Nan v Country Road Freight Services Pty Limited
[2006] NSWWCCPD 160
•25 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
REPORTED DECISION: Nan v Country Road Freight Services Pty Limited (2006) 5 DDCR 507
CITATION:Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160
APPELLANT: Vasile Nan
RESPONDENT: Country Road Freight Services Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: 11529-05
DATE OF ARBITRATOR’S DECISION: 23 September 2005
DATE OF APPEAL DECISION: 25 July 2006
SUBJECT MATTER OF DECISION: Res judicata; estoppel; self-represented worker; reconsideration; section 350(3) of the Workplace Injury Management andWorkers Compensation Act 1998
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Self-represented worker
Respondent: Alan Brown & Co
ORDERS MADE ON APPEAL: Order number 1 of the decision of the Arbitrator, dated 23 September 2005, is revoked and the following decision is made in its place:
“1. Award for the respondent.”
Order number 2 of the decision of the arbitrator, dated 23 September 2005 is confirmed.
The appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 20 October 2005 Vasile Nan (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 September 2005.
The Respondent to the Appeal is Country Road Freight Services Pty Limited (‘the respondent’).
The appeal is from orders made by an arbitrator during a teleconference on 23 September 2005, dismissing the Application to Resolve a Dispute, and ordering the appellant to pay the respondent’s costs. The orders were made on the basis the appellant was estopped, by earlier decisions in both the Compensation Court of NSW (‘the Court’) and the Commission, from succeeding on his current Application. Then, as now, the appellant was self-represented. He did however have the assistance of an interpreter in the Romanian language, and also was assisted by Ms Toma from the Romanian Consulate. Ms Toma stated she was not a lawyer, but was present at the appellant’s request to assist “if he has some inquiries about the language or something”. There is an extensive history of litigation between the parties regarding the appellant’s entitlements to compensation resulting from an accident on 3 July 1998, which will be detailed later in these reasons.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 September 2005 records the Arbitrator’s orders as follows:
“1. Application dismissed.
2. That the Applicant pay the Respondent’s costs as agreed or to be assessed.”
Notwithstanding the orders were made at a teleconference, the teleconference was sound recorded due to the appellant being self-represented, and a transcript is available. The arbitrator did not reduce any formal reasons for his decision to writing, and his reasons must be gleaned from what appears in the transcript.
ISSUES IN DISPUTE
The appellant does not have the benefit of legal representation, and the hand written grounds of appeal attached to his Application to Appeal are discursive, and to a large extent relate to matters which go to the merits of the appellant’s claim against the respondent, rather than to the issue of estoppel which resulted in the orders the subject of this appeal. The points the appellant seeks to raise appear to me to be as follows:
(a)The orders were against the evidence and the weight of the evidence.
(b)The arbitrator misdirected himself in how he dealt with medical evidence regarding the appellant’s visual problems, in particular regarding the aetiology of fourth cranial nerve palsy from which the appellant suffered.
(c)The arbitrator misdirected himself in his assessment of the appellant’s credit, due to problems in translation between the Romanian and English languages.
(d)The appellant seeks to adduce further medical evidence in respect of the medical issue which was decided against the appellant, being the aetiology of the appellant’s fourth cranial nerve palsy.
These grounds almost wholly concern themselves with perceived grounds of appeal against the judgment of Neilson J of 12 February 2003, in the proceedings in which the matter was originally litigated in the Court. With the possible exception of sub-paragraph (a) in the preceding paragraph, they do not concern themselves with the estoppel issue which led to the current proceedings being dismissed.
The respondent’s submissions on this appeal refer to the history of litigation between the parties, and contend the decision of the arbitrator based upon estoppel should be confirmed. The respondent also contends that, in so far as the appellant seeks to adduce fresh evidence, that evidence was available, or could have been available, at the time of the original litigation in the Court. In addition it is submitted the tender of such evidence was previously rejected by Fleming DP in prior proceedings in the Commission (No 9183-2003). The respondent also seeks costs of the appeal. Lastly the respondent seeks “the applicant be declared a vexatious litigant and he be estopped from filing any further application against the respondent in the Workers Compensation Commission”. The source of power for the making of the last of these orders sought by the respondent is unspecified.
