Kuligowski v Metrobus - [2002] WASCA 170

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KULIGOWSKI -v- METROBUS [2002] WASCA 170

CORAM: MALCOLM CJ
WALLWORK J
STEYTLER J
TEMPLEMAN J
McLURE J

HEARD: 1 FEBRUARY 2002

DELIVERED : 24 JUNE 2002

FILE NO/S: FUL 174 of 2000

BETWEEN: MAREK KULIGOWSKI
Appellant (Plaintiff)
AND
METROBUS
Respondent (Defendant)

Catchwords:

Estoppel - Decision by review officer on application under Workers' Compensation and Rehabilitation Act 1981 (WA) - Finding that appellant sustained injury of minor severity in the course of his employment and injury "resolved' by 29 March 1994 - Subsequent disability did not result from injury suffered in the course of employment - Finding legally indispensable to conclusion - Decision of review officer not a final decision - Appellant was estopped from seeking leave to commence common law action for damages

Legislation:

Limitation Act 1935 (WA), s 47A

Workers' Compensation and Assistance Amendment Act 1990 (WA)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 5, s 57A, s 57B, s 58, s 60, s 62, s 84A, s 84B, s 84I, s 84ZA, s 84ZD, s 84ZE, s 84ZF, s 84ZN, s 84ZW, s 86, s 93D, s 116, s 117, s 136, s 145E, s 145F
Workers' Compensation and Rehabilitation Act No 34 of 1999 (WA)
Workers' Compensation and Rehabilitation Amendment Act (No 2) 1992 (WA)

Workers' Compensation and Rehabilitation Amendment Act 1993 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr G T W Tannin & Ms E C Ganderton

Solicitors:

Appellant (Plaintiff) : D'Angelo & Partners
Respondent (Defendant) : State Crown Solicitor

Case(s) referred to in judgment(s):

Accident Compensation Commission v Detar [1989] VR 931
Ainslie v Ainslie (1927) 39 CLR 381
Archer v Howell (1992) 7 WAR 33
Austin v Mills (1853) 9 Exch 288; 156 ER 123
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Blair v Curran (1939) 62 CLR 464
Brewer v Brewer (1953) 88 CLR 1
Canale v Commissioner of Main Roads (1982) 1 WCR 1
Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1994) 43 FCR 280
Commercial Industries v Stegic, unreported; FCt SCt of WA; Library No 9052; 13 September 1991
Coroneo v Kurri Kurri & South Maitland Amusement Co Ltd (1934) 51 CLR 328
Craig v Troy (1997) 16 WAR 96
D A Christie Pty Ltd v Baker [1996] 2 VR 582
David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6
Egri v DRG Australia (1998) 19 NSWLR 600
Essex County Council v Essex Incorporated Congregational Church Union (1963) AC 808
Green v Green (1935) 37 WALR 76
Hall v Nominal Defendant (1966) 117 CLR 423
Jackson v Goldsmith (1950) 81 CLR 446
Jones & Hudson v Secretary of State for Social Services (1972) AC 944
Jones v Department of Employment [1989] 1 QB 1
Kavanagh v The Commonwealth (1960) 103 CLR 547
Lambidis v Commission of Police (1995) 37 NSWLR 320
Makhoul v Barnes (1995) 60 FCR 572
Makowski v TVW Enterprises Ltd, unreported; SCt of WA; Library No 940710; 16 December 1994
Mayne Nickless Ltd (T/as Wards Express) v Mayne, unreported; FCt SCt of WA; Library No 960736; 19 December 1996
McNair v Press Offshore Ltd (1997) 17 WAR 191
Nguyen v Nguyen (1990) 169 CLR 245
R v Berkley and Brogge (1754) 1 Keny 80
R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574
R v National Insurance Commission; Ex parte Hudson [1972] AC 944
Radcliffe v Pacific Steam Navigation Co (1910) 1 KB 685
Re Monger; Ex parte Industrial Progress Corporation Pty Ltd trading as Roofmart WA [2001] WASCA 281
Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285
Summit Homes v Lucev, unreported; FCt SCt of WA; Library No 960182; 3 April 1996
Taylor v Star Broken Meats, unreported; FCt of WA; Library No 920434; 26 August 1992
Tebrani v Bastion [1972] 1 QB 82
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Tiver Constructions Pty Ltd v Clair (1992) 106 FLR 121
Traegar v Pires de Albuquerque (1997) 18 WAR 432
Transport Trading and Agency Co of WA Ltd v Smith (1906) 8 WALR 33
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Weeks v Harbourworks Clough [1985] WAR 327
Wesfarmers Federation Insurance Limited v State Government Insurance Commission and Bass, unreported; FCt SCt of WA; Library No 960286; 24 May 1996

Case(s) also cited:

Nil

MALCOLM CJ: This is an appeal against the judgment of Mr Commissioner Lee in the District Court dated 18 October 2000 whereby the learned Commissioner:
(a)allowed an appeal by the respondent from a decision of a Registrar in proceeding WC93D775 of 1997 in the District Court and dismissed the appellant's application for leave under s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") and ordered that the appellant pay the respondent's costs to be taxed; and
(b)allowed an appeal by the respondent from a decision of a Deputy Registrar in action CIV 4575 of 1998 and dismissed the appellant's claim and ordered the appellant to pay the costs of the application.
The appellant seeks orders that the orders made by the learned Commissioner be set aside and in lieu thereof there be orders that the respondent's appeal against the judgment of the Deputy Registrar in WC93D775 of 1997 be dismissed; the respondent's appeal against the judgment of the Deputy Registrar in CIV 4575 of 1998 be dismissed; and the respondent pay the appellant's costs of this appeal and of the appeal before the learned Commissioner.
There were originally four grounds of appeal, but grounds 3 and 4 were abandoned. Grounds 1 and 2 are as follows:
"1.The learned Commissioner was wrong in law and in fact in holding that the doctrine of issue estoppel applied to the Appellant's (Plaintiff's) application in WC93D775 of 1997 in that the issues determined by the Review Officer for the purpose of the proceedings before him were different from those falling for determination by the District Court in that application in that:
(a)the Review Officer determined that:
(i)the Appellant (Plaintiff) had been injured in the course of his employment with the Respondent (Defendant) and specifically had injured his left ankle;
(ii)that the injuries had resolved;
(iii)that the present injuries suffered by the Appellant (Plaintiff) did not arise out of the course of his employment with the Respondent (Defendant);
(iv)that there were no grounds for finding that a recurrence or aggravation of the injury occurred within the meaning of the Act;
(b)the Appellant's (Plaintiff's) claim for damages relied upon him having initially injured his left ankle in the course of his employment and that subsequently due to its susceptibility to further injury it had again been injured outside of working hours when he trod on a gumnut;
(c)such a claim is not estopped by the Review Officer's findings in that:
(i)the question of whether or not the Appellant's (Plaintiff's) injury remained susceptible to injury after the initial accident was not a matter that was either determined or necessary to be determined by the Review Officer for the purpose of the application before him;
(ii)the Appellant (Plaintiff) did not allege for the purposes of his District Court proceedings that the further injury occurred in the course of his employment;
(iii)the Appellant (Plaintiff) did not allege in the course of his District Court proceedings that it was a recurrence or aggravation of the initial injury within the meaning of the Act.
2.The learned Commissioner was wrong in law and in fact in holding that the determinations of the Review Officer were legally indispensable to the issue falling for determination by him in that the application before the Review Officer was obscure and it cannot be said that any findings by the Review Officer were legally indispensable to whatever was determined by him such as to attract the operation of the doctrine of issue estoppel in any event."
In the course of his submissions, counsel for the appellant also indicated that he relied upon ground 4(c) which simply says that:
"The Appellant (Plaintiff) otherwise relies on grounds 1, 2 and 3 hereof."
In the circumstances, given the amendment, it is plain that the appellant relies only on grounds 1 and 2.
The question raised by the appeal is whether, in proceedings for damages for negligence against his former employer (the respondent), the appellant is estopped from asserting that a later injury he suffered, after his employment had ceased, was caused by or contributed to by the previous injury suffered in the course of his employment. The basis for the estoppel found by the learned Commissioner was that, in the course of proceedings on the appellant's workers' compensation claim, a review officer had determined that the original injury had resolved and there were no grounds for finding that a recurrence or aggravation of his injury had occurred within the meaning of the Act, so that the subsequent injury did not "arise out of" the appellant's employment within the meaning of that expression in the definition of "disability" in s 5 of the Act.
It was accepted by counsel for the appellant that in order to succeed on ground 1 it would be necessary to persuade the Court that it should overrule the decision of the Full Court in McNair v Press Offshore Ltd (1997) 17 WAR 191. Although the challenge to the decision in McNair was not specifically referred to in the grounds of appeal, it was raised in the written submissions filed on behalf of the appellant. No point about the grounds was taken by the respondent. In these circumstances, a bench of five Judges was constituted to hear the appeal. In McNair a claim for compensation had been made by Mr McNair against his employer, who joined Press Offshore Ltd as a third party in the proceedings and alleged that the third party was responsible for the management of the site where Mr McNair had fallen and injured his back while at work. The Review Officer dismissed the application finding that the appellant had not been involved in an accident at work. In the meantime, Mr McNair had commenced an action for damages for negligence against both his employer and Press Offshore Ltd. After the Review Officer's determination, Press Offshore successfully applied to amend its defence to raise issue estoppel and to strike out the allegation of accident in the statement of claim. Mr McNair appealed against the orders so made on the ground that no issue estoppel was raised by the Review Officer's determination.
Section 86 of the Act at all material times provided that:
"Except as expressly provided by this Act, nothing in this Act affects any liability that exists independently of this Act."
The appeal was dismissed by a unanimous decision of the Full Court comprised by Kennedy, Pidgeon and Owen JJ. It was held that a judicial determination directly involving an issue of fact or law disposes of the issue once and for all. Issue estoppel prevents the same issue being raised again between the same parties. The estoppel covers only those matters legally essential for the judicial determination.
In factual matters, the estoppel is confined to those ultimate facts which are necessary for title to the right to be established, and does not extend to evidentiary facts: Blair v Curran (1939) 62 CLR 464. A tribunal makes a judicial determination for the purpose of issue estoppel if it has jurisdiction to finally decide a question between parties. The tribunal may derive authority to make such a determination from statute, and does not need to be a conventional court. The test is not simply whether a tribunal is administrative or judicial: The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 per Gibbs J.
Their Honours held that a review officer must act judicially, notwithstanding that by s 84ZA(2) the officer was not bound by the rules of evidence and was required to act fairly, economically, informally and quickly in resolving disputes. In Summit Homes v Lucev, unreported; FCt SCt of WA; Library No 960182; 3 April 1996 it was held that review officers under the Workers' Compensation and Rehabilitation Act exercise judicial functions and are bound to act judicially in the discharge of their duties. By s 84ZA of the Act, their function is to "resolve" the dispute between the parties. As Kennedy J said in McNair at 194:
"Furthermore, by s 84ZA of the Act, the function of the review officer is to 'resolve' the dispute between the parties. By s 84ZN, the decision of the review officer is not open to question or review in any court, subject only to an appeal to a Compensation Magistrate when a question of law is involved. In the circumstances, the review officer had the power 'to decide finally' the question which arose between the parties."
Owen J, having recited at 196 – 197 the test in Guba at 453 whether the tribunal had jurisdiction to decide finally a question arising between the parties, even if the tribunal were not a "court" in the conventional sense and derived its authority from statute, said at 197:
"Read strictly, the ground of appeal in this case relies only on the fact that a review officer, unlike the former Workers' Compensation Board (the Board) and the Compensation Magistrates Court, is not a 'court'. If that were so, the appeal could be disposed of quickly by applying Guba. However, in oral argument counsel for the appellant relied on the differences in the role and function of the review officer as compared with those of the Board, of which the identity of the office or tribunal as a 'court' was simply an example. I will deal with the appeal on that basis.
It has long been held that an estoppel can arise in proceedings in a common law court from a finding of fact made in workers' compensation proceedings. Where a party has failed to prove a fact in workers' compensation proceedings that party may be estopped in a common law action from asserting the existence of that fact: see Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285; Green v Green (1935) 37 WALR 76 (although without using the phrase 'issue estoppel'); David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6; Egri v DRG Australia Ltd (1988) 19 NSWLR 600; Tiver Constructions Pty Ltd v Clair (1992) 106 FLR 121; Makowski v TVW Enterprises Ltd (unreported, Supreme Court, WA, Owen J, Library No 940710, 16 December 1994). The doctrine can apply even to an order that is merely a recommendation that could be displaced on review by a tribunal if application were to be made within a nominated time limit: see Accident Compensation Commission v Detar [1989] VR 931."
His Honour also noted in Makowski v TVW Enterprises Ltd, unreported; SCt of WA; Library No 940710; 16 December 1994 at 197 that the doctrine of issue estoppel applied to decisions of the Board under the legislation as it stood prior to the 1993 amendments. His Honour went on to say at 197 – 198:
"The question that now arises is whether the role and function of a review officer is so different to that of the Board as to require the court to reach an alternative conclusion. This is essentially a question of statutory construction. The role and function of a review officer was commented on at length by this Court, similarly constituted, in Mayne Nickless Ltd (t/a Wards Express) v Mayne (unreported, Supreme Court, WA, Full Court, Library No 960736, 19 December 1996), per Kennedy J (at p 8); per Pidgeon J (at pp 19‑21); per Owen J (at pp 2‑3). There would be little point in repeating what was said on that occasion. Unlike the Board, a review officer is not deemed by the statute to be a 'court' but as I have already said this does not preclude a finding that the body concerned can finally determine an issue so as to attract the doctrine of issue estoppel. Like the former Board, a review officer is not bound to apply the rules of evidence: see s 84ZD. One other difference in the statutory language governing the activities of the respective bodies is to be found in the current s 84ZA. This provision requires a review officer to act 'fairly, economically, informally and quickly' in resolving disputes. In Summit Homes v Lucev (unreported, Supreme Court, WA, Full Court, Library No 960182, 3 April 1996) this Court held that in making a determination in the manner referred to in s 84ZA the review officer must act judicially. Mayne is to similar effect.
It follows that a determination of a review officer is a judicial decision in the relevant sense. The next question is whether it is a 'final' determination, again using that term in the sense in which it is understood for these purposes. It seems to me that the legislative intent was to clothe the review officer's determination with the air of finality. One of the purposes of the Act is to make provision for the hearing and determination by the dispute resolution bodies (which term includes a review officer) of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: see s 3(d). It would be inimical to that aim if the parties to the dispute were at liberty to pursue claims in multiple jurisdictions depending on the outcome from time to time. Under s 84ZN a decision or order of a review officer is not open to question or review in any court and proceedings before a review officer may not be restrained by injunction nor may they be challenged by prerogative writ. There is an avenue of appeal, namely to a Compensation Magistrate, but this is limited to error of law. It seems to me that this also lends weight to the view that the decisions of review officers were intended to be final."
In the present case counsel also relied on s 84ZA(2) and (3), as well as s 84ZD(1), s 84ZE and s 84ZN. In McNair, Owen J referred to all of these provisions at 197 – 199, other than s 84ZE and s 84ZF(3). In my opinion, s 84ZE does not provide a basis for concluding that McNair was wrongly decided. Section 84ZF(3) was added by an amendment to the Act by the Workers' Compensation Amendment Act 1999, after the decision in McNair. In my view, s 84ZE does not add anything to the argument that the decision in McNair should be overruled or varied.
The appellant's primary contention, however, was that the appellant was not estopped from pursuing his claim because the issue whether the appellant's ankle remained susceptible to further injury after the initial accident when he was employed was not an issue determined by the Review Officer. The respondent's answer to that was that the chain of causation was broken because the initial work‑related injury had resolved. The appellant sought to overcome that answer by asserting that if the chain of causation for statutory entitlements had been broken, the chain of causation in respect of his common law claim had not.

