victoria.

The principle was used in this case, and has been

sought to be used in other cases, to prevent workers

who have been caught by a particular time limit from

pursuing again their claim to be entitled to weekly

payments of compensation.

I will seek to make good later in the submission

the argument that the points involved here are very

important but, of course, it is incumbent upon me

first to demonstrate that the Full Court's decision

is arguably wrong to the extent that this Court should

review it, ,irrespective of the importance of the matter.

Might I corrrrnence the submission by drawing the

Court's attention to two aspects of the structure of the Accident Compensation Tribunal as it existed at

the time. I say "as it existed at the time" because

the Act has been amended and I shall hand to the Court

shortly a comparative table that my learned junior has

prepared for the purpose of rebutting, in case it be

necessary, any argument that the changes in the Act

have made this point academic. In our submission,

they have not, but there have been some changes.

At the time this application came before the

Accident Compensation Tribunal there were several

divisions of the tribunal and the division relevant

here was a division called the conciliation division.

It might be convenient to the Court if I hand to it

at this stage four copies of the comparative table.

Before doing so, I should indicate that some of the

headings were taken from a corrrrnercial publication and
are not part of the substance of the Act but the

headings, I think, are innocuous in any event. Might

I also hand to the Court for more authoritative

reference, if necessary, four copies of the relevant

legislation to which I hope the Court will not have to

be referred in detail. Might I hand first to the

Court four copies of the ACCIDENT COMPENSATION ACT 1985,

which was the Act as it was substantially at the time,

and also four copies of the 1987 reprint which

essentially shows the Act in its present form. The

copies have been well used but I trust the Court will

not deem that offensive.

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In essence, if the Court pleases, the

conciliation division, the reconrrnendation of which has

given rise to this litigation, was set up under the

Act, staffed by persons whose qualification was a knowledge of industrial compensation matters and who were representative of different industrial interests.

Put plainly, employers and employees. Some of them

were legally qualified, otherswere not, but their

function under the Act was essentially to consider virtually everything that came before the tribunal.

That was, as it were, the first port of call for an

applicant.

Their decisions might be reviewed by the tribunal

division of the tribunal. The tribunal division at the

relevant time was staffed by persons who were county

court judges or qualified to be county court judges,

together with what might loosely be described as

somebody representing employers - sorry, appointed by

representatives of employers and appointed by

representatives of the union movement. So that there

were the two - there were other divisions as well but

those are the two relevant ones.

Now, what happened in this case, and the facts

are moderately complicated, but can be - once explained,

the point in this case is really very very

straightforward. The facts are these, in essence:

Mrs Detar, a worker, made a claim for compensation for

an injury she received at work. The claim was referred

to a conciliation division where it was considered by

a conciliator. Under the Act, the conciliator was

charged with the task of determining whether there was
a genuine dispute about the entitlement to weekly

payments. If there was no genuine dispute which was

defined as sincere and genuine and real, in essence,
if there was no genuine dispute, according to the

finding of the conciliator, the worker was entitled

under the Act to payments. If there was a genuine

dispute, then the worker was not entitled to payments

and the matter than had to be resolved.

Mrs Detar was the subject of an order, there

being found a genuine dispute, that payments not

connnence.	So what she did, as was her right, was to
seek a review under section 109 of the Act.	Because

of the complicated internal mechanisms of the Act,

which I do not think I need trouble the Court with,

that application for review again had to be heard

first by a conciliator and so it was. And the

application therefore for weekly payments, the onus

of proof now being on the applicant to prove her

entitlement, came before the conciliator in October 1986.

Might I now invite the Court to turn to

section 109(13) of the original Act, the green Act, and

it also appears on the - it may more conveniently

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appear on the chart that we have handed to the Court.

Under 109(13):

the Conciliation division may proceed to make

a recommendation on the question of the

entitlement of a worker to receive weekly

payments.

That is plainly within the power of the conciliation

division.	And that is what the conciliation division -
or the conciliator who sits alone in fact did.	What
the conciliator did was to recommend that weekly

payments not commence - and I think that is a completely

accurate statement of the finding that is reflected in

the application book, "recommend that weekly payments

not commence".

Now, the problem for Mrs Detar then arose because

once a recommendation has been made that weekly

payments not commence, they simply do not commence.

And if the matter rests there and you do nothing

else, you do not get any money. Now, there were two

options, we say, open to her: one was provided for

under the Act, under section 117(6) and that was to

apply in a timely fashion - and here is the problem,

28 days then, now 60 - to the tribunal division for

a review of the recommendation and had she done that

within time, then the tribunal division, the county
court judge and the other members, would have

considered the recorrnnendation and made a determination.

That is under 117(6) of the old Act and there is a

similar provision now. I should read it. It reads:

Where a Conciliation division makes a

recommendation to the parties to proceedings

under this Part, a party to those proceedings

may, within 28 days after the recommendation

is made, apply to the Tribunal division for

a determination.

Now, Mrs Detar got herself out of time, as a considerable

number of other workers have, as the Court will be told.

DAWSON J: Where a recommendation is made under section 109(13)

then payments are made in accordance with that

recommendation without going to the tribtmal division?

MR BLACK:  Yes, that is so, Your Honour. If the worker gets

a favourable recommendation from the conciliator she

gets her payments.

DAWSON J: Really, that is where the decision is made and what

you have under subsection (6) of 117 is more like an

appeal.

MR BLACK:  Yes. It no doubt will be put strongly against us

that it is like an appeal. We, of course, as well

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as referring to matters of absolute substance refer

to the fact that it is a recommendation.

DAWSON J:	It is like it, but that is not what the Act says.
MR BLACK:	That is right, indeed, with respect, Your Honour.

So that Mrs Detar was out of time, so what she did,

she then I think withdrew the application. But what

she did was then to start again and she went - and

I will not go through the labyrinth through which she was required to pass, but she eventually got through - a maze is perhaps more correct, it is a complicated

procedure - but eventually she was in the position

where she was before the deputy president of the

tribunal in the tribunal division arguing that she

could bring a second claim based upon essentially the

same injury - I say essentially because there were

verbal differences, they were not argued below and

are not argued here - and for the same incapacity in

the sense that she was wanting her weekly payments

from the date of injury to the date of application,
but of course also in respect of an added period

because time had passed, a year had passed.

