Filipovski v Tandem Australia Pty Ltd
[2016] VMC 3
•9 February 2016
| IN THE MAGISTRATES COURT OF VICTORIA | F12892414 |
AT MELBOURNE
| NIKOLA FILIPOVSKI | Plaintiff |
| v | |
| TANDEM AUSTRALIA PTY LTD | Defendant |
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MAGISTRATE: | Magistrate B R Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January 2016 |
DATE OF DECISION: | 9 February 2016 |
CASE MAY BE CITED AS: | Filipovski v. Tandem Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VMC003 |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Rejection of Claim – Consent Dismissal of Earlier Proceedings – Associated Terms of Settlement – Issue Estoppel – Accord and Satisfaction – Accident Compensation Act 1985
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr M Gray | Lander & Rogers |
HIS HONOUR:
1 Mr Filipovski seeks weekly payments from 29 June 2012 for a neck and psychiatric injury sustained in a work related motor vehicle accident on
2 June 2010. In its Amended Defence, Tandem Australia Pty Ltd (“Tandem”), raises defences of issue estoppel and accord and satisfaction. It refers to a Consent Order dismissing earlier Magistrate's Court proceedings, as well as contemporaneous Terms of Settlement both dated 29 June 2012.
2 It submits that consequentially Mr Filipovski is precluded from continuing these proceedings. I heard argument on this preliminary issue on 25 January 2016.
3 In this case there was no dispute between the parties as to the relevant facts, and more importantly, the various procedural steps between the parties prior to the present proceedings being issued.
4 Mr Filipovski is a 31 year old man who was injured in a work related motor vehicle accident on 2 June 2010. He lodged a claim form for "Sore left knee, neck pain and upper left neck" (“the first claim form”). Liability was accepted and payments commenced in accordance with the Act.
5 His claim was later reviewed and he was examined by two independent medical expert doctors for CGU, the authorised agent of the VWA. On 4 July 2012, CGU issued a Notice of Termination of weekly payments on the basis he had no incapacity for work or work related incapacity.
6 Mr Filipovski's solicitors then issued a Complaint in this court numbered B13417448 (“the earlier Complaint”) on about 2 December 2011, seeking reinstatement of weekly payments "As a result of motor vehicle accident for ‘Neck injury, mental illness, post-traumatic stress disorder, cognitive impairment and psychotic illness’". Of course, there was no primary or secondary psychiatric injury alleged in the first claim form.
7 Not surprisingly in view of the absence of any psychiatric injury component in the first claim form, Mr Filipovski lodged a second claim form dated 5 December 2011 (“the second claim form”) referring to the motor vehicle accident on 2 June 2010 and claiming "Psychiatric condition, aggravation of pre-existing condition and new post-traumatic stress disorder".
8 This seemed to raise both primary and secondary psychiatric injury in the motor vehicle accident, with the emphasis on primary injury. The second claim form was rejected in a Notice by CGU dated 18 December 2011. It referred to an opinion by Dr Norman Rose, a psychiatrist, that Mr Filipovski had been diagnosed with schizophrenia at 16 years old and any symptoms were due to his pre-existing psychiatric condition.
9 The Notice clearly rejected the second claim form on the sole basis that the alleged claimed further injuries were not work related. No comment was made as to any incapacity for work in that Notice of Rejection.
10 Mr Filipovski’s solicitors amended the earlier Complaint to include the second claim form and subsequent rejection by further claiming “Aggravation of pre-existing psychiatric condition and post-traumatic stress disorder" (emphasis added). In its Amended Defence Tandem denied all the allegations as to the matters raised in the amended Complaint.
11 Eventually, the amended earlier Complaint was listed for hearing on
27 August 2012. However, the parties agreed to compromise the proceedings on or about 29 June 2012 in Terms of Settlement bearing that date. Both parties signed those terms by their solicitors.
12 In the Terms of Settlement, Tandem agreed that it would pay pursuant to the first claim form 20 weeks weekly payments at the “no current work capacity” rate from 5 August 2011 to 23 December 2011 and "reasonable medical and like expenses in accordance with the Act in respect of both the claimed physical and consequential psychiatric injuries".
13 Otherwise, Tandem specifically maintained its rejection of the second claim form in the Terms of Settlement. Consent Orders as per the document dated 29 June 2012 were made with Tandem to pay Mr Filipovski’s costs on scale “E”. Otherwise, the proceedings were dismissed.
14 It is not disputed that Tandem continues to pay Mr Filipovski’s reasonable medical and like expenses by way of general practitioner attendances, continuing counselling and psychiatric medication in accordance with the Terms of Settlement. His Counsel put to me that the main continuing injury is psychiatric, rather than physically based.
15 I was further told that it was alleged that there had been deterioration in Mr Filipovski's psychiatric state between 2010 and 2014 and continuing. In mid-2014 the TAC granted a serious injury certificate to
Mr Filipovski, which does not affect these proceedings as that does not involve Tandem.