Background

There were two appeals in separate proceedings before the learned Commissioner, both being against decisions of a Deputy Registrar made in the two related proceedings. In each proceeding the appellant was the plaintiff and the respondent was the defendant. The first proceeding was WC93D775 of 1997 which was an application by the appellant pursuant to the former s 93D of the Act and s 47A of the Limitation Act 1935 (WA) for leave to commence proceedings against the respondent ("the application for leave"). The second proceeding was in District Court action 4575 of 1998 in which the appellant claimed damages for negligence against the respondent.
Both proceedings arose out of an accident alleged to have occurred on 23 March 1994. The appellant made an affidavit sworn on 14 August 1997 in support of his application. At that time the appellant was employed by the respondent as a bus driver. He was born on 28 July 1955 so that he was aged 38 at the time of the accident. In both proceedings the appellant says that at approximately 7.20 am on 23 March 1994, at the respondent's Kalamunda bus depot, he was walking across a bitumen parking area for the purpose of boarding the bus which he had been assigned to drive that day. He approached the front door of the bus and placed his left foot on the first step with his right foot still on the ground. He said his right foot then suddenly slipped from beneath him, causing his left leg to twist to the left, making him lose his balance and fall to the ground.

The appellant alleged that, as a result of the accident, he twisted his left ankle and sustained soft tissue injuries to his right groin and right shin. As a result of those injuries and a number of recurrences and aggravations of them over a period of years, together with some consequences of the treatment he had undergone, he claimed he had suffered loss and damage. In particular, he claimed that he had been incapable of working for the respondent or at all since the date of the accident and had thereby suffered a significant loss of earning capacity.
Although the accident was said to have occurred on 23 March 1994, the appellant missed very little work initially. The doctor, who signed the medical certificate supporting the commencement of weekly payments of compensation, certified him unfit for work for only three days. The appellant returned to work on 28 March 1994. He continued to work for the respondent for some time after that, although he continued to experience symptoms to his left ankle.
He ceased working for the respondent on 22 December 1994. In pars 5 to 8 of his statement of claim, the appellant alleged that:
"5.On 22 December 1994 and as a consequence of ongoing symptoms in his left ankle, the [appellant] attended on Dr Cynthia Dixon, General Practitioner, who diagnosed a recurrent strain ligament of the left lateral ankle joint due to the accident on 23 March 1994.
6.On or about April 1995 and as a consequence of ongoing instability in his left ankle, the [appellant's] ankle gave way causing him to twist and injure his left knee.
7.On 6 November 1995 and as a consequence of ongoing symptoms in his left ankle, the [appellant] underwent surgery under the care of Mr John Collibee, Orthopaedic Surgeon, for the repair of the peroneal tendons in his left ankle. During surgery the [appellant] aspirated some of the gastric contents of his stomach into his lungs causing post operative lung complications.
8.As a consequence of the lung complications the [appellant] has developed shortness of breath, hyperventilation, episodes of blackouts and anxiety and depression."
In par 10 of his statement of claim the appellant alleged that "as a consequence of the accident caused injuries and related medical treatment", the appellant suffered a range of "permanent disabilities", including "left ankle pain and instability".
His evidence was that on 22 December 1994, when stepping out of a bus after cleaning it, he suffered an exacerbation of the symptoms of pain in his left ankle. In addition, he says that, in or about April 1995, he was walking near Kalamunda Shopping Centre when his left ankle gave way and he twisted his left knee. He said he thought he may have slipped on a gumnut or a stone. This was also the cause of an exacerbation of the symptoms in his left ankle as well as causing symptoms in his left knee.
The appellant was certified totally unfit for work on 20 June 1995 and had not worked since then. For the financial year ended 30 June 1994 he received an average gross wage of $728.77 per week. He said that, had he not been injured, he would have worked until he was aged 65.

