Kairns v WorkCover Corporation/CGU Workers Compensation (SA) Ltd (Chateau Yaldara Pty Ltd)
[2004] SASC 352
•12 November 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
KAIRNS v WORKCOVER CORPORATION/CGU WORKERS COMPENSATION (SA) LTD (CHATEAU YALDARA PTY LTD)
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Besanko)
12 November 2004
WORKERS' COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION - PERSONS ENTITLED TO COMPENSATION
ESTOPPEL - FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD - FORMER ADJUDICATION - DECISIONS OF INFERIOR COURTS AND OTHER SUBORDINATE TRIBUNALS
Case stated by the Full Bench of the Workers Compensation Tribunal - whether worker entitled to compensation pursuant to ss 26(3) & 32(2)(f) of the Workers Rehabilitation & Compensation Act 1986 (SA) - WorkCover determined appellant entitled to assistance under these sections - appellant disputed quantum before Tribunal - WorkCover then disputed appellant's entitlement - appellant argued redetermination inconsistent with previous Tribunal decisions - Full Tribunal referred matter to Supreme Court pursuant of section 86A of the Workers Rehabilitation and Compensation Act - whether issue estoppel or res jdicata arose - consideration of sections 26, 28A, 32, 53(7) and 53(7a) of the Workers Rehabilitation and Compensation Act - held WorkCover not precluded from taking contrary position before Tribunal to that expressed at prior determination unless circumstances gave rise to an estoppel or abuse of process.
Workers Compensation and Rehabilitation Act 1986 (SA) s 2, s 26, s 28A, s 32, s 43, s 53, s 86A, s 91, s 92D, referred to.
Wear v WorkCover/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77; O'Brien v State of South Australia (Department of Education) (1994) 63 SASR 175; Mitsubishi Motors Australia Ltd v Hardbord (1997) 69 SASR 75; Metwalley v University of Woolongong (1985) 60 ALR 68; Della Flora v Workers Rehabilitation & Compensation Corp of SA [1998] SASC 691; Mitsubishi Motors Australia Ltd v Hardbord & Kowalski (1997) 69 SASR 75, considered.
KAIRNS v WORKCOVER CORPORATION/CGU WORKERS COMPENSATION (SA) LTD (CHATEAU YALDARA PTY LTD)
[2004] SASC 352Full Court: Nyland, Gray and Besanko JJ
NYLAND J: I agree with the answers to the questions proposed by Gray J for the reasons he has expressed.
GRAY J
Introduction
This is a case stated by the Full Bench of the Workers Compensation Tribunal. It comes before this court pursuant to section 86A of the Workers Rehabilitation and Compensation Act 1986 (SA). [1] This matter came before the Full Court earlier this year. The court declined to answer the case stated in the terms expressed. The court referred the matter back to the Workers Compensation Tribunal for reformulation. The questions now before this court are as follows:
Whether in the events and circumstances described herein, it is open to the Corporation to contend that the worker does not have, or ever has had, an entitlement to compensation pursuant to Section 26(3) and/or Section 32(2)(f) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”).
If yes:
(a) Is the Corporation confined to the circumstances in so doing contained in section 53(7) of the Act?
(b)Alternatively, is the Corporation limited in so doing to circumstances where just cause exists?
(c) Is “just cause” limited to fraud or obvious mistake?
In any event, is the onus on the Corporation to prove or the worker to disprove, that the circumstances contained in section 53(7) of the Act apply, and/or alternatively, that just cause exists?
[1](1) A Full Bench of the Tribunal may state a case on a question of law for the opinion of the Supreme Court.
The Facts
On 23 December 1995 Mrs Kairns’ husband terminated his employment in order to provide assistance for Mrs Kairns.
By letter dated 22 January 2001 Mrs Kairns applied to the WorkCover Corporation (“WorkCover”) for the provision of a rehabilitation program or alternatively a rehabilitation and return to work plan effective from 12 January 1996 under which Mr Kairns was to be approved as a carer to provide assistance and personal attendance in relation to Mrs Kairns pursuant to sections 26, 28A or 32 of the Workers Rehabilitation and Compensation Act.
Those sections provide:
26(1) The Corporation shall establish or approve rehabilitation programmes with the object of ensuring that workers suffering from compensable disabilities—
(a)achieve the best practicable levels of physical and mental recovery; and
(b) are, where possible, restored to the workforce and the community.
(2) A rehabilitation programme may be established by the Corporation in relation to—
(a) a particular worker;
(b) workers of a particular class;
(c) workers suffering from disabilities of a particular class.
(3) For the purposes, or in the course, of a rehabilitation programme the Corporation may—
(a)provide for the physical, mental or vocational assessment of workers;
(b)provide advisory services to workers, members of the families of workers, employers and others;
(c) assist workers in seeking, obtaining or retaining employment;
(d) assist in the training or retraining of workers;
(e) assist workers to find appropriate accommodation;
(f)provide for the necessary and reasonable costs (including costs of travel, accommodation and child care) incurred by workers in order to participate in rehabilitation programmes;
(g)provide equipment, facilities and services to assist workers to cope with their disabilities at home or in the workplace;
(h)provide assistance to persons who may be in a position to help workers to overcome or cope with their disabilities;
(i) disseminate information that relates to work related disabilities;
(j)conduct, participate in or subsidise research into any aspect of rehabilitation;
(k)encourage and support the work of organisations that provide assistance to workers suffering from compensable disabilities;
(l) do anything else that may assist in the rehabilitation of workers.
(4) The Corporation may admit a disabled worker to a rehabilitation programme notwithstanding that it has not been finally established that the worker's disability is compensable.
28A(1) The Corporation may establish a rehabilitation and return to work plan for a worker who is incapacitated for work by a compensable disability.
(2) If a worker—
(a) is receiving compensation by way of income maintenance; and
(b)is (or is likely to be) incapacitated for work by a compensable disability for more than 3 months (but has some prospect of returning to work), the Corporation must prepare a rehabilitation and return to work plan for the worker.
(3) In preparing the plan, the Corporation—
(a)must consult with the worker and the employer out of whose employment the disability arose; and
(b) should if practicable—
(i) review medical records relevant to the worker's condition; or
(ii)consult with any medical expert who is treating the worker for the compensable disability.
(4) A rehabilitation and return to work plan may impose obligations on the worker and on the employer.
(5) The Corporation must give the worker and the employer a copy of the rehabilitation and return to work plan.
(6) The plan is binding on the worker and the employer.