Before the deputy president, the Commission

argued that because she had had the adverse

recommendation and was out of time, and so therefore

that stood, she was cause of action estopped from

making any second claim. The learned deputy president

in, with respect, a closely analysed decision realized

the difficulties and the problems but came to the view

that there was no cause of action estoppel and although

it might be inconvenient to start again, an applicant

who played around with the system could be penalized

in costs and there was no reason not to start again

and made an order.

It was from that order that the Commission appealed

to the Full Court and the Full Court held, in essence,

this, that there was a cause of action estoppel, that

the conciliation division was a judicial tribunal

within the meaning of the principle, that the

recommendation of the conciliator was effective to

determine the dispute between the parties and that

since the effect of the division's recommendation was

that weekly payments not commence, they never commenced

and, in the absence of that recommendation and, indeed,

that result - it was the result that was important -

being dislodged, the dispute between the parties was

resolved and it would seem to follow from that that

Mrs Detar can never get weekly payments based upon the

original injury and incapacity flowing therefrom.

Now, the first argument why we say the Full Court

was in error is that the nature of weekly payments

under this scheme - and indeed we would apprehend

under virtually any scheme of workers compensation in

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the traditional or reformed sense - brings such cases

outside the scope of cause of action estoppel for the
reason that unless one is seeking $50,000 for the loss

of a leg or something like that it is not a damages

once and for all type of situation. There may be no

entitlement to weekly payments today for a variety of

reasons, but that does not mean no entitlement tomorrow

for the same injury. And to make that proposition good

might I take the Court briefly to the sections of the

Act from which the nature of weekly payments under this scheme may be discerned.

BRENNAN J:  Mr Black, before you go to that, you have drawn our

attention to 109(13). I see there is also 109(8).

MR BLACK:  Yes. Section 109(8), Your Honours, is one of the

genuine dispute provisions and that is not in issue in this case. She had gone through that gate - she

had gone through that opening and been put through

the genuine dispute gate, so she then had to go

further.

BRENNAN J: Going through that gate enlivens the power of the conciliation division to order that weekly payments

not conunence. Is that the power which was exercised?

MR BLACK:  No, Your Honour, the power that was exercised, that

order was in effect reviewed by 109(9) through the

mechanisms - she had to go through further gates and

did so - and the argument based on an issue estoppel
on the 109(8) matter was raised before the Full Court,

described by my learned friend as a weak reed and not

really pursued and not the subject of any finding by

the Full Court.

BRENNAN J:  I am afraid I have not followed the 109(9). Was

she not out of time under 109(9)?

MR BLACK:  No, Your Honour, there is no time limit for that.

The Act is not free from paradoxes. There is no

time for conunencing an action unless you are a

sailor lost at sea. You could conunence the action any

time you like. Now it has to be done as soon as

practicable, but it was very liberal, the Act.

DAWSON J: What is the purpose of the two hearings before the

same person?

MR BLACK:  Your Honour, it is meant to speed up the delivery of

compensation and, Your Honour, this Act - one needs

in addition to one's masters ticket ocean going, one

needs a pilot's certificate to navigate these waters

and some people, despite computers in their

solicitor's offices and the best will in the world,

come to grief. Mrs Detar did and it is said she is

cause of action estopped. So she was a 109(8) person,

she applied to the tribunal for a review of the 109(8)

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decision; because of other provisions of the Act she

had to go back before the same person before she got

to the tribunal and before the same person, not I

think on the same day - before the same division, not

necessarily the same person - the same division on

another day back she went and then she was the subject

of the exercise of power under 109(13).

BRENNAN J: Is it right to say that when the power was exercised

under 109(13) the finding which was necessarily made

in 109(8) remained extant?

MR BLACK:  No, Your Honour, it would be convenient for us if it

was because there would still be a genuine dispute

but, Your Honour, not necessarily, is the answer. It

may be thought that the claim is shaky, it has not been

made out; it may be presumably thought that the

claim was bad for any one of a number of reasons.

There could be, theoretically, issue estoppels arising,
although we would deny it in the case of the

conciliator. None of our arguments, if accepted, lead

to an open season for workers because if a worker runs

a case and the issue is whether or not the person was

a worker at the relevant time, then it is not

contended that that cannot, at least before the tribunal

division, before the judge, create an issue estoppel on

the issue of whether he was a worker or whether he was

injured. What cannot be the subject, in our

submission, of ever, really, of an issue estoppel is

the question of incapacity because that can come and
go. Incapacity at a particular time, of course, could

be an issue estoppel matter.

Have I answered Your Honour's question? I have

taken many, but I hope and from the silence assume,

legitimate shortcuts. The scheme of the Act is very

complicated.

BRENNAN J: Yes, thank you.

MR BLACK:  The point we now seek to make good is that weekly

payments are not susceptible to the notion of cause

of action estoppel although certainly they would be

susceptible to notions of issue estoppel, and

presumably if one had enough issue estoppels one

could effectively have a cause of action estoppel,

although deriving from a different doctrine.

The first point that we would seek to make is that

section 82 of the Act is the basic section. It is the
centrepiece of the Act as far as its purposes are

concerned. That is the section that - it is not in

the outline, Your Honours, because it has not changed - confers upon a worker an entitlement to compensation in

accordance with the Act, present three elements:
worker, injury and arising out of the course of

employment. That is the centrepiece.

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Now, the primary form of compensation under this

Act is weekly payments and to illustrate how those weekly payments can come and go, may I take the Court

to section 93(1) of the Act which reads:

If a worker's total incapacity for work

results from or is materially contributed to

by an injury which entitles the worker to

compensation the compensation shall be in

accordance with this section.

Then subsection (2):

compensation shall be in the form of

weekly payments payable to the worker

during the period of total incapacity

for work.