Respondent's application under s 60 of the Act

On 20 June 1995 the respondent began paying the appellant workers' compensation. On 11 June 1996, however, the respondent lodged an application in the Workers' Compensation and Rehabilitation Commission seeking an order under s 60 of the Act suspending the appellant's weekly payments of compensation. The application came on for hearing by Review Officer Brash on 19 July 1996.
Section 60 of the Act relevantly provides that:
"(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 Review Officer found that there was a genuine dispute as to the respondent's liability to pay compensation. He did not, however, make any order for suspension, discontinuance or reduction of the appellant's weekly payments. Instead, he said that a "final determination" could be made following "a review hearing to be conducted on 21 August 1996 when full and detailed evidence will be obtained".
According to the evidence of Mr V M Stevens, an officer of the respondent, in an affidavit sworn on 31 March 1999, when the application to suspend was part‑heard on 19 July 1996, Review Officer Brash determined that the respondent had a proper basis to genuinely dispute its liability to pay compensation to the appellant. Mr Stevens says that the application was then treated as an application by the appellant for the commencement of compensation under the Act and referred for review on 21 August 1996.
The actual finding made by the review officer was in the following terms:
"1.Given the conflict in the evidence provided during the course of the review I am satisfied the [respondent] has, pursuant to the provisions of section 60, established it has a proper basis to genuinely dispute its liability to pay compensation to the [appellant].
2.However, whilst I find a genuine dispute exists the substantive issues in dispute between the parties are to be the subject of a review hearing to be conducted on 21 August 1996 where full and detailed evidence will be obtained so as to allow a final determination to be made. In those circumstances I do not believe it is appropriate that the weekly payments currently being made to the [appellant] worker should be suspended or reduced given the relatively short period of time until the review of 21 August 1996.
3.Support for the proposition a review officer has discretion under the provisions of section 60(2) of the Act not to suspend or reduce weekly payments following a finding there exists a genuine dispute is established in the matter of 'Britt Bricklaying v Thomas David Linane' (Workers' Compensation Magistrate's Court Appeal No 13 of 1996 – delivered 23/4/1996).
AND ORDER –
1.That the [respondent] continue to make weekly payments of compensation to the [appellant] worker until further order."
The first submission made on behalf of the appellant was that a determination under s 60 of the Act does not constitute a final decision because there can be a change of circumstances. So much may be accepted, but, as was submitted on behalf of the respondent, the parties then agreed to have the matter dealt with under s 58 of the Act.
The Review Officer noted that, prior to 19 July 1996, the parties had agreed to have "the substantive issue" determined at review on 21 August 1996. The learned Commissioner understood that "the substantive issue" was the question whether the respondent was liable to pay workers' compensation to the appellant at all.
In my opinion, this was a reference back to s 58(1) of the Act which, in certain circumstances, confers jurisdiction on the Directorate, on the application of the worker to hear and determine the question of the employer's liability to make the weekly payments claimed. Section 57A(1) provides that the section applies where a claim for compensation has been made on an employer in accordance with s 84I(1)(b) and the worker suffering a disability has served on the employer a medical certificate to the effect of s 57A(1)(b)(i) or (ii) and the employer is indemnified by a policy of insurance against his liability to pay the compensation claimed. This is such a case. Liability to pay compensation was denied.
Section 58(1) relevantly provides that, where in the circumstances mentioned in s 57A(1)(b) notification has been given by the insurer that liability is disputed, the Directorate may, on the application of the worker, determine the question of liability to make the weekly payments claimed. Section 58(3) also provides that an employer may, in the circumstances mentioned in s 57A(1), make application for the Directorate to hear and determine the question of liability to make the weekly payments claimed, and the Directorate may hear and determine the matter.
Section 58(5)(b) provides that, on a hearing under s 58(1) or (3), the Directorate shall satisfy itself as to all the evidence and, if it considers the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as it sees fit. The appellant's contention was that the express statutory provision formerly contained in s 58(5)(c) for the former Board to order that the worker proceed by way of a substantive application had been deleted, so that there was now no power or jurisdiction to order an application under s 60 to proceed by way of substantive application under s 58. The answer to that is that the procedure adopted was by agreement or consent of the parties to deal with the matter as if the worker had made an application under s 58. In that context it was not material that weekly payments had already commenced.
In reply, counsel for the appellant placed some reliance on s 84 of the Act which provides that the resumption or attempted resumption of work by a worker, who is unable, on account of his disability to work or continue to work, shall not deprive him of any entitlement to compensation which he otherwise had. In my opinion, this issue simply did not arise. The finding by the Review Officer was that the initial ankle injury had resolved by 28 March 1994. It follows that it was not subsequently involved in contributing to or exacerbating any subsequent injury.
It was in this context that the parties had agreed that the Directorate should determine the question of liability at a review on 21 August 1996. In my opinion, this agreement conferred jurisdiction on the Directorate to hear and determine the question of liability under s 58(1) of the Act. Section 58(5) provides that, on a hearing under s 58(1), the Directorate shall satisfy itself as to all the evidence before it and, (a) if it considers the evidence "satisfactory to establish liability to make weekly payments", may make an order for weekly payments by the employer to the worker; or (b), if it considers that the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as it sees fit.
Further, after setting out the terms of the notice of listing, Review Officer Cocker, who conducted the review, said in his reasons for decision:
"At the commencement of the review it was established that the matter would proceed on the basis that there has been a finding of genuine dispute and a dispensation given so that a fresh application was not required, but in any event [the appellant] having the onus of proof then becomes the applicant, and will from this point be referred to as the applicant in this matter. The employer will therefore be referred to as the respondent."
It is apparent, therefore, that the Review Officer and the parties were agreed on the procedure to be adopted.
In reply, counsel for the appellant contended that in the context of a s 60 application, the employer may apply for an order that the weekly payments being made to a worker may be discontinued or reduced, or it may dismiss the application. It was submitted that there was a discretion "whether to suspend or not to suspend weekly payments of compensation if he is satisfied that a genuine dispute exists". Counsel went on to contend that the subsequent exercise of discretion did not "convert" what is properly a s 60 application into a s 58 application. In addition, s 62 makes provision for the review of weekly payments at the request of either the employer or the worker. On such review the payments may be discontinued, reduced or increased as from such date as the Directorate, having regard to the past or present condition of the worker, sees fit. In my opinion, it is obvious that one ground on which payments could be discontinued is that the worker has made a full recovery from the relevant disability and is capable of resuming work.
In this context, again, there is clearly nothing to prevent the parties by consent agreeing to treat proceedings before a review officer at a review on the basis that it was agreed that it was not necessary for there to be a formal application under s 58 to be filed first. In my view, that is clearly what happened in the present case as a result of agreement between the parties.
Provision for a review is contained in Pt IIIA Div 3 of the Act. Matters are allocated to a review officer by the Director who is to deal with a particular matter or class of matters referred for review: s 84Z. The review is to commence within 14 days after the referral, or as soon as practicable thereafter: s 84ZA(1). The review officer is to act fairly, economically, informally and quickly "in resolving the dispute whether by bringing the parties to agreement or otherwise": s 84ZA(2). In my opinion, this confers ample jurisdiction or power on the review officer to determine the question of liability, where the question is whether the disability was suffered in the course of or arose out of the employment of the appellant, as in this case. Given that there was a genuine dispute about those matters, the Review Officer in this case was given jurisdiction to resolve it. In doing so, he was "to act according to the substantial merits of the case without regard to legal forms or precedent": s 84ZA(3). Subject to the regulations under the Act, the review officer, "may give directions as to the conduct of the proceedings". This clearly empowered the review officer in question to direct that the liability of the respondent to pay compensation be determined at the review with the consent of the worker. In the present case there was such consent. It is not necessary to decide whether such a direction could be given without the consent of the worker.
By s 84ZB(1) the review officer is given powers to summon witnesses, order the production of documents, inspect documents, retain documents for a reasonable period, make copies of the contents, take evidence on oath or affirmation, and require persons attending before the review to answer questions. Section 84ZB(3) provides that in the course of the review the review officer may:
"(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the review officer thinks fit, any finding, decision, or judgment of a court or other person or body that is relevant to the review."
Section 84ZC makes provision for a series of offences analogous to contempt of court and, in addition, includes in s 84ZC(e) an offence of making, in connection with a review, "a statement that the person knows to be false or misleading in a material particular". The penalty for the commission of any one of the enumerated offences is a fine of up to $2,000.
The rules of evidence are not applicable at a review: s 84ZD(1). The review officer may refer any technical or specialised matter to an expert and may accept that expert's report as evidence: s 84ZD(2). In the latter case the review officer is required to call the expert for examination on the subject matter of the report, if a party to the proceeding so requests.
Section 84ZE provides that a party is entitled to be represented by a legal practitioner at any proceedings before a review officer if:
"(a)all parties to the dispute agree to legal practitioners appearing and being heard at the proceedings; or
(b)the review officer is of the opinion that a question of law is raised or is likely to be raised or argued at the proceedings and allows legal practitioners to appear and be heard at the proceedings."
A review officer is empowered to make a number of orders, including under s 84ZF(1), "such order as may be appropriate for giving effect to the review officer's decision" and, under s 84ZF(2), an order confirming, varying or revoking an order by a conciliation officer. Significantly, s 84ZG specifically contemplates that a review officer may determine that a person ordered by a conciliation officer to make weekly payments is "not liable to make payments at all or is liable to make payments at a lesser rate". This clearly contemplates the making of an order which would dismiss a claim for compensation and, in particular, the order made by Review Officer Cocker in the present case.
Section 84ZH of the Act provides that:
"(1)If permitted by section 145A to do so, a review officer may refer a question as to –
(a)the nature or extent of a disability;
(b)whether a disability is permanent or temporary; or
(c)a worker's capacity for work,
for determination by a medical assessment panel.
(2)Without limiting subsection (1), that subsection applies to question as to the loss of, or the permanent loss of the efficient use of, any of the parts or faculties of the body referred to in column 1 of Schedule 2, or to the degree of that loss, and as to the degree of disability assessed in accordance with section 93D(2)."
Section 84ZI provides that where the review officer makes an order in the proceedings and a party requests the review officer to do so, the review officer is required to give to that party:
"(a)the officer's findings of fact;
(b)the reasons for the officer's decision; and
(c)information as to appeal rights that may be available to the parties under the Act."
Section 84ZM provides that where a question of law arises in the proceedings, or the review officer believes that it is appropriate to do so because of the complexity of issues, the officer may elect not to make an order, and, in accordance with the regulations, refer the matter to the Compensation Magistrate's Court for determination.
Section 84ZN provides that:
"(1)Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court.
(2)A party to the proceedings who is dissatisfied with a decision or order of the review officer may, where a question of law is involved, appeal to a compensation magistrate’s court against the decision or order.
(3)An appeal under subsection (2) is to be made in accordance with the regulations within one month after the making of the decision or order concerned, but the court may, if satisfied that it is just and reasonable in the circumstances to do so, extend the period within which the appeal may be made.
(4)Without limiting any other powers of the court on dealing with the appeal, the court may, before determining the appeal, make an order that, until the appeal is determined —
(a)suspends the effect of the decision or order, with or without substituting any decision or order that the review officer could have made in the first instance; or
(b)varies the effect of the decision or order.
(5)The power given by subsection (4) to suspend or vary the effect of a decision or order includes the power to suspend or vary its effect as previously varied under that subsection."
By s 194 of the Workers' Compensation and Assistance Act 1981 ("the 1981 Act") the Workers' Compensation Act 1912-1981 was repealed. By s 112(1) of the 1981 Act the Workers' Compensation Board established under the repealed Act was continued as a Court of Record. The Board consisted of three members appointed by the Governor on the recommendation of the Minister: s 112(2). Of the three members, one was to be a Judge and Chairman of the Board and two were nominee members: s 112(3). By s 112(4) a person was not eligible for appointment as Chairman unless he was a practitioner as defined in the Legal Practitioners Act 1893 of not less than eight years' practice and standing. The Chairman was entitled to hold office during good behaviour and was removable by the Governor upon the address of both Houses of Parliament: s 112(5). The retirement age of the Chairman was 70, the same as a Supreme or District Court Judge. By s 112(18) the Chairman of the Board in relation to his office as Judge of the Board is entitled to:
(a)the style and title of "His Honour"; and
(b)the same salary etc as a Judge of the District Court other than the Chief Judge was entitled.

