Leeder v The State of Western Australia - [2006] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LEEDER -v- THE STATE OF WESTERN AUSTRALIA [2006] WADC 126

CORAM: SWEENEY DCJ

HEARD: 28 JULY 2006

DELIVERED : 21 AUGUST 2006

FILE NO/S: CIV 512 of 2005

BETWEEN: RICHARD ALVIN LEEDER
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Application to amend statement of claim - Workers' compensation - Issue estoppel - Case management principles - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA) s 84E

Result:

Appeal allowed
Order giving leave to amend statement of claim reversed
Order vacating trial date set aside

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr D M G Burton

Solicitors:

Plaintiff: CLP Lawyers
Defendant: Srdarov Richards Burton

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

AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29
Carl Zeiss Stiftung v Rayner & Keeler Ltd (2) [1967] 1 AC 853
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kuligowski v Metrobus (2004) 220 CLR 363
Marshall v Lockyer [2006] WASCA 58
Mayne Nickless Ltd t/as Wards Express v Mayne, unreported; FCt SCt of WA; Library No. 960736, 19 December 1996
McDonald v Director General of Social Security [1984] 1 FCR 345
Paul & Anor v Rendell (1981) 34 ALR 569
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Waddington v Silverchain Nursing Association (1998) 20 WAR 269
Weeks v Harbourworks Clough [1985] WAR 327

Case(s) also cited:

Clough Engineering v Thomas [2004] WASCA 36
Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Re Monger ex parte Urquhart [2004] WASC 48

SWEENEY DCJ:

Introduction

On 14 July 2006, Principal Registrar Gething made orders granting leave to the plaintiff to amend his statement of claim, with the consequent order that the trial in this matter set down for hearing on 4 September 2006 was vacated. The order vacating the trial was stayed, however, pending the hearing of any appeal filed against that order. Both parties have appealed against the orders. The plaintiff appeals the order vacating the trial dates and the defendant appeals against that part of the order giving the plaintiff leave to amend his statement of claim.

History of proceedings

On 1 February 2000 an incident took place at Canning Vale Remand Centre as a result of which the plaintiff claims to have suffered accident related injuries. On 4 June 2004 a review officer found that the plaintiff suffered a disability of not less than 30 per cent. The plaintiff's workers compensation payments ceased as at 23 October 2004 by reason of him having received the prescribed amount pursuant to the Workers' Compensation and Injury Management Act 1981 ("the Act"). The writ in this action was issued on 14 March 2005. The matter was entered for trial on 23 August 2005 and trial dates were allocated at the listings conference on 5 December 2005.
On 17 March 2005 the plaintiff made application to the Work Cover Conciliation and Review Directorate seeking extension of his payments to the sum of $50,000 pursuant to s 84E of the Act on the basis that he was permanently totally incapacitated for work. That application was argued on 3 November 2005 before Review Officer St George and, on 11 November 2005, decided in the plaintiff's favour. An order was made that the defendant was to pay to the plaintiff the sum of $50,000 to incorporate payments already made pursuant to the Act. The defendant appealed against that determination on 8 December 2005.
By way of chamber summons dated 4 July 2006, the plaintiff sought leave to amend his statement of claim to plead issue estoppel. By the newly proposed par 15A the plaintiff sought to plead that the defendant was estopped from denying that the plaintiff was permanently and totally incapacitated for work.
I was informed by the parties that the defendant's appeal against the decision of Review Officer St George had received a hearing date for 15 May 2006 but the parties sought a pre‑trial conference with a view to potentially settling the matter. Subsequently, the appeal date was vacated. That appeal has a new hearing date of 31 August 2006. There is one business day between the hearing of that appeal and the commencement of the trial set down in this matter for 4 September 2006. It is accepted by the plaintiff that there is no likelihood of the decision in that appeal being handed down prior to the commencement of the trial in this Court.
The decision of Principal Registrar Gething vacating the trial date but staying that order pending the hearing of this appeal remains on foot, not having been varied by me when this matter was heard before me on 28 July 2006. At this stage, therefore, this matter is still set down for trial to commence on 4 September 2006.