And there is a similar provision for partial

incapacity. So that given all the elements, the
worker is not entitled to receive compensation unless

he or she is totally or partially incapacitated as the

case may be.

DAWSON J:  When the conciliation division recommended that the

payments not commence, that was on the basis that

she was not incapacitated, not on the basis she was -

MR BLACK:  We just do not know, Your Honour. It was just a

recommendation that payments not commence.	One might
suspect - no, one does not suspect.	The state of the

evidence, as I understand it, is that there was a

recommendation. Sometimes, I am told, these hearings

are formal; other times they are informal before the
conciliator - before the -

McHUGH J: Is the consequence of the argument against you that

there are estoppels against your client that she was

a worker, that she was injured, and that the injury

occurred in the course of her employment and that

she was incapacitated as well?

MR BLACK: Yes, because the cause of action estoppel bars

everything that she needs - bars every ingredient

that she needs.

McHUGH J: So even in a common law action, she would not be able

to dispute any of those findings?

MR BLACK:  Yes, it goes that far. I should say in a common law -

no, she would be saved from that, Your Honour, because

the parties would be different unless she was a

hapless employee of the Accident Compensation

Commission. I should have said to Your Honour that under

the old Act - yes, I understand what Your Honour is putting to me. Under the old Act, the employer was

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the respondent; under this Act, except in the case
of self-insurers which her employer, Hecla, I think,
the stove people, was not one - except in the case
of self-insurers the Commission is the other party.

But in the case of a self-insurer employer, yes, the

answer is she might well lose a common law action,

for what it is now worth, as well.

DAWSON J: But you say, well, the cause of action cannot merge

in the recommendation because in certain circumstances

that is not possible, namely incapacity, weekly

payments, and if you do not know what the issues were

that were determined, you cannot eliminate that-

MR BLACK: Exactly so. Your Honours, I can take the Court

through further sections but that is the substance of

the first argument. There are other coming and going sections and what we say is non-entitlement today to receive payments says nothing about entitlement next

week and the injury - - -

McHUGH J:  I think we want to call on your opponent.

BRENNAN J:  I think we will hear from Mr Phillips. Is there

something you wish to add, Mr Black?

MR BLACK:  No, Your Honour; just that there is some contest

about how many of these workers there are and there

is an affidavit - there have been some recent

affidavits. We filed ours in time two months ago.

There was a reply two days ago to which we made

reply which - the procedure is we should file with the Court today. I would seek to do that before I

sit down, if I might.

BRENNAN J: Yes.

MR BLACK:  It is an affidavit of my instructing solicitor.

What it says, in substance, is it takes issue with something as to what was argued below but I do not

think that is any longer a problem the way I have

put my case. And the second thing is it takes issue

with a question of how many workers there are. My

instructing solicitor, in his primary affidavit, said

that there were lots of people in similar cases. The

Commission says, "Well, a similar case is not just

somebody who is out of time but somebody who, like

Mrs Detar, is seeking to have another go", if I can

use that expression "for the same injury and the same

incapacity." My solicitor having gone on affidavit

of course has to say what he meant by "similar cases"

and he did mean cases where people are out time but

where they want to have another attempt, though not
necessarily in precisely Mrs Detar's case, but what

he goes on to say is that there are such cases, just

like Mrs Detar, and he, he says, despite all their

computers and so forth, they have got four of them,

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and further he goes on to say that as recently as

the day before yesterday the Commission was

adjourning - has been adjourning cases with exactly

Mrs Detar's situation pending the outcome of this

special leave application. So, Your Honours, that is

what that is all about. Might I hand the affidavit

to the Court. I should add this, none of these facts

are denied and the Commission, in its affidavit, says
that when reference to similar cases says "( if any)",

it has not told the Court how many there are, nor us.

BRENNAN J:  Mr Phillips.

MR PHILLIPS: If the Court pleases. The Court is obviously

troubled by the ambit of the res judicata that we would rely upon,the cause of action estoppel. We accept, if the Court pleases, that underlying all this

there has got to be a basic question whether or not

the applicant is seeking to have a second bite of the

same cherry. Is it a claim, same claim for same

injury, same incapacity, same period of incapacity,

same form of compensation? Now, obviously if there is some distinguishing feature, obviously if there

is something which you can latch upon to justify your

claim being different to the one which has already

been adjudicated upon, then you can argue that you are

free of the result in the first case. But that has

never been the issue in this case. And that was the

point of our affidavit.

In this case throughout it has been argued as

same inJury, same incapacity, which fully extrapolated
is same injury, same incapacity, same period of

incapacity, same form of compensation. And that is highlighted by the fact that when the second claim

was - - -

McHUGH J: Is it a closed period claim?

MR PHILLIPS:  No. Mrs Detar's compensation has ended,by the

way. Mrs Detar has got her compensation because we

have to pay it, pending the appeal to the Full Court,

and it came to an end by consent before, I think,

the Full Court judgment was heard. But it was not; it

was open-ended when it was made. But, of course, the
feature we latch upon is that when His Honour

Judge Higgins made his ruling on the second claim and

ruled that the second claim was competent, the order

was then for weekly payments from 1 February 1986,

the very date from which Mrs Detar had sought payments

of compensation on the first occasion.	So that what
you have - - -

BRENNAN J:  I understood you to say that Mrs Detar was paid

whatever compensation she might have been entitled

to pursuant to the order made prior to the Full

Court's order.

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MR PHILLIPS: Yes, that is as I understand the position. It

was terminated by consent on 16 June 1988 which, as I recall it, was before the - just before the

Full Court hearing.

BRENNAN J:  So that if this special leave were granted and an

appeal were allowed, it would not result in any

difference in Mrs Detar's position?