It should be recorded the Commission file on this appeal includes a letter from the respondent’s solicitors to the President of the Commission dated 9 November 2005, which sets out details of prior proceedings between the parties, and makes submissions on the estoppel point, additional to those attached to the respondent’s Notice of Opposition to the appeal. It is not clear the additional submissions contained in that letter have been served upon the appellant, and accordingly the safest course is that I put them to one side, in my consideration of the appeal.
It is relevant to note the hand written grounds of appeal attached to the appellant’s Application to Appeal are virtually identical to a hand written document headed “Grounds of Appeal” which was attached to the appellant’s Application to Resolve a Dispute in the current proceedings. It appears to have formed part of the appellant’s Application to Appeal in earlier Commission proceedings numbered 9183-2003, which met a similar fate to the current Application, and for the same basic reasons.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The respondent submits the matters raised on this appeal should be decided on the basis of the documentary material only. The appellant submits the appeal should not be decided solely on the documents, as he wishes to adduce fresh evidence on the appeal, in particular oral evidence from medical practitioners. Having regard to the views I have formed on the primary issue in the appeal relating to the estoppel argument, and also the view I have formed in respect of the relevance of the further medical evidence, I am not of the view there would be utility in conducting an oral hearing in this appeal. I also note there was an oral hearing in an earlier Presidential appeal in the Commission (No 9183-2003), which raised the same or very similar issues to those which require determination in the current appeal.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Application to Resolve a Dispute claims weekly compensation at a rate of $1,159.00 per week from 3 September 1998 to 4 March 2003, together with multiple lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). The effect of the arbitrator’s decision was that the appellant failed totally in his claim. The requirements of section 352(2) are clearly satisfied (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
In the circumstances I grant leave to appeal pursuant to section 352 of the 1998 Act.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
This appeal relates to the orders made by the arbitrator on the teleconference, dismissing these proceedings, on the basis the appellant was estopped from succeeding in them, due to the prior decisions of the Court (in matter no 37551/99) and the Commission (in matter no 9183-2003). The merits of the case, beyond the estoppel argument, have not, at this point, been dealt with by the arbitrator. If the appellant was to succeed in this appeal, the appropriate order would be for me to revoke the order of the arbitrator dated 23 September 2005, and remit the matter to the arbitrator for determination. The further evidence which the appellant says he wishes to adduce is described as “additional medico-legal reports in support”, which “will be provided to the court when produced” (pursuant to Notice to Produce), oral evidence from “Professor Billson and other medicos”, and “evidence in writing and by parole (sic) by eminent experts to better inform the court and overcome the misdirection”.
The appellant has not fully complied with Practice Direction No. 6 in respect of any new evidence which he seeks to have admitted on this appeal. He is self-represented, and it may well be appropriate to adopt a relatively benign attitude to such non-compliance. In Reisner v Bratt [2004] NSWCA 22 (‘Reisner’) Hodgson JA said:
“Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.” (at [4])
This passage was recently applied by the NSW Court of Appeal in McMurtrie v Commonwealth of Australia [2006] NSWCA 148. I also note the remarks of Byron DP in Smith v NSW Police Service [2004] NSWCCPD 77 when dealing with an unrepresented litigant on appeal:
“An unrepresented person will ordinarily be at a disadvantage because of their lack of legal skill (Rjaski v Scitec Corporation Ltd [unreported] NSWCA 16 June 1986 (Rjaski)). A court (and a tribunal) has an obligation to diminish this disadvantage so as to ensure a fair and just hearing (Rjaski; Minogue v HREOC [1999] FCA 85; Panagopoulos v Southern Healthcare Network [unreported] SCT Vic 15 September 1997). However, the court or tribunal must remain neutral and must not provide an advantage to the unrepresented person over the party that is legally represented (Rjaski). (The relevant issues in dealing with unrepresented litigants were discussed in Reisner v Bratt [2004] NSWCA 22). A determination of this appeal ‘on the papers’, with the relevant principles in mind, is appropriate.” (at [30])
The further evidence referred to by the appellant in his Application to Appeal in not relevant to the estoppel point which led to the arbitrator dismissing the proceedings. Documents attached to the Application to Resolve a Dispute include some reports which post-date the judgment of Neilson J, in particular reports of Dr Delaney dated 9 July 2004, Professor Billson dated 22 December 2003, and Dr Dorsch dated 13 March 2003. Each of these doctors expresses disagreement with the conclusion of Neilson J in his judgment of 12 February 2003, regarding the absence of a causal link between the appellant’s injury of 3 July 1998, and bilateral fourth cranial nerve palsy which was diagnosed as being the cause of diplopia from which the appellant suffered. Dr Dorsch expressed his willingness to give evidence on the topic. Professor Billson noted he was not called for cross-examination in the original hearing in the Court. Although Practice Note 6 has not been complied with, it seems likely this medical evidence represents the further evidence the appellant seeks to adduce. These reports are not actually fresh evidence for the purposes of this appeal, they having been material before the arbitrator. In so far as the appellant seeks to adduce fresh evidence beyond the contents of these reports, by calling oral evidence from the doctors on the appeal, I would refuse any such application. Such oral evidence would not be relevant to the primary issue before me on this appeal, being whether the arbitrator erred in making orders dismissing the proceedings. Accordingly the application to admit fresh evidence is refused.
