Hardy v Wingham Beef Exports Pty Limited
[2007] NSWWCCPD 176
•9 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hardy v Wingham Beef Exports Pty Limited [2007] NSWWCCPD 176
APPELLANT: Christopher James Hardy
RESPONDENT: Wingham Beef Exports Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited.
FILE NUMBER: WCC17072-06
DATE OF ARBITRATOR’S DECISION: 28 February 2007
DATE OF APPEAL DECISION: 9 August 2007
SUBJECT MATTER OF DECISION: Weekly payments claim; prior consent award; estoppel.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: MRM Lawyers
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 28 February 2007 is revoked and the
following decision made in its place:
Award in favour of the Applicant at the rate of $180.00 per week pursuant to section 40 of the Workers Compensation Act 1987 from 11 February 2006 to 29 December 2006 inclusive.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.
3. The Respondent is to pay the Appellant’s costs of the Appeal.
BACKGROUND TO THE APPEAL
On 27 March 2007 Christopher James Hardy (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 28 February 2007.
The Respondent to the Appeal is Wingham Beef Exports Pty Limited (‘the Respondent’).
The Appellant suffered an injury to his head in the course of his employment on 10 May 2005, when a fellow employee lost control of a knife which imbedded in his skull.
On 9 November 2005 the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from “10.5.05 to date and continuing” at the rate of $155.16 per week. Those proceedings were numbered WCC19064-05.
In that matter, a Teleconference was held on 8 February 2006. On 10 February 2006 a ‘Certificate of Determination – Consent Orders’ – was issued. The determination of the Commission was as follows:
“1.That the Respondent pay the Applicant weekly payments of compensation based on the rate of $651.65, up to the Applicant’s return to work on suitable duties; credit to the Respondent for payments made in the period.
2.Leave to apply within 30 days.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
·All issues of dispute in the Application are resolved.
·The insurer notes its belief that correct payments have been made, subject to further confirmation between the parties.”
On 27 October 2006 the Appellant filed a fresh ‘Application to Resolve a Dispute’ in the Commission against the Respondent, being proceedings number WCC17072-06. By these proceedings, the Appellant again sought weekly benefits compensation from 30 May 2005 “to date” at the rate of $655.40 per week “as adjusted”.
Those proceedings were the subject of an arbitration hearing on 13 February 2007. At that hearing, the Appellant sought leave to amend Part 4.1 of his Application to claim weekly benefits from 30 May 2005 to 29 December 2006, excluding the period 22 November 2005 to 2 December 2005 when the Appellant was totally incapacitated and not at work. It appears that the Appellant’s employment was terminated on 29 December 2006, and he was in receipt of weekly benefits pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) from that date.
On 28 February 2007 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.Part 4.1 of the Applicant to Resolve a Dispute is amended by amending the period of weekly compensation in dispute to be from 30 May 2005 to 29 December 2006.
2.Award for the Respondent.
3.No order as to costs.”
In brief, the Arbitrator determined that, in view of the previous proceedings (WCC19064-05), the Appellant was estopped from pursuing any further claim for weekly benefits.
It is against that decision that the Appellant now seeks leave to appeal.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for a determination ‘on the papers’. Given the fairly limited issues on appeal, and both parties’ detailed submissions, and having regard to Practice Directions numbers 1 and 6, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances
THE ARBITRATOR’S FINDNGS AND REASONS
At paragraphs 15 – 39 inclusive, the Arbitrator set out the submissions made by both parties. His findings and reasons commence at paragraph 40. The relevant findings are as follows:
“43.That is, Anshun [Port of Melbourne Authority v Anshun Pty Limited (1981) 147CLR 589] does apply to workers compensation claims and where an Applicant with reasonable diligence should have litigated an issue he may in later proceedings in accordance with the principles of Anshun, be precluded from raising that issue. (See also Kuligowski v Metrobus (2004) 220CLR 363).
44.In the present proceedings there is no explanation as to why all of the Applicant’s claims in relation to weekly compensation where [sic] not resolved or addressed in the previous proceedings.
45.… The amount of weekly payments of compensation sought in Part 4.1 of the previous Application to resolve a Dispute of $155.16 clearly does not seem to be an amount related to total incapacity and the Certificate of Determination of 10 February 2006 records an agreement for payment of weekly compensation of $651.65.
46.At the date of the Certificate of Determination the Applicant was aware of any shortfall in the Section 40 payments made by the Respondent because he had returned to work on 20 May 2005 – some nine months had elapsed between his return to work and the date of the resolution of the prior dispute on 10 February 2006.