Section 116 of the 1981 Act provided that:
"Subject to this Act, a determination of the Board under this Act is final and conclusive and is not open to question or review in any court, and proceedings by or before the Board may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court, nor may any action be maintained or brought against the Board or any member of the Board in respect of any act or decision done or made in the honest belief that it was within the jurisdiction of the Board."
Section 117 provided that nothing in s 116 prevented the Board from reconsidering any matter which had been dealt with by it or from rescinding, altering or amending any decision or order previously made, all of which the Board was entitled to do.
Section 29(9) of the Workers' Compensation Act 1912-1978 provided that when any question of law arose in proceedings before the Board, the Board may of its own motion and shall, if requested by any party, in the manner and within the time limited by the rules of the Board, state a case for the decision of the Full Court of the Supreme Court. This procedure was known as an appeal by way of case stated.
Notwithstanding the provisions of s 116(1) of the 1981 Act, s 136(1) provided for a right of appeal to the Full Court by any dissatisfied party from any final determination or order of the Board. Section 136(2) provided for a right of appeal by leave from a determination or order of the Board which was not a final determination. The power of the Board to state a case for the decision of the Full Court was retained by s 128 of the Act. On such a case stated s 140 provided that the Supreme Court had jurisdiction to consider and determine the case stated and make such orders as it thought fit with regard to it.
Section 137 of the 1981 Act provided, in effect, that an appeal under s 136 shall be made in such manner and within such time as an appeal to the Full Court from a judgment or order of the Supreme Court and that, in all respects, the jurisdiction, powers and, subject to Rules of Court, the practice and procedure in relation to such an appeal would be the same as on an appeal to the Full Court from a judgment or order of the Supreme Court or a Judge of the Supreme Court.
These provisions were all to be found in a context where s 118(1) of the 1981 Act provided that:
"In the hearing and determination of every question the Board, the Chairman of the Board, any member of the Board, and the Registrar shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms and is not bound by legal precedent or its own decisions and rulings in any other matter nor by any rules of evidence but may inform its or his mind on any matter in such a way as it or he regards as just, but in considering a question as to whether a person who resides outside the State is a dependant of a worker, the Board shall require proof by or including documentary evidence that the worker has, wholly or in part as the case may be, supported the person and shall not accept as sufficient proof a statutory declaration or affidavit unsupported by documentary evidence to that effect."
The relevant provisions of the 1981 Act remained unchanged until the amendments to the Act by the Workers' Compensation and Rehabilitation Amendment Act 1993 ("the 1993 Act").
There is a difference between s 116 in the 1981 Act, which is under the heading "Determination Final", and s 84ZN as enacted by the 1993 Act in that s 116 of the 1981 Act provides that, "Subject to this Act a determination of the Board is final and conclusive and is not open to question or review in any court". Section 84ZN(1) of the 1993 Act, however, provides that, "Subject to this section, a decision or order of a review officer is not open to question or review in any court …". What is the significance, if any, of this difference?
In considering the question just posed, it is necessary to take into account that by s 84ZN(2) a party to the proceedings who is dissatisfied with a decision or order of a review officer may, where a question of law is involved, appeal to a Compensation Magistrate's Court against the decision or order. In my opinion, the omission of the words "final and conclusive" in s 84ZN is readily explained by the introduction or existence of a right of appeal against a decision of a review officer on a question of law. Where a statute provides that a particular decision is "final", this has been consistently held to preclude an appeal, but does not exclude judicial review. If the statute provides that a particular decision "shall be final" or "final and conclusive" that means only that there is no right of appeal. As Denning LJ said in R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 at 585, "Parliament only gives the impress of finality to the decisions of the tribunal on condition that they are reached in accordance with the law". This doctrine is of very long standing: R v Berkley and Brogge (1754) 1 Keny 80 at 100; and Tebrani v Bastion [1972] 1 QB 82. In any event, a right of appeal is a creature of statute. Where there is a general statutory right of appeal from decisions of a particular court or tribunal to a higher court, subsequent legislation making a relevant decision of the court or tribunal final will have the effect of excluding an appeal: R v National Insurance Commission; Ex parte Hudson [1972] AC 944.
A provision for finality may be of significance in the context whether, such as in this case, the question is whether a finding made by one tribunal may be re‑opened before another tribunal or, as in this case, in a court: see Wade and Forsayth, Administrative Law (8th Ed) 702. In Jones v Department of Employment [1989] 1 QB 1 the Court of Appeal held that an action in negligence did not lie against the Department of Employment in respect of the disallowance by an adjudication officer of a claim for unemployment benefit on the grounds that the officer had reached his decision negligently and that the Department had failed to review the decision on receiving further evidence from the claimant's solicitors. It was contended on appeal for the first time that s 117(1) of the Social Security Act 1975 (Eng), by providing that, apart from the appellate procedures in the Act, the adjudication officer's decision was final, excluded any common law right of action related to the making of the decision. It was also held that, in any event, an adjudication officer owed no duty of care at common law to the claimant so as to provide a foundation for an action in negligence. It was also held that since s 117(1) prohibited any challenge to the decision other than by way of the appellate procedure set out in the legislation, an action at common law would not lie. A government department or officer exercising a decision‑making power, subject to a statutory right of appeal, was held to owe no duty of care. Misfeasance apart the remedy was by way of judicial review or by way of the statutory provision for appeal.
In R v National Insurance Commission; Ex parte Hudson, supra, it was held that a decision of a national insurance local tribunal was final with respect later proceedings against medical boards and tribunals which were later called upon to assess disablement. The House of Lords decision was divided 4 to 3 on what was regarded as a significant issue, namely, whether a finding by one tribunal on an issue may be re‑opened before another tribunal. It was held that it could not as the decision of the first tribunal was "final". The finality of a tribunal decision was also held to bar an action in tort arising out of the same facts in Jones v Department of Employment, supra.
By s 84ZP, on hearing an appeal under s 84ZN, a Compensation Magistrate's Court may:
"(a)affirm, vary, or quash the decision or order appealed against, or substitute, and make in addition, any decision or order that should have been made in the first instance;
(b)make any further or other order as to costs or otherwise, as it thinks fit."
There is a provision in s 84ZU for a Compensation Magistrate's Court to state a case for the decision of the Supreme Court on a question of law which arises in the proceedings. In addition, by s 84ZW, a party to proceedings in the Compensation Magistrate's Court may, by leave of the Supreme Court, appeal against a decision of the Compensation Magistrate's Court on a question of law.
Section 84ZN was introduced by s 22 of the 1993 Act. There is a question whether the effect of that section is that the determinations or findings of a review officer are final and binding decisions of fact against which there is no appeal. The starting point, of course, is that any right of appeal is a creature of statute so that if there is such a right, it must be found in an appropriate statutory provision. In this respect, s 84ZI provides that on a request made within 14 days after the decision or order of the review officer, the review officer is to give to that party, in writing:
"(a)the officer's findings of fact;
(b)the reasons for the officer's decision; and
(c)information as to appeal rights that may be available to the parties under this Act."
This suggests the possibility of the existence of a right of appeal. As has been seen, however, there is a right of appeal from a review officer to a Compensation Magistrate's Court "only where a question of law is involved".
By s 117, which was one of the 1993 amendments to the Act, it was provided that:
"Subject to this Act, a determination of a compensation magistrate's court is final and conclusive and is not open to question or review in any court, and proceedings by or before a compensation magistrate's court may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court."
In my opinion, by the omission from s 84ZN(2) of the words "final and conclusive and" before the words "not open to question or review", it was to be implied that a right of appeal was intended to be provided. The right of appeal provided is limited to an appeal which involves a question of law. The distinction between questions of fact and questions of law was considered in Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389. In this respect, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ said:
"The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated. In Hayes v Federal Commissioner of Taxation [(1956) 96 CLR 47], Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said [Hayes (1956) 96 CLR 47 at 51]:
'Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally – so far as I can see, always – be a question of law.'
In Collector of Customs v Pozzolanic Enterprises Pty Ltd [(1993) 43 FCR 280], the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon 'value judgment[s] about the range of [an] Act' which, the Court said, necessarily raised questions of law. [Pozzolanic (1993) 43 FCR 280 at 289]"
In the context of the Workers' Compensation and Rehabilitation Act it is clearly contemplated that the review officer is to make findings of fact: s 84ZI. An appeal from a finding of fact from a review officer to a compensation magistrate is only available if a question of law is involved: s 84ZN. In Collector of Customs v Agfa‑Gevaert at 395, their Honours noted that in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1994) 43 FCR 280 at 289 the question whether the facts fully found fall within the provision of a statutory enactment properly construed "is generally a question of law". In the High Court at 395 their Honours said:
"In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. [Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8]"
In the present case the issue before the Review Officer was whether the subsequent injury was a recurrence or aggravation of the personal injury by accident arising out of or in the course of his employment due to his susceptibility to injury as a result of the earlier accident. In my view that was a question of fact which the Review Officer had the jurisdiction to decide.
In the present case there was an appeal from the Review Officer to a Compensation Magistrate which was dismissed. One of the grounds of appeal, namely, ground 4, was that the Review Officer's findings were against the weight of the evidence. As to this the Compensation Magistrate concluded that:
"It was conceded that there was some evidence to support the review officer's finding and that it was not a case where there was no evidence to support the review officer's finding and that it was not a case where there was no evidence to support the finding. In such circumstances this must constitute an error of fact not an error of law and cannot be the subject of review by me."
In my opinion, that conclusion was clearly correct. A similar issue arose in Wesfarmers Federation Insurance Limited v State Government Insurance Commission and Bass, unreported; FCt SCt of WA; Library No 960286; 24 May 1996. In that case there was an appeal to the Full Court from a decision of a Compensation Magistrate on appeal from a review officer.
The review officer had held that the worker's incapacity for work as from 30 November 1993 resulted from a work‑related accident on 27 January 1993 and held that the insurer on risk as from 1 July 1990 was liable to indemnify the employer. The insurer maintained that the incapacity for work resulted from an even earlier accident on 24 November 1986. An appeal to a Compensation Magistrate was dismissed.
The insurer had contended before the learned Magistrate that the review officer had erred in law in finding that the nature of the injury on 27 January 1993 was such that it could cause subsequent incapacity. The Magistrate rejected that contention. The Magistrate said that it was implicit in the review officer's reasons that he decided that the incident on 27 January 1993 resulted in more than a temporary aggravation. The Magistrate then said:
"Once that view of the review officer's deliberations is reached, it becomes impossible to conclude that there has been an error of law. Before that can happen the findings must be made in the complete absence of supportive evidence."
In reaching that conclusion the Magistrate referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 – 156 per Glass JA to support the conclusion that as a matter of law there was evidence to support the review officer. The review officer also referred to Canale v Commissioner of Main Roads (1982) 1 WCR 1 at 163. In his judgment in the Full Court Steytler J said at 10 – 11 that the review officer's reference to Canale "was appropriate" in that, if a later injury following upon an original compensable injury:
"was merely a source of temporary pain and inconvenience to the worker and the subsequent incapacity was ascribable solely to the first injury, in the sense that it was not caused by or even contributed to by the second injury, then the appellant could not be required to indemnify the employer in respect of that capacity."
In these circumstances it was held that the review officer mis‑stated the relevant test, because he considered that the liability of the employer was established that the incident on 27 January 1993 "was of such a nature as could well originate trouble in its own right". This approach failed to address the question of actual causation as distinct from potential causation. That would have required consideration of the issue whether the "trouble" which it did originate was temporary or more permanent and, if the latter, that "trouble" was a contributing cause of the worker's incapacity. In my opinion the failure to take into account a relevant consideration involves an error of law.
It follows, therefore, that the determinations or findings of fact by a review officer are final and binding decisions of fact against which there is no appeal, unless the appeal involves a question of law.