Position of the parties as stated at the hearing

The plaintiff has indicated that, should I reach the decision, consistent with Principal Registrar Gething's decision, that the plaintiff should have leave to amend his statement of claim but that such amendment will necessitate the vacation of the trial dates, then the plaintiff wishes in those circumstances to abandon his application for leave to amend his statement of claim, his priority being the trial proceeding on 4 September 2006. That was not the plaintiff's position at the time of the Principal Registrar's decision. The defendant for its part appeals against the decision of the Principal Registrar allowing the plaintiff to amend his statement of claim and also appeals against the vacation of the trial date. The defendant's position is that it seeks for the trial to commence on the date set down for hearing and for the plaintiff to be refused leave to amend his statement of claim.

Legal principles in relation to amending pleadings

The matter comes before me by way of a hearing de novo (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26). The writ having been issued in this matter on 14 March 2005, the matter is subject to the Rules of the Supreme Court 1971 and the District Court Rules 1996.
The application to amend the statement of claim is brought pursuant to O 21 of the Rules of the Supreme Court. Pursuant to O 21 r 5 the court may at any stage of the proceedings allow the plaintiff to amend his pleading on such terms as to costs or otherwise as may be just.
Order 1 r 3 of the District Court Rules 1996 provides:
"Unless the justice of the case otherwise requires, the court will refuse any application made subsequent to the pre‑trial conference for leave to amend pleadings which, if granted, would necessitate an adjournment of the trial."
The pre‑trial conference in this matter was listed for 21 September 2005, when the matter was adjourned to the listing conference of 5 December 2005. When considering whether it is just to grant amendments the court will consider in the exercise of its discretion the competing prejudice to the opponent as well as to the applicant but also prejudice to the public interest (Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323).
However, the ultimate aim of the court is the attainment of justice (State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146). Principles of case management should not supplant that aim to shut a party out from litigating an issue which is fairly arguable. Order 1 r 3 of the District Court Rules 1996 is expressly subject to the "justice of the case".
If there is an unreasonable delay in making the application to amend the pleadings, the applicant must satisfy the court that it should grant leave in light of the case flow management principles.

Delay

The earliest point at which the plaintiff could have sought leave to amend its statement of claim was 12 November 2005, the decision upon which the issue estoppel is based only having been handed down on 11 November 2005. By that date, this matter had already been entered for trial, but trial dates had not been allocated. I have before me an affidavit sworn by Justin James Dyson dated 10 July 2006 in which he deposes that, having filed a notice of appeal against the decision of Review Officer St George, on 11 February 2006 he contacted the plaintiff’s solicitor to enquire whether the plaintiff would be pleading issue estoppel. Clearly, then, the defendant was alive to the issue of a potential application to amend the pleadings. Equally clearly, the plaintiff was on notice that any application to amend its pleadings, should it choose to do so, needed to be brought on in a timely fashion, the appeal against the review officer's decision having been listed for hearing on 15 May 2006. Nothing was done by the plaintiff and, in a conference convened on 10 May 2006, the parties agreed to adjourn that hearing date due to there being insufficient time for the parties to adequately prepare for the appeal.
There was no explanation advanced before me as to why the plaintiff took no steps to amend his statement of claim prior to filing the chamber summons dated 4 July 2006. The defendant did, however, to some extent acquiesce in that delay, in that it consented to the adjournment of the appeal. Had the appeal been argued on 15 May 2006 there was at least some reasonable prospect of that decision being handed down prior to the trial of this matter in this Court. Both parties chose, however, to vacate that date. As a result, the plaintiff argues that the delay in this case is of no real significance. I am not persuaded that the delay is of no significance, in that, had the plaintiff indicated its intention to amend the statement of claim rather earlier, the defendant may well have pursued the hearing dates of the appeal more vigorously. Delay does not loom large in the matter, but remains a factor.

