GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
MAREK KULIGOWSKI APPELLANT
AND
METROBUS RESPONDENT
Kuligowski v Metrobus [2004] HCA 34
3 August 2004 P91/2003
ORDER
1.Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Supreme Court of Western Australia dated 24 June 2002 and in place thereof order that:
(a)the appellant's appeal to the Full Court be allowed with costs;
(b)the orders of the District Court of Western Australia dated 18 October 2000 (in WC 93 D 775 of 1997 and CIV 4575 of 1998) be set aside and the matter remitted to the District Court for hearing; and
(c)the respondent pay the appellant's costs of the said District Court proceedings both before Deputy Registrar Harman and Commissioner Ley.
On appeal from the Supreme Court of Western Australia
Representation:
B L Nugewela with G E Nairn for the appellant (instructed by D'Angelo & Partners)
G T W Tannin SC with B P King for the respondent (instructed by State Solicitor's Office (Western Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kuligowski v Metrobus
Issue estoppel - Whether decision of Review Officer under theWorkers' Compensation and Rehabilitation Act1981 (WA) ("the Act") Pt IIIA Div 3 is a final decision for the purposes of issue estoppel - Application by employer under s 60 of the Act disputing liability to pay compensation for injuries incurred at work - Review Officer found that the worker's injury had "resolved" - Leave to institute proceedings under s 93D of the Act for damages at common law refused on the grounds of issue estoppel.
Issue estoppel - Whether the issues arising in District Court proceedings were the same issues decided by the Review Officer - Review Officer's findings were ambiguous.
Words and phrases – "issue estoppel", "final decision".
GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ. On 23 March 1994, the appellant bus driver, Marek Kuligowski ("the worker"), suffered injuries in an accident at work. These injuries included a twisted left ankle. The worker failed in workers' compensation proceedings against his employer, Metrobus, in the Conciliation and Review Directorate of Western Australia. He then obtained two orders from a Deputy Registrar of the District Court of Western Australia. The first order granted leave to the worker to institute proceedings in the District Court for damages at common law in relation to the injury. The second order dismissed an application by Metrobus that the worker's claim be dismissed. Those orders were then set aside by a Commissioner of the District Court who accepted a contention advanced by Metrobus that an issue estoppel arose from a decision in the workers' compensation proceedings. The Full Court of the Supreme Court of Western Australia, by majority[1], dismissed an appeal from the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kuligowski v MetroBus [2004] HCA 34
Case
[2004] HCA 34
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning the application of issue estoppel in a workers' compensation matter. The appellant, Marek Kuligowski, a bus driver, suffered work-related injuries. Following initial workers' compensation proceedings where he was unsuccessful, Mr. Kuligowski obtained leave from the District Court of Western Australia to pursue a common law damages claim. However, this was later set aside by a Commissioner of the District Court, who found that a decision by a Review Officer in the workers' compensation proceedings gave rise to an issue estoppel, preventing the common law claim. The Full Court of the Supreme Court of Western Australia, by majority, dismissed Mr. Kuligowski's appeal, leading to the present appeal to the High Court.
The central legal issues before the High Court were whether the decision of a Review Officer under the *Workers' Compensation and Rehabilitation Act 1981* (WA) constituted a final decision for the purposes of issue estoppel, and whether the issues determined by the Review Officer were the same as those arising in the subsequent District Court proceedings for common law damages. The employer, Metrobus, contended that the Review Officer's finding that the worker's injury had "resolved" was a final determination of a key issue, thereby precluding the worker from relitigating it in his common law claim.
The High Court allowed the appeal, finding that the Review Officer's decision was not a final determination that could give rise to issue estoppel. The Court reasoned that while the Review Officer had jurisdiction to resolve disputes under the Act, the nature of the proceedings and the powers conferred by the legislation did not result in a decision that was "final and conclusive on the merits" in the sense required for issue estoppel. The Court noted that the legislation did not exclude the availability of issue estoppel, but the specific decision in question was not of a character that extinguished the cause of action. The Court also found ambiguity in the Review Officer's findings, which further undermined the application of issue estoppel.