32(1) Subject to this section, a worker is entitled to be compensated for costs of a kind described in subsection (2) reasonably incurred by the worker in consequences of having suffered a compensable disability—
(a) in accordance with a scale prescribed under this section; or
(b)if the relevant service is not covered by a scale under this section—to the extent of a reasonable amount for the provision of the service.
(2) The costs referred to in subsection (1) are as follows:
(a) the cost of medical services;
(b)the cost of hospitalisation and all associated medical, surgical and nursing services;
(c) the cost of approved rehabilitation;
(d)the cost of travelling, or being transported, to and from any place for the purpose of receiving medical services, hospitalisation or approved rehabilitation (but not where the worker travels in a private vehicle);
(e)where it is necessary for the worker to be accommodated away from home for the purpose of receiving medical services or approved rehabilitation—the cost of such accommodation (but not exceeding limits prescribed by regulation);
(f)the cost of attendance by a registered or enrolled nurse, or by some other person approved by the Corporation or of a class approved by the Corporation, where the disability is such that the worker must have nursing or personal attendance;
(g)the cost of the provision, maintenance, replacement or repair of therapeutic appliances;
(h)the cost of medicines and other material purchased on the prescription or recommendation of a medical expert;
(i) any other costs (or classes of costs) authorised by the Corporation.
On 16 August 2001 WorkCover issued a determination that Mrs Kairns was entitled to assistance from 12 January 1996 pursuant to sections 26(3)(h) and 32(2)(f) of the Act at rates specified therein.
Mrs Kairns took issue with the quantum of the rates allowed by WorkCover in its determination. She issued a notice of dispute in the Tribunal on 21 August 2001. She complained that the rates allowed were inadequate and should be increased. WorkCover was obliged to reconsider its decision and on 5 September 2001 issued a confirmation of its disputed decision.
In accordance with the Workers Rehabilitation and Compensation Act, the matter was referred for conciliation. Conciliation failed to resolve the matter. An order was made for the dispute to proceed to immediate judicial determination pursuant to section 92D of the Act. That in turn resulted in the matter being referred to a Presidential Member of the Tribunal for the making of trial orders. At this time WorkCover advised that it intended to argue at trial that Mrs Kairns had no entitlement to recover any compensation pursuant to section 32 in respect of Mr Kairns’ provision of care to Mrs Kairns.
Mrs Kairns contended that it was not open for WorkCover to mount such an argument on the basis that it was bound by its redetermination. She contended that WorkCover’s submission was inconsistent with the majority decision of the Tribunal in Wear v WorkCover/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd).[2]
[2] [2001] SAWCT 77
As a consequence WorkCover filed an application for directions seeking orders that the matter be referred to the Full Tribunal or in the alternative that a question of law be stated to the Supreme Court for the purpose of making submissions that Wear was wrongly decided.
On 18 December 2002 the Full Tribunal determined that a case should be stated for the opinion of the Supreme Court.
The Parties’ Contentions
Counsel for WorkCover submitted that no issue estoppel or res judicata arose as a result of its determination of 16 August 2001 as to the entitlement of Mrs Kairns to assistance. It was said that WorkCover had made an administrative decision through its agent. It was accepted that estoppel by conduct might arise, however it was argued that such circumstances had not arisen in the present case. It was contended that WorkCover was entitled to submit to the tribunal that Mrs Kairns had no entitlement.
Counsel for Mrs Kairns accepted that no issue estoppel or res judicata arose from the decision of WorkCover determining that she was entitled to compensation. However it was submitted that section 53(7a) provided an exhaustive code for the circumstances in which WorkCover could make a redetermination of a claim and the circumstances in which WorkCover could change its position in relation to Mrs Kairns’ claim were limited to the circumstances specified in section 53 (7a).
Consideration of the Question
The Statute
The objects and purposes of the Workers Rehabilitation and Compensation Act are set out in section 2:
(1) The objects of this Act are—
(a) to establish a workers rehabilitation and compensation scheme—
(i)that achieves a reasonable balance between the interests of employers and the interests of workers; and
(ii)that provides for the effective rehabilitation of disabled workers and their early return to work; and
(iii)that provides fair compensation for employment-related disabilities; and
(iv)that reduces the overall social and economic cost to the community of employment-related disabilities; and
(v)that ensures that employers' costs are contained within reasonable limits so that the impact of employment-related disabilities on South Australian businesses is minimised; and
(b) to provide for the efficient and effective administration of the scheme; and
(c) to establish incentives to encourage efficiency and discourage abuses; and
(d) to ensure that the scheme is fully funded on a fair basis; and
(e)to reduce the incidence of employment-related accidents and disabilities; and
(f)to reduce litigation and adversarial contests to the greatest possible extent.
(2) A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.
Counsel for Mrs Kairns accepted that the statutory duties cast on WorkCover having regard to these objects were properly characterised as public duties. It was accepted that the legislation placed a particular emphasis on rehabilitation with the consequent need for the prompt determinations of claims. WorkCover’s determination with respect to Mrs Kairns was an administrative decision made against this background.
As earlier observed WorkCover made its initial determination of Mrs Kairns’ entitlements and later confirmed its determination in her favour pursuant to sections 26(3)(h) and 32(2)(f) of the Workers Rehabilitation and Compensation Act. The contention that WorkCover now wishes to advance is that it did not have power to approve Mrs Kairns’ assistance pursuant to section 26(3)(h) as no rehabilitation program had been approved or established pursuant to section 32(2)(f). In this way WorkCover sought to depart from its confirmed determination. Its argument was to the effect that it had no power as a matter of law to make the initial determination and later confirmation.
It may be observed that a payment without any entitlements on the part of Mrs Kairns would amount to a windfall. This would not accord with the objects of the Workers Rehabilitation and Compensation Act.
A Redetermination – Sections 53(7) and 53(7a)
Section 53(7) and (7a) of the Workers Rehabilitation and Compensation Act provide:
(7)The Corporation may, in an appropriate case, by notice in writing to the worker, redetermine a claim.
(7a) For the purposes of subsection (7), an appropriate case is one where—
(a) the redetermination is necessary to give effect to an agreement reached between the parties to an application for review or to reflect progress (short of an agreement) made by the parties to such an application in an attempt to resolve questions by agreement; or
(b) the claimant deliberately withheld information that should have been supplied to the Corporation and the original determination was, in consequence, based on inadequate information; or
(c) the redetermination is appropriate by reason of new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made; or
(d) the original determination was made as the result of an administrative error and the redetermination is made within two weeks of the making of the original determination; or
(e) the redetermination is made in prescribed circumstances.