MR PHILLIPS:	My learned friend says if she gets sick again; well that is the very point. If she gets sick
again she has a different claim.  She has a different
incapacity, different period of incapacity, and of
course she can float that claim. No one is saying she cannot. Although the Full Court judgment talks
of same injury, no one is pretending that the Full Court judgments shuts out all claims for any period of incapacity, even a subsequent period of incapacity,
based upon the same injury. Judge Higgins made it
plain it was same injury, same incapacity; we have
argued it throughout as being a case in which Mrs Detar
simply repeats her first claim.
McHUGH J:	Mr Phillips, can you recover that money back that-
MR PHILLIPS:	I was asked that in the Full Court, of course,

Your Honour. The answer is a difficult one. The

Act itself, in section 68(5~ says :

Where the determination appealed against
included a determination that compensation
in the form of weekly payments be paid,
the weekly payments shall continue to be

paid notwithstanding that an appeal is

lodged under this section.

Now, in answer to Their Honours in the Full Court

we say, "Look, that may be so but it does not say

that you cannot recover the weekly payments after
the judgment has been set aside." Technically, any

payments made under a judgment which is subsequently

set aside on appeal are recoverable, money had and
received.	Now, technically, we would submit that we

are in a position to recover in consequence of the

Full Court judgment, and that is what I said to

Their Honours. Were it otherwise, we might never be able to appeal a decision affecting past payment of

compensation.

The difficulty is that of course there will be

politics in this. Whether or not the Commission ever

feels minded to pursue Mrs Detar for compensation or

payments already made and received by her, and
doubtless spent, is a different matter and I do not pretend otherwise. But no formal decision has been

made, I can tell the Court, as to whether or not to seek recovery and that is as far as I can carry it.

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The Court will be alive to the politics as well as

we are; we are only speculating as to what might

or might not be done. But technically, we would

say, there is a right of recovery under there once

a judgment has been set aside.

Now, may we make it plain, we do stress that this

is simply a repetition of the first claim and that is

how the case has been argued.	Of course, argued
advisedly, we would suggest, on that basis.	We would

suggest that what the worker's advisers were seeking
to do was to establish that no matter how closely the

second claim mirrored the first claim, it was still

open. And it was that that was denied by the Full

Court. If the second claim simply repeats the first,

there has to be an end to litigation.

It is a general principle. His Honour Judge Higgins,

we say, went wrong because he looked for some

indication to that effect in the statute. We say

now it is a general principle, public policy, that

once you have received the result of your first claim

you are not entitled to launch again for the same

T2	thing.
Now, of course it has to be worked out how far that doctrine runs. Of course it has to be worked
out whether there will be cases in which fine
distinctions can be drawn between the first claim
and the second claim. That is not this one. Maybe
another one, another day, another time. No doubt
if Detar's case remains on the books there will be
distinctions drawn, but that is not this case and
that is why we say special leave ought not to be
granted in this case.

There has to be an end to litigation.

Section 117(6) fixes the time limit of 28 days for

getting from the conciliation division to the

tribunal division.	Now, it is plain, although there
are suggestions in the material it is not, it is
plain that that is mandatory.	The right of appeal

or review or for a determination, whatever you call it,

is conferred upon terms that it be exercised within

28 days, and that is a classic case of a mandatory

time limit, and HATTON V BEAUMONT in this Court said so.

Now, once you say that is the mandatory time

limit, the question for this Court is whether the

worker should be permitted to circumvent the effect

of that mandatory time limit by simply launching her

claim again. His Honour Judge Higgins was fully

alive to the inconvenience of such a course because

he said that allows a worker to forum shop; run around

from one conciliator to another until finally she
reaches a favourable reconn:nendation. And of course,

once she gets a favourable reconn:nendation, the onus

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Detar

is then on the Cormnission to carry the case up to

the tribunal division within 28 days. And it would

be interesting to see the fate of an application

here that the Cormnission was not bound by that time

limit. There are many time limits in this legislation

and many of them are very severe and they bind the

Cormnission.

Can I perhaps take a moment to explain the steps

that Mrs Detar went through in relation to her first

claim because, although they have been described in

brief, we say she got to the fourth stage of the
processing of her claim before she stumbled, as it were,

over the time limit. The first stage of a claim for

compensation under this legislation is simply the

lodging of the claim and if nothing is done at that

point, an obligation is attracted to make the weekly

payments. If the Cormnission or the employer does not

act within stringent time limits, which are laid down

there at that point under 109, the weekly payments

must be made. So it is not a case of withdrawing

Mrs Detar is not simply withdrawing a claim to which no

consequences ever attached. Had nothing been done

when the claim was first lodged, the obligation would

have been to make the weekly payments.	So that is the
first stage.

In order to destroy that obligation the employer and the Conunission have to act with 21 days overall,

but there are time limits of two and five days; it is

as tight as that, to refer the application to the

tribunal itself, speaking of all its divisions. The

application must be made and it is at that point that

one has to establish that a genuine dispute exists

because if one does not, the conciliator may under

109(7) order that weekly payments cormnence and from

that there is no right of review. So that at that

point if genuine dispute is not satisfied or

established to the satisfaction of the conciliator then

there must be an order for weekly payments, and that is
the end of the matter.

Alternatively, the conciliator, if satisfied that

a genuine dispute does exist, orders that payments not

conunence. And that is the end of the second stage.

Now, at that point, the worker has the option. She

can carry the matter further if she wishes to. She

makes another application under 109(9), as Your Honour a determination but the word does not matter. There

is no time limit on that.	The worker can make her
review application under 109(9) at any time.	Once

she does that it must go before a conciliation division

before the tribunal division. So we get to the third stage. Now, at that point the conciliator hears the

application, either more or less - some hear it more,

some hear it less - and at that point can recommend

MlT3/2/RB	13	9/6/89
Detar

that weekly payments connnence or reconnnend that weekly

payments not connnence. Now, if the conciliator at

that point, in the third stage, reconnnends that

payments connnence, then they must connnence, under

section 118. And of course if the conciliator

recormnends that payments not connnence, they do not

connnence. And that is the point to which Mrs Detar got;

the end of the third stage.

Now, either way, whichever way the reconnnendation

goes, it is effective, subject only to that right to

go under section 117(6) up to the tribunal division

which must be exercised within 28 days. Now we simply

say what is sauce for the goose is sauce for the

gander. If :he reconnnendation had been that weekly

payments connnence and if the Connnission had not gone

up within the 28 days, that would have been the end

of the matter. No one could have argued other than

that that was the end of Mrs Detar's claim and she

had her weekly payments.

Now, it is the same the other way. If she does

not go up there within the 28 days, that is the

effective end of her claim. And of course my learned

friend accepts it. He is not arguing that the time

limit in 117(6) is directory and therefore in some

way the first claim should be restored and

resuscitated. He is accepting that the first claim

came to an end and that she was shut out and that the

time limit was mandatory and on that footing he seeks
to launch a second claim for the same thing all over

again. And we simply say res judicata. The tribunal

had the power to make the adjudication it did. All

right, it looks a strange adjudication; it is called

a reconnnendation; these things are dressed up in all

sorts of language now with tribunals being set up

instead of courts. But in fact it comes to the end

result of that first claim. And that being the end

result, public policy requires that Mrs Detar should

not be permitted simply to make another claim for the

same injury, the same incapacity, the same connnencement

time for the weekly payments.

McHUGH J:  Do you concede that if she had fresh incapacity now

arising from that injury she could bring a new claim

under the Act?

MR PHILLIPS: Yes. There is a nice point: at what time you

can bring that. I mean, if the Court says that Detar's

decision in the Full Court is correct, does she get

that capacity to launch her distinguishable second

claim, as it were, the day after the first

recormnendation? Or is it after a significant period

of time? Is the recormnendation good for a week, two

weeks, three weeks until some distinction arises?

It may well be that one has to go into the area which

MlT3/3/RB	14	9/6/89
Detar

is not unknown to the courts - for instance, if an

application is made for a stay on an interlocutory

basis, that application for a stay is scarcely a

final judgment but it will operate to preclude any

application on the same material for the same stay.

The court is not going to entertain another one. It

is going to look to see if there is any significant

or material difference between the first application

and the second. And we submit the same thing will

occur here. The tribunal will have to look at it.

And what was significant here was that point was

never raised or argued. It was never said	that
Mrs Detar was seeking something different.	My learned
friend has suggested - - -

BRENNAN J: What is Mrs Detar's future rights under this Act?

If her back should come against her in the future,

can she come back and ask for more?

MR PHILLIPS: If in fact her injury recurs causing a subsequent

period of incapacity, yes, Your Honour. Because it

is for a different claim. It is not the same period of incapacity. On any view it is not. If it occurs

after the determination in the Full Court - - -

DAWSON J: This appears clearly in the judgment of the Full Court,

does it?

MR PHILLIPS:  No, Your Honour, because the Full Court simply

deals with a claim for the same injury. That is all

Their Honours call it.

DAWSON J:  Is it clear that they are doing that? I cannot

recall. ·

MR PHILLIPS:  Can I take the Court to the judgment below, perhaps,

because it appears best at the application book page 2

in the judgment of His Honour Judge Higgins, half-way

down the page:

Mr. Dyer, who appeared for the Connnission,

conceded that the Tribunal had jurisdiction

under Section 116 to entertain the

application. However, it was argued that

the worker had previously submitted the

claim for compensation in respect of the

same injury and the same period of

incapacity. Those proceedings were considered

by a Conciliator on the 13th October, 1986

and a reconnnendation was made.

Now, the Court has the affidavit we filed. It was

filed two clear days before the connnencement and

we went to some pains to establish in that, as it

were, this point at paragraph 5. This is the affidavit

of John Adams Coldham:

MlT3/4/RB	15	9/6/89
Detar

It appears to be suggested in the Affidavit

of Peter Rozen that there may have been a

difference between the "issue" or "question"

raised by the worker's first claim for

weekly payments and the "issue" or "question"

raised by her second claim for weekly payments:

e.g., paragraph 9(c) of the Affidavit. If

there be any such difference (which is not

conceded), that was not a point raised in

argument before the Full Court; nor was it

raised before Accident Compensation Tribunal.

(1) Before the Tribunal, it was contended

on behalf of the worker that the making of
the first claim for weekly payments did not
in any way inhibit the making by her of a
second claim for the same injury, the same

incapacity.

And of course, if that is right, all these fine points

about whether the second claim simply mirrors the

first disappear. There is no inhibition. So it is

important for the worker to establish this first

step. You can simply repeat the earlier claim.

McHUGH J:  The passage that worried me was at the bottom of

34, Mr Phillips. In its context it is probably not
against what you are putting but Their Honours do

say:

It means that neither the employer nor the

Accident Compensation Commission is under

any liability to make weekly payments.

MR PHILLIPS: That is right, Your Honour, at that point and

in respect -

McHUGH J:  But they do not say that, though.

MR PHILLIPS: But it is the effect of the recommendation

Their Honours are describing. Because of the

recommendation - and we may say because of the

preceding order, too, because there was an order in

this case under 109(8) that weekly payments not be

ma~,:, - then there was this recommendation at the third

stage that the weekly paynEnts not be made, so there

was no liability to make weekly payments, on the

claim that was under consideration, obviously. It

has to be read in context.

Now, Your Honours, to make the point perhaps one

can look at the section under which Mrs Detar launched

her application which was ultimtely considered. It

was under section 116. Section 116 provides that

where the worker is dissatisfied with a decision or action of the Commission the worker can apply for a

review of the decision or action. Now here, the

M1T3/5/RB	16	9/6/89
Detar

worker, Mrs Detar, was complaining that the

Commission had not made any weekly payments. Of

course they had not made any weekly payments. There

was an order of a conciliator that weekly payments
not commence because there was a genuine dispute

and there had then been an unappealed, as it were,

recommendation that weekly payments not commence and

the second claim looked to be a reflection, a mirror of the first claim. Now, what does the employer do? The employer gets the second claim, throws it in the

waste paper basket. He says, we have done that. The

recommendation is that weekly payments not commence

on that claim.	Of course, he alligns one with the
other at his peril.	He simply equates one with the
other and sees no distinction at his peril.	But if

he is right, surely he is justified in simply saying,

"Look, you have done that.	We have got the result
of that.	On that claim, it may be a different bit of

paper, but on that claim, no weekly payments are due."

BRENNAN J:  Mr Phillips, let us assume that Mrs Detar does make

another claim in the future, because of some

recrudescence of her disability, now in that event she.

would have to prove that she was a worker, that she

suffered the injury of which she now complains as a

result of her employment and that she is disabled.

MR PHILLIPS: Yes.

BRENNAN J: In relation to any of those elements, in your

submission, does the course of proceedings estop her?

MR PHILLIPS: There is no issue estoppel; we accept that, because

nothing has been actually determined by that

recommendation. It is too preliminary, by way of - - -

BRENNAN J: So your case, shortly, is that there is no issue

estoppel and that so far as cause of action estoppel

is concerned, she has had her cause of action

satisfied by payment?

MR PHILLIPS:  Your Honour, that requires me to make the

submission based upon an acceptance that we will not

seek to recover the payments.

BRENNAN J: Yes.

MR PHILLIPS: Well, I cannot do that, Your Honour, in fairness

because I have not instructions to say that. However

likely that may prove to be, I have no instructions

to say that we will not seek to recover those payments.

McHUGH J:  You rely on section 117?

MR PHILLIPS: Yes, the time limit is there; the time limit is

mandatory, and this is not the case to grant special

leave, we would say. Wait for another one where the

MlT3/6/RB 17 9/6/89

Detar

variations have been worked out and the ramifications

of Detar have been worked out.

McHUGH J: Yes; well certainly having regard to 117(6), it is

hard to see any merits in this claim.

MR PHILLIPS: If it binds the Conn:nission, why should it not

bind the worker.	Of course, my learned friend says
that means	he loses the compensation that he

would get under section 82, which is the old

section 5, but we say section 82 says it gives you

compensation in accordance with this Act. And

that incorporates all these rather strange and novel

time limits, but none the less incorporates them.

If the Court pleases.

BRENNAN J:  Mr Black.

MR BLACK: There was a second argument which I will, if I may,

put in a moment but might I reply inn:nediately to

my friend's argument. Might I deal with Mrs Detar's

particular situation first. My friend's argument,

which would seem to concede that if she has another

incapacity arising from the same injury she can go

back, in our submission, is at odds with what the

Full Court actually did because when Mrs Detar came

back to the tribunal for a further determination, she

was seeking a determination not just in respect of

the first period up to the reconn:nendation, but also in respect of what we might term the second period, that is to say from the adverse reconn:nendation up

until the time that Judge Higgins made his order.

Now, that is, in our submission, logically indistinguishable from the situation that might occur

next month when she suffers another - claims to have

suffered another incapacity and wants that determined. submission to my friend's submission, and why this

case is so important is that the Full Court was not

considering the same period of incapacity; it was

considering, as it said, the same injury but it could
not have been considering the same period of

incapacity. It was considering a subsequent period of

incapacity which logically must be - ought to be

subject to the concession my friend made about the

recrudescence of Mrs Detar's injury tomorrow. That

is the problem.

And if it be said that Mrs Detar really is not the best case, one would have to agree with that.	No
doubt in the many cases that have been adjourned

awaiting the outcome of this proceeding there will be

more deserving cases, people who are still incapacitated

and are still trying to get their second claim heard

and whose incapacity is accruing on a daily basis and

is real - - -

MlT3/7/RB	18	9/6/89
Detar

McHUGH J:  But in the.Full Court it seems to have been

argued on an all or nothing basis. You did not

seem to have a fall-back position saying, we are
entitled to compensation right from the beginning,

or alternatively, we are entitled to compensation

from the date of the recommendation.

MR BLACK:  Your Honour, we in our submissions to the Full Court

argued, and it is in the affidavit - we have

reproduced the outline - that there was no judgment

on the worker's cause of action for compensation and

there had been no determination of any issue fatal to

or even relevant to the worker's ultimate entitlement.

Now, Your Honour, in our submission - it was not argued

that the injury was different but, in our submission,

the point as to whether the entitlement could have

continued was squarely raised. True it is that the

primary argument was focused on the second argument

that the Court has not yet heard, which is a

jurisdictional question, but in our submission that was in issue.

Now, the Full Court, in our submission, simply -

they have done something that is logically

indistinguishable from my friend's concession, because

they have cut her out, not just for the first period

but for the whole of the period, which includes an

alleged continuing incapacity. Now, it would be much

better - it would feel better for a special leave application if Mrs Detar was still languishing at home without her payments, one would submit, perhaps,

with more righteous fervour, but there are other

people who may be in that position and Mrs Detar is a

real point; the point is not moot and it, in our

submission, is a proper vehicle for the determination

of an issue that is very very important indeed.

My learned junior reminds me, tomorrow her

alleged injury might suddenly be revealed as something

that was really very nasty after all. It has been

aggravated by a slip in the bath in non-compensable

circumstances and she comes back wanting an incapacity.

She is then faced by the Full Court's statement on page 25 of the application book which is the issue -

is whether a worker ..... can nevertheless

institute a second claim for compensation

in respect of the same injury.

And that broad point is repeated at page 37 of the

application book, towards the bottom of the page:

The consequence is that the Tribunal

had no jurisdiction in any of its divisions

to entertain the second claim. That conclusion

might be sufficient to dispose of the appeal -

but then they deal with the argument that the time

M1T3/8/RB	19	9/6/89
Detar

limit was not mandatory. So whilst the Full Court

judgment stands no worker who wants to claim for a

period of incapacity subsequent to the recommendation

can do so.

McHUGH J:  But the general remarks have got to be read having

regard to the facts of the case, have they not?

That is the ordinary way you read judgments.

MR BLACK:  Your Honour, even reading them in that way - yes,

is the answer to Your Honour. But reading them- -

McHUGH J:	I know the point you are going to make.
MR BLACK:	But reading them in that way, this case turned on

a cause of action estoppel. The cause of action had,

if one likes - this is our fall-back position - two

parts: the first part might have been a cause of

action estoppel, though we would deny it. But the

second part could not have been an action estoppel and
it is the second part that will no doubt be very

important to workers, particularly workers - - -

McHUGH J: But was that argument ever put to the Full Court?