EVIDENCE AND SUBMISSIONS
Transcript of the original hearing before Neilson J is attached to the respondent’s Reply in the current proceedings. The appellant owned a truck and trailer, and worked for the respondent conveying coal from mines in the Portland/Lithgow area to Picton and Botany. He carried out such work only for the respondent. It is uncontroversial the appellant was involved in an incident on Friday 3 July 1998 when he fell whilst alighting from the cabin of his truck. There was an extensive history of prior medical problems, which I do not need to repeat here, set out at paragraphs 4 to 28 of the judgment of Neilson J. After the incident Mr Keck, a director and manager of the respondent, helped the appellant up, administered first aid for a wound to the appellant’s head, and took him to Lithgow Base Hospital, where the appellant was admitted, until discharged on Sunday 5 July 1998. The appellant resumed his truck driving duties on Monday 6 July 1998, with a certificate of fitness for work, and carried these out until 2 September 1998. Over that time difficulties developed at the two collieries from which the appellant took deliveries of coal, due to him allegedly disobeying safety directions or instructions from management at those mines. The consequence of this was that the appellant was advised by Mr Keck that he, the appellant, had been banned from the two collieries, and the respondent could not offer him further work. His services were dispensed with on 3 September 1998. The appellant did not work thereafter.
The initial proceedings instituted by the appellant were in matter no 37551 of 1999 in the Court, commenced on 23 June 1999. He alleged total incapacity for work from 4 September 1998 to date and continuing, allegedly resulting from the injury on 3 July 1998. The amended Application filed 14 September 2001 pleads injury to the “head, back, left arm, neck, right leg, left leg, unconsciousness, double vision, visual impairment”. In addition to the weekly claim it also claimed multiple lump sums pursuant to sections 66 and 67 of the 1987 Act, together with a general order for the payment of medical and related expenses pursuant to section 60.
Those proceedings were heard by Neilson J on 10 December 2001, 11 November 2002, 10 February 2003 and 12 February 2003. Evidence was given by the appellant, together with three lay witnesses called in the respondent’s case. Medical reports were tendered, but no medical practitioners gave evidence in the appellant’s case. His Honour delivered judgment on 12 February 2003. His Honour found the evidence of the appellant to be “unreliable and, in many respects, implausible.” (at [3]). His Honour engaged in a lengthy and detailed review of the medical evidence, both pre-dating and post-dating the appellant’s injury of 3 July 1998. His Honour then made the following finding regarding whether the bilateral fourth cranial nerve palsy and associated diplopia resulted from the injury of 3 July 1998:
“104. Bearing in mind the applicant’s presentation as it was in the emergency department on 3 July 1998 at the Lithgow Hospital, it appears to me highly unlikely that the applicant injured the fourth cranial nerve in the minor injury that occurred to him on 3 July 1998.
105. The applicant has the onus of proof. He must demonstrate to me on the balance of probabilities that the bilateral paresis of the fourth cranial nerve results from the injury of 3 July 1998. I am not persuaded by the evidence before me that this is the case. The evidence, in my view, makes it more probable than not that the damage to the fourth cranial nerve was present at least in 1986 when complaints were made of diplopia and the paresis of the nerve or the palsy of the nerve, otherwise known as paresis of the nerve, results more likely than not from the injury of 1984.”