16 On his behalf, Mr Filipovski's solicitors sought reinstatement of his weekly payments from 29 June 2012. Of course, that date was the date of termination in the Terms of Settlement. That application was rejected and a genuine dispute certificate issued by the Accident Compensation Conciliation Service.
17 The present proceedings, seeking weekly payments only, were issued on or about 12 August 2015 alleging a "substantial deterioration since
29 June 2012 with respect to his mental health". He also seeks a "Declaration of acceptance of the second claim". The alleged injuries pleaded are "injury to the cervical spine, mental illness, post-traumatic stress disorder, cognitive impairment and aggravation of psychotic illness".
18 In its Amended Defence Tandem denied that reasonable medical and like expenses were to be paid in respect of both claim forms. It also denied any deterioration of Mr Filipovski's mental health.
19 More importantly, it raised defences by way of issue estoppel and accord and satisfaction arising out of the Consent Order and the Terms of Settlement both dated 29 June 2012. It also denied continuing injury and incapacity which is not really relevant to the points raised before me on this preliminary hearing.
20 Counsel for Tandem put his legal submissions to me fairly briefly. He said that both claim forms were before this Court in the earlier proceedings which were dismissed on 29 June 2012. Both were also specifically dealt with in the Terms of Settlement. Paragraph 2 of the Terms of Settlement allowed for the payment of benefits pursuant to the first claim form. Otherwise, Tandem specifically maintained its denial and rejection of the second claim form.
21 Mr Filipovski was legally represented in those proceedings and there was no allegation he did not agree to the settlement of these proceedings. He submitted the established principles of issue estoppel applied to these proceedings in view of the specific dismissal of the earlier proceedings and referred to the judgment of Warren CJ in Ozbilgi v Bradnams Windows & Doors Pty Ltd [2011] VSCA 110.
22 As for accord and satisfaction, he referred to the observations of Warren CJ as well in Ozbilgi. He also referred to Bunney v Ryan Moves (Magistrates Court, per Saines M, del. 5 April 2013), in which His Honour upheld a defence of accord and satisfaction consequential upon an earlier settlement, relying upon a decision of Philips JA in
Osborn v McDermott (1998) 3 VR 1.
23 Finally, he submitted that there was no deterioration in Mr Filipovski's
health from 2012. He continued to allege the same injuries as in the earlier proceedings.
24 Counsel for Mr Filipovski was a little more expansive in her submissions. As for issue estoppel she referred to Derks v R & J Fibreglass [2009] VSC 601 (per Beach J) and in particular the principles set out at paras 21 and 38 of that decision.
25 She submitted that Mr Filipovski had to establish injury and incapacity in the earlier proceedings, especially as Tandem having denied everything except for paying benefits after accepting the first claim form. Reasonable medical and like expenses were not in dispute and were not the subject of any Notice of Termination. She submitted the Terms of Settlement were "uncertain" as to the basis of payment, especially as to which relevant claim.
26 She noted there was no payment expressed to be “with a denial of liability”. There was uncertainty as to what had been agreed in relation to the second claim form on the face of the Terms of Settlement. Finally, she submitted that there was deterioration in Mr Filipovski's health from 2012. He continued to allege the same injuries as in the earlier proceedings.
27 As for accord and satisfaction, she referred to two County Court decisions, Fuat v Onesteel Limited [2010] VCC 584 (per Judge Bowman) and Warren v Jennifer A Yates Pty Ltd [2006] VCC 1780 (per Judge Dyett). Both judges determined that the defence of accord and satisfaction could only relate to the period in respect of which weekly payments were actually paid to the worker pursuant to the relevant agreement, but not thereafter. Judge Dyett also found there was no evidence that the parties were ad idem anyway.
28 She also referred to Perkins v GIO [1995] VCC 37, in which Judge Higgins ruled that it was not possible to contract out of future entitlements under the Act. She submitted that the comments by Warren CJ as to accord and satisfaction were obiter and are not binding.
29 In any event, she submitted that it could not be determined from the Terms of Settlement on its face as to the basis of the settlement, that is whether it was for injury and/or incapacity.
30 I will now proceed to make my ruling.
31 I have dealt with a number of similar applications involving defences of issue estoppel and/or accord and satisfaction in this court over the years. More recently, I have published rulings in Saunders v VWA [2014] VMC 2 and Bucic v Arnej Pty Ltd [2014] VMC 14. In the course of submissions my decision in Bucic was also discussed with Counsel, especially in regard to the accord and satisfaction issue.
32 I see no need to repeat or discuss in detail the large number of decisions involving issue estoppel, res judicata and accord and satisfaction involving workers compensation proceedings over the years.
33 In Bucic I referred in paras. 39 to 40 to a number of Magistrate's Court and County Court workers compensation cases involving issue estoppel and res judicata. I also noted that Derks is the most relevant decision in this area. Indeed, Counsel for Mr Filipovski cited that case before me as the most substantial authority.
34 As for accord and satisfaction both counsel referred to Bunney and Ozbilgi in submissions on that issue. I also note my decision in Bucic in which I referred to those decisions. I will deal with the issue estoppel point first.