47.In addition the Arbitrator noted in the Certificate of Determination of 10 February 2006 that ‘All issues of dispute in the Application are resolved’ and further that ‘The insurer notes its belief that correct payments have been made subject to further confirmation between the parties’.
48.If the Applicant’s claim in the prior proceedings was truly … confined to the period from 10 May 2005 until his return to work on suitable duties, (that is 30 May 2005), the Applicant could have made that fact abundantly clear by amending Part 4.1 … so that the period of weekly compensation in dispute ceased as at 30 May 2005 when the Applicant returned to work on suitable duties.
51.If the Applicant wished to reserve the issue as to section 40 payments he should have, as he did in the current proceedings, amend [sic] paragraph 4.1 from an open ended claim (‘to date and continuing’) to the specific date upon which he returned to work.
52.The ‘Application to Resolve a Dispute’ in the first proceedings was for weekly payments of compensation from 10 May 2005 to date and continuing … No application was made within the 30 days in which leave was granted to apply (see paragraph 2 of the Determination). These facts in my view prevent paragraph 1 of the ‘Certificate of Determination’ being construed to operate merely on the basis of the period of total incapacity.
53.The Applicant’s statement of 13 October 2006 in its final paragraph states that ‘Since my return to work on light duties I believe that I have been loosing [sic] money and have not have [sic] my paid [sic] made up to what I would be earning if I was still performing my normal duties as a Slicer with production bonuses and overtime’. The only conclusion available from this statement is that the Applicant was aware of this alleged loss of earnings as at the time of his return to work and certainly by 10 February 2006 when the previous proceedings were resolved. His failure to raise that issue and to prosecute that as part of his claim for weekly payments of compensation … is clearly a matter which, in accordance with the principles of Anshun, Ada [Ada v Westmead Centre Parramatta Hospital – Judge Burke – unreported Compensation Court 17947/84 26/6/1985] and Bruce v Grocon [Bruce v Grocon Limited (1995) 11NSWCCR 247] he should have pursued but apparently chose not [sic] do so.
56.… The only material before me as to the Applicant’s state of knowledge clearly establishes that as at the date of resolution of the previous proceedings he clearly was aware of what he saw as to be a shortfall in his section 40 payments and there is no material before me that explains why this issue could not have been pursued in the previous proceedings.
57.The absence of any evidence as to any change of circumstances or any material that has altered the situation in relation to the Applicant’s alleged loss of earnings as at [10 February 2006] … in my view also bars the Applicant from recovering weekly compensation from 11 February 2006 until 29 December 2006 as the fundamental basis of the Applicant’s claim for weekly compensation post 10 February 2006 is exactly the same as it was prior to that date. If estoppel operates, as I have found it does, up to the date of the Certificate of Determination, and as there are no fresh or altered circumstances which change the nature or extent of the Applicant’s alleged loss of weekly payments of compensation, the Certificate of Determination of 10 February 2006 operates to prevent the Applicant from claiming weekly payments of compensation after 10 February 2006 on the same basis as prior to that date.
58.If my findings in relation to estoppel are incorrect, in my view the Applicant is any event prevented from maintaining the present proceedings on the basis of the principles of abuse of process …”
THE SUBMISSIONS AND EVIDENCE
The Appellant submits that the Arbitrator wrongly interpreted and applied principles of estoppel in concluding that the Appellant was estopped from pursuing his claim for weekly compensation.
The Arbitrator, and the Appellant in particular, have referred to numerous authorities on this issue to which I will refer more fully below.
The application of the principles of estoppel in Commission proceedings was considered by ADP Lansdowne in Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 where she said:
“24. The authorities establish that there are three types of instances in which a party may be estopped from raising an issue, claim or defence in subsequent proceedings because, in broad terms, of the principle of res judicata. These are as follows:
(1) Cause of action estoppel (res judicata in the narrow sense)
(2) Issue estoppel
(3) Anshun estoppel
25. The difference between res judicata and issue estoppel was expressed as follows by Dixon J. in Blair v Curran (1939) 62 CLR 464 (as quoted by Priestley J.A. in Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 at 240):
“ The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
26. The Anshun estoppel is different from both cause of action and issue estoppel. It relates not to what was determined by the previous proceedings, but what could have been. The principle was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It arises where a party seeks in subsequent proceedings to raise a defence (and possibly a claim) that could have been raised in earlier proceedings between the same parties, but was not. In certain circumstances, the party may be estopped from raising that defence or claim in later proceedings. In the majority opinion, delivered by Gibbs C.J., Mason and Aickin J.J, the Court expressed the view (strictly obiter to the determination of that case) that the estoppel will not arise unless “the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.” (paragraph 37) In that case the appellant, the Port of Melbourne Authority (“the Authority”), sought to rely in subsequent proceedings on an indemnity given by the respondent although it had not raised that indemnity in previous proceedings taken by an injured worker against both the Authority and the respondent as defendants. Those proceedings had concluded with judgment against both defendants. The judges of the High Court expressed slightly different views as to the ambit and rationale of the estoppel, but all agreed that on the facts of that case the appellant must fail because “the judgment which the Authority seeks to obtain in the present action is one which would contradict the judgment which has been entered in the (previous) action.” (Gibbs C.J., Mason and Aickin JJ. at paragraph 16).”