Determination of respondent's liability to pay compensation

Review Officer Cocker became involved in the matter to determine the liability of the respondent employer to pay the appellant compensation. At a listing conference on 23 July 1996 Review Officer Cocker directed that:
"(1)Whereas on 19 July 1996 a Review Officer made a finding that there is a genuine dispute as to the liability of the employer to pay compensation to the worker and the parties having agreed prior to that date to have the substantive issue determined at review on 21 August 1996, I direct that the worker be excused from commencing a fresh application subject to this matter proceeding on the basis that the employer is entitled to require the worker to prove an entitlement to compensation under the Act.
…
(3)That the parties attend prepared to deal with the substantive issue with the onus of proof being on the worker.
…"
As to the relevant directions, the learned Commissioner observed in par [13]:
"These directions effectively altered the nature of the application. It was no longer an application under s 60. That had effectively been determined by the first Review Officer. It was an application for determination of the question of the [respondent's] liability to make weekly payments of compensation to the [appellant] which would normally be brought under s 58 of this Act."
The learned Commissioner went on to observe in par [14] that the matter duly came before the second Review Officer on 21 August 1996 and was heard by him over three days between 21 August and 4 September 1996.
In my opinion, as already indicated, what happened was that by agreement between the parties the application originally made under s 60 was treated as an application under s 58 of the Act. Alternatively, by agreement between the parties, the need for the worker to make a fresh application was dispensed with. At all events, as the learned Magistrate who had heard the appeal and cross‑appeal from the decisions of Review Officer Cocker observed in his reasons, the parties took no objection to the directions given following the directions hearing on 23 July 1996.
In his reasons for decision delivered on 6 September 1996 Review Officer Cocker said:
"I must be satisfied on the balance of probabilities that not only did the worker sustain an injury but that the injury or disability caused the worker to be incapacitated from work. I have no hesitation in finding that the worker did sustain an injury of minor severity on 23 March 1994 and he completed his shift that day before seeing his general practitioner."
The Review Officer went on to find that the appellant's injury was either a twisted left ankle or strain to the left ankle joint, but was of minor severity and resolved by 28 March 1994. After a medical examination on 25 March 1994 the appellant's doctor reported that he had partially recovered from the effects of his disability to the extent that he was capable of undertaking work on 28 March 1994 with a full recovery expected.

The appellant gave evidence that while the doctor said the problem would go away, he had been having problems with his foot ever since. In August 1994 he purchased a vehicle with a manual gearbox which required him to use the clutch. He believed this aggravated his injury.
On 23 December 1994 the appellant saw a Dr Dixon who noted that the appellant said his left ankle "continues to be intermittently painful and swollen". The appellant was certified fit but requiring further treatment. The next incident was that involving the gumnut or stone shortly before 14 April 1995. The appellant said his ankle became painful on 19 June 1995. He saw Dr Cynthia Stone the next day. He was certified unfit for four to five days but has not worked since and had been on workers' compensation since 20 June 1995.
The Review Officer noted that a declaration signed by the appellant on 4 September 1995 was inconsistent with other evidence. In par 14 of that document the appellant said:
"The only injury that I suffered was some loss of skin to the left shin and a strain to the left ankle. I did not suffer any injury to the groin."
This related to the accident on 23 March 1994. His application to MLC for an income protection policy dated 24 March 1994 specifically refers to a strained groin.
By way of contrast the first medical certificate by Dr Nibellys includes a provisional diagnosis of thigh adductor strain. The Final Medical Certificate refers to a right thigh plus strain, which is consistent with the appellant's application to MLC.
The Metrobus Incident Report dated 23 March 1994 completed by the appellant responded to the question, "What injuries resulted from the accident?" by referring to "left ankle, R/groin, R/shin". The workers' compensation claim form describes the injury as left ankle twisted "R/groin, R/shin". The incident description by the appellant in the incident report states:
"… I have hit my R/shin on the step of the bus both my legs straddle and at that time I must pull the groin and twisted my ankle."
The application to MLC was completed by the MLC agent, but was signed by the appellant on 24 March 1994 and contained the following questions and answers:
"When did you last consult a doctor? – 23/3/94
What was the reason for the visit? – Strained groin – full recovery/no medication req'd.
Name and address of usual doctor – Stirk Medical Group, Kalamunda Road, Kalamunda."
Review Officer Cocker commented that:
"These two entries have unusual features. The first is that there is no mention of an ankle or leg injury, and secondly, a full recovery is mentioned notwithstanding that the previous day [the appellant] had visited Dr Nibellys and obtained a First Medical Certificate for three days off work as unfit."
Notwithstanding that the appellant had a gall bladder removed some years previously, the appellant answered "no" to each of the questions on the MLC form. At the same time, he says in par 11 of his statutory declaration in support of his claim that he had this operation and was off work for about three months. In par 13 he says:
"I reported to [sic] the injury to the accident report book but I did not have any time off work."
Review Officer Cocker found as a fact that the appellant did have time off work.
In par 27 of his statutory declaration the appellant said:
"Within one week of 23rd May 1994 [mention of May is probably an error by the assessor and should be March] I had fully recovered from my left ankle and left shin. I did not lose any time from work."
His explanation for this in his evidence before the Review Officer was that he was thinking only of the scratches which were gone within five or six working days.
In par 28 of his statutory declaration the appellant said that between June 1994 and August 1994 he was fully fit and not suffering any pain, discomfort or limitation in movement to the left ankle, knee or leg. When asked in cross‑examination whether that was correct, the appellant responded, "It is not correct".
Review Officer Cocker also noted that the appellant had failed to recall a prior needle stick injury, which he claimed to have suffered in the course of his employment with the respondent, when answering a question by the assessor. This resulted in a statement by the appellant in par 26 of his statutory declaration:
"I have not been involved in any other accident, industrial, vehicle, domestic, sporting or otherwise wherein I have sustained any bodily injury."
The review officer also attached some importance to a draft letter dated 16 November 1995 prepared by the appellant's solicitors and addressed to MLC Life Limited. It was noted that pars 1, 2, 3 and 4 contained information which conflicted with the appellant's evidence at the review.
Commenting on this draft, Review Officer Cocker said at p 10 – 12 of his reasons:
"Furthermore paragraph 5 of the letter is worded as follows:
'The ankle injury subsequently settled, and our client continued to work until December 1994, when he aggravated the ankle injury and sustained a further contusion around the left knee and left thigh. Since December 1994, our client's condition has been incapacitated to work and has only recently received surgical treatment.
Our client reiterates that he did not sustain any injuries to his left knee or left thigh on 23 March 1994.
For what it is worth we are pursuing a claim for damages for our client in relation to his ankle injury, and has all the relevant medical certificates.'
The draft letter purports to have been prepared under the instructions of [the appellant] and in particular the information in point 5 contains inconsistencies. For example, the reference to the client not working since December 1994 is obviously inaccurate although in late December 1994 [the appellant] did visit his general practitioner and obtain a medical certificate.
The reference to the client not sustaining any injuries to his left knee or left thigh on 23 March 1994 is accurate in that there was a thigh injury but the medical evidence indicates it was to the right thigh.
What is unusual about the paragraph at point 5 is that it refers to the worker sustaining a further contusion around the left knee and left thigh. The claim form forwarded to MLC on 21 July 1995 refers only to sprain to the ankle and in April 1995 further damage to [the appellant's] knee. I also note in the medical evidence from Dr Collibee that the arthoroscopy of [the appellant's] left knee on 14 August 1995 did not locate any intra‑articular abnormality.
I do not accept that the [appellant] was affected at the time of answering questions put by the assessor to any significant extent by the medication he had been taking. On the balance of probabilities I find that the [appellant's] capacity to understand and respond to the insurance assessor Mr Fairbairn on the afternoon of 4 September 1995 was not diminished by medication. This finding is supported by the evidence of Mr Fairbairn and the expert Mr Langham.
In reaching my conclusions in this matter I have also taken into consideration the evidence of the bus drivers which was consistent in that there was an acceptance that [the appellant] was not a person to hide any medical problems he may have had.
None could recall him suffering any pain between March 1994 and Easter 1995 except Mr Horsfall who recalls that the [appellant] was limping. At this time the [appellant] had mentioned to Mr Horsfall that he was having a problem with his leg."
The Review Officer, applying the standard of proof on the balance of probabilities, found that:
(1)The appellant sustained an injury of minor severity on 23 March 1994 and that he completed his shift that day before seeing his general practitioner.
(2)He returned to work on 28 March 1994 and continued working until June when he went on an overseas holiday returning in August 1994.
(3)The injury described in the First Medical Certificate as a twisted ankle and in the Final Medical Certificate as a strain to the left ankle joint, on the basis of the Final Medical Certificate, resolved.
The medical evidence of both Dr Dixon and Dr Collibee was that the cause of the appellant's ankle condition was his ankle injury at work in April 1994. This evidence was based on what they were told by the appellant. Dr Dixon did not review the appellant until 23 December 1994, although he was in the same practice as Dr Nibellys who had seen the appellant on the day of the first accident. Dr Collibee did not see the appellant until 28 February 1995 when he obtained a history of the accident at the Kalamunda bus depot on 23 March 1994.
As a result of the conflict and inconsistencies in the evidence, Review Officer Cocker did not find the evidence of the appellant credible. He concluded that the appellant had not made out his case on the balance of probabilities. The history given to the medical practitioner had to be looked at in the light of a conclusion that all of the appellant's evidence was "questionable". Indeed, the review officer said:
"I do not accept that the [appellant] is a truthful witness and having found his evidence to be tainted by the finding as to his credibility, his evidence in general cannot then be relied upon.
Specifically, I believe the evidence fails to establish that the [appellant's] present injuries arise out of or in the course of his employment with MetroBus, nor do I believe that there are grounds for finding that a recurrence or aggravation of the ankle injury within the definition of disability under the Act has occurred.
Consideration of the evidence leaves it open for an inference to be drawn that some other event occurred between May 1994 and December 1994 when the worker presented to Dr Dixon with strained ligaments to the left ankle joint.
It is also noted in any event that even at December 1994 the general practitioner's opinion was the worker was fit but required treatment.
It is also necessary for the [appellant] to prove incapacity for work and in this regard I am of the view that [the appellant] has not satisfied the onus upon him on this point."
In the result the review officer ordered that:
(1)Weekly payments to the appellant shall be discontinued as from and including 4 September 1996.
(2)The employer's application for an order that the appellant refund the compensation paid be dealt with by way of a fresh application referring the dispute for conciliation.
It was contended on behalf of the appellant that Review Officer Cocker relied on old evidence in coming to his finding. Further, it was submitted that there was much relevant evidence before the learned Commissioner which post‑dated the decision of the review officer. The general effect of this evidence was that as of 3 October 1996 the appellant's general practitioner, Dr C Dixon, reported that the appellant needed assistance with personal care in dressing/undressing, bathing, showering, transportation and moving about the house. A similar medical report was provided by Dr De Tissera for the Government Employees Superannuation Board dated 3 December 1996. Dr Dixon stated in a further report dated 4 December 1996 that the appellant was "permanently incapacitated and unfit for work". The appellant relies on a number of other reports in 1996 and 1997 as well as setting out his own evidence of his symptoms as at the time of swearing his affidavit dated 14 August 1997. In my opinion, none of this material advances the appellant's case on the issue of causation in relation to the issue of estoppel.
It was contended that the issue before Review Officer Cocker and the "ultimate issue" before the learned Commissioner were not the same. In my opinion, there is no substance in that contention. The issue was whether the subsequent ankle injury was an aggravation of the earlier injury or sustained because of some inherent weakness in the ankle as a result of the original injury and the subsequent injury on 22 December 1994. In my opinion, the consequence was that in later proceedings, including the common law claim, the appellant was estopped from asserting that the original incident had continuing effects and was aggravated by the subsequent incidents. The chain of causation had been broken.
In my opinion, on the evidence before him, assuming that the doctrine of estoppel applied, the learned Commissioner was clearly entitled to conclude as he did that the appellant was estopped from asserting that, as a result of the incident in March 1994, he was susceptible so that the subsequent injury arose out of his employment or was otherwise causally related to it.
As a consequence, Review Officer Cocker ordered that the weekly payments of compensation to the appellant be discontinued from 4 September 1996. The appellant and the respondent both appealed against that decision under s 84ZM of the Act and the appeal was heard by a Compensation Magistrate on 4 March 1997. Both appeals were dismissed on 11 March 1997.