Consequently, the High Court set aside the orders of the Full Court of the Supreme Court of Western Australia. The Court ordered that Mr. Kuligowski's appeal to the Full Court be allowed, that the orders of the District Court be set aside, and that the matter be remitted to the District Court for hearing. Metrobus was ordered to pay Mr. Kuligowski's costs of the District Court proceedings and the appeal.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Supreme Court of Western Australia dated 24 June 2002 and in place thereof order that:
(a) the appellant's appeal to the Full Court be allowed with costs;
(b) the orders of the District Court of Western Australia dated 18 October 2000 (in WC 93 D 775 of 1997 and CIV 4575 of 1998) be set aside and the matter remitted to the District Court for hearing; and
(c) the respondent pay the appellant's costs of the said District Court proceedings both before Deputy Registrar Harman and Commissioner Ley.
Background
Background to the litigation
GLEESON CJ, Mc On 23 March 1994, the appellant bus driver, Marek Kuligowski ("the worker"), suffered injuries in an accident at work. These injuries included a twisted left ankle. The worker failed in workers' compensation proceedings against his employer, Metrobus, in the Conciliation and Review Directorate of Western Australia. He then obtained two orders from a Deputy Registrar of the District Court of Western Australia. The first order granted leave to the worker to institute proceedings in the District Court for damages at common law in relation to the injury. The second order dismissed an application by Metrobus that the worker's claim be dismissed. Those orders were then set aside by a Commissioner of the District Court who accepted a contention advanced by Metrobus that an issue estoppel arose from a decision in the workers' compensation proceedings. The Full Court of the Supreme Court of Western Australia, by majority[1], dismissed an appeal from the Commissioner's orders, and the present appeal is brought, by special leave, against the Full Court's orders. [1]Kuligowski v Metrobus (2002) 26 WAR 137 (Malcolm CJ, Steytler and Templeman JJ; Wallwork and McLure JJ dissenting). The background After the accident of 23 March 1994, the worker missed a few days of work. On or about 22 December 1994, according to the worker, he suffered another accident at work, exacerbating the symptoms in his left ankle. The worker also claimed that in April 1995, while not at work, his left ankle gave way and he twisted his left knee, again causing an exacerbation of the symptoms in his left ankle and also causing symptoms in his left knee. Section 18 of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") provided:"If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1."Two paragraphs of the definition of "disability" in s 5(1) are relevant:"(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;…(d)the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree …".Section 5(1) also provided that:"'disease' includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development". Section 21 of the Act provided:"An employer is liable to pay compensation under this Act from the date of incapacity resulting from the disability but clause 9 applies in any case."Clause 9 of Sched 1 is immaterial, but sub-cll 7(1) and (2) made provision for weekly payments of compensation during total incapacity for work and partial incapacity for work respectively. On 20 June 1995, Metrobus began paying workers' compensation to the worker. However, Metrobus later lodged a standard form entitled "Application Referring Dispute for Conciliation" ("the Application") in the Conciliation and Review Directorate. It was dated 19 June 1996 and filed on 21 June 1996. The Application stated, under the heading "Details of Dispute":"The employer disputes that the worker is entitled to compensation payments and seeks an order suspending payments under s 60 until such time as the worker proves he sustained an injury on 23.3.94." In substance Metrobus thus sought two things: a finding that the worker was not entitled to compensation payments, and an interim order suspending payments until the worker proved that he was entitled. Section 60 of the Act appeared in Div 5 (ss 56-72) of Pt III. The Division was headed "Commencement, Review, Suspension, and Cessation of Payments" and the heading to s 60 read "Application for discontinuance or reduction of weekly payments". Section 60 provided:"(1) Where weekly payments are made to a worker pursuant to this Division, the employer may apply to the Directorate at any time for an order that such payments be discontinued or reduced.(2) If the employer satisfies the Directorate that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the Directorate may order that the payments be suspended for such time as the Directorate directs or be discontinued or be reduced to such amount as it thinks proper or it may dismiss the application."The reference to the "Directorate" was to the Conciliation and Review Directorate, a body established by s 104A and comprising the Director, conciliation officers, review officers and other staff. The s 60 application by Metrobus sought an order for suspension of payments under sub-s (2).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