35 The amended Statement of Claim in the earlier Complaint raised a number of contentious issues. Most importantly, it sought an order for continuing weekly payments for the injuries in the first claim form and a declaration of liability for injuries in the second claim form as well as, "reasonable psychiatric medical and like expenses" presumably for the injuries set out in the second claim form. No issue was raised as to reasonable medical and like expenses for the injuries in the first claim form, which had not been terminated by Tandem.
36 In its Amended Defence Tandem contests the above two issues and raises a number of other issues, including denying liability for any injury, including those set out in both claim forms. It pleads they were not work related and employment was not a significant contributing factor. There is no reference as to why liability was denied for any injury for which Tandem was continuing to pay reasonable medical and like expenses.
37 On the face of the pleadings and on the consent orders dismissing the earlier proceedings, issues of “X and Y” if not “Z” are raised, as discussed by Beach J in Derks at para. 21 and paras. 38 to 39. I agree with Counsel for Mr Filipovski in that regard. The earlier proceedings were far from being a single issue on the face of the pleadings and the consent orders.
38 However, this case is different to that in Derks. As Beach J pointed out at para. 24, that subject to some limitations a court should always enquire into realities rather than technicalities in determining questions of the present kind.
39 Although issue estoppel can arise following a consent judgment, difficulties can arise in determining what questions were concluded (see para.20). At para. 33 His Honour stated that "ordinarily one would think that in order to work out what was or was not in issue in a particular proceeding one would look primarily if not solely at the pleadings and perhaps other documents passing between the parties, (for example, correspondence containing admissions)".
40 The present case does involve earlier proceedings in which the present parties signed both draft Consent Orders and Terms of Settlement which are more detailed than other similar cases involving a defence of issue estoppel.
41 Also, in the present case the reality is that the issues are more limited than normal, despite the wide ambit expressed in the Amended Defence. At all times Tandem has admitted Mr Filipovski sustained a work related injury in a motor vehicle accident on 2 June 2010.
42 At all times it has paid, continues to pay and has never sought to terminate the payment of reasonable medical and like expenses resulting from that work-related single incident. The original Notice of Termination only sought to terminate weekly payments and then only on the alleged bases there was no incapacity for work and any incapacity for work was not materially contributed to by the work related injury.
43 At all times Tandem has denied liability for any of the injuries set out in the second claim form, namely primary psychiatric injuries, rather than any psychiatric injuries consequential upon the admitted physical injuries as to which it continues to pay.
44 The pleadings, Consent Orders and the Terms of Settlement should be considered in that context. Specifically, the injuries set out in the second claim form were denied in the Notice of Rejection and the Terms of Settlement. Mr Filipovski agreed to, and was apparently paid, an extra
20 weeks weekly payments for the injuries set out in the first claim form.
45 Tandem agreed to continue to pay for reasonable medical and like expenses for those injuries on a continuing basis and thus impliedly, if not expressly, agreed that the work related injuries in the first claim
form were work related.
46 It is clear that Tandem at all times denied the second claim form injuries and Mr Filipovski's application to overturn such objection was dismissed. The only benefits paid to Mr Filipovski as part of the Terms of Settlement were for a period of weekly payments for an injury and consequential physical and psychological condition which accepted it at all relevant times, despite the pleading in the Amended Defence.
47 At the very least in these circumstances, Mr Filipovski is precluded from re-litigating the injuries set out in the second claim form. That dismissal is final (see, Perkins at p.27 and Ozbilgi at para.36). I will later discuss the other consequences of the dismissal of the earlier proceedings and related Terms of Settlement.
48 Firstly, I will deal with the accord and satisfaction point. For the reasons expressed above it is hard to see that the parties were ad idem. It is uncertain whether they agreed that the payment of the 20 weeks payments and continuing reasonable medical and like expenses from the earlier claim were in part compensation for the dismissal of the second claim form injuries.
49 In the present case, in view of the history of the matter, the issue of the separate claim forms were treated discretely in the Terms of Settlement. I simply do not have enough information or evidence in that regard to say that there was a part payment in satisfaction of the dismissal of the second claim form. Thus, the accord and satisfaction argument in the Amended Defence is not made out.
50 I now return to the effect of my finding as to the issue estoppel arising from the earlier proceedings. The only issue apart from the dismissal of the second claim form injuries that was finalised by the dismissal of the earlier proceedings and related Terms of Settlement was the question of work related incapacity as a result of the injuries set out in the first claim form as at 29 June 2012.
51 Tandem accepted that the work related injury as set out in the first claim form continued to play a role in the need for medical and likely treatment as at that date. At the very least it did not dispute that it continues to pay for such medical and likely treatment.
52 It is therefore open to Mr Filipovski to argue that he now has a work related incapacity for work as a result of the injuries, and any consequential injuries, as set out in the first claim form beyond 29 June 2012. I refer to AMP v Chalkley [1998] VSC 291, GMH v Mete (1986) 1 VIC ACR 41 at p.43 and Perkins at paras. 28-29 in that regard.
53 I now seek Counsels’ submissions as to future conduct of this case.
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