MR BLACK:  Yes, it was, Your Honour. It was never put that

the injuries - well, Your Honours, there is a dispute

about this, but certainly the written outline which

we have reproduced - there is a dispute about this -

in our submission, squarely raises the point.

BRENNAN J:  The point is that the Full Court's judgment does

not reveal any consciousness of what might be termed

two causes of action.

MR BLACK: That is so, Your Honour, it does not.

BRENNAN J: And the difficulty that perhaps inheres in it is

that having regard to the events that have happened

and the concession that is now made in Mrs Detar's

case, it would seem that the Full Court's judgment

should be construed as relating to a single cause of

action and in relation to what might be regarded as

the second cause of action, the problem is moot except

so far as there is a prospect of a claim for repayment.

MR BLACK: But, Your Honour, even there the second cause of

action - on that basis, the second cause of action is

the one that arose from week to week, presumably, from

the time of the adverse recorrnnendation to the time of

the Full Court's judgment.

BRENNAN J: Well, to the time in Judge Harris's judgment.

MR BLACK:  I am sorry, Your Honour, precisely, the time of

His Honour Judge Higgins's judgment, and the practical

reality of the scheme will no doubt be that -

MlT3/9/RB	9/6/89
Detar

DAWSON J: That cannot be right, can it, Mr Black? The

determination was that she was not entitled to

weekly payments upon these facts and unless

something different occurs, she will never be

entitled to weekly payments.

MR BLACK: Ever.

DAWSON J: It is not alleged that anything different occurred.

MR BLACK: Only that time went by and the facts - - -

DAWSON J: But that is not of itself something that gives rise

to a further claim for incapacity.

MR BLACK:  We do not know, Your Honour, what happened; that is

the problem. One does not know - - -

DAWSON J:  We do know that the claim that was put forward is

only different in terms of time, but that is not

sufficient to give her entitlement to weekly payments.

The entitlement which she had determined is the same

entitlement which is put forward in the second instance.

MR BLACK:  Yes, Your Honour, but in respect of a subsequent

period.

DAWSON J:  But that does not matter. What the division determined

in refusing to make a recommendation is that on these

facts as presented to us, she· is not entitled to weekly

payments, now or in the future, unless something

different happens.

MR BLACK:  They could not say "in the future"; all they could

say was "now", Your Honour.

DAWSON J: Well, unless something different happens now or in the future, some additional factor emerges, and you are not putting forward that any additional factor

has emerged.

MR BLACK:  No, we are not, Your Honour.

DAWSON J:	So that it is not as you say.
MR BLACK:	But, Your Honour, on that basis it cannot be cause of

action estoppel.

BRENNAN J: Unless one identifies the cause of action relevantly

for this purpose as being status of worker and injury

caused thereby.

MR BLACK: Yes, it cannot be cause of action- - -

BRENNAN J: Full stop. And then entitlement to compensation flows

from other provisions of the Act over a period - - -

MlT3/10/RB	21	9/6/89
Detar

MR BLACK:  Your Honour, might I further seek to answer

Your Honour's point. The problem here is not issue

estoppel which nobody has raised; the problem that faces Mrs Detar and others in the same position is

cause of action estoppel. Now - - -

DAWSON J:  That is the point. Her cause of action has not

changed. That is what is put against you. She is not

alleging something different; she is not alleging

that she has suddenly got an injury that she did not

have before or that has been exacerbated in the way

that it was before or that she has suffered an

incapacity suddenly at a point of time that did not

exist before; it is exactly the same.

:MR BLACK:	Yes, Your Honour, but her cause of action, whatever its
ingredients, in our submission, were not barred. If the Commission had taken the records of the
conciliator and found what was in issue - it has not
done this - found what was in issue, it might then
raise issue estoppels against us, but what we say it
cannot do is to raise a cause of action estoppel against
us. We are not saying that it could even create issue estoppels from the conciliator but it cannot create a
cause of action estoppel, in our submission. And once
a cause of action estoppel is said to exist, accepting that the case should be read according to its own facts, nevertheless there will be, in our submission, people
of whom it is said - - -

DAWSON J: What do you say is different in her second cause of

action from the first?

MR BLACK: Period of incapacity.

DAWSON J: But that is not a difference, is it?

MR BLACK: It is, Your Honour, because the incapacity is a

recurring - the entitlement accrues from week to week

according to the facts as they exist, from week to

week.

DAWSON J: That is right, but it is not alleged that it is a

different incapacity.

MR BLACK: It must be- - -

DAWSON J: No, it is not, it is just that it continues in time.

MR BLACK: But, Your Honour, it continues,as it were, on a - in respect of each week that she wants the money she has

to show that that week she has an incapacity.

DAWSON J:  But that goes to the remedy but not to the cause of

action.

MR BLACK: In our submission, Your Honour, it goes to the cause

of action because she has to show the particular

MlT3/ll/RB	22	9/6/89
Detar

ingredients exist at each point in time that she

wants the money. Now, if it is cause of action

estoppel, as the Full Court found, then in our

submission that cannot logically go beyond the cause

of action as it had accrued up to the time of the

first reconnnendation.

DAWSON J: If there is a cause of action at all, when a tribunal

determines that cause of action in favour of an

applicant, then the weekly payments will continue and

in a sense the worker gets something which is not

finally determined at the time that the tribunal makes

its determination, but it determines the cause of

action.

McHUGH J: You say only up to a date.

MR BLACK:  I do not want to be vexing, Your Honour, but I was

going to say what Your Honour Mr Justice McHugh has

said, which I, with respect - - -

McHUGH J: You say it is like suing on instalments.

MR BLACK: That is right.

McHUGH J:  It is a cause of action in respect of the first

instalment; you have to sue on the second instalment
unless there is an issue estoppel and it is not

suggested- - -

MR BLACK: Exactly so. That is the way we would put it, except

that the instalments have to be - you do not even

have your original contract, plus time. You have to

actually show that you have had a bad week and trace

it back to the original problem.