(dissent)
There was no dispute about the satisfaction of requirement (3). The second review officer was not sitting as a "court" in any strict or conventional sense, but it was common ground that[5]:"The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc." The controversy centred on requirements (1) and (2). It is convenient to start by considering requirement (2), that there must be a final decision. [5]The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 per Gibbs J.Was the second review officer's decision a final decision? A principal question in the worker's appeal to the Full Court against Commissioner Ley's orders was whether the Court should overrule a line of its earlier decisions[6] on the ground that the second review officer's decision was not a final determination, or, to put the matter in other terms employed by the parties, on the ground that the provisions of the Act excluded the availability of issue estoppel. Malcolm CJ, Steytler J (with some doubt) and Templeman J considered that the second review officer's decision was final, that the Act did [6]McNair v Press Offshore Ltd (1997) 17 WAR 191; Waddington v Silver Chain Nursing Association (1998) 20 WAR 269. See also Re Monger; Ex parte Wilderness Equipment Pty Ltd [2003] WASCA 202 at [46] and [50] per Wheeler J.[7]Kuligowski v Metrobus (2002) 26 WAR 137 at 155 [76] per Malcolm CJ, 179 [208] per Steytler J, 181 [226]-[229] per Templeman J. [8]Kuligowski v Metrobus (2002) 26 WAR 137 at 170 [166] per Wallwork J, 195-196 [322] per McLure J. not exclude the availability of issue estoppel, and that the earlier decisions should not be overruled[7]. Wallwork and McLure JJ dissented[8]. The controversy in the Full Court, respecting the provisions supporting the review hearing on 21 and 22 August 1996 and 4 September 1996 and the orders made by the second review officer, should have been resolved in the fashion indicated earlier in these reasons. Wallwork and McLure JJ (and, in this respect, Templeman J) correctly reasoned that once the attempt to conciliate the dispute had failed, it was a "dispute" which s 84B gave a review officer exclusive jurisdiction to resolve by embarking on the procedures set out in Pt IIIA Div 3[9]. Section 84ZA gave the review officer power to commence and conduct the review, and s 84ZF(1) gave power to make any order which was appropriate to give effect to a decision made in the review[10]. [9]Section 84A defined "review" as meaning "procedures taken by a review officer under Division 3 for the resolution of a dispute."[10]Kuligowski v Metrobus (2002) 26 WAR 137 at 168 [139] per Wallwork J, 180 [219]-[223] per Templeman J, 189-190 [285]-[286] per McLure J. A particular difficulty in assessing finality arises if the order made pursuant to the judgment in question can later be altered. In Somodaj v Australian Iron and Steel Ltd[11] Kitto, Taylor and Menzies JJ said:"The other additional argument which is now raised is concerned with the provisions of s 36(2) of the Workers' Compensation Act. By sub-s (1) of this section it is provided that the Commission shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under the Act and the action or decision of the Commission shall be final. But sub-s (2) provides that nothing in sub-s (1) shall prevent the Commission from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision or order previously made, all of which the Commission shall have authority to do. With this sub-section in mind it is said that an award of the Commission can never give rise to an estoppel because it does not finally adjudicate upon the rights of the parties before it."Their Honours went on to reject the submission, making particular reference to the judgment of Isaacs J in Ainslie v Ainslie[12]:"As Isaacs J said in the latter case in relation to provisions such as those contained in sub-s (2): 'The true rule is to see whether or not the Legislature has by its enactment left the order entirely floating, so to speak, as a determination enforceable only as expressly provided and in the course of that enforcement subject to revision, or whether the order has been given the effect of finality unless subsequently altered'[13]. We are of the opinion that the legislation in question here plainly falls within the latter category and the award was an adjudication upon the rights of the parties, not of an interlocutory character, but completely effective unless and until it should be rescinded, altered or amended by the Commission. Some confirmation of this view may be found in the provisions of s 37 of the Act which provides that no award, order, or proceeding of the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatever."A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final[14]. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel"[15].[11](1963) 109 CLR 285 at 297-298.[12](1927) 39 CLR 381.[13](1927) 39 CLR 381 at 390. Isaacs J added: "This can only be ascertained by construing the Act as a whole."[14]The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 454 per Gibbs J.[15]Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest.