Dickin v NT TAB Pty Ltd

[2005] HCATrans 225

[2005] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D4 of 2004

B e t w e e n -

GAIL DICKIN

Applicant

and

NT TAB PTY LTD

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 22 APRIL 2005, AT 10.39 AM

Copyright in the High Court of Australia

MR J.C.A. TIPPETT, QC:   May it please the Court, I appear for the Applicant again with MR W.J. PRIESTLEY.  (instructed by Priestleys)

MR P.M. BARR, QC:   May it please the Court, I appear for the respondent.  (instructed by Hunt & Hunt)

HAYNE J:   Yes, Mr Tippett.

MR TIPPETT:   I embark upon this application with great optimism, if it please the Court.  In the Supreme Court, Justice Angel described this litigation as having run off the rails.  Your Honours, it is more…..in my submission, to the Granville train disaster.  What happened was that the applicant came to the Work Health Court to have a case determined on issues set out in the cancellation of compensation in the Form 5 document, which is the initiating document in these proceedings, and there was a counterclaim, which mirrored, in effect, the issues in the initiating Form 5 document. 

The Magistrate had before him an issue of a cessation of incapacity as at 8 January 2002, and there was, of course, an earlier proceeding in which an agreement had been registered in the Work Health Court pursuant to provisions of section 108 of the Act.  It is not contested here that that agreement was not capable of giving rise to an issue estoppel. 

HAYNE J:   And what was the issue that would have been determined?  Would it not be an issue that was time specific?

MR TIPPETT:   No.  The answer to that question is not a clear “yes” or “no”.  The issue is, of course, an injury and incapacity.  We say that in this particular proceeding the only issue before the Court was the cessation of incapacity.  The cessation of incapacity may have taken place at a time between the time that the agreement was entered into on, I think it was, 3 July 1997, and subsequently recorded on 7 July 1997 in the Work Health Court.  But the issue of time – the only issue of time in this case is precisely when that cessation took place, but it must have taken place prior to or on 8 January 2002. 

It is submitted that this case is unusual in relation to the application of issue estoppel for this reason, that the injury which the worker suffered was not challenged because of the nature of the pleadings.  The question of whether or not an issue estoppel arose was said in the Court of Appeal to have been determined by the case of O’Donelv The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744, and it is our submission that that case should be distinguished from this. It is submitted that O’Donel is not an answer.  While we do concede that the issue of cessation of incapacity is a separate issue from the issues contained within the agreement, the issues in O’Donel did not arise from a cancellation of benefits.  Rather, that case related to two separate proceedings and two separate timeframes, whereas this particular case involves a cancellation of benefits.

There is a continuum in relation to the injury.  There is no need for the worker to prove, as he did in O’Donel, that an injury had taken place in order to bring himself within the provisions of the Workers’ Compensation Act there.  This worker, Ms Dickin, did not have to prove injury.  She could rely upon the fact that an injury had been aggrieved, and an issue estoppel had arisen.  The only ‑ ‑ ‑

HAYNE J:   The respondent seems to accept that that is so at page 125, paragraph 3, of its summary of argument ‑ ‑ ‑

MR TIPPETT:   Yes.

HAYNE J:    ‑ ‑ ‑ and identifies the central issue as being whether the applicant had ceased to be incapacitated.  Do you agree that that was the central issue that had to be determined in the proceedings below?

MR TIPPETT:   Yes, but that is the problem.  That is the issue that really was not – the central issue was cessation of incapacity, had the worker’s incapacity ceased?  What happened below was that objection was taken in relation to the manner in which the employer intended to go about that on the grounds of issue estoppel.  The argument before the Magistrate was that he should not allow questions regarding periods of time, certainly late 1980s through to 1997, relating to the existence or extent of injury.  That had already been ‑ ‑ ‑

CALLINAN J:   But why would that not be relevant, or at least arguably relevant, to the question of her state of health at the time at which it had to be ascertained?  A person’s medical history does not depend necessarily upon the last few months or the last year.  It might involve going back many years.

MR TIPPETT:   No, the answer to that question, your Honour, really lies in the procedure itself and the Form 5 cancellation procedure.  The worker remains entitled to compensation until that compensation is cut off by an employer unilaterally cancelling it.  And if the employer does owe – the strict requirements are that it does so strictly within the provisions of section 69 of the Act, and that if the employer fails to bring itself within those provisions, the cancellation of notice fails and compensation continues to be paid. 

What happened was that in this case there was a counterclaim, which the parties agreed would keep the issue of cessation of incapacity on foot.  The worker was entitled in this particular case to the issue estoppel that she did not have to prove the nature, extent, type of injury she had suffered.  She could rely upon that finding and in any argument that between the date that the agreement was in fact recorded, 7 July 1997, and the date of the cancellation she had an injury of the type, to the extent and with the effects of the injury that was described in the agreement.

If the employer wished to broaden its attack, then it could have pleaded issues such as the fact that the worker was not injured in that way, that there had been some novus actus, that there was an alternative explanation for the nature, extent and incapacity arising from the injury.  And to put those issues properly on the table, what his Honour Chief Justice Angel found was that the ambiguity of the cancellation notice – that is, the Form 5 cancellation notice – led to a situation where the parties really were not ad idem when they brought the case. 

That problem was compounded by a Magistrate taking a large amount of evidence provisionally, on the basis that he would later determine whether an issue estoppel applied.  We do not know to this day how much of that evidence that was irrelevant that came before him he relied upon in the course of his deliberations in arriving at the conclusions he did.