The general purpose and operation of section 53(7a) was discussed in O’Brien v State of South Australia (Department of Education)[3]. The court was there concerned with the possible retrospective operation of section 53(7a). The court, by majority, determined that the section had retrospective effect. Duggan J observed:[4]
The amendments to the Workers Rehabilitation and Compensation Act 1986 (the Act) which enacted subss (7), (7a), and (8) of s 53 empower the Corporation to “redetermine a claim”. In order to deal with the arguments raised on the present application it is necessary to consider what is involved in a redetermination under these provisions and the nature of any rights which might be affected by such a process.
A determination is made in the first place under s 53 of the Act. The appropriate procedure is set out in the section. The significance of a determination is underlined by the review provisions in s 97 which provide an elaborate procedure to enable the Review Officer to “make a fresh determination of the matters to which the decision subject to review relates” (s96(2)). The Act contains a number of specific provisions aimed at ensuring that the procedure complies with the requirements of natural justice. Then there is an appeal from the Review Officer to the Workers Compensation Appeal Tribunal. A further appeal may be made, by leave, to the Supreme Court on a question of law.
Why is it that these procedures are provided for in the Act? The answer must be that the legislature regards a determination under the Act as giving rise to important rights. Clearly the term “rights” is appropriate in this context. It is also of some significance that similar rights acquired under the previous legislation are protected by the transitional provisions of the present Act where they are referred to as “antecedent rights”.
If and when the primary right to compensation under the Act is determined in the worker’s favour the question then arises as to what specific entitlements can be claimed eg the entitlement to weekly payments. But it is that primary right which is under consideration in the present case and the power to redetermine permits the Corporation to take away that right, as it purported to do in the present case, by declaring that the plaintiff did not suffer from a compensable disability.
[3] (1994) 63 SASR 175
[4] (1994) 63 SASR 175 at 185-186
Earlier it has been observed that counsel for Mrs Kairns contended that section 53(7a) provided an exhaustive code with respect to a redetermination. Although this may be a matter of debate it is unnecessary to resolve that debate in the present case. Both parties accepted that WorkCover was not seeking to redetermine Mrs Kairns’ claim. In the present case WorkCover seeks to contend before the tribunal on the hearing of an application by Mrs Kairns that the earlier determination was ultra vires as WorkCover had no power to make the payment.
The Reviewability of a Determination
In Mitsubishi Motors Australia Ltd v Hardbord Doyle CJ observed:[5]
The importance of expeditious decision-making, and the fact that at the first level of decision making there is limited scope for testing the worker’s claims, support an argument that the Corporation should not be bound by an expeditious decision made on limited information. There is also reason to think, as the judge below said, that in the case of relatively small claims, for example for medical expenses, there would be everything to be said for the Corporation simply paying the claim without spending too much time investigating the occurrence of the disability. It would be odd if a consequence of that was that it could no longer put the occurrence of the compensable disability in issue, even in the face of a much larger claim. In the environment in which the Act operates, one could expect that, particularly in the early stages, a disability will be identified in quite general terms, and often in terms that will require revision as the worker undergoes further treatment. Treating the determination of a claim as decisive as to the occurrence of the compensable disability upon which it is based, may give rise to rather unprofitable debate when later claims are made, in relation to the terminology used by the worker in identifying the disability in the early stages and the disability at the later stages. There would often be argument that what is identified as the disability later, is not the same thing as the subject of the earlier determination.
Doyle CJ went on to conclude:[6]
.. that the Act itself does not require a conclusion that once the Corporation has determined to accept a claim it can no longer put in issue the occurrence of the relevant compensable disability.
[5] (1997) 69 SASR 75 at 84-85
[6] (1997) 69 SASR 75 at 87
In Wear v WorkCover/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd)[7] the Full Bench of the Workers Compensation Tribunal was asked to consider two separate questions:
(1)Whether the Corporation, having originally determined a claim (on reconsideration) in favour of the worker, is bound by that determination in all subsequent proceedings in the Tribunal.
(2)Where another party, (the employer), at arbitration successfully disputes the Corporation’s determination, does the Corporation have locus standi at judicial determination, and if it has, is it entitled to take a position contrary to its own recommendation?
[7] [2001] SAWCT 77 at [11]
The dispute in Wear concerned an employee’s claim for compensation for loss of hearing pursuant to section 43 of the Workers Compensation and Rehabilitation Act. The employer was Greyhound Pioneer Australia Ltd. The initial claim was rejected by a determination of WorkCover. This rejection was challenged by the employee and proceedings were issued in the Workers Compensation Tribunal. Pursuant to section 91 of the Act, WorkCover reconsidered the employee’s claim. Upon reconsideration, WorkCover resolved to accept the employee’s claim.
The employer was dissatisfied with the outcome of the reconsideration and as a result the matter proceeded through the dispute resolution process. The dispute culminated in a hearing before an arbitration officer. By determination the employer’s position was upheld and the original rejection of the employee’s claim was reinstated. The employee sought judicial determination of the dispute.
The employer subsequently went into receivership and the receiver did not wish to take part in the judicial determination of the dispute. WorkCover sought to participate and maintain the original position rejecting the employee’s claim.
Counsel for the employee submitted that WorkCover was not entitled to participate in the proceedings. It was submitted that WorkCover was bound by its reconsideration. It was said that in its role as decision maker on the reconsideration, WorkCover was bound by its own decision despite the fact that the matter was later set down for arbitration. It was said that any other resolution of the issue would result in WorkCover effectively appealing against its own decision. In the alternative, it was submitted that WorkCover was estopped from presenting a case which was inconsistent with its reconsideration.
The majority of the Tribunal, Deputy Presidents McCusker and Parsons considered that:[8]
A distinction has to be drawn between proceedings in the Tribunal in respect of the subject determination or proceedings in the Tribunal where a separate determination involving an earlier claim is sought to be relied on. In the latter case the Corporation is not bound by that earlier determination. In the former case the Corporation should be kept to the determination unless just cause is shown by the Corporation why it should depart from it viz, fraud or obvious mistake.
[8] [2001] SAWCT 77 at [90]
It was further observed that WorkCover had locus standi at a judicial determination of a worker’s compensation dispute, but only to reiterate its position except where ‘just cause is shown entitling it to depart from the position reached in the determination.’