The proposed amendments to the statement of claim

The relevant principles in relation to the doctrine of issue estoppel are set out in Carl Zeiss Stiftung v Rayner & Keeler Ltd (2) [1967] 1 AC 853 at 935. For the doctrine of issue estoppel to apply to subsequent proceedings the following requirements must be met:
"(i)That the same question had been decided;
(ii)That the judicial decision said to create the estoppel was final, and
(iii)That the parties to the judicial decision or their privies were the same parties as the parties to the proceedings in which the estoppel is raised or their privies."
The decision was affirmed by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363.
An application pursuant to s 84E of the Act as it existed at the relevant time (it was repealed by the Workers' Compensation Reform Act 2004) fell within Pt IIIA of the Act under the heading "Dispute Resolution". Pursuant to s 84ZD, the review officer was not bound by the rules of evidence and may have informed himself on any matter in such manner as he thought fit.
Section 84ZA provided that the review officer was to act fairly, economically, informally and quickly in resolving the dispute and was to act according to the substantial merits of the case without regard to technicalities or legal forms or precedent. Section 84ZN conferred a right of appeal, but otherwise provided that a decision of a review officer was not open to review. Pursuant to s 84ZF the review officer may, if new information became available after he had made his decision, have reconsidered his decision and varied or revoked any order previously made or made any further order that he considered appropriate having regard to the new information. New information was broadly defined to mean information not available to the review officer when the decision was made which in his opinion justified reconsideration of the decision.
The parties were unable to refer me to any authority dealing with s 84E of the Act in this context, however the decision of the Supreme Court in Marshall v Lockyer [2006] WASCA 58, though it concerned s 93F(1) of the Act, considered the effect of s 84ZN. In particular, Roberts‑Smith JA stated at [189]:
"For the reasons expressed by the High Court in Kuligowski, a determination under Pt IIIA is 'final and binding'. The real issue here is whether the same question has been decided by the review officer as arose for consideration by the trial Judge."
I have been referred to the decision of the Supreme Court of Western Australia in Waddington v Silverchain Nursing Association (1998) 20 WAR 269. There the court was considering an issue estoppel based on a decision of a review officer pursuant to s 62 of the Act.
The court considered the decision of Mayne Nickless Ltd t/as Wards Express v Mayne, unreported; FCt SCt of WA; Library No. 960736; 19 December 1996 where the court held that, while a review officer was not deemed to be a court, was not bound to apply the rules of evidence and was required to act fairly, informally and quickly in the resolution of disputes, he must nonetheless act judicially. The court in Waddington concluded that, in conducting the review pursuant to s 62 of the Act and making his decision on the evidence before him, the review officer was acting judicially and his decision was a judicial decision in the relevant sense.
I conclude therefore that the decision of Review Officer St George was a judicial decision and that it is fairly arguable that it constituted a final decision. The defendant argues that the decision pursuant to s 84E would not give rise to an issue estoppel unless all of the facts and circumstances at the time of the trial in this Court were the same and no further information had arisen since the decision by Review Officer St George.
The defendant referred me to the decision of the Supreme Court in Weeks v Harbourworks Clough [1985] WAR 327 which was considered by the Court in Waddington (supra) at 279:
"The decision in Weeks makes it clear that a review under s 62 of the Act will be subject to res judicata (or for that matter issue estoppel, although no distinction was made within the reasons for judgment) if and only if the circumstances at the time of the review are precisely the same as they were at the time of the original decision. Otherwise the original decision is open to review. Thus, unless the circumstances at the subsequent hearing are exactly the same, no question of issue estoppel arises. It follows that in all other cases, if there is any other evidence which may lead to a different result, a decision on a review under s 62 of the Act is not a final decision and does not create an issue estoppel."
The defendant also contends that, in any event, the issue for determination before Review Officer St George was a different issue to the issue which will be before this Court. This Court will be called upon to decide whether the plaintiff’s accident related injuries caused by the defendant's negligence have resulted in impairment or diminution of the plaintiff's earning capacity which has been productive of past or future economic loss. There is therefore a degree of prophesying in assessing "not only what the future holds for the injured plaintiff but also what the future would have held for him if he not been injured" (Paul & Anor v Rendell (1981) 34 ALR 569 at 571).
By contrast the review officer was required to determine whether a disability compensable within the ambit of the Act resulted in the "permanent total incapacity" for work, within the context of an application as to the total liability of the employer for the incapacity, subject to 84E(3).
The expression "totally and permanently incapacitated" was considered in the case of AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29 in which a finding in earlier proceedings that the plaintiff was "totally and permanently incapacitated" was regarded by the Magistrate in subsequent proceedings as giving rise to an estoppel. The Court referred at [35] to the decision of McDonald v Director General of Social Security [1984] 1 FCR 345 which concerned the meaning of "permanently incapacitated" as contained in s 24 of the Social Security Act 1947 (Cth):
"Woodward J at 361 stated ‑
'The vital contrast between temporary and permanent incapacity must be based upon an assessment of future prospects at the time the decision is made. It is not inconsistent with the notion of permanent incapacity that the pensioner's position should be reviewed from time to time. Unexpected improvement in the person’s condition, advances in medical science, the achievement of fresh skills, or even changes in the labour market, could bring to an end an incapacity which had been thought to be permanent. In my view the true test of a permanent, as distinct from a temporary, incapacity is whether in the light of the available evidence, it is more likely than not that the incapacity will persist in the foreseeable future.' "
McDonald J regarded that passage as applicable to the statutory provision under consideration and found, therefore, at [37] that the earlier finding that the plaintiff was "totally and permanently incapacitated" under the Act:
"…was not more than a finding at (sic) time that he was totally incapacitated and that it was more likely than not that the total incapacity would persist in the foreseeable future. A finding that a person is totally and permanently incapacitated at a particular time does not mean that that person will in fact be totally incapacitated in the future … The issue of a worker's incapacity and whether it is total at a particular time or whether it is total and permanent at a particular time may well vary as a fact from time to time. The finding by the court on 30 November 1994 that Chalkley was totally and permanently incapacitated did not give rise to an estoppel preventing the appellant from raising in subsequent proceedings between it and Chalkley the issue, that at a time subsequent to the finding of the court, that Chalkley was then not totally incapacitated or not totally and permanently incapacitated".
It is clearly outside the scope of this decision for me to make comment on the merits of the appeal against Review Officer St George's reasons, that being the subject of the pending appeal. I confine myself purely to that aspect which impacts upon the question of whether the proposed amendments raise a matter which is fairly arguable. The review officer has, in determining that the plaintiff was incapacitated "for the foreseeable future" expressly placed reliance upon the evidence of Dr Black that the plaintiff's level of disability was unlikely to change for the foreseeable future notwithstanding Review Officer St George's reference to evidence from that expert that the plaintiff "should be able to perform some form of work in the future". I consider that the decision of Review Officer St Georges was no more than a finding that, at the time of his decision, it was more likely than not that the plaintiff would be totally incapacitated for the foreseeable future. In my view, were the defendant to raise new information not before the review officer or establish changed circumstances, that decision would not effect an issue estoppel.
I note that the parties in these proceedings are still disclosing expert reports to each other and that process was continuing as recently as 2 August 2006 when both parties were granted leave to adduce further expert reports. Indeed an order was made on 2 August 2006 providing that the defendant do provide further and better discovery.
I am not in a position to determine whether there is any material which will tend to show that there is a change of circumstances or new information such that the decision of Review Officer St George will not raise an issue estoppel. I am not called upon to make any final determination on the point and consider that, in the absence of evidence directed to that issue, I could not assess the merits of the argument in any meaningful way.