So what happened was that the case moved from one of cessation of incapacity into cause, and the attack on the worker ranged widely over many years as to, really, cause rather than effect or capacity.  And one can see that attack set out at page 22 through to 23 in the Magistrate’s reasons for decision, where a wide range of allegations are put to the worker regarding events in her life that were prior to the injury on 28 November 1995 arising.  That attack continues over into page 24 in relation to assaults and so on, and, in particular, witnesses were called who, we say, if the issue estoppel had been properly applied, would not have given evidence; Mr Boakes, for example, who gives evidence of the worker’s arrangements at work prior to the injury taking place. 

They would not have been called because they all go to the nature and the extent of the injury.  They go to alternative explanations for the injury.  They go to whether or not there was really an injury at all.  The worker has had to suffer that attack, and then, mounted on the back of that attack, is an attack as to credit.  It is submitted that if the Magistrate had dealt with the case in a proper manner and not simply taken evidence on provisionally, applied the issue estoppel and determined that only evidence as to incapacity between the period 19 July 1997 and 8 January 2002 was relevant, then a lot of this other evidence would not have gone into evidence, and any use that might have been made of it as to credit could not be made of it.  In fact, a lot of it is really material that does not truly go to credit and is not entirely relevant, but has been used.

So, consequently, we have a three‑tier arrangement, really, that has occurred, or a case here.  The worker goes along on a cessation case to fight the Form 5 on the basis that her medical condition has ceased and she can return to work.  The employer goes on the basis that her medical condition has ceased and that the cause of her incapacity, namely, the injury, is not made out.  Then, in the running of the case, what arises is the question of whether or not the injury was capable of causing the incapacity, and the Magistrate considered a large amount of evidence that went to the question of the nature and extent of the injury alone, which the issue estoppel had precluded him from doing, to apply it properly.  His Honour Justice Angel pointed out in his decision that – he says at page 54 of the book:

The Chief Magistrate held the respondent was not so estopped and the employer was permitted to conduct a case that any current incapacity of the worker – a matter itself in contest – was caused by factors other than the injury sustained on 28 November 1995.  The appellant, given her counsel’s submission, inter alia, on estoppel, can not be regarded as a willing participant in that course.

The reason that O’Donel does not answer the problems in this case, and I move to that just for a moment again ‑ ‑ ‑

CALLINAN J:   Mr Tippett, just before you go on, can you assist me in this.  The compensation was effectively either cancelled or reduced under section 69 of the Work Health Act.  Is that right?

MR TIPPETT:   That is right, yes.

CALLINAN J:   Where is the provision for her to challenge that, once it is ‑ ‑ ‑

MR TIPPETT:   It is provisions 104 of the Act, your Honour.

CALLINAN J:   104.

MR TIPPETT:   104 of the Act allows the worker to make an application and that then leads to a proceeding, given certain time limits. 

I was going on to emphasise that the application of O’Donel is not germane to resolving the problems that are associated with this case, and, further, there is the issue raised by the Court of Appeal of the manner in which the parties conducted the proceedings as if the worker was complicit in some arrangement that the proceedings would wander outside the pleadings. 

The employer, in a separate proceeding such as this, could well plead issues regarding the original injury itself.  So much is plain, but it cannot confine itself to a very definite area of attack and then engage in a wide‑ranging attempt to undermine the nature, extent and incapacity arising from the injury in the first place, on the grounds that somehow it could make that all relevant, by way of threat or otherwise, to other issues later on in time.  The worker has not really had her case properly heard, and her case is that she wants a reinstatement of benefits on the basis that there had been no cessation of incapacity. 

Your Honour, if it please the Court, the other issue is this, that a lot of that material that was used by the employer to attack the worker, that is, in a period late 1980s through to 1997, was material that was never raised in relation to the first application for compensation.  In the case of O’Donel at page 757.5, the Court there – in fact it was Chief Justice Latham – referred to the fact that you are not entitled to raise as a defence that the injury might be related to alternative or non‑compensable causes in a later case, in circumstances where that defence was not raised in the first case.

That was the situation here.  What has happened is, the employer has said, “We admit the injury, we accept it”.  There were medical reports the employer at that stage had access to, and its own inquiries, and so on and so forth.  Now, what happens is, the employer then runs a case in the second instance, using defences – in effect, by way of attack, but certainly a defence – that it had not used in the past in relation to the original injury, and in circumstances where it says, “Oh, no, there is only one injury in this case”.

So, in my submission, if the employer was to be entitled to do that, it would have to plead alternatives.  It would have to plead that the incapacity at 8 January 2002 was not related to the injury, but could be explained by alternative and non‑compensable causes.  It chose not to do that in its pleadings and it chose not to do that in 1995 when it accepted that the injury upon which the issue estoppel should have been made out arose. 

Consequently, it should not be allowed to keep a decision of the court in relation to compensation when, in effect, it has ambushed the worker and the Magistrate has not properly applied himself to the evidence coming before him so as to determine what is relevant and what is not,

where the issue estoppel has been clearly relied upon by the worker’s counsel, and the worker’s counsel certainly was led into the view that those issues would be determined clearly and appropriately at the end of the case, and they were not. 

HAYNE J:   Thank you, Mr Tippett.  We need not trouble you, Mr Barr.

The applicant would argue if special leave were granted that the respondent was estopped from exploring in proceedings between it and the applicant under section 104 of the Work Health Act 1986 (NT) events of medical relevance occurring before she was certified as suffering from disabilities entitling her to compensation.

The argument in our view is misconceived.  The earlier events were at least arguably relevant to some of the issues in the proceedings, particularly the current state of the applicant’s health and her continuing entitlement to compensation. 

There is no reason to doubt the correctness of the decision of the Court of Appeal.  It follows that the application for special leave should be dismissed and dismissed with costs.

The Court will adjourn to establish the video link to Perth.

AT 11.01 AM THE MATTER WAS CONCLUDED