In reaching this conclusion, the majority reviewed the relevant provisions of the Workers Compensation and Rehabilitation Act. It was observed that redetermination of a claim was confined by the legislation and occurred only in appropriate cases. It was said that the decision maker upon reconsideration must apply an objective and independent approach. The majority observed that the judicial process provided in Division VI contemplated dealing with the dispute in a judicial manner in order to protect against abuse of process. It was said that during that process of judicial determination, WorkCover should not, without due cause, argue against its own determination or rely on material not previously presented.
President Jennings took a different approach. He agreed with the majority that when reconsidering claims, WorkCover must make a fair and objective determination and that upon review of such a determination, new arguments should not be raised except in exceptional circumstances.[9] However, the President observed that WorkCover was not advancing a point not previously raised, rather the employee was seeking to have a full hearing before a member of the Tribunal in the context of a ‘legislative regime that expressly contemplated a hearing de novo’. It was observed that section 94C of the Act provided that the Tribunal re-hearing the matter in dispute must resolve the dispute without regard to decisions taken in earlier proceedings.
[9] President Jennings referred to Metwally v University of Wollongong (1985) 60 ALR 68 at 71
President Jennings took the view that a reconsideration of an employee’s claim to compensation must be undertaken expeditiously. He observed that upon reconsideration of a claim, WorkCover should not prolong the decision making process by attempting to conduct a full hearing. It was said that this approach is supported by the requirement in section 91(5) that the reconsideration must be undertaken within 7 days of the receipt of the notice of dispute. The President applied the reasoning of Doyle CJ in Mitsubishi Motors.
President Jennings also referred to the decision of Della Flora v WorkersRehabilitation & Compensation Corp of SA [10] where Doyle CJ observed that the compensating authority is required to make expeditious decisions on relatively limited information, and the dispute only culminates in a full hearing once it reaches the Tribunal. It was said that a judicial hearing of the matter might well result in material emerging which falsifies the basis upon which the original determination was made. The President concluded:[11]
The appropriate means by which to prevent an injustice resulting from the departure from a position taken in an initial determination from occurring, is to invoke the inherit jurisdiction that the Tribunal undoubtedly possesses, of preventing an abuse of process.
[10] [1998] SASC 6691
[11] [2001] SAWCT 88 at [31]
In the present case, the correct approach is that identified by Doyle CJ in Mitsubishi Motors. WorkCover is not precluded from taking a position at the hearing before the Tribunal contrary to that expressed at a prior determination of Mrs Kairns’ claim unless the particular circumstances give rise to some form of estoppel or there is an abuse of process.
Estoppel
Common law and equitable estoppels may arise. If WorkCover has made representations and Mrs Kairns has acted to her detriment an estoppel may arise to preclude WorkCover from changing its position. This issue was addressed in Mitsubishi Motors Aust Ltd v Harbord & Kowalski[12], where Doyle CJ observed:[13]
Mr Kowalski did not at any stage identify the particular type of estoppel upon which he relies. It seems to me that the estoppel upon which he relies could be one of two kinds. First of all, an estoppel by convention, which arises not from a representation of fact, but as a result of the conduct of relations between parties on the basis of an agreed or assumed state of facts: see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244. The other possibility is that he relies upon estoppel by representation. Without going into all the details, that requires at the least a representation made by Mitsubishi in reliance upon which Kowalski has altered his position to his detriment, such that it would not be just to permit Mitsubishi to depart from the position as it had represented it to be. An important aspect of both kinds of estoppel is the need for the person in the position of Mr Kowalski to show that he has acted upon the assumed state of facts or upon the representation to his detriment. Disappointment at having to prove something which he thought had been conceded by Mitsubishi, would not be a relevant detriment. He would, in general terms, at least have to show that his reliance upon a representation by Mitsubishi that it accepted the occurrence of a compensable disability had caused some detriment, such as the loss of material that would enable him to prove his claim.
[12] (1997) 69 SASR 75
[13] (1997) 69 SASR 75 at 87-88
The answer to these questions will be determined by the circumstances of the particular case. If Mrs Kairns has grounds to raise an estoppel they can be addressed by the Tribunal or in another appropriate forum.
The Process Before the Tribunal
Section 92D of the Act provides:
(1)If conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator presiding at the conciliation proceedings must—
(a) refer the dispute into the Tribunal for arbitration; or
(b) refer the dispute into the Tribunal for judicial determination.
(2)A dispute may only be referred into the Tribunal for judicial determination under subsection (1) if—
(a) the conciliator has first informed the parties to the dispute of the intention to do so and has considered any representations made by any of them about the proposed reference; and
(b) the President (or a Deputy President to whom the President has delegated powers under this section) agrees to the proposed reference.
(3)However, the President (or a Deputy President to whom the President has delegated powers under this section) may, on application by a party or in the exercise of a personal initiative, direct that a dispute be referred into the Tribunal for judicial determination at the conclusion of conciliation proceedings.
Counsel for Mrs Kairns accepted that the hearing before the Tribunal was a hearing de novo. This concession is plainly correct. In these circumstances the Tribunal had jurisdiction to determine whether Mrs Kairns had any entitlement to a payment pursuant to section 26(3)(h) and 32(2)(f). Mrs Kairns has applied to the Tribunal for a determination about the quantum of her entitlement. If Mrs Kairns has no entitlement no question as to quantum can arise.
Counsel for Mrs Kairns accepted that the tribunal could raise the issue about whether Mrs Kairns had any entitlement. Once this is accepted it follows that WorkCover can be heard on the question of entitlement. In these circumstances it is difficult to understand why WorkCover would be precluded from seeking to contend that Mrs Kairns had no entitlement as a matter of law. This conclusion is supported by a consideration of the public interest. As earlier observed there is a public interest in workers being paid their proper entitlements; but no more and no less.
Conclusion
For these reasons the answers to the case stated are as follows:
Question
Whether in the events and circumstances described herein, it is open to the Corporation to contend that the worker does not have, or ever has had, an entitlement to compensation pursuant to Section 26(3) and/or Section 32(2)(f) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”).
If yes:
(a) Is the Corporation confined to the circumstances in so doing contained in section 53(7) of the Act?
(b) Alternatively, is the Corporation limited in so doing to circumstances where just cause exists?
(c) Is “just cause” limited to fraud or obvious mistake?
In any event, is the onus on the Corporation to prove or the worker to disprove, that the circumstances contained in section 53(7) of the Act apply, and/or alternatively, that just cause exists?
