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Maurice Blackburn Cashman v Brown

Maurice Blackburn Cashman v Brown

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL AND BELL JJ
MAURICE BLACKBURN CASHMAN  APPELLANT
AND
FIONA HELEN BROWN  RESPONDENT
Maurice Blackburn Cashman v Brown [2011] HCA 22
22 June 2011
M176/2010
ORDER
1.        Appeal allowed.
2.Set aside so much of the order of the Court of Appeal of the Supreme Court of Victoria made on 25 August 2010 as answered the questions reserved for its opinion and in place thereof order that the questions reserved be answered as follows:
Question 1:Do any, and if so which, of the estoppels pleaded in paragraph 1A(i) of the plaintiff's amended reply to amended defence arise?

Answer:No.

Question 2: Is this honourable court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at paragraph 1B(a) and (b) of her amended reply to amended defence?

Answer:No.

Question 3:Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in paragraph 1B(c) of her amended reply to amended defence?

Answer:No.

3.The appellant pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria
Representation
M F Wheelahan SC with S A O'Meara for the appellant (instructed by Minter Ellison)
P W Tree SC with S R McCredie for the respondent (instructed by Lennon Mazzeo)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ. The respondent to this appeal ("the plaintiff") was a salaried partner employed by the appellant firm ("the employer") in its legal practice in Melbourne. In 2007 the plaintiff commenced proceedings against the employer in the County Court of Victoria claiming damages for personal injuries she alleged she had suffered as a result of the employer's negligence. She alleged that between January and November 2003 she had been "systematically undermined, harassed and humiliated" by a fellow employee, despite complaints and requests for intervention made to the employer's managing partner, and that, as a result, she had suffered injury, including psychiatric injury.
The central issue in the appeal to this Court is whether, as the Court of Appeal of the Supreme Court of Victoria held[1], the employer is precluded by operation of the Accident Compensation Act 1985 (Vic) ("the Act") from making certain contentions in evidence or argument in the plaintiff's action in the County Court or is estopped from making those contentions as a matter of issue estoppel. (The question of issue estoppel was argued in, but not decided by, the Court of Appeal and is raised in this Court by the plaintiff on a notice of contention.)
[1]Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman [2010] VSCA 206.
Both the issue decided by the Court of Appeal and the issue raised by the notice of contention should be resolved in the employer's favour. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCA 22
Decision Date: 22 June 2011

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Maurice Blackburn Cashman (the plaintiff) and Brown (the employer, the defendant) concerning a claim for damages for injury, including psychiatric injury, allegedly suffered by the plaintiff as a result of the employer's negligence. The plaintiff had made a claim for non-economic loss under section 98C of the *Accident Compensation Act 1985* (Vic). Following a referral of questions to a Medical Panel under section 104B(9) of the Act, the plaintiff was deemed to have a "serious injury" for the purposes of the Act, entitling her to commence common law proceedings for damages under section 134AB(2). The employer denied the plaintiff had suffered injury, loss, and damage, leading to the plaintiff pleading issue estoppel in her amended reply to the amended defence.

The central legal issues before the High Court were whether the employer was precluded by the operation of the *Accident Compensation Act 1985* (Vic) from making certain contentions in evidence or argument, and whether the employer was so precluded as a matter of issue estoppel. Specifically, the court was asked to determine if any estoppels pleaded by the plaintiff arose, if the court was obliged to accept as final and conclusive certain matters pleaded by the plaintiff, and if the defendant was precluded from acting in ways claimed by the plaintiff. These questions arose from the plaintiff's assertion that the Medical Panel's finding of a "serious injury" under section 68(4) of the Act, which states the Medical Panel's opinion is to be applied by "any court, body or person" for determining any question or matter, created an estoppel against the employer in the common law proceedings.

The High Court held that the issue estoppels alleged by the plaintiff did not arise from the Medical Panel's opinion. The court reasoned that the opinion of a Medical Panel, while binding for the purposes of determining whether a "serious injury" threshold has been met for statutory compensation entitlements, does not operate as an issue estoppel in subsequent common law proceedings for damages. The court found it unnecessary to consider further questions regarding who is affected by a Medical Panel's opinion or whether such an opinion constitutes a "decision" between parties, as the primary basis for the estoppel claim was unfounded. Consequently, the appeal was allowed, the order of the Court of Appeal of the Supreme Court of Victoria was set aside, and the reserved questions were answered in favour of the employer, stating that no such estoppels arose and the court was not obliged to accept the plaintiff's pleaded matters as final and conclusive. The appellant was ordered to pay the respondent's costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside so much of the order of the Court of Appeal of the Supreme Court of Victoria made on 25 August 2010 as answered the questions reserved for its opinion and in place thereof order that the questions reserved be answered as follows:

Question 1:Do any, and if so which, of the estoppels pleaded in paragraph 1A(i) of the plaintiff's amended reply to amended defence arise?

Answer: No.

Question 2: Is this honourable court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at paragraph 1B(a) and (b) of her amended reply to amended defence?

Answer: No.

Question 3:Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in paragraph 1B(c) of her amended reply to amended defence?

Answer: No.

3. The appellant pay the respondent's costs of the appeal to this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ

These are reasons enough to conclude that the issue estoppels alleged in this case do not arise from the Panel's opinion. It is not necessary in these circumstances to consider the further questions agitated in argument about who should be regarded as the "parties" immediately affected by a Panel expressing its opinion, who should be regarded as a privy of those parties, or whether the opinion expressed by a Panel about degree of impairment can or should be regarded as a "decision" of some question arising between parties.Conclusion and orders The appeal to this Court should be allowed. The Court of Appeal's order answering the questions reserved for its opinion should be set aside. In place of that order there should be an order that the questions reserved be answered as follows:Question 1:Do any, and if so which, of the estoppels pleaded in paragraph 1A(i) of the plaintiff's amended reply to amended defence arise?Answer:No.Question 2:Is this honourable court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at paragraph 1B(a) and (b) of her amended reply to amended defence?Answer:No.Question 3:Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in paragraph 1B(c) of her amended reply to amended defence?Answer: No. In accordance with the undertaking given at the time of the grant of special leave, the appellant should pay the respondent's costs of the appeal to this Court. The appellant applied for an order that the plaintiff pay its costs in the Court of Appeal. This being a test case on a point of general application and the undertaking having been given, the orders for costs made by the Court of Appeal in favour of the plaintiff should not be disturbed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ

Full text does not contain this section.