Application for leave to commence damages action

On 15 August 1997 the appellant filed his application for leave to commence proceedings in the District Court for damages. The application for leave was heard by the learned Deputy Registrar on 29 June 1998 when leave was granted to the appellant to institute damages proceedings against the respondent, both under s 93D of the Act and under s 47A of the Limitation Act 1935 (WA). On 1 July 1998 the respondent appealed against the decision to grant leave under s 93D of the Act.
On 26 November 1998, when the appeal was still pending, the appellant instituted the damages proceedings pursuant to the grant of leave. In those proceedings, the appellant claimed that the accident and his injuries were caused by the respondent's negligence and alleged that, as a result of such negligence, he had suffered loss and damage, including loss of earning capacity. A statement of claim was filed and served in the damages proceedings on 1 February 1999. A defence was filed and served on 26 February 1999. In addition to putting the appellant to proof of every allegation in his statement of claim and denying that the accident was caused by its negligence, the respondent pleaded in its defence, inter alia, that, because of the decision of Review Officer Cocker on 6 September 1996 the appellant was estopped from alleging in the damages proceedings that he suffered from a "serious disability", within the meaning of s 93D of the Act.
On 31 March 1999 the respondent filed an application for an order that the appellant's claim be dismissed. That application was brought on the ground, among others, of issue estoppel. The application was heard by the learned Deputy Registrar on 3 May 1999, but was dismissed. On 6 May 1999 the respondent filed a notice of appeal against that decision.

Appeals against decisions of Registrars

The learned Commissioner noted in pars [22] and [23] of his reasons that:
"Both appeals are brought pursuant to O 6 r 11 of the District Court Rules. Therefore they both involve a hearing de novo: Hazart v Rademaker (1993) 11 WAR 26.
The application for leave was made, in part, under the former s 93D of the Act. That section was repealed and replaced with a new provision by the Workers' Compensation and Rehabilitation Amendment Act 1999 (No 34 of 1999) which came into force on 5 October 1999. Notwithstanding the repeal of the former s 93D, its provisions continue to apply to damages proceedings commenced before 5 October 1999 or for the commencement of which the District Court gave leave before 5 October 1999: s 32(7) Workers' Compensation and Rehabilitation Amendment 1999. It may be otherwise in respect of applications for leave to commence proceedings even if they were brought before 5 October 1999. However, that was not something raised before me. Both parties proceeded on the basis that I would consider the appeal from the grant of leave as if the former s 93D were still in force. For that reason, I will approach the matter in that way."
The learned Commissioner then noted that, prior to its repeal, s 93D of the Act provided that:
"(1) Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2)A disability is a serious disability if, and only if –
(a)the degree of disability would, if assessed as prescribed in subsection (3), be 30 per cent or more; or
(b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.
…
(4)Proceedings in which damages are sought are not to be commenced without the leave of the District Court.
(5)Leave is to be given if –
(a)disability results in the death of the worker or the parties agree that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30 per cent or more;
(b)on a reference under subsection (7) or (8) it is determined that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30 per cent or more; or
(c)the Court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
(6)If there is a dispute as to whether the degree of disability would, if assessed as prescribed in subsection (3), be 30 per cent or more, the question may be referred to the Director.
(7)A question referred to the Director under subsection (6) is to be referred for determination by a medical assessment panel except in a case to which subsection (8) applies.
(8)A question referred to the Director under subsection (6) that relates to a disability mentioned in s 33, 34 or 35 is to be referred to a medical panel for determination as described in s 36 and so far as applicable this Act applies in relation to the reference as if it were a reference under s 36 except that the only question to be considered and determined on the reference is the question that was referred."
The word "disability" which appears in s 93D is defined, in the present context, in s 5 of the Act as:
"A personal injury by accident arising out of or in the course of a worker's employment."
The Director referred to is the Director of Conciliation and Review under the Act. The learned Commissioner noted that the application for leave was made to satisfy the requirements of s 93D(4). Consequently, it was necessary to consider whether the appellant was entitled to leave by virtue of any of the provisions of s 93D(5). The learned Commissioner went on to say at pars [27] – [29]:
"The [appellant] did not adduce, in support of his application, any evidence to the effect that he and the [respondent] had agreed that the degree of the [appellant's] disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more. Nor did the [respondent] tell me that it would so agree.
Nor was there any evidence adduced to the effect that a question had been referred to the Director of Conciliation and Review who had, in turn, referred it to a medical assessment panel under s 93D(7). In view of the nature of the disability, there could not have been a reference under s 93D(8).
Therefore, leave to commence the damages proceedings can only be granted to the [appellant] if the Court determines that he is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount: s 93D(5)(c). At the relevant time, the prescribed amount was $119,048."
The application for leave was made on the basis that, as a result of the injuries which he suffered in the accident, the appellant was totally incapacitated for employment and there was a reasonable prospect that he would remain so. It was submitted before the learned Commissioner that the appellant had effectively lost 22 years of his working life and, on the basis of a net weekly amount of $540, he was likely to have a future pecuniary loss of approximately $350,000. If that were accepted, he would be entitled to a grant of leave under s 93D(5)(c).

In his reasons, review officer Cocker, after referring to his directions, stated:
"At the commencement of the review it was established that the matter would proceed on the basis that there has been a finding of genuine dispute and a dispensation given so that a fresh application was not required, but in any event [the appellant] having the onus of proof then becomes the applicant, and will from this point be referred to as the applicant in this matter."
The reasons record that the respondent's submission was that it was not liable for the injury to the appellant's knee or ankle because the evidence established that the appellant had fully recovered from the injury to his ankle occasioned on 23 March 1994. The respondent's submission was upheld. After considering the medical and other evidence and concluding, on the balance of probabilities, that the appellant had sustained an injury of minor severity on 23 March 1994, the review officer continued:
"I find also that the injury, described in the first medical report as a twisted left ankle and in the Final Medical Certificate as a strain to the left ankle joint, on the basis of the Final Medical Certificate, resolved.
…
I do not accept that the applicant is a truthful witness and having found his evidence to be tainted by the finding as to his credibility, his evidence in general cannot then be relied upon.
Specifically, I believe the evidence fails to establish that the applicant's present injuries arise out of or in the course of his employment with MetroBus, nor do I believe that there are grounds for finding that a recurrence or aggravation of the ankle injury within the definition of disability under the Act has occurred.
Consideration of the evidence leaves it open for an inference to be drawn that some other event occurred between May 1994 and December 1994 when the worker presented … with strained ligaments to the left ankle joint.
…
It is also necessary for the applicant to prove incapacity for work and in this regard I am of the view that [the appellant] has not satisfied the onus upon him on this point."
The review officer ordered that weekly payments to the appellant be discontinued from and including 4 September 1996.
The appellant appealed from review officer Cocker's decision of 6 September 1996 to the compensation magistrate's court. The appeal was dismissed.

The Common Law Action

By originating summons dated 15 August 1997, the appellant applied for leave to commence proceedings pursuant to s 93D of the Act (as it then was) for leave to commence proceedings "for damages for personal injuries sustained on 23 MARCH 1994". The application was supported by the appellant's affidavit sworn on 15 August 1997. Having obtained leave the appellant commenced the common law action and filed a statement of claim. In summary, the statement of claim pleads that:
(a)an accident occurred on 23 March 1994 in the course of the appellant's employment with the respondent (the "accident");
(b)the accident occurred as a result of the respondent's negligence;
(c)the appellant suffered injuries in the accident including a twisted left ankle;
(d)as a consequence of ongoing symptoms in the appellant's left ankle he attended on a medical practitioner on 22 December 1994 who diagnosed a recurrent strained ligament of the left lateral ankle joint due to the accident on 23 March 1994;
(e)in about April 1995 and as a consequence of ongoing instability in his left ankle, the appellant's ankle gave way causing him to twist and injure his left knee;
(f)as a consequence of the ongoing symptoms in his left ankle the appellant underwent surgery for the repair of the peroneal tendons in his left ankle during which surgery some of the contents of the appellant's stomach were aspirated into his lungs causing lung complications which resulted in shortness of breath, hyperventilation, blackouts, anxiety and depression.
The appellant pleads in par 10:
"As a consequence of the accident caused injuries and related medical treatment the Plaintiff has suffered the following permanent disabilities:
(a)left ankle pain and instability;
(b)reduced lung function;
(c)episodes of loss of consciousness;
(d)anxiety and depression;
(e)left knee pain and instability;
(f)lower back pain."
It is apparent from the leave application and the statement of claim that the injuries resulting from the surgery occurred after review officer Cocker made his determination in September 1996.

Issue Estoppel

There is no suggestion that the learned Commissioner erred in stating the scope and effect of the doctrine of issue estoppel. The often cited statement of the doctrine is contained in the judgment of Dixon J in Blair v Curran (1939) 62 CLR 464 at 531‑532. Dixon J said:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion …
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue – estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order.
… But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion."
Further, issue estoppel only applies to a "final" and a "judicial" decision: McNair v Press Offshore Ltd (1997) 17 WAR 191 at 196 and 198. It is not in dispute in this appeal that decisions of review officers are judicial in the sense in which that term is used in this context.
It has been authoritatively determined in this jurisdiction that a decision of a review officer under the Act can in appropriate circumstances give rise to an issue estoppel: McNair v Press Offshore Ltd (supra).
However, it has been held that a determination under s 62 of the Act is not final and thus the doctrine of issue estoppel has no application: Waddington v Silver Chain Nursing Association (1998) 20 WAR 269; Weeks v Harbourworks Clough [1985] WAR 327. Further, a determination under s 60 of the Act is not final: Taylor v Star Broken Meats, unreported; FCt of WA; Library No 920434; 26 August 1992.
Although the principles are not in doubt there can be difficulties in distinguishing between those matters fundamental to a decision or necessarily involved in its legal justification or foundation from matters which are not in point of law the essential groundwork of the conclusion.
In order to resolve the issues raised in the grounds of appeal, it is first necessary to identify the source of the power exercised by review officer Cocker to determine whether the relevant finding was legally indispensable to his decision and whether the decision is final as that term is understood for the purposes of issue estoppel.