His Honour then considered the medical evidence relating to the alleged orthopaedic complaints, and made this finding:
“110. I would expect at the applicant’s age and his having degenerative changes in his lower back and cervical spine, indeed the whole spine, the applicant also might have degenerative changes in his acromioclavicular joints. Whether the applicant has symptoms in his neck and his lower back and his shoulders depends entirely on my acceptance of him and whether there is any causal relationship between such symptoms and the event of 3 July 1998, I am completely in the applicant’s hands as to a continuity of symptoms. As I said previously, I do not accept the applicant as a reliable witness. I am unable to accept him unless corroborated. Objectively he did his normal work without complaint and without difficulty for two months between 6 July 1998 and 3 September 1998 when he suddenly became incapacitated because his services were terminated. As I said earlier that is implausible. I do not accept that the applicant has any incapacity for work referable to any lumbar or cervical strain or any other organic abnormality following upon his return to work on 6 July 1998. The applicant may have had symptoms from time to time but they might be due completely to the underlying degenerative conditions rather than to any pathology caused in the relatively minor fall on 3 July 1998. It should therefore be clear that I am not satisfied that the applicant has any permanent impairment or any permanent loss of any faculty or body part resulting from the minor event of 3 July 1998.”
Having made these findings of fact, His Honour entered an award in favour of the respondent. Clearly the findings of fact quoted at [27] and [28] above were indispensable to the decision of Neilson J, in determining whether the appellant suffered from an incapacity for work which resulted from the alleged injury, whether the appellant suffered from any of the alleged permanent impairments or losses, and whether such permanent impairments or losses (if they existed) resulted from the alleged injury. The decision of Neilson J was not the subject of appeal by the appellant.
The appellant then instituted proceedings no 9183-2003 in the Commission. Neither party has attached the originating process (the Application to Resolve a Dispute) from those proceedings, to their documents in the current matter. The facts can however be gleaned from the Reasons for Decision of Ms Faye Robinson, the arbitrator who dealt with those proceedings. The appellant pleaded the same injury of 3 July 1998 as was relied upon in his unsuccessful Court proceedings. He alleged he had sustained injury to his “head, neck, back and left arm”, and also “double vision”. He claimed lump sum compensation pursuant to sections 66 and 67, weekly compensation from 3 September 1998 to 4 March 2003, and an order for payment of his medical and related expenses pursuant to section 60. The restriction of the weekly claim to a period prior to 4 March 2003 would coincide with the appellant attaining an age of sixty-five years on that date.
Ms Robinson records “16. The Respondent in the Commission proceedings, denied the claims made by the Applicant and alleged all issues raised by the Applicant had been resolved by the entry of judgment in favour of the Respondent in the compensation court proceedings. The Respondent sought an order striking out the Application to Resolve a Dispute.” Ms Robinson noted the appellant was unrepresented. The documents before her included the pleadings, transcript, judgment and award from the earlier Court proceedings. She dealt, as a preliminary matter, with the question “whether findings and an award in favour of the Respondent, operated as an issue estoppel in respect of the claims brought by the Applicant in the Workers Compensation Commission”. She made the following findings:
“(a) The decision in the compensation court proceedings binds the parties in respect of any issue of fact which was “legally indispensable” to that decision.
(b) The parties, issues and facts in the proceedings before the Commission cannot be distinguished from the parties, issues and facts before the Court.
(c) The issues and facts have been determined by a competent tribunal name (sic) the Compensation Court Matter No 37551 of 1999.
(d) The judgment in the court proceedings operates as an estoppel as to the facts and issues litigated and determined in the proceedings before the Compensation Court.”
The arbitrator continued:
“The Applicant is estopped from making application to the Commission for payment of benefits under the WCA 1987 arising from the injury on 3 July 1998 sustained during the course of his employment with the respondent.”
The arbitrator made formal orders that the Application to Resolve a Dispute be struck out pursuant to rule 69 of the Workers Compensation Commissions Rules 2003. There was no order as to costs. The Certificate of Determination containing these orders is dated 15 October 2003.