I am therefore not satisfied that the amendments sought to be made to the statement of claim are not fairly arguable. Were there not issues of case management in this case, I would not be minded to refuse leave to amend on the basis that the issue is not fairly arguable.

Prejudice to the defendant

The proposed par 15A of the statement of claim is not expressed in the alternative, but I was assured by counsel for the plaintiff that the argument is run in the alternative. The statement of claim in any event asserts permanent disability in par 12 and total incapacity to earn in par 15. In those circumstances, the plaintiff intends to present its case in precisely the same fashion and with precisely the same evidence, whether he is or is not permitted to amend his statement of claim. The defendant has therefore to meet the same body of evidence irrespective of whether or not the statement of claim is amended.
I explored with the parties the theoretical possibility of a preliminary determination of the matter of the issue estoppel. That could only arise in the event of this trial being vacated. I explored whether the issue could be determined in such a way which avoided the need for the defendant to produce a body of expert evidence going to the issue covered by the estoppel, which evidence would be unnecessary if the estoppel was upheld. Both parties were of one mind that they wished the trial to proceed as listed and did not consider that the question of issue estoppel could be determined by way of a preliminary argument. The defendant, of course, seeks that the matter of issue estoppel be determined in advance by me in this application, but did not consider it possible for the matter of issue estoppel to be dealt with in any manner which would obviate the need for it to produce all of its witnesses in any event.
That being the case, there is no great prejudice to the defendant should the plaintiff be given leave to amend his statement of claim. The defendant has still to meet the same case it had always to meet. The plaintiff intends to call the same evidence in any event and accepts the burden of having to prove more than perhaps should prove necessary if the argument of issue estoppel were to be upheld.