Answer
WorkCover is not precluded from taking a position at the hearing before the Tribunal contrary to that expressed at a prior determination of the worker’s claim unless the particular circumstances give rise to some form of estoppel or an abuse of process.
(a) no
(b) unnecessary to answer
(c) unnecessary to answer
Unnecessary to answer
BESANKO J: This is a case stated by the Full Bench of the Workers Compensation Tribunal pursuant to s 86A of the Workers Rehabilitation and Compensation Act 1986 (“the Act”).
On 31st August 1990, Mrs Julie Kairns commenced employment with Chateau Yaldara Pty Ltd as a wines sales assistant. On 8th September 1993, Mrs Kairns suffered a serious injury to her left knee at work, and she sought and obtained compensation pursuant to the provisions of the Act. On 23rd December 1995, Mrs Kairns’ husband, Mr William Kairns, terminated his employment in order to provide assistance to Mrs Kairns at their home.
On 22nd January 2001, solicitors for Mrs Kairns applied to the WorkCover Corporation (“the Corporation”) via its claims agent, CGU Workers Compensation (SA) Ltd (“CGU”), for compensation for nursing and home help provided by Mr Kairns. They sought the sum of $600 per week for the period from 12th January 1996 to 4th March 1999 and the sum of $350 per week thereafter. They referred to sections 26, 28 and 32 of the Act. On 16th August 2001, CGU wrote to the solicitors for Mrs Kairns advising them that a determination had been made that Mrs Kairns was entitled to assistance under sections 26(3)(h) and 32(2)(f) of the Act for the period since Mr Kairns had been required to cease employment. The approved rates for the assistance provided by Mr Kairns were the sum of $150 per week for the period from the 12th January 1996 to the 31st October 2000, and the sum of $70 per week for the period from the 1st January 2001 and thereafter.
Mrs Kairns was unhappy with the approved rates and on 17th August 2001, she lodged a notice of dispute pursuant to s 90 of the Act in the form prescribed by the regulations. Under that part of the form which requires a description of the matter in dispute, the following appears:
“Reasons for disagreeing with decision
The worker disputes the determination of CGU Workers Compensation dated 16th August, 2001 on the following basis:-
1.The rates allowed for carer’s assistance from the 12th January, 1996 to date and continuing are inadequate and should be increased.”
By reason of s 91 of the Act, the Corporation was required to reconsider the disputed decision, and on 5th September 2001, it confirmed its previous decision. In the middle of 2002, the Corporation indicated to the Tribunal that it wished to argue that there was no entitlement at all to carer’s assistance under the Act and that its original determination was ultra vires. As I understand it, the Corporation says that compensation was not payable pursuant to s 26(3)(h) of the Act because no rehabilitation program had been established or approved under s 26(1) of the Act, or pursuant to s 32(2)(f) of the Act because Mr Kairns was not a registered or enrolled nurse or some other person approved by the Corporation. There is nothing in the material before this Court which explains how the asserted mistake was made in the first place or precisely when it was discovered and in what circumstances.
Mrs Kairns submitted that by reason of the decision in Wear v WorkCover Corporation Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77 (“Wear”) it was not open to the Corporation to depart from its determination. In other words, she asserts that the only issue before the Tribunal is the appropriate rates for the assistance provided by Mr Kairns.
The matter was referred to the Full Bench of the Workers Compensation Tribunal which in turn decided to state a case for the opinion of this Court.
The case stated relevantly provides:
“We request the Full Court of the Supreme Court to determine upon this case stated:
13.1Whether in the events and circumstances described herein, it is open to the Corporation to contend that the worker does not have, or ever has had, an entitlement to compensation pursuant to s 26(3)(h) and/or s 32(2)(f) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”).
13.2 If yes:
13.2.1Is the Corporation confined to the circumstances in so doing contained in s 53(7) of the Act?
13.2.2Alternatively, is the Corporation limited in so doing to circumstances where just cause exists?
13.2.3 Is ‘just cause’ limited to fraud or obvious mistake?
13.3In any event, is the onus on the Corporation to prove or the worker to disprove, that the circumstances contained in s 53(7) of the Act apply, and/or alternatively, that just cause exists?”
Each party to the case stated proposed answers to these questions. The respective answers proposed by the parties illustrates that the dispute between them is quite narrow. The answers proposed by the Corporation are as follows:
“13.1 Yes.
13.2.1 No.
13.2.2The Corporation in so doing is only limited to circumstances where good reason or just cause exists.
13.2.3 No.
13.3 Yes.”
As I understand it, the Corporation accepts that it bears the onus and in those circumstances it would be more accurate to say that the answer to 13.3 which it proposes is “yes the onus is on the Corporation to prove that good reason or just cause exists.”
The answers proposed by Mrs Kairns are as follows:
“13.1 Yes in the circumstances set out below.
13.2.1 Yes.
13.2.2 No.
13.2.3 No.
13.3The onus lies on the Corporation to prove the circumstances giving rise to the ‘appropriate circumstances’ coming within any of the matters contained in s 53(7a), or alternatively that ‘just cause’ exists.”
The case stated raises questions of law and this Court is not bound to adopt one or other of a series of answers proposed by the parties.
In determining a claim for compensation pursuant to s 53 of the Act the Corporation is not exercising a judicial function. It is exercising an administrative function. The doctrines of res judicata and issue estoppel are not relevant to a determination made by the Corporation pursuant to s 53 of the Act. However, that is not to say that there might not be limits on the Corporation’s ability to depart from a determination previously made by it. The point to be made is that if there are limits they must be limits which arise expressly or impliedly from the provisions of the Act, or by reason of common law and/or equitable doctrines of estoppel.
Issues on the case stated
The provisions of the Act
The appropriate starting point is the relevant provisions of the Act.
Section 52 of the Act provides for the making of a claim for compensation. I put to one side exempt employers in the analysis which follows. A claim for compensation is given to an employer, and an employer must forward a copy of the claim to the Corporation. Section 53 provides for the determination of a claim for compensation. The Corporation determines a claim for compensation, and must do so as expeditiously as reasonably practicable, and where the claim is for compensation by way of income maintenance shall, wherever practicable, endeavour to determine the claim within 10 business days after the date of receipt of the claim (s 53(4)). Section 53(7) provides that the Corporation may, in an appropriate case, by notice in writing to the worker, redetermine a claim. Subsection (7a) provides as follows:
“(7a) For the purposes of subsection (7), an appropriate case is one where –
(a) The redetermination is necessary to give effect to an agreement reached between the parties to an application for review or to reflect progress (short of an agreement) made by the parties to such an application in an attempt to resolve questions by agreement; or
(b) The claimant deliberately withheld information that should have been supplied to the Corporation and the original determination was, in consequence, based on inadequate information; or
(c) The redetermination is appropriate by reason of new information that was not available and could not reasonably have been discovered by due enquiry at the time that the original determination was made; or
(d) The original determination was made as a result of an administrative error and the redetermination is made within two weeks of the making of the original determination; or
(e)The redetermination is made in prescribed circumstances.”