The appellant instituted further proceedings against the respondent in the Commission in matter no 19697-2004. The Application to Resolve a Dispute and Reply from those proceedings are not before me. I do not know on what date they were instituted. In the absence of the pleadings I cannot be entirely sure what the subject matter of those proceedings was, although it appears likely the same or a similar claim had again been pleaded by the appellant. The material attached to the respondent’s Reply in the current matter includes a copy Certificate of Determination – Consent Orders dated 23 February 2005. The document records the arbitrator involved was Mr S Georgiadis, and the consent orders were agreed to at a telephone conference. That document records “Mr D Hansen of Carters Law firm was appearing for the Applicant in this matter before the Commission on the basis of amicus curiae.” The consent orders provide the matter be struck out, “as there is an appeal pending on the same matters presently before the Commission (in matter of WCC 9183-03)”. There is no provision in those orders for the payment by either party of the other’s costs. Whilst unclear from the documents before me, it may be the telephone conference at which these orders were agreed occurred prior to the date of the Certificate of Determination which records the orders, as the appellant’s appeal in matter no 9183-2003 was heard on 21 February 2005.
The reference to an appeal is a reference to an Application to Appeal filed by the appellant on 17 November 2004, against the orders of Ms Robinson in matter no 9183-2003, described at [32] above. A copy of that Application to Appeal is attached to the Application to Resolve a Dispute filed by the appellant in the current proceedings. The appellant was unrepresented. The hand written grounds of appeal attached to that document are, for all practical purposes, identical to those relied upon in the current proceedings, save that the earlier document included some submissions dealing with the need to obtain leave as the earlier appeal was put on out of time.
The earlier appeal in matter no 9183-2003 was heard by Fleming DP on 21 February 2005. The appellant was unrepresented, although had the assistance of an interpreter. The respondent was represented by counsel. Transcript is available of what transpired. The appellant indicated he understood the decision of the arbitrator, Ms Robinson against which he was appealing (T4.5). However the appellant, when then invited to address the Presidential member, dealt with multiple issues, such as the medico-legal evidence, whether he had suffered from diplopia prior to his injury of 3 July 1998, and the role of his legal advisers in his unsuccessful litigation in the Court. He quoted at some length from transcript in his Court proceedings, on the question of whether he suffered from diplopia prior to 3 July 1998. He asked of the presidential member whether she had the reports from Professor Dorsch, Dr Delaney and Professor Billson, and she indicated she did have them, after the appellant said those reports had been attached to his Application (T11.6). At one point the Presidential member sought to have the appellant focus on the matter at issue in the appeal, being whether the issues had already been decided “by the judge in the court”. The appellant then asserted the arbitrator had not taken all his documents into consideration, and made further references to medical evidence and whether he had pre-existing symptoms of diplopia (T7 to 8). The appellant did not engage the issue of whether he was prevented, by the judgment of Neilson J, from re-litigating the issue of his entitlement to compensation flowing from his injury of 3 July 1998. The thrust of his submissions went to the further medical evidence he had obtained, and whether it established he was entitled to succeed on the causation issue which had been decided against him by Neilson J.
The respondent’s counsel referred the Presidential member to Egri v DRG Australia Ltd (1988) 19 NSWLR 600 (‘Egri), Lambidis v Commissioner of Police(1995) 12 NSWCCR 225 (‘Lambidis’), and the credit finding made by Neilson J. He accepted a suggestion by the Presidential member the preferable form of order in the circumstances, assuming the arbitrator’s view of the estoppel be upheld, was that the proceedings be dismissed, rather than struck out (the term the arbitrator had used). The appellant was then given an opportunity to address in reply:
“THE D.PRESIDENT: …You have to bear in mind that the issue in front of me, that I have to decide, is whether the arbitrator was right to decide that your case in the Court was exactly the same as it was before her.
THE INTERPRETER: The documents have not been presented to her and what was mentioned was false, was wrong, lies, and now I am presenting those documents, I have the opportunity of presenting these documents.
THE D.PRESIDENT: Can I just say something to you about that? The issue about those documents is, why were those documents not presented to the Court, you had an opportunity to present them to the Court and you didn’t.
THE INTERPRETER: Because it wasn’t me presenting them, it was my barrister. He was supposed to present them but all he did was present in favour of the respondent, because a lot of documents that I have found, and I am presenting them now, should have been presented by my barrister but he wasn’t – he was in favour of the respondent.”