Case management principles

The critical issue is the untenable position in which this Court would find itself while ever there is, running parallel with the proceedings in this Court, appeal proceedings against the very decision upon which the issue estoppel is based. Counsel for the plaintiff submitted that there was no real difficulty in this Court postponing judgment for some unpredictable amount of time pending the appeal decision being handed down or, alternatively, delivering judgment in part and reserving judgment on the issue estoppel until the appeal decision was handed down. It is also possible for this Court to proceed to judgment on the basis that, unless and until it is overturned on appeal, the decision of the Review Officer St George is final. I do not consider any one of those options to be satisfactory.
It is clear that this case will involve issues of credibility, both of the plaintiff and employees of the defendant. In assessing credibility of the witnesses, the trier of the facts should consider not only what the witnesses say but how they say it, taking into account their demeanour and the impression he forms of them. While the proceedings can be transcribed, there is no substitute for recent memory of the impression the witness created with the trier of fact.
Furthermore, it may be that the defendant's appeal against the decision of Review Officer St George will ultimately succeed, rendering the question of issue estoppel irrelevant to this Court. In the interim, however, the issue will have been fully argued before the Court and the Court will have given consideration to the findings of fact and reasons contained within the decision of Review Officer St George and in those circumstances will have considered and perhaps been influenced by quite extraneous material.
While I do not consider that no trial should ever take place while there exists the theoretical possibility of an appeal in another tribunal, this is not a theoretical case. There is an appeal on foot and it will be argued a mere two business days prior to the commencement of the trial in this Court. For this Court to deliver judgment, prior to the appeal decision being handed down, might constitute error, on the record or by way of fresh evidence, in the event that this Court finds that the decision does raise an issue estoppel, the decision giving rise to the estoppel later being reversed on appeal.
In all of the circumstances, I conclude that the proposed amendment to the statement of claim at this late stage and in these circumstances places this Court in an untenable position. The proposed amendments raising a matter which is fairly arguable, it may have been appropriate to amend the pleadings and of necessity vacate the trial date, consistent with the decision of the Principal Registrar, Mr Gething. At the time of that decision, the plaintiff's instructions to which I have earlier referred were not before Mr Gething. The plaintiff has made it very clear to me, however, as has the defendant, that his priority is for this trial to proceed as listed on 4 September 2006.
There has been unexplained delay in making the application to amend the pleadings, although that factor alone would not have led me to the conclusion that the pleading should not be amended. I do not consider prejudice to the defendant to be a factor in this decision.
I have reached the view, however, that the only circumstances in which I would be prepared to allow the amendment of the statement of claim to plead issue estoppel would be if this trial were adjourned to enable the appeal against the decision of Review Officer St George to be argued and determined prior to the commencement of any trial in this Court. I consider that to be essential to the proper conduct of the trial and the efficiency of this Court in delivering judgment within a reasonable time. The plaintiff having expressed the view that, should I reach that conclusion, he does not wish to pursue his application to amend the statement of claim, I will not give leave to amend the statement of claim so as to necessitate the adjournment of this trial. Had that position been the plaintiff's position before Mr Gething, Mr Gething would not have given leave to amend the pleadings.

Conclusion

It follows that, for the reasons stated above, I allow the defendant's appeal against O 2 of the orders of the Principal Registrar made 14 July 2006 in which the plaintiff was given leave to amend the statement of claim. I allow the plaintiff's appeal against O 3 of those same orders in which the trial set down for hearing commencing 4 September 2006 was vacated, and it follows that O 4, in which O 3 was stayed pending the hearing of an appeal, falls away. The trial currently listed to commence on 4 September 2006 remains listed to commence on that date.
I will hear the parties as to costs.