Melia v Hampton Transport Services Pty Ltd

[2001] WADC 45

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MELIA -v- HAMPTON TRANSPORT SERVICES PTY LTD [2001] WADC 45

CORAM:   REGISTRAR KINGSLEY

HEARD:   8 FEBRUARY 2001

DELIVERED          :   Delivered Extemporaneously on 8 FEBRUARY 2001 typed from tape and edited by Trial Judge

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 for leave to amend defence - Amending defence to plead injury did not occur in course of employment - Workcover decision finding injury occurred in course of employment - Estoppel raised

Legislation:

Nil

Result:

Defendant's application dismissed

Representation:

Counsel:

Plaintiff:     Mr C Prast

Defendant:     Ms M D Wolstenholme

First Third Party           :     Mr C C Rimmer

Second Third Party       :     Mr B E 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):

Blair v Curran (1939) 62 CLR 464

McNair v Press Offshore Ltd (1997) 17 WAR 191

The Administration of the Territory of Papua and New Guinea v Daera Guba (1972-1973) 130 CLR 353

Case(s) also cited:

Nil

1. REGISTRAR KINGSLEY:  This is the return of the defendant's application seeking leave to amend its defence to plead that the injury alleged by the plaintiff did not occur in the course of his work.  The plaintiff pleads at par 13 that he was employed by the defendant.  At par 5 the plaintiff pleads that in the course of carrying out his work activities he sustained serious injury to his back culminating in him ceasing work on 17 October 1993.

2. The evidence before me is that the matter has gone to a review hearing before a review officer at Workcover.  That review officer has made a finding of fact that the plaintiff has sustained a personal injury by accident arising out of or in the course of employment and therefore had established an entitlement to compensation.  The question of issue estoppel arises in relation to the prospective amendment.

3. Issue estoppel is where a competent tribunal delivers a final decision in a matter.  It applies to findings of fact and law which the prior judgment relied on as the foundation or justification of its conclusion.  In Blair v Curran (1939) 62 CLR 464, Dixon J commented that estoppel only covers those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion.

4. An estoppel can arise out of the decision of any tribunal which has jurisdiction to decide the issue between the parties notwithstanding the jurisdiction of the tribunal is statutory.  In the case of The Administration of the Territory of Papua and New Guinea v Daera Guba (1972-1973) 130 CLR 353 an issue is settled once and for all so as to give rise to estoppel if it is actually raised in the proceedings and decided, and if the judgment of the tribunal required that it be decided one way or the other.

5. The correctness or incorrectness of the finding which amounts to an estoppel is irrelevant.  It is immaterial that the finding may be thought by the second court to be wrong or based on insufficient evidence.  It is enough that the issue is decided in the earlier judgment.  Once that is done, no allegation legally inconsistent with the finding may be made one party against the other in subsequent proceedings, and the fact that the forms of action are not the same also does not matter.

6. In this matter, Workcover is a competent tribunal (McNair v Press Offshore Ltd (1997) 17 WAR 191). For the review officer to find that compensation is payable it is fundamental. There is a finding the injury arises out of the course of employment. The authority of McNair makes it clear that finding by the review officer acts as an estoppel on that issue.  Defendant's counsel, as well as Counsel for both third parties, sought to persuade me this was an issue that ought to go forward on the pleadings; that the law ought not be stifled.

7. Tantalising Owen J, p 196 of McNair, does not, out of hand, dismiss the suggestion that issues of unfairness by the review officer and the allowing of a thorough investigation of the circumstances of the accident could not be argued. But, having regard to the authorities and those authorities where the question of fresh evidence and fraud were raised, it is clear it is the original judgment that must be impeached.

8. Whilst the findings of the review officer lie on the record, those findings must act as an estoppel between the plaintiff and the defendant.  The defendant's application is dismissed.