| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MARGIO -v- METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST [2002] WADC 124 CORAM : WISBEY DCJ HEARD : 22 MAY 2002 DELIVERED : 26 JUNE 2002 FILE NO/S : CIV 4343 of 1996 BETWEEN : JOHN ANTHONY MARGIO Plaintiff
AND
METROPOLITAN (PERTH) PASSENGER TRANSPORT TRUST
Defendant
Catchwords: Practice and procedure - Preliminary determination - Issue estoppel - Relitigation of issue determined by Review Officer in workers' compensation proceedings - Abuse of process - Application to recall order made on preliminary determination
Legislation: Nil
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Result:
Motion refused Representation:
Counsel:
Plaintiff : Mr R I Viner QC with him Mr G R Hancy
Defendant : Mr G Raithel
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Crown Solicitor's Office
Case(s) referred to in judgment(s):
Hunter v Chief Constable of the West Midlands Police [1892] AC 529
McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191
Case(s) also cited:
Ashmore v British Coal Corporation [1990] 2 All ER 981
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
House of Spring Gardens Ltd v Waite [1992] All ER 990
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
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1 WISBEY DCJ: On 15 March 2002 I delivered reasons determining the preliminary issue whether on 24 February 1995 the plaintiff suffered carbon monoxide poisoning. That issue came before me for determination consequent upon the order of the Principal Registrar made at pre-trial conference on 31 October 2000, and as directed by the order, an agreed statement of issues signed by the legal representatives of both parties filed 22 December 2000.
2 The transcript of the preliminary issue hearing, and my comments in the reasons for decision, demonstrate that I expressed reservations about the appropriateness of the preliminary determination of the issue, but in accordance with the terms of the order made, proceeded to do so. 3 On 5 April 2002 the solicitors for the plaintiff filed and served a Notice of Motion by way of appeal challenging the determination. 4 By Motion filed 26 April 2002 the plaintiff seeks to have the orders made on 15 March 2002 recalled and withdrawn, and the further hearing of the preliminary issue adjourned sine die. 5 In an affidavit sworn 26 April 2002 the plaintiff's solicitor deposed to the fact that: (a) on 28 August 1995 Mr P Bullen, a Review Officer at the Conciliation and Review Directorate Work Cover Western Australia, made a determination in a workers' compensation application instituted by the plaintiff, that the plaintiff had suffered personal injury by accident in the course of his employment by way of carbon monoxide poisoning on 24 February 1995. (b) on 24 January 1997 Mr Bullen made a further determination that the plaintiff's left arm tremor was causally related to his compensable carbon monoxide poisoning injury. (c) the plaintiff's solicitor did not address the importance of Mr Bullen's determinations, and suggests that in part the defendant's representatives must shoulder responsibility for the fact that the legal effect of the determinations was not addressed. 6 Having regard to the fact that the plaintiff was a party to and attended upon both applications before Mr Bullen, I have some difficulty
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accepting that the plaintiff can be absolved from the position in which he now finds himself. 7 The plaintiff refers the Court to the decision of the Full Court of the Supreme Court of Western Australia in McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191 as authority for the proposition that a determination of a Review Officer is a judicial decision capable of giving rise to an issue estoppel in subsequent Common Law proceedings where the same issues are in contest between the same parties. 8 The plaintiff submits that at the time I determined the preliminary issue the defendant was estopped, by reason of the aforesaid workers' compensation decisions, from denying that the plaintiff sustained carbon monoxide poisoning. The simple answer to that contention is that it is not raised on the pleadings, and the issue of estoppel was not before the Court. 9 The plaintiff further contends that the assertion by the defendant that the plaintiff did not suffer carbon monoxide poisoning is in the circumstances an abuse of process as it amounts to a collateral attack on the decisions of the Review Officer. 10 In Hunter v Chief Constable of the West Midlands Police [1892] AC 529, Lord Diplock stated at 536: "My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people." 11 In this case the Court was charged with the task of determining the preliminary issue ordered to be determined by the Principal Registrar on 31 October 2000. I indicated at the start of the hearing that it was inappropriate to make that order when the issue to be determined had not been particularised. The issue was subsequently identified when the parties executed and filed an agreed statement of issues on 22 December 2000. In accordance with the desire of the parties I determined that issue. The preliminary determination having been undertaken pursuant to an order obtained by, and in accordance with the desire of the parties, and the workers' compensation proceedings not having been brought to the
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attention of the Court by either of them, it cannot be said that the determination is manifestly unfair to either of them. Nor in the context of this action, could it be said to bring the administration of justice into disrepute. 12 The legal effect and consequences of the determination are matters that will be identified and conditioned by the pleadings, and the future conduct of the action. |