Subsection 53(8) provides that the redetermination of a claim does not give rise to any right on the part of the Corporation to recover from the worker money paid under a previous determination unless the previous determination was made in consequence of the worker’s fraud. I pause at this point to make a number of observations about subsections (7) and (7a) of s 53. First, these subsections deal with the redetermination of a claim and that act is to be distinguished from a reconsideration of a decision which must be undertaken once a notice of dispute is received by a compensating authority. Secondly, in my opinion, s 53(7a) contains an exhaustive list of the circumstances which amount to an appropriate case for the purposes of s 53(7). I think the wording of the subsections clearly points to that conclusion, and I note that s 53(7a)(e) contains a mechanism for the expansion of the list of appropriate circumstances where necessary. Thirdly, leaving aside the particular case identified in s 53 (7a)(a) there is an issue as to the power of the Corporation to redetermine a claim which is the subject of a notice of dispute even if the case otherwise falls within one of the paragraphs in s 53(7a). In this case, I do not need to examine that issue because we are not here concerned with a redetermination by the Corporation. The Corporation has not purported to make a redetermination. The issue was examined (at least at the reconsideration stage of the dispute resolution process) by Deputy President Acting Judge B P Gilchrist in Falidis v Unisure Pty Ltd [1998] SAWCT 67.
Part 6A of the Act provides for a dispute resolution process for a party dissatisfied with a decision made by the Corporation. Section 89A specifies those decisions which are reviewable and they include a decision on a claim for compensation and a decision redetermining a claim. The dispute resolution process is commenced by the lodging of a notice of dispute with the Registrar of the Workers Compensation Appeal Tribunal. A person with a direct interest in a reviewable decision may lodge a notice of dispute and a person has a direct interest if the person is directly affected by the decision, or is the employer from whose employment the compensable disability arose or is alleged to have arisen. Section 91 provides for the reconsideration of a decision and I have already referred to this process. Reconsideration may result in confirmation of the decision or a variation of the decision. If the decision is confirmed, or varied in a manner in which a party to the dispute expresses dissatisfaction, the Registrar must refer the dispute for conciliation. Sections 92, 92A, 92B and 92C deal with the conciliation process, and s 92D provides that if conciliation does not result in an agreed settlement of the dispute the conciliator must refer the dispute into the Tribunal for arbitration, or must refer the dispute into the Tribunal for judicial determination.
In this case conciliation was unsuccessful, and the conciliator referred the dispute into the Tribunal for judicial determination.
Section 94, 94A, 94B and 94C provide for the judicial determination of a dispute. Section 94C provides that in proceedings involving judicial determination of the dispute, the Tribunal must rehear the matter in dispute and decide the dispute without regard to the decisions taken in earlier proceedings. Section 95 gives the Tribunal power to award costs to a party against the relevant compensating authority in relation to, inter alia, the judicial determination of the dispute. Section 106 of the Act provides for the payment of interim payments of compensation, and s 106A provides that a payment by the Corporation or an employer to a worker does not constitute an admission of liability or estop a subsequent denial of liability.
It is also relevant to make one or two observations about the provisions relevant to the Tribunal and how it is to proceed. The Tribunal is not bound by the rules of evidence but may inform itself in any way it considers appropriate (s 84), and the Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 85). I note s 88DA which provides as follows:
“The Tribunal may, with the consent of all parties to proceedings, enlarge the scope of the proceedings to include questions that are not presently at issue in the proceedings”.
I do not think this section bears upon the questions before the Court. It seems to me that it enables the Tribunal, as a matter of convenience in an appropriate case, to deal with matters which, it is thought, may become issues between parties.
Finally, the Act has a statement of its objects, and in a general sense those objects are relevant to the present questions. Section 2 of the Act provides as follows:
“2. (1) The objects of this Act are –
(a) to establish a workers rehabilitation and compensation scheme –
(i) that achieves a reasonable balance between the interests of employers and the interests of workers; and
(ii) that provides for the effective rehabilitation of disabled workers and their early return to work; and
(iii) that provides fair compensation for employment-related disabilities; and
(iv) that reduces the overall social and economic cost to the community of employment-related disabilities; and
(v) that ensures that employers’ costs are contained within reasonable limits so that the impact of employment-related disabilities on South Australian businesses is minimised; and
(b)to provide for the efficient and effective administration of the scheme; and
(c)to establish incentives to encourage efficiency and discourage abuses; and
(d)to ensure that the scheme is fully funded on a fair basis; and
(e)to reduce the incidence of employment-related accidents and disabilities; and
(f)to reduce litigation and adversarial contests to the greatest possible extent.
(2) A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.”
The relevant authorities
Both parties made submissions on the question of whether the decision of the Full Bench of the Tribunal in Wear is correct.
In Wear the claim for compensation made by the worker was rejected by the Corporation and the worker lodged a notice of dispute. The Corporation reconsidered the decision, and it decided to accept the worker’s claim. The employer was dissatisfied with the Corporation’s reconsideration of the claim and the matter proceeded through the dispute resolution process. An arbitration officer upheld the employer’s contention, and the worker then sought a judicial determination of the dispute. The employer went into receivership, and the receiver did not wish to take part in the judicial determination of the dispute. The Corporation wished to maintain its original position, that is, to reject the worker’s claim. The worker said it was not permissible for the Corporation to do so because on the reconsideration it had accepted the worker’s claim. Two questions were referred to the Full Bench of the Tribunal. First, is the Corporation, having determined a claim on a reconsideration in favour of the worker, bound by that determination in all subsequent proceedings in the Tribunal? By a majority (McCusker DPJ and Parsons DPJ) the Full Bench held that in the case before it “the Corporation should be kept to the determination unless just cause is shown by the Corporation why it should depart from it viz; fraud or obvious mistake”. Jennings PJ in dissent said that he would answer the first question in the negative. The second question before the Full Bench was whether, where another party, ie the employer, at arbitration successfully disputes the Corporation’s determination, the Corporation has locus standi at a judicial determination, and if it has, is it entitled to take a position contrary to its own redetermination? The majority held that the Corporation did have locus standi in the circumstances, but only to reiterate its position save where just cause is shown entitling it to depart from the position reached in the determination. Jennings PJ said that he would answer the second question in the affirmative.