The facts and circumstances of the present case seem to me to fall within the principles of Anshun estoppel.
It is clear that the Commission determination in the earlier proceedings was made by consent. Whether a Consent Order creates an estoppel was considered by Neilson J as he then was in Anderson v Charles Sturt University (2000) 25 NSWCCR 407 (‘Anderson’) where His Honour said at para 30:
“Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but, at most, if anything, an admission. Such was the decision of Court of Appeal in APD Snack Foods Pty Limited v Vuic [1984] WCR 62, a decision of Hutley AP, Glass and Mahoney JJA.”
More recently, the issue of ‘Consent Awards’ and ‘Estoppel’ was considered by the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’). The courts’ determination on the relevant issues was considered at length by Deputy President Roche in Davies v Bisaxa Pty Limited t/as Sir Joseph Banks Nursing Home [2006] NSWWCCPD 103 (‘Davies’) where he said:
37. “On appeal it was argued that the earlier consent award created estoppels which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles in some detail from [9] to [12]:
“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley "Res Judicata" 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent's statutory successor: Spencer Bower & Ors (above) pp 119-22.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.
11 If these further injuries caused other than temporary aggravations of the worker's condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.
12 These submissions must be rejected because they are contrary to the principles established in O'Donel v Commissioner for Road Transport (1938) 59 CLR 744. A decision that a worker's total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:
‘The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.’
38. Dealing specifically with the consent awards his Honour said at [14]:
“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.” (emphasis added)
39. In the same case Justice Hodgson said at [57]:
“However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O'Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744 at 763.” (emphasis added)
40.It is also important to note that Justice Handley spoke of ‘res judicata estoppel’ but Justice Hodgson spoke of ‘issue estoppel’. The distinction is important in the present case and was considered by the Full Bench of the South Australian Workers Compensation Tribunal in Pond v WorkCover Corporation/Allianz Australia Workers Compensation (SA) Ltd (Wunda Joinery) [2001] SAWCT 69 which said:
"19 The principles of res judicata and issue estoppel are both based on the premise that a party cannot re-litigate that which has already been decided. In the case of res judicata, one need go no further than the formal judgment or order of the relevant adjudicating authority. It speaks for itself. In the case of issue estoppel, one can go further to the sub-stratum of findings upon which the formal judgment or order is based, although there are limitations. These are sometimes described as ‘facts fundamental to the decision arrived at’: Hoystead v Commission of Taxation [1926] AC 155; Blair v Curran (1939) 62 CLR 464 at 531 - 533 per Dixon J (as he then was).”
The issue of estoppel as it applied in the Compensation Court was considered by Neilson J as he then was in Bruce v Grocon Limited (1995) 11NSWCCR 247 (‘Bruce v Grocon’). His Honour set out his conclusions as follows:
“From these cases I distil the following principles:
(a) There is no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights: Jorgensen’s case, Thompson’s case.
(b) Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings: Jorgensen’s case.
(c) Estoppel of the type referred to in the Port of Melbourne Authority v Anshun Pty Limited will apply if there were alternative bases to ground the relief claimed but one of those bases was not pursued: Ada’s case. An analogous situation to Ada’s case is one where a person claimed to be a ‘worker’ and failed in that allegation. Subsequently, he brought second proceedings seeking to allege that he was a ‘deemed worker’ for the purposes of the Act. In such cases, the claimant’s remedy is pursuant to section 17(4) of the Compensation Court Act 1984 [reconsideration]”.
In submissions before the Arbitrator, the Appellant maintained that the decision of Neilson J in Bruce v Grocon was to the effect that Anshun does not apply to workers compensation claims. That was clearly not strictly true. As the Arbitrator pointed out, “what His Honour found was that the Applicant was entitled to bring separate proceedings for claims for weekly compensation.”
The Arbitrator made reference to the decision of Ada v Westmead Centre Parramatta Hospital, (unreported) Compensation Court No. 17947/84, Burke J, 26 June 1985. In that case, Burke J held that the worker was estopped in accordance with the principles set out in Anshun. In Bruce v Grocon, Neilson J, quoting from Burke J in those proceedings said as follows:
“It seems to me that with any reasonable diligence the Applicant could have, and indeed should have, litigated that issue concurrently with the actual allegation which he did in fact choose to litigate in the earlier proceedings.”
In the present case, there is, as the Arbitrator pointed out, no explanation as to why the Appellant did not seek to avail himself of the “leave” to apply within 30 days if he had any concerns with the consent award or, in the alternative, why he did not pursue a claim for section 40 benefits beyond the date he resumed work on suitable duties.
In the present case, the terms of the “Consent Orders” were somewhat vague, simply noting that the Respondent would pay the Appellant weekly compensation “up to the Applicant’s return to work on suitable duties …” It is clear in this case, just as in Davies, as DP Roche said at para 41:
“… There are no ‘findings’ and ‘formal judgment’ to be analysed to determine what ‘issues’ were decided because no issues were decided by the Commission in the first claim. Therefore it seems reasonably clear that there is no ‘issue estoppel’ in the present case.”
Nonetheless, the question of res judicata is still relevant. As the High Court said in Anshun (at 597):
“The rule as to res judicata comes into operation whenever a party attempts in the second proceedings to litigate a cause of action which has merged into judgment in a prior proceeding”.
The Appellant rightly concedes that a consent judgment can create res judicata estoppels but it is the Appellant’s submission that:
“… the determination of the Arbitrator in this matter as to the nature and extent of the estoppel is incorrect for the reasons set out by Evatt J in O’Donel v The Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59CLR 744 (‘O’Donel’).”
The Appellant quotes at length from that decision, but relevant extracts are as follows:
“On the present application for compensation under the Workers Compensation Act, the worker relied upon the estoppel created by the judgment in the Supreme Court Act. The doctrine of estoppel by judgment is not prevented from operating because the unsuccessful party has not chosen to fight every issue. Further, in order to apply the doctrine to the issues fundamental to a cause of action, the parties are enabled to show by evidence on what issue a verdict or judgment was given, and what was the issue …
Before us, the employer admitted that the judgment of the Supreme Court was conclusive of workers compensation liability in respect of incapacity up to February 15th 1935. He contended that it was not conclusive in respect of incapacity in relation to any subsequent period, because the question of liability in respect of the second period involves a different question. And, so stated, the contention is plainly correct …
Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorise the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party, the unsuccessful party is bound by the authority of determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.”
It is noted that the Court of Appeal in Dimovski accepted and adopted the principles established in O’Donel.
These principles were also considered by ADP Roche as he then was in Kaibau v Gillespie’s Produce and Packing Pty Limited [2006] NSWWCCPD 168 (‘Kaibau’). The following relevant observations were made:
“44. … The Arbitrator referred and relied on the decision of Kuppers v NSW Fire Brigades [2005] NSWSC 193 … stating that Johnson J ‘confirmed that the determination of an issue by the Compensation Court will bind the parties in subsequent common law proceedings in relation to the same issue’ … in the present case there was no ‘determination of an issue’ by the Compensation Court in the first application. The settlement was an agreement between the parties. In Kuppers the Compensation Court made extensive factual findings … it was those findings that determined several contentious issues between the parties that were binding on the same parties and later common law proceedings arising from the same facts. There was no hearing in the present case.”
DP Roche also made reference in Kaibau to the leading text the Doctrine of Res Judicata by Spencer Bower, Turner and Handley quoting at paragraph 38 as follows:
“A judgment or order by consent of the parties may be a res judicata. In such cases the Court is discharged from the duty of investigating or further investigating matters in controversy and does not pronounce a judicial opinion on them; but at the joint request of the parties it gives judicial sanction and coercive authority to what they have agreed and thus converts an agreement which, except by a statute, could never operate as a bar to a judicial decision on which a plea of res judicata may be founded. Judgments, orders and awards by consent are as efficacious as those pronounced after a contest, in creating cause of action estoppels and effecting a merger of the causes of action sued on” .
DP Roche then said (para 48):
“I agree that res judicata, in the absence of an application for a reconsideration under section 350(3) of the 1998 Act, prevents the Appellant worker from claiming weekly or section 60 compensation for the period up to 20 February 2003, but in the absence of a determination of any factual or legal issues by a competent tribunal it does not prevent a claim being made for compensation after that date. The cause of action on which the Appellant worker relies in the second application has not ‘merged’ in the settlement effected on 20 February 2003 because the settlement, without more, cannot eliminate future rights. An award after that date is not inconsistent with the terms of the settlement reached on that day or the orders made as a result of that settlement.”
Applying the principles established in the authorities to which I have referred, I am of the same view in relation to the facts of this case. The “Consent Orders” noted that the Appellant would receive weekly compensation payments “up to the Applicant’s return to work on suitable duties”. Those terms, although not a determination of the Commission, also noted the party’s agreement that “all issues of dispute in the Application are resolved.” The Commission is entitled to have regard to the effect of an agreement between the parties. As the Arbitrator rightly pointed out, there was no explanation as to why “… all of the Applicant’s claims in relation to weekly compensation where [sic] not resolved or addressed in the previous proceedings”. It is noted that the consent award also provided for “leave to apply within 30 days.” If the Appellant had a grievance in relation to the Consent Orders, it was appropriate that he raise that issue in the time provided for in the consent award.
The consent award was entered into on 10 February 2006. It seems to me that, in line with the authorities to which I have referred, in the absence of a determination by the Commission of any factual or legal issues, the Appellant is not prevented from bringing a claim for compensation after that date. The cause on which the Appellant relies in the proceedings the subject of the appeal has not “merged” in the settlement entered into on 10 February 2006 because that settlement, without more, cannot eliminate the Appellant’s future rights. Nothing in that award is inconsistent with an award being made in favour of the Appellant after that date. The Commission’s task is to determine any rights or entitlements at a particular point in time.
A similar issue was considered by ADP Snell in De Witte v Tawnay Limited t/as Country Coast Real Estate [2006] NSWWCCPD 109. In that case, the worker agreed to an award for the employer in respect of her claim for weekly compensation. She then brought later proceedings seeking benefits from the day after the payments ceased. The Arbitrator found for the employer on the grounds that the worker had not established a change in circumstances under section 55 of the 1987 Act. ADP Snell revoked that decision stating at paragraph 54:
“Applying the reasoning in Anderson, as I do, in my view the Arbitrator has erred in the approach he has taken to the prior consent award. It did not involve any findings by the court, but rather enshrined in an award what was an agreement between the parties. Its legal effect on the later proceedings did not go beyond whatever evidentiary force lay in the admissions by the parties, which were inherent in the terms and consent award. Accordingly, it was not appropriate to approach the weekly claim, as the Arbitrator did, on the basis the Appellant had to demonstrate a change in circumstances since the date of the consent award, if she was to succeed.”
This approach was cited with approval by DP Roche in Kaibau.
In summary, applying the principles in O’Donel in particular, it is clear that a consent award can create an estoppel however, the extent of that estoppel must be limited. In my view, it can go no further than creating an estoppel as to the fact that, as at 10 February 2006, the Appellant received all benefits to which he was entitled up to that date. I say that notwithstanding that the consent award was expressed to refer to the period “up to the Applicant’s return to work on suitable duties”, because it was clear that the parties agreed that “all issues of dispute in the Application are resolved”. That consent award could not and does not bind the parties into the future. There was no “determination” as to why the award was expressed in limited terms.
In other words, the estoppel can have no greater effect than appears on the face of the Consent Orders.
It should also be noted that, unlike the circumstances in Almario v Carrington Constructions Pty Limited (1996) 13 NSWCCR 739, there were no “admissions” or “agreed facts” signed by the parties. The extent of any “agreed facts” are contained in the notation to the Consent Orders to the effect that “all issues of dispute in the application are resolved.”
The Appellant makes the following submission:
“… Even if an estoppel could be said to arise in the factual circumstances of this matter it clearly was of a much more limited extent than was found by the Arbitrator. The determination by consent in the earlier proceedings is expressed in terms that are not on its face particularly clear, but which certainly specifically limit its operation in time. Because there was no hearing and no formal determination of any issues in dispute between the parties, and because there was no other documented agreement between the parties as to the extent of any settlement effected, any estoppel that might … be found to arise must be strictly limited to what appears on the face of the determination … Any ambiguity or uncertainty on the face of the Certificate of Determination evaporates on consideration of the letter from the Respondent’s insurer (Allianz) dated 22 August 2006 which, consistently [sic] with the wording of the determination, make it clear that the determination made in those proceedings determined the Appellant’s entitlement to weekly compensation only for the period from 10 May 2005 until he returned to work on suitable duties. That date was 30 May 2005 …”
The “letter” from Allianz to which the Appellant refers dated 22 August 2006 was addressed to the Appellant’s solicitors and stated as follows:
“You would be aware that in previous proceedings, your client brought a claim for continuing payments from the 10/05/05 and continuing until he returned to work on suitable duties.
This claim was resolved by way of agreement and we therefore consider you are now estopped from maintaining these proceedings, and these issues have already been dealt with, or should have been pressed in relation to the previous proceedings.”
The Appellant relies upon this letter in support of his contention that he is entitled to pursue a claim for weekly payments from 30 May 2005. Again, on the face of it, that letter does confirm the agreement between the parties noted in the “Consent Orders”, but more relevantly, the letter also notes that the claim now sought to be made “… should have been pressed in relation to the previous proceedings”. That is consistent with the parties agreement reflected in the notation on the Consent Orders to which I have referred earlier, namely that “all issues of dispute in the Application are resolved.” I would be more inclined to accept the Appellant’s submission if the terms were simply as set out in paragraph 1 of the Certificate of Determination dated 10 February 2006 but they went further, not only permitting the Appellant 30 days “to apply” but also noting the agreement as to resolution of “all issues of dispute …” in circumstances where the claim was framed as a continuing award.
I am not persuaded that the letter from Allianz to which I have referred in some way ‘endorses’ the Appellant’s position. It seems to me that the Appellant still faces an Anshun estoppel in relying upon a claim not raised in the previous proceedings. As Kirby J explained in Lambidis v Commissioner of Police (1995) 37NSWLR 320 at 322, such an estoppel:
“… Prevents a party from later relying upon a claim or defence which it has unreasonably refrained from raising in earlier proceedings which were so closely connected with the later subject matter that it might reasonably have been expected that the claim or defence would have been raised?”
In the present case, it seems to me that it might reasonably have been expected that, as at 10 February 2006, the Appellant would have raised any concerns he had in relation to his earnings since resuming employment on 30 May 2005.
Many of the authorities to which the Appellant has referred in his submissions deal extensively with principles of “issue estoppel” which, as I have said, have limited application in the circumstances of this particular case, it falling fairly squarely within the principles of Anshun estoppel. In addition, the Appellant made lengthy submissions and with reference to a number of authorities on the issue of “judicial determination”. (See Blair v Curran (1939) CLR462. In that case, Dixon J (as he then was) said (page 532):
“A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.”
As I have said, there was no “judicial determination” involved in the resolution of the Appellant’s case as set out in the Consent Orders dated 10 February 2006.
Having said that, there is nothing in the Consent Orders that is inconsistent with an award being made in favour of the Appellant after 10 February 2006. As the Appellant submits:
“…If … any estoppel is found to arise and is found to extend beyond the date upon which the Applicant returned to work on suitable duties, such estoppel cannot as a matter of law in a claim for weekly payments of compensation, such as this, have any effect beyond the date upon which the ‘determination’ or in this case, settlement as evidenced by the (Certificate of Determination) was made. Consequently the Appellant is at the very least entitled to weekly compensation for the period from 10 February 2006 to 29 December 2006.”
For the reasons stated above, I accept this submission.
In proceedings before the Arbitrator, the parties agreed that, if the Appellant was successful, he would be entitled to an award at the rate of $180.00 per week pursuant to section 40 of the 1987 Act (see paragraph 9 Statement of Reasons). Accordingly, the Appellant is entitled to an award at the rate of $180.00 per week from 11 February 2006 to 29 December 2006 inclusive.
Finally, in relation to the Arbitrator’s determination that, absent any issue of estoppel, the Appellant’s claim amounts to an abuse of process, I reject that finding in line with the authorities to which I have referred. In short, in the absence of any “judicial determination” and having regard to the nature of proceedings in the Commission, the Appellant was not prevented from pursuing a claim for benefits beyond the date of the previous award of 10 February 2006.
DECISION
1. The decision of the Arbitrator dated 28 February 2007 is revoked, and the following
decision made in its place:
Award in favour of the Applicant at the rate of $180.00 per week pursuant to section 40 of the Workers Compensation Act 1987 from 11 February 2006 to 29 December 2006 inclusive.
The Respondent is to pay the Applicant’s costs as agreed or assessed
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
9 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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