The Source of the Review Officer's Power

The learned Commissioner interpreted the directions made by review officer Cocker on 23 July 1996 as altering the nature of the application. He said (at par 13):
"These directions effectively altered the nature of the application. It was no longer an application under s 60. That had effectively been determined by the first review officer. It was an application for determination of the question of the defendant's liability to make weekly payments of compensation to the plaintiff which would normally be brought under s 58 of the Act."
Section 58(1) of the Act applies where the employer is insured, as was the respondent in this case. It is to be read in conjunction with s 57A of the Act. The scheme under the legislation as it applied at the relevant time (and now) is as follows. Proceedings for recovery of compensation for a disability under the Act are not maintainable unless, inter alia, a claim for compensation has been made: s 84I(1)(b). Where a claim for compensation by way of weekly payments for total or partial incapacity (for work) has been made under s 84I(1)(b) and the worker has served on the employer a certificate signed by a medical practitioner to the effect, inter alia, that he is unfit for work because of a recurrence of an earlier disability and the employer is insured (s 57A(1)) and has made a claim on his insurer in accordance with s 57A(2), the following regime applies. The insurer must before the expiration of 14 days after the claim is made by the employer:
(a)notify the worker and employer that liability is accepted or disputed: s 57A(3)(a) and (b);
(b)notify the Director, employer and worker that a decision on liability is not able to be made within the specified period: s 57A(3)(c). If within 10 days after this notification the insurer has not notified the Director, worker and employer that liability is accepted or disputed, the workers' claim is deemed to be disputed (s 57A(3a)).
Under s 57A(7) of the Act, the employer is only obliged to make weekly payments if the insurer accepts the claim or if the 14 day period has expired without the employer having received notification from the insurer as required by s 57A(3).
Under s 58(1), the Directorate may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed:
(a)if 17 days has elapsed since the circumstances in s 57A(1) arose and the worker has not received his or her weekly payment; or
(b)whether or not the 17 days has elapsed, if notification has been given by the insurer under s 57A(3)(b) or 57A(3a)(b) that liability is disputed or under s 57A(3)(c) that a decision as to liability is not able to be made within the time allowed.
Further, the employer may in the same circumstances make application for the Directorate to hear and determine the question of liability to make the weekly payments claimed: s 57A(3). Where a claim by a worker is deemed to be disputed (under s 57A(3a) or s 57B(2a)) the Directorate may order the employer to make an application for the Directorate to hear and determine that question: s 58(2a). Sub‑sections 5 and 6 of s 58 materially provide:
"(5)On a hearing under subsection (1), (2), (2a) or (3) the Directorate shall satisfy itself as to all the evidence before it whereupon the Directorate –
(a)if it considers that the evidence is satisfactory to establish liability to make weekly payments, may –
[make an appropriate order for weekly payments]
or
(b)if it considers that the evidence is not satisfactory to establish liability to make weekly payments, may dismiss or adjourn the application on such terms as it sees fit.
(6)The fact that an application has been dismissed under subsection (5) shall not be taken into account by the Directorate in any other proceedings under this Act."
Review officer Cocker's reference in his directions to the determination of the "substantive issue" is of interest. At the relevant time, and currently, the Act makes no reference to the term "substantive". However, prior to the commencement of the Workers' Compensation and Rehabilitation Amendment Act (No 2) 1992, ("the "1992 Amendment Act"), s 58(5)(c) of the Act provided that if the Board considered a genuine dispute exists concerning the liability of the employer to make weekly payments under the Act, the Board may order that the worker proceed by way of "a substantive application".
The Full Court in Taylor v Star Broken Meats (supra) considered the scheme of sections 58 to s 62 inclusive of the Act as it stood before the coming into operation of the Workers Compensation and Assistance Amendment Act 1990 (the "1990 Amendment Act"). The Court concluded that ss 58 and 60 empowered the board to make interlocutory as opposed to final determinations. Liability to make weekly payments was determined in a chambers application and s 58(5)(c) referring to a substantive application had not been deleted. The basis and extent of the power to make orders was in substantially the same terms as subsection 5(a) and (b) of the Act as it applied at the time of this case.
Section 58 was repealed and replaced by the 1990 Amendment Act to reflect the new s 57A procedure. However, the new s 58 (and s 60) powers remained essentially the same. Applications were heard in chambers and in the case of a genuine dispute the liability to make weekly payments could proceed by way of "substantive application". However, the disposal of the interlocutory application was governed under the new s 58, as under the old, by subsection 5(a) and (b) in materially the same terms as apply in this case. The references in s 58 and s 60 to hearings in chambers were deleted by amendments to the Act made in 1993.
In my view, there are strong indicators that a s 58 determination is not intended to be final. The grounds for the exercise of the power in s 58(5)(a) and (b) are not what is to be expected for a final determination, as borne out by the legislative history. Further, s 58(6) implies that the dismissal of an application under s 58(5)(b) is intended to have no wider operation or consequence outside the limited purposes of s 58. Finally, even if a worker was successful in a s 58 application, there is no impediment to any overlapping liability issues being re‑litigated afresh in s 60 proceedings.
However, it is unnecessary to take that matter further at this stage. In my opinion, review officer Cocker was not purporting to exercise power under s 58 of the Act. There is no evidence that jurisdiction under s 58(1) was enlivened. In any event, s 58 of the Act would generally only apply when as a matter of fact weekly workers' compensation payments had not commenced. The section gives a review officer the power to order weekly payments. However, there is no power under s 58 to order the cessation of weekly payments. That power is contained in sections 60 to 62 of the Act. Section 60 applies after weekly payments have commenced but only empowers a review officer to make orders based on a finding of a genuine dispute. It materially provides:
"(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."
It is apparent from review officer Cocker's reasons and directions that his intention was that the review involve a substantive determination on the question whether the respondent was liable to make weekly payments. The issue is whether a review officer has the jurisdiction to make such a determination. If not, jurisdiction cannot be conferred by obtaining the consent of both parties: Essex County Council v Essex Incorporated Congregational Church Union (1963) AC 808 per Lord Reid at p 820, Lord Hodson at p 828; Spencer Bower and Turner, "Estoppel by Representation", 3rd ed, Butterworths, London, at p 144.
The jurisdiction of the Directorate to resolve disputes is contained in Pt IIIA of the Act. Proceedings for the resolution of a "dispute" are not capable of being brought other than under Pt IIIA: s 84B of the Act. "Dispute" is defined as a dispute in connection with a claim for compensation under the Act and includes a dispute as to liability to make or continue to make weekly payments of compensation (s 84A).
In my opinion, a review officer has jurisdiction under s 84A and s 84B to decide a dispute as to liability to make weekly payments of compensation notwithstanding that weekly compensation payments have been made. It would be an odd result to confer jurisdiction under s 60 of the Act to act on the basis of a finding of a genuine dispute as to liability without conferring on the Directorate, and thus review officers, the power to determine that issue. Whether that decision is "final" for the purposes of the issue estoppel doctrine is something which I consider in detail below.
I can now address the grounds of appeal.

Grounds of Appeal 1 and 2 ‑ Different Issues

It is said that the issues determined by review officer Cocker were different from those falling for determination in the leave application. It is true that the questions for determination and some of the issues were different. However that does not make the doctrine of issue estoppel inapplicable: Jackson v Goldsmith (1950) 81 CLR 446 per Williams J at 460; Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 610.
The central question is whether an issue for determination in the leave application and the common law action was identical with an issue finally and necessarily determined in the review proceedings under the Act.
I start with what was required for a grant of leave under s 93D of the Act as it stood at the relevant time. Under s 93D of the Act, common law damages could only be awarded if a "disability" resulted in the death of the worker or was a serious disability. A disability was serious if, inter alia, the future pecuniary loss resulting from a disability was an amount at least equal to the prescribed amount. Proceedings for common law damages could not be commenced without the leave of the District Court. Under sub‑section (5)(c) of s 93D of the Act, which appears to be the only applicable provision in this case, leave is to be given if –
"The court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount."
Disability is defined in s 5 of the Act to mean:‑
"(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;
(b)a disabling disease to which Part III Division 3 applies:
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(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 …"
Disease is defined to include any physical or mental ailment, disorder, defect or morbid condition whether of sudden or gradual development.
It was not in dispute that the disability for which leave was sought was pursuant to par (a) of the definition, that is, a personal injury by accident arising out of or in the course of employment.
The appellant's statement of claim in the common law action is an accurate reflection of the case advanced by the evidence in the leave application. In particular, it is an essential part of the appellant's case that the injuries the subject of the claim were caused or contributed to by the accident that occurred at work on 23 March 1994.

The appellant submitted that the only issue for determination in the leave application under s 93D was whether the appellant was likely to have future pecuniary loss at least equal to the prescribed amount. That issue was not seriously in dispute in the leave application it appears. However, in my view that is an incorrect formulation of what is required. There must be evidence, to the requisite standard (which is lower than the civil standard) that the future pecuniary loss results from a relevant "disability", in this case a personal injury by accident arising out of or in the course of the appellant's employment with the respondent. Thus, the personal injury must be relevantly connected with the employment. The connection under sub‑paragraph (a) of the definition of disability can be either causal or temporal: Kavanagh v The Commonwealth (1960) 103 CLR 547 at 557. In this case there is no suggestion that the injuries the subject of the leave application and common law action have a temporal connection with the appellant's employment. Thus, the appellant had to establish to the required standard that the injuries "arose out of" his employment with the respondent which can only be by reference to the accident on 23 March 1994.
The appellant identified the issue for determination in the common law action as whether or not the appellant's initial injury to his left ankle suffered in the course of his employment rendered him susceptible to further injury. A broader description of the issue is whether there is a causal connection between the accident on 23 March 1994 and the injuries complained of in the leave application and common law action.
The next question is whether that issue was finally and necessarily determined by review officer Cocker in the review. The dispute identified by the respondent in its application dated 19 June 1996 was whether the appellant had sustained an injury on 23 March 1994. It is clear from the respondent's submission at the review and the review officer's reasons that the issue changed at some stage.
The appellant says the issue determined by review officer Cocker was that the injuries suffered at the time of the accident "resolved". That statement of the issue is ambiguous. At its narrowest it may mean no more than the appellant was no longer symptomatic but does not exclude latent weakness or susceptibility. However, the finding must be viewed in context.
It is apparent from the review officer's reasons that the issue he determined was that the injuries of which the appellant was complaining from 20 June 1995 until the date of the review hearing were not causally connected with the accident on 23 March 1994. There had been a break in the chain of causation.
The injuries the subject of the review were not co‑extensive with the injuries complained of in the leave application and in the common law action. However, there is a factual and causal connection between the two sets of injuries. It was the injuries the subject of the review that on the evidence in the leave application and on the pleading in the common law action resulted in the surgery which in turn resulted in the surgery related injuries. Thus, notwithstanding that the surgery related injuries occurred after the review proceedings, liability for those injuries depend on proof that the ankle injuries complained of at the review were relevantly connected with the accident on 23 March 1994.
Thus, it was legally indispensable to review officer Cocker's decision to determine whether there was any causal connection between the injuries the subject of the workers' compensation claim and the accident on 23 March 1994, which issue also arose for determination in the leave application and common law action.