The majority of the Full Bench in Wear considered that the questions were to be resolved by reference to “the intent indicated in the Act as explained by relevant authority”. The majority referred to s 53 (7) (7a) and (8) and the decision in this Court in O’Brien v State of South Australia (Department of Education) & Anor (1994) 63 SASR 175. The majority considered various provisions of the Act and noted that the compensating authority had no right or ability to lodge a notice of dispute under s 90. The majority then considered the effect of two decisions of this Court: Mitsubishi Motors Australia Ltd v Harbord & Anor (1997) 69 SASR 75 (“Mitsubishi v Harbord”) and Della Flora v Workers Rehabilitation & Compensation Corporation of South Australia [1998] SASC 6691 (“Della Flora”) and I will discuss those two decisions in due course. The majority concluded:
“We do not regard Mitsubishi v Harbord and Della Flora v WorkCover (above cited) as supporting such a conclusion. At best Mitsubishi v Harbord supports the rule that the determination of an issue on an earlier claim does not foreclose that issue on a later claim and Della Flora v WorkCover supports the proposition that once the Corporation’s determination has been disputed it is the order disposing the dispute which is enforceable not the original determination.”
The majority noted that the Corporation had a number of opportunities under the Act to revise its first decision, namely, redetermination in the circumstances identified in s 53(7a) and reconsideration by a suitable person who can be an officer of the Corporation under s 91, and they concluded as follows:
“The provisions give the Corporation very specific occasions to carefully review its conclusions. How can these provisions achieve their self evident purpose if the Corporation can after the last of these, namely, s 91, revert to any stance it chooses? We cannot attribute such an intent to this legislation. As stated above, that would severely diminish the status of the Corporation’s determinations: cf the rules detailed in Downing v Sporting Shooters Association of Australia Inc. (1995) 62 IR 364.”
The majority did not expressly say why they considered that there was an exception of just cause and why that concept meant fraud or obvious mistake.
Jennings PJ referred to the decisions in Mitsubishi v Harbord and Della Flora. He said that a disputed decision which was the subject of a notice of dispute was unenforceable and remained so until it was resolved by the Tribunal either by consent or on the merits. He said that a disputed decision had no status in hearings before the Tribunal other than to provide a framework from which to ascertain the nature of the issues in dispute. He referred to the remarks of Judge Gilchrist DP in Hornhardt v WorkCover [2000] SAWCT 157 at [11]. Jennings PJ concluded with the following remarks (at [30]-[31]):
“I appreciate that the majority take a different view. With respect, I do not agree with it. I can accept that there may be circumstances where it may be unjust to allow a compensating authority to resile from the position that it has adopted in its initial determination. But, with respect, I can see no justification for creating a rule that the compensating authority cannot depart from its determination without just cause. This seems to assume that a dispute determination creates rights. In my view, it does not.
The appropriate means by which to prevent an injustice resulting from the departure from a position taken in an initial determination from occurring, is to invoke the inherit (sic) jurisdiction of the Tribunal undoubtedly possesses, of preventing an abuse of process.”
It is convenient at this point to consider the decisions of this Court in Mitsubishi v Harbord and Della Flora.
The facts in Mitsubishi v Harbord were complex and there were a number of issues. I propose to state the facts only to the extent necessary to understand the effect of the decision so far as it may be relevant to the issues in this case.
Mitsubishi Motors Australia Limited (“Mitsubishi”) was an exempt employer. The worker claimed that he suffered an injury at work on 9th May 1989. Mitsubishi determined that it would pay income maintenance for a closed period. The worker returned to work after 27th July 1989.
The worker said that he had stopped work on 9th April 1991, and he submitted a written claim for compensation on 23rd April 1991 in which he said that the date of his injury was the 9th May 1989. The injury identified was in effect an aggravation of the injury suffered on the 9th May 1989.
Mitsubishi rejected the claim for weekly payments, and one of the reasons it gave for doing so was that the worker’s incapacity did not arise from the injury sustained on 9th May 1989.
One issue which fell for consideration by this Court was the effect of an acceptance by the exempt employer of a claim for income maintenance in terms of the exempt employer’s ability to later deny that the worker had suffered an injury to his back and that that injury was a compensable disability.
Doyle CJ (with whom Matheson and Olsson JJ agreed) examined the provisions of the Act as they were at the relevant time. He referred to the competing considerations as to whether the acceptance of a claim prevented the compensating authority when considering a second and later claim from denying the occurrence of the compensable disability which formed the basis of the first claim. The Chief Justice decided that the compensating authority was not so prevented. He relied on s 106A of the Act (a payment by the relevant compensating authority does not constitute an admission of liability or estop a subsequent denial of liability) and the considerations he identified in the following passage (at 84-85):
“The importance of expeditious decision making, and the fact that at the first level of decision there is limited scope for testing the worker’s claims, support an argument that the Corporation should not be bound by an expeditious decision made on limited information. There is also reason to think, as the Judge below said, that in the case of relatively small claims, for example the medical expenses, there would be everything to be said for the Corporation simply paying the claim without spending too much time investigating the occurrence of the disability. It would be odd if a consequence of that was that it could not longer put the occurrence of the compensable disability in issue, even in the face of a much larger claim. In the environment in which Act operates, one could expect that, particularly in the early stages, a disability will be identified in quite general terms and often in terms that will require revision as the worker undergoes further treatment. Treating the determination of a claim as decisive as to the occurrence of the compensable disability upon which it is based, may give rise to rather unprofitable debate when later claims are made, in relation to the terminology used by the worker in identifying the disability in the early stages and the disability at the later stages. There would often be argument that what is identified as the disability later, is not the same thing as the subject of the earlier determination.”
The decision in Mitsubishi v Harbord is not directly on point. It is authority for the proposition that as a matter of statutory construction the acceptance of a claim by a compensating authority does not prevent the compensating authority when considering a second and later claim from denying the occurrence of the compensable disability upon which the first claim was based.
