Melia v Hampton Transport Services Pty Ltd

[2001] WADC 216

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

LOCATION:   PERTH

CITATION:   MELIA -v- HAMPTON TRANSPORT SERVICES PTY LTD & ORS [2001] WADC 216

CORAM:   REGISTRAR KINGSLEY

HEARD:   8 AUGUST 2001

DELIVERED          :   13 SEPTEMBER 2001

FILE NO/S:   CIV 3052 of 1999

BETWEEN:   KEVIN THOMAS MELIA

Plaintiff

AND

HAMPTON TRANSPORT SERVICES PTY LTD
Defendant

SGIO INSURANCE LTD
First Third Party

THE INSURANCE COMMISSION OF WESTERN AUSTRALIA
Second Third Party

Catchwords:

Practice - Application to amend defence - Plaintiff employee - Prior decision in Conciliation and Review Directorate accident work related - Claim of estoppel - Second Third Party claims procedural unfairness and unfairness in equity

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Defendant's application dismissed

Representation:

Counsel:

Plaintiff:     Mr C Prast

Defendant:     Ms M Wolstenholme

First Third Party           :     Mr C Rimmer

Second Third Party       :     Mr B Lawrence

Solicitors:

Plaintiff:     Anthony Torre & Monaco

Defendant:     Hammond Worthington

First Third Party           :     Jackson McDonald

Second Third Party       :     Lawrence & Howell

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

Arnold v National Westminster Bank Plc [1991] 2 AC 93

Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464

Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853

McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191

The Administration of the Territory of Papua New guinea v Daera Guba (1973) 130 CLR 353

Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

Yates Property Corp Pty Ltd v Boland (2000) FCA 1106

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  The defendant’s application dated 13 December 2000 that it have leave to amend its defence has a history behind it.  Relevant for these reasons it is only necessary to state that the orders I made on 8 February 2001 have been recalled and the application be heard afresh.

2. The plaintiff’s action is one for personal injuries arising out of the course of his employment as a truck driver.  The injury is alleged to have occurred as a result of the plaintiff having to drive a truck long distances, by moving motor vehicles by manually bouncing motor vehicles on the back of the truck and manually loading and unloading, or manoeuvring, boxes weighing between 30 or 40 kilograms and 100 kilograms.  The plaintiff pleads that, in the course of carrying out these activities, on 17 October 1993 he sustained serious back injury resulting in him having to cease work on that date.

3. The defendant now seeks to amend its defence to plead that if the plaintiff suffered the injury the injury did not occur whilst the plaintiff was carrying out the activities in the course of his work but occurred on 17 October 1993 whilst the plaintiff was not at work and was not engaged in work related activities.

4. In March 1995 an application was heard before a Review Officer in the Conciliation and Review Directorate relating to a dispute by the insurer for the defendant.  Liability for the injury was disputed on the basis the disability did not arise out of the employment.  After going through the facts, the significant fact being the allegation by the insurer that the injury in fact occurred whilst the plaintiff was throwing a ball to his dog on the beach on 17 October 1993 the Review Officer concluded that the plaintiff sustained a personal injury by accident arising out of in the course of his employment.  This then established entitlement to compensation.

5. The matter went on appeal to the Compensation Magistrates Court and in August 1995 the Compensation Magistrate remitted the matter to the Review Officer for further consideration.  The matter came before the Review Officer in the Conciliation and Review Directorate in October 1995 and he gave his decision in November 1995.

6. The Review Officer refers to a medical report provided by Dr Bannan on 5 October 1995 in which it is stated that the injury sustained to the plaintiffs back in June 1990 is consistent to a muscular tear.  Knowledge of the 17 October incident did not alter Dr Bannan’s opinion in relation to his reports of 15 July 1994 and 23 November 1994.  Whilst there is no mention in the report of 15 July 1994 by Dr Bannan, in his report of 23 November 1994, Dr Bannan is referred to the incident on the beach.  Dr Bannan comments that relying on the plaintiffs history as related to him, in his experience it is unlikely that the plaintiff damaged his L5 S1 disc bending down to pick up a ball and throwing it.  The Review Officer then spends time considering the conflicting evidence concerning the incident on the beach.

7. The Review Officer then concluded that the worker was entitled to weekly earnings at the time the disability occurred, that being in the course of his employment as a truck driver.  The Review Officer found that the disability of the plaintiff resulted from an aggravation or acceleration of a pre existing disease and that the employment was a contributing factor and the employment contributed to a significant degree.

Estoppel

1. The plaintiffs argument is that the defendant is estopped by the decision by the Review Officer from now seeking to amend the pleading to plead that the injury did not occur whilst the plaintiff was carrying out activities in the course of his employment.  The question of issue estoppel was given full consideration in McNair v Press Offshore Ltd & Anor (1997) 17 WAR 191. Owen J referring to Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 at 531 commented that 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. Matters of law or fact that are subsidiary or collateral are not covered by the estoppel. Findings, however deliberative and formal, which concern only evidentiary facts forming the very title to right give rise to no preclusion. Owen J at 196 commented that the issue of estoppel only applies to a “judicial” determination but goes on to say whether a tribunal is administrative or judicial is not the question. The question is whether the tribunal has jurisdiction to decide finally a question arising between the parties, even if the tribunal is not a “court” in the conventional sense and derives its authority from statute (The Administration of the Territory of Papua New guinea v Daera Guba (1973) 130 CLR 353). At 198 Owen J. stated that the determination of a Review Officer in the Conciliation and Review Directorate is a judicial decision in the relevant sense. Owen J further commented that the decisions of Review Officer’s were intended to be final decisions.