Finality and the Doctrine of Issue Estoppel

The appellant also says that on a proper construction of the Act, the doctrine of issue estoppel does not apply to review officer Cocker's decision alternatively the doctrine does not apply to decisions made under Pt IIIA of the Act. That is, McNair v Press Offshore Ltd is distinguishable or wrongly decided.
The first aspect of the submission put on behalf of the appellant was that findings on issues of a medical nature which are not static, such as a person's medical condition from time to time, are not final decisions and do not give rise to an estoppel. Although McNair v Press Offshore Ltd concerned whether an accident had in fact occurred the Court's reasoning does not support the appellant's proposition, which as a statement of general principle, is incorrect: Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285; Egri v DRG Australia Ltd (supra).
It is wrong to isolate a factual issue such as a person's medical condition from the context in and purpose for which it is determined. However, it can be a significant factor and was so in the construction of s 62 in Waddington (supra) and is likely to be so on the issue of level of disability from time to time: Re Monger; Ex parte Industrial Progress Corporation Pty Ltdtrading as Roofmart WA [2001] WASCA 281 at [16]-[18]. Another way of analysing the outcomes in those cases is on the basis that where the question in issue is a person's medical condition from time to time, issue estoppel does not apply because the relevant issues for determination are not identical: Weeks v Harbour Works Clough (supra).
In any event, the issue in this case – was there a connection between the accident and injuries sustained on 23 March 1994 and the injuries the subject of the workers' compensation claim – was static.
In support of his broader contention the appellant relies on the legislative scheme for dispute resolution. Disputes are dealt with at a review by a review officer who is required to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise: s 84ZA(2) of the Act. The review officer is to act according to the substantial merits of the case without regard to technicalities or legal forms or precedents: s 84ZA(3). The rules of evidence do not apply to a review: s 84ZD. Legal representation at any proceeding is not a right: s 84ZE. There is only an appeal from a decision or order of a review officer to a compensation magistrate's court on a question of law: s 84ZN.
The appellant also relied on s 84ZF(3). Sub‑section (3) of s 84ZF provides:
"3.If new information becomes available after the review officer makes a decision, the review officer may reconsider the decision and –
(a)vary or revoke any order previously made by the review officer;
(b)make any further order,
as the review officer considers appropriate having regard to the new information."
New information is defined as information that was not available to the review officer when the decision was made and, in the opinion of the review officer, justifies reconsideration of the decision: s 84ZF(4). However, sub‑sections 3 and 4 of s 84ZF were inserted by Workers' Compensation and Rehabilitation Amendment Act No 34 of 1999. In any event, such a provision is not necessarily inconsistent with the application of the doctrine of issue estoppel: Somodaj v Australian Iron & Steel Ltd (supra) at p 297‑298; Ainslie v Ainslie (1927) 39 CLR 381 per Isaacs J at 390.
These matters relied on by the appellant in support of his contention that the doctrine does not apply to decisions under the Act were ventilated, considered and rejected by the Full Court in McNair v Press Offshore Ltd. The Full Court decision was based on the High Court decisions in Somodaj v Australian Iron & Steel Ltd (supra) and The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353.
On the subject of finality, Owen J said in McNair v Press Offshore Ltd (supra) (at p 198):
"The next question is whether it is a 'final' determination, again using that term in the sense in which it is understood for these purposes. It seems to me that the legislative intent was to clothe the review officer's determination with the air of finality. One of the purposes of the Act is to make provision for the hearing and determination by the dispute resolution bodies (which term includes a review officer) of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: see s 3(d). It would be inimical to that aim if the parties to the dispute were at liberty to pursue claims in multiple jurisdictions depending on the outcome from time to time. Under s 84ZN a decision or order of a review officer is not open to question or review in any court and proceedings before a review officer may not be restrained by injunction nor may they be challenged by prerogative writ. There is an avenue of appeal, namely to a Compensation Magistrate, but this is limited to error of law. It seems to me that this also lends weight to the view that the decisions of review officers were intended to be final."
Kennedy J said in McNair (at p 194):
"It has been held in Summit Homes v Lucev (unreported, Supreme Court, WA, Full Court, Library No 960182, 3 April 1996) that review officers under the Workers' Compensation and Rehabilitation Act exercise judicial functions and are bound to act judicially in the discharge of their duties. Furthermore, by s 84ZA of the Act, the function of the review officer is to 'resolve' the dispute between the parties. By s 84ZN, the decision of the review officer is not open to question or review in any court, subject only to an appeal to a Compensation Magistrate when a question of law is involved. In the circumstances, the review officer had the power 'to decide finally' the question which arose between the parties."
The question of what is a final decision for the purposes of res judicata and, I interpolate, issue estoppel is helpfully analysed in Spencer Bower, Turner and Handley, "Res Judicata", 3rd ed, Butterworths, London, 1996, ch 5. The learned authors note that a judicial decision may be final for one purpose but not another. Decisions on finality for the purposes of appeal can be relevant but not always. Some decisions which are final for appeal are not final for res judicata and issue estoppel and some decisions which are interlocutory for appeal purposes are final for res judicata and issue estoppel: Coroneo v Kurri Kurri & South Maitland Amusement Co Ltd (1934) 51 CLR 328 at 334; Spencer Bower, Turner and Handley, par 171. The dismissal of an interlocutory application is not final. A decision or determination which is not final does not prevent a further application although the application is not likely to succeed unless supported by additional evidence or a different argument: Hall v Nominal Defendant (1966) 117 CLR 423 at 429, 440‑441, 444; Makhoul v Barnes (1995) 60 FCR 572 at 582‑583; D AChristie Pty Ltd v Baker [1996] 2 VR 582 at 599‑603 per Hayne JA.
In general, a decision is not relevantly final for issue estoppel if an applicant can bring a fresh application. According to Spencer Bower, Turner and Handley (at par 162):
"A judgment or order which is liable to rescission or modification by the tribunal which pronounced it is prima facie not final. Familiar instances are orders for periodical payments of alimony or maintenance; and affiliation orders for the maintenance of a child. These orders are not expressed to be interlocutory or temporary – indeed orders for 'permanent' alimony indicate finality, but since the court has continuous authority to extinguish, reduce, or increase the sum ordered to be paid, neither the original, nor any subsequent order can be final, and treated as res judicata."
However, a statute which empowers the tribunal to rescind or vary its original decision can indicate an intention that it is final until rescinded or varied. The applicable principles were stated by Isaacs J (in Ainslie v Ainslie (supra) at p 390) as follows:
"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."
Thus, whether review officer Cocker's decision is final is a question of legislative intention. The Full Court in McNair may not have been referred to all relevant statutory changes effected by the Workers' Compensation and Rehabilitation Amended Act 1993 (the "1993 Amendment Act"). That Act replaced the Workers' Compensation Board with the Directorate (which includes review officers). Former s 116 of the Act, deleted by the 1993 Amendment Act, materially provided:
"Subject to this Act, a determination of the Board under this Act is final and conclusive and is not open to question or review in any court, and proceedings by or before the Board may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court, nor may any action be maintained or brought against the Board or any member of the Board in respect of any act or decision done or made in the honest belief that it was within the jurisdiction of the Board."
There was a right of appeal to the Supreme Court from final determinations of the Board: s 136(1) of the Act as it was before the 1993 Amendment Act. An equivalent of s 116 of the Act after the commencement of the 1993 Amendments is s 84ZN(1) which materially provides:
"Subject to this section, a decision or order of a review officer is not open to question or review in any court, and proceedings by or before a review officer may not be restrained by injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court."
A party who is dissatisfied with a decision or order of a review officer may, where a question of law is involved, appeal to a compensation magistrate's court: s 84ZN(2). Section 84ZN(1) does not state that a decision or order of a review officer is "final and conclusive". There is no explanation in the second reading speech for the omission. Perhaps its significance when considered in isolation may be queried having regard to the ouster clause. However, s 117 of the Act provides that a determination of a compensation magistrate's court is "final and conclusive" and then continues with an ouster clause in the same terms as s 84ZN(1). Further, a party may, by leave of the Supreme Court, appeal to the Supreme Court against a decision of the compensation magistrate's court on a question of law: s 84ZW. Section 145E(5) relates to decisions of medical panels. It provides:
"(5)Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."
That subsection clearly conveys the legislative intent that decisions of medical panels are final until rescinded or varied (as referred to by Isaacs J in Ainslie v Ainslie (supra)). In a number of cases in which it has been held that the doctrine of issue estoppel applies to bodies other than courts, the statute under consideration expressly provided that the relevant decisions were final: Somodaj v Australian Iron Steel (supra) at p 297; Lambidis v Commission of Police (1995) 37 NSWLR 320 at 334; Jones & Hudson v Secretary of State for Social Services (1972) AC 944.
The public policy underlying the doctrine of issue estoppel is the desirability of finality when issues have been litigated and resolved between the same parties and the legislative intention to exclude the doctrine should be clearly expressed: Lambidis v Commissioner of Police (supra) at 333 per Priestly JA. Further, a Court of Appeal should depart from an earlier decision cautiously and only when compelled to the conclusion that the earlier decision was wrong: Nguyen v Nguyen (1990) 169 CLR 245 at 247, 251 and 269.
I see no warrant in the statutory context or history to confine the words "final" and "conclusive" to the ousting or limiting of appeals. It clearly cannot be so in relation to s 116 and s 136 of the Act as they were before the 1993 Amendment Act. Further, such a construction does not explain the use of those words in s 117 but not in s 84ZN(1) of the Act in circumstances where the statute provides for limited avenues of appeal from decisions of compensation magistrates and review officers.
I infer from the statutory history and s 84ZN in the context of the Act as a whole that the failure to expressly provide that the decisions and orders of review officers are final and conclusive was deliberate and the omission intended to be of significance. In particular, I infer the legislature intended that decisions and orders of review officers not be final in the sense in which that term is used in the context of issue estoppel.
Having regard to the composition, functions and procedures of the Directorate, the clear legislative emphasis on speed, informality and the very limited role of lawyers in the process, the nature of the specific powers of review officers in ss 58, 60 and 62 together with the deliberate omission to expressly provide that decisions and orders of review officers are "final and conclusive", there is in my opinion a clear legislative intention to exclude the doctrine of issue estoppel in relation to the decisions and orders of review officers under the Act. I am satisfied that the Court in McNair v Press Offshore Ltd was wrong in concluding that the doctrine applies.
The appellant's alternative contention was that there was an exception to the application of the doctrine of issue estoppel and this case fell within the exception. It is unnecessary for me to decide that matter in view of my conclusion on the applicability of the doctrine of issue estoppel. However, I note a similar argument was considered and rejected by the Full Court in Waddington v Silver Chain Nursing Association (supra) at p 279‑281. The Full Court concluded that Australian law does not recognise any exception, discretionary or otherwise, to the principle of issue estoppel. That appears to remain the position.
For these reasons I have reached the view that the appeal should be allowed.