The Chief Justice went on to say that the conclusion that the Act itself does not require a conclusion that once the Corporation had determined to accept a claim it can no longer put in issue the occurrence of the relevant compensable disability, did not of itself stand in the way of a submission that the making of a determination in favour of a worker gave rise to an estoppel that prevented the compensating authority from later disputing the occurrence of a compensable disability. The Chief Justice considered the recent authorities on the law of estoppel and whether the relevant estoppel would be an estoppel by convention or an estoppel by representation. He also referred to the need for a person claiming the benefit of an estoppel to show a material disadvantage if departure from the relevant assumption is permitted. He concluded that s 106A prevented the worker from basing an estoppel upon a determination in his favour or upon the making of payments in his favour. However, he made it clear that that conclusion did not mean that estoppels can never arise. He said (at 89):
“It does not follow that estoppels can never arise. It is conceivable that in a particular case the Corporation or the employer might, quite apart from the making of a determination and the making of payments, make or be taken to have made representations to a worker that could give rise to an estoppel. But it would be necessary to point to something more than the making of a determination or the making of a payment. In the present case, nothing else has been identified.”
In Della Flora the issue before the Court was the point at which a determination made under s 43 of the Act that a lump sum be paid to a worker as compensation for non-economic loss attributable to a compensable disability became enforceable by the worker by civil action. The Chief Justice said that a determination was not enforceable by action before the expiry of the period within which a notice of dispute may be lodged, or if such a notice is lodged before the dispute is finalised. The Chief Justice said:
“I am influenced by the potential for injustice if a payment must be made at a time when the determination might still be set aside. If payment had to be made during that period I would have expected to find a provision to that effect, coupled with a provision enabling payment to be deposed in specified circumstances. Accordingly, I am influenced by the absence of any provision requiring payment during this period, and by the absence of any provision for the staying of a determination by the Corporation. As to cases in which a notice of dispute has been lodged, I am also influenced by the express provisions for the enforcement of orders of the Tribunal. They suggest that if a notice of dispute is lodged, it is the order disposing of the dispute that is enforced, not the original determination by the Corporation.”
A statutory restriction?
It seems to me that, leaving aside for the moment an estoppel arising by reason of the principles of the common law or of equity, the question comes down to one of statutory construction. Is the Corporation precluded by the provisions of the Act, either expressly or by implication, from adopting a position before the Tribunal making a judicial determination of a dispute inconsistent with, or different from, the position revealed by the determination which is the subject of the notice of dispute? There is no express provision in the Act which states that the Corporation is prevented from taking a position before the Tribunal inconsistent with, or different from, its determination. I do not think that the provisions of the Act are sufficiently clear as to suggest that a restriction of this nature should be implied. I recognise that the circumstances in which the Corporation may redetermine a claim are limited and that there is provision for the reconsideration of a claim. Those matters are suggestive of a restriction, but it is by no means clear what that restriction ought to be. However, I think the matters which I have just identified are outweighed by a number of considerations which point against any restriction other than one which enables the Tribunal to protect its own processes. First, the Tribunal in conducting a judicial determination of a disputed claim must rehear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings (s 94C(1)). I recognise that this subsection refers to “matter in dispute”, but there is a sense in which the Tribunal is making a determination and conducting a hearing in relation thereto de novo. Secondly, the determination of the Corporation is not enforceable if a notice of dispute is lodged and once that happens (absent a settlement) the dispute about the claim is resolved by a judicial determination. To this extent the Corporation’s determination is not final. Thirdly, the objects of the Act include a reference to the provision of fair compensation and that is more likely to occur if the Corporation is at liberty to raise meritorious defences. I place limited weight on this point because it might be said that a restriction supports the object of efficiency or the object of reducing adversarial contests. Fourthly, the matters referred to by the Chief Justice in Mitsubishi v Harbord and set out in paragraph [74] above provide some support for the conclusion I have reached. At the same time, I recognise that the issue in Mitsubishi v Harbord was not the same as the issue in this case. Fifthly, as I have already said the provisions of the Act which might suggest a restriction are by no means clear as to what that restriction ought to be.
For these reasons, I do not think a restriction of the type identified by the majority in Wear can be implied from the provisions of the Act. For the same reasons, I reject the contention put on behalf of Mrs Kairns that, by analogy, in a judicial determination of a dispute the Corporation is only permitted to depart from its determination if one of the circumstances in s 53(7a) is shown to exist.
It seems to me that the only restriction which arises by reason of the provisions of the Act is that the Tribunal has the power to prevent an abuse of its own processes. If the Corporation wishes to depart from its determination, then the Tribunal would normally require an explanation as to why it wishes to do so. However, I do not think the Corporation can be prevented from putting a contention to the Tribunal unless to allow it to do so would constitute an abuse of the Tribunal’s processes.
Estoppel
That leaves for consideration the question of an estoppel arising by reason of the principles of the common law and/or the principles of the law of equity. I think that as in the Mitsubishi v Harbord situation there is room, at least in theory, for an estoppel to arise. However, in practice it is most unlikely to arise in the situation in this case. As Mitsubishi v Harbord makes clear, for an estoppel to arise it must arise by reason of something more than the making of a determination or the making of a payment and that will not often be made out in a case like this where if an estoppel arises it must arise between the making of the determination and the judicial determination of the notice of dispute lodged in respect of that determination. The other matter to remember is that an estoppel may relate to a past and future state of affairs, or it may only relate to a past state of affairs. There does not seem to be any evidence of an estoppel here but, out of an abundance of caution, I will refer to it in the relevant answer.
Conclusions
I would answer the questions as follows:
13.1Subject to the Tribunal’s power to prevent an abuse of its own processes or to an estoppel arising by reason of the principles of the common law and/or of equity, yes.
13.2.1 No. See the answer to 13.1 above.
13.2.2 No. See the answer to 13.1 above.
13.2.3 Not necessary to answer.
13.3 Not necessary to answer.
In terms of the qualifications referred to in the answer to 13.1, I make the following observations. The onus is on the party asserting an estoppel to establish the same. In terms of an abuse of process, I do not think it is necessarily appropriate to analyse the issue in terms of onus. If the Corporation wishes to depart from its determination then the Tribunal would ordinarily wish to be satisfied that its processes are not being abused and the Corporation would ordinarily provide an explanation for wishing to depart from its previous determination. Other than that, I think the usual principle applies and the question of whether there is abuse of process is a matter to be established by the party asserting that to be the case.
(2) A case stated under this section must be heard by the Full Court of the Supreme Court.
(3) On a case stated under this section, the Full Court of the Supreme Court may—
(a) decide the question of law referred to the Court;
(b) refer the case back to the Tribunal with directions the Full Court considers appropriate;
(c) make consequential or related orders (including orders for costs).
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