Your Honour, I have not developed the second

argument. I am conscious of the time but I do seek

to do so. The second argument is novel in the sense

that it is unlikely to have arisen anywhere before

and it is this: the essence, we would say, of cause

of action estoppel is that there has to be a decision

that has been made within jurisdiction. Now, it is

quite true that the reconnnendation was something that

the conciliator had power to make and it is quite true
too that the reconnnendation had an effect, but the

question is - and this is where the argument centred
in the Full Court - whether for the purposes of

es.toppel per rem judicatam that determination can be

said to be n:ade within jurisdiction and here questions of ·

statutory connnand and public policy are raised because

the Parliament, in enacting section 71A of the

ACCIDENT COMPENSATION ACT 1986, which may conveniently

be picked up by the Court in the broadsheet, made it

plain, in our submission, that the conciliators were

to have limited functions. 71A - it is the photocopy

on the left-hand side - provides:

MlT3/12/RB	23	9/6/89
Detar

(2) Notwithstanding sections 71(1) and 71(2),

a Conciliation division cannot except as

otherwise provided in sections 109(7) and

109(8) -

those are the genuine dispute provisions -

make a determination in respect of the

entitlement to or the amount of compensation

payable under this Act or dismiss an

application for compensation ..... but a in respect of such a matter and can exercise

powers -

and so forth. So that what the Parliament was doing -

and there is a Hansard reference that confirmed it in

the tribunal below - is that the conciliation division

cannot make a determination in respect of the

entitlement or amount of compensation payable under

the Act. Now, what we ar8ued, and we submit it is

correct, is that when one looks at the statements

such as those of the former Chief Justice

Sir Harry Gibbs in DAERA GUBA's case that:

The doctrine,ofestoppel extends to the

decision of any tribunal which has

jurisdiction to decide finally a

question arising between parties -

that should not be interpreted in what we would say

is the narrow way in which the Full Court

determined to see what is the effect, but rather
interpret it in the light of what is the power, what
is the intention of the Parliament, that the effect

of this statutory body's, this conciliator's decision

should be. Now, in our submission, section 71A makes

it plain - or at least for these purposes strongly

arguable and worthy of consideration by this Court -

that the conciliator is not to act in such a way as

will bring about a cause of action estoppel, that is

to say something that will be a determination in

respect of the entitlement of the worker. That is

T3 the scheme of the Act.

And the second limb of the argument, and I will

put it very shortly, is that when the courts in
recent times have been confronted with the
application of traditional doctrines of estoppel

per rem judicataill to new circumstances they have, in

at least one case to which reference is made,

referred to the basal notions of the doctrine and

its non-technical approach and the fact that it is
rooted in considerations of justice and good sense,

unruly considerations, we concede, but recognizable

ones. And to make that proposition good we desire

to refer the Court briefly to the judgment of

MlT4/l/RB	24	9/6/89
Detar

Mr Justice Ungoed-Thomas in POPLE V EVANS,

(1969) 2 Ch 255, the passage at 268. The question

His Lordship was there confronted with was whether,

in the case of a striking out for want of

prosecution estopple per rem judicatam was an answer

and His Lordship said it was not. He based his

judgment on previous authority and, indeed, his

judgment is reflective of the modern law which

subsequently has been followed, but what His Lordship

said, towards the bottom of the page, is this:

It is in line with the passages

quoted from BYRNE V FRERE and it applies

to and bridges into the context of

modern procedure the principle stated in

BYRNE V FRERE that res judicata cannot

be founded on an order for dismissal for

want of prosecution. This is in keeping
with the considerations of substance, not
of technicalities, that have governed

the development of res judicata.

Then there is a citation from a speech of Lord Maugham.

"The doctrine of estoppel is one founded on

considerations of justice and good sense.

If an issue has been distinctly raised -

et cetera. Now, the problem here is that, leaving

aside Mrs Detar's particular case and I have conceded

she is not the best case in a sense, but here there

is an Act which unlike virtually any other Act in

Australia, any rule of court, absolutely bars you

once you are a day out of time and may bar you from -

you could fall into this trap in the first month of

your incapacity. You could be seriously incapacitated

for a month and fall into this trap and there is no

way out of it unless there is a material change in

your circumstances. No way out of it for ever, if the

Full Court is right. Now, should estoppel apply in

those circumstances? In our submission, that is an	important question of principle deserving consideration
by this Court.

Fortunately for Mrs Detar, she did not fall

into the trap in the first month and it now seems, for

the time being at least, she has got better. But

she might have been such a person and she, on this

basis, would have been barred for ever by a slip of
even a day or two - and the point has been taken
with people only two days out of time. It continues

to be taken. She might be barred for arer unless she

could show some change in circumstances. And

under all those circumstance, we say that this is a

matter - the labyrinth has perhaps been gone into a

little bit more than I had anticipated but the points

are concise, they are deserving of the attention of

MlT4/2/RB	25	9/6/89
Detar

this Court and whatever their relevance to Mrs Detar

is, and they are legally still relevant to her, they

are greatly relevant to many other people and in

our submission deserve the attention of this Court.

May it please the Court.

BRENNAN J: In this case Mrs Detar has received the weekly

payments to which, if this application were granted

and the appeal allowed, she would be entitled to

receive. In practical terms, the matter in issue is the Commission's possible right to reclaim the

payments made to her. The questions which the

applicant seeks to agitate are important but the

circumstances of this case do not make it a suitable

vehicle in which to agitate them. It is conceded

that the decision of the Full Court provides no bar

to any claim which Mrs Detar might bring, founded on

any recrudescence of the alleged injury on which

her first claim was founded.

We should add that we read the judgment of the Full Court as based on a proposition that Mrs Detar was seeking to agitate precisely the same claim as

she had first made.

Accordingly, special leave is refused.

MR PHILLIPS: If the Court please, I ask for costs.

MR BLACK: Nothing I can usefully say.

BRENNAN J: With costs.

AT 10.52 AM THE MATTER WAS ADJOURNED SINE DIE

MlT4/3/RB	26	9/6/89
Detar