2. The defendant’s Counsel argues that in Australia the law as to issue of estoppel is not settled.  Defendants Counsel argues that in special circumstances where further material relevant to the determination of a point involved in early proceedings becomes available, that material not being able by reasonable diligence to have been adduced in the earlier proceedings, then arguably there is an exception to issue estoppel.  (see Arnold v National Westminster Bank Plc [1991] 2 AC 93). However in Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 the Full Court, by obiter dictum, suggested there may be no such exception.

3. Defendants Counsel further cited Yates Property Corp Pty Ltd v Boland (2000) FCA 1106 where Goldberg J, after rejecting a submission that an “Anshun” estoppel arises in relation to the cause of action raised in a proposed further amended cross claim, went on to consider the issue of special circumstances. As I understand par 115 to par 117 inclusive of the judgement of Goldberg J all he does is recite authority subsequent to Arnold v National Westminster Bank Plc in Australia, all of which seem to doubt an exception of special circumstance.  At par 118 Goldberg J does not come to a conclusion.

4. The defendants Counsel raises in this context a physiotherapist’s clinical note referred to in annexure G of the affidavit of Beven Lawrence sworn 6 February 2001.  The physiotherapist’s note dated 18 October 1993 is said to be new evidence.  Of course at the hearing before the Review Officer, in both cases, a representative of the insurer was present, and certainly the note could have been made available.

5. The second third party also argues that the physiotherapists clinical note is new evidence.  Counsel for the second third party argues that the Review Officer had before him the report of Ms Bendotti, physiotherapist, of Broome Health Service dated 15 March 1995.  However Ms Bendotti’s report did not contain the precise information now set forth in the physiotherapy notes.  Further the Review Officer had before him a handwritten report of Dr O’Sullivan of 3 December 1993.  Counsel for the second third party submits that Ms Bendotti’s report and Dr O’Sullivan’s note left it open for the Review Officer to assume from Dr O’Sullivan’s report that the plaintiff attributed his problems to prolonged driving.  Counsel for the second third party submits that the clinical notes of Broome Medical Centre coupled with an affidavit of Dr Meehan clearly show that the plaintiff made no attribution of his back pain to his driving on 18 October 1993. 

6. Counsel for the second third party submits that the rule of estoppel by res judicata is a rule of evidence that where a final decision has to be pronounced by a judicial tribunal of competent jurisdiction over the parties to and subject of the litigation then any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853).

7. Counsel for the second third party was not, and could not be, a privy in the workers compensation claim.  The privy was the workers compensation insurer.  The Insurance Commission had no right to be involved and, in any event, had no notice of the proceedings.  Counsel for the second third party submits that the Insurance Commission of Western Australia is probably a privy in the common law claim as it is the statutory insurer of the truck owner and would be obliged to indemnify the defendant vehicle owner with respect to any injury to the plaintiff caused by or by the driving of the registered vehicle.

8. Counsel for the second third party argues that since the issue of estoppel is founded on equitable principles the estoppel should not operate to render an unfairness to a privy of the parties. Any finding of issue of estoppel against the Insurance Commission of Western Australia will unfairly bind it to a decision to which it was not party and to a decision where the Review Officer had access to some evidence only. Counsel for the second third party argues that the principles of fairness and justice suggest that the Insurance Commission of Western Australia ought not be bound by the decision of the Review Officer. If the plaintiff sued the Insurance Commission of Western Australia there could be no doubt there could be no issue of estoppel as the Insurance Commission of Western Australia was not a privy to the defendant in the first action. Counsel for the second third party argues it would be inequitable to aid and abet the plaintiff to obtain a judgement of the kind envisaged by s 7 Motor Vehicle (Third Party Insurance) Act 1943 by use of an estoppel and then bind the Insurance Commission of Western Australia.

9. In my opinion whilst there has been some comment about special circumstance the state of the law is that put forward to Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 and McNair v Press Offshore Ltd (1997) 17 WAR 191. That is no special circumstance exception to issue estoppel is part of the law of Australia. In any event the issues around the physiotherapists clinical notes and the subsequent comment by Dr Meehan go to the merits of the Review Officers decision or to an argument that the defendant has been denied procedural fairness.

10. Accordingly I am of the opinion the finding that the workers disability resulted from an aggravation or acceleration of a pre existing disease where employment was a contributing factor must act as an estoppel and the defendants application is dismissed.

The second third party's arguments

1. It is clear that the second third party was not a privy to the litigation and in my opinion no estoppel on the decision of the Review Officer could bind the second third party. However I do agree that, the second third party finds itself bound by an estoppel when it was not, nor could have been, a privy to the defendant in the first action. However the issue arises by way of s 7 of the Motor Vehicle (Third Party Insurance) Act 1943 and in my opinion the perceived unfairness and injustice can only be remedied by legislation.

Conclusion

1. For these reasons the defendant’s application for leave to amend its defence is refused.  I will hear Counsel on form of orders.