Fleming DP delivered an ex tempore judgment, which forms part of the transcript. She went to some pains to do so in simple English, to explain to the appellant why his appeal was unsuccessful:
“The law in New South Wales says that if you go to the Court and the judge makes the decision about your case, then that is the end unless you appeal the judge’s decision to the Supreme Court. If you are unhappy with the judge’s decision on exactly the same case you cannot come to the Commission and ask for a different decision. Do you understand that?” (at T18.7)
The appellant then protested that although it was the same case, he had different documents, and Fleming DP continued:
“I understand that. I’ve seen your extra documents, but the law says that if the judge has decided it on the documents he had, that I can’t take new documents and look at the same thing again.” (at T19.4)
Fleming DP pronounced her formal orders:
“Leave to appeal is granted. I am going to revoke the order of the arbitrator that the matter be struck out and substitute an order that the application be dismissed. What I am saying is that Ms Robinson said you could not have a second go, she couldn’t make any different order, and I am saying she was right. She cannot make any different order, I cannot make any different order, because Neilson J has made the decision.” (at T21.2)
The current proceedings were instituted by Application to Resolve a Dispute registered on 14 July 2005. Again the appellant is unrepresented. Again the incident of 3 July 1998 is pleaded as causing “head injury; subsequently double vision and lower back, shoulder and neck pain”. Again weekly compensation is claimed from 3 September 1998 to 4 March 2003, together with the lump sum claims pursuant to sections 66 and 67 of the 1987 Act. The attachments to this Application include certain medical reports which post-date the judgment of Neilson J, in particular Dr Dorsch dated 13 March 2003, Professor Billson dated 22 December 2003 and Dr Delaney dated 9 July 2004. However the vast bulk of the material relates to the earlier pieces of litigation, and medical evidence which was utilised in the original litigation in the Court.
The respondent, in its Reply, pleaded the decisions in its favour from Neilson J, Ms Robinson, and Fleming DP. It sought costs on the basis the claim was frivolous, vexatious and without proper justification. It also sought costs in respect of the previous appeal in matter no 9183-2003.
The matter was listed for a teleconference on 22 September 2005, when the arbitrator made the orders set out at [4] above. The arbitrator’s reasons are to be found in a series of interchanges between he and the appellant. He quoted from the decision of Fleming DP, and said:
“And, for that reason, I follow the same decision, that you are estopped from bringing further matters before the Workers Compensation Commission on the same issues that have been previously determined, and, therefore, your matter is a nullity, and I will strike the matter out.” (at T14.55)
The arbitrator then varied this order to one dismissing the Application, at the respondent’s suggestion, having regard to the form of order entered by Fleming DP on the earlier appeal.
The respondent then made an application for costs. After some discussion between the parties, the arbitrator satisfied himself the appellant had understood the orders made by Fleming DP on the hearing of the earlier appeal (at T24 to 25). He then dealt with the costs application:
“On the basis that he understood the comments of Deputy President Fleming and then still brought the matter forward today, I find that he is a frivolous and vexatious litigant and has brought a matter without proper justification, and, for that reason, I will award that the applicant pay the respondent’s costs as agreed or to be assessed.” (at T25.25)
DISCUSSION AND FINDINGS
As noted at [6] to [10] above, the Grounds of Appeal in this appeal do not direct themselves properly to the decision appealed against, and whether that decision is in error. Having regard to the appellant’s unrepresented status, and the Commission’s obligations flowing from that, both as discussed at [22] to [23] above, and in the Commission’s Access and Equity Service Charter, it is not appropriate that, in conducting a review of the matter pursuant to section 352 of the 1998 Act, I confine myself solely to the inadequate grounds put forward by the appellant. However clearly, if there were some basis on which the appeal might succeed, outside the grounds raised by the appellant, the respondent would be entitled to notice of that, and an opportunity to respond.
Clearly principles of cause of action estoppel (res judicata) and issue estoppel have application in workers compensation litigation. In Salmon Street Ltd (In Liq) v Jorgensen (1991) 56 SASR 158 the Full Court of the Supreme Court of South Australia said:
“If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award to determine whether the subsequent claim is barred.” (per
King CJ)
In Bruce v Grocon (1995) 11 NSWCCR247 (‘Bruce’) Neilson J quotes this passage as authority for the proposition “Estoppel will arise if the relief claimed in second or subsequent proceedings was claimed in original proceedings” (at 267B). The respondent in its submissions makes reference to Egri. Whilst Egri was a case concerned with issue estoppel, (rather than cause of action estoppel), it clearly established that a judgment of the Compensation Court could sustain an issue estoppel. It is said:
“A final decision, once given by a competent tribunal, forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision: Blair v Curran (1939) 62 CLR 464 at 531-532 and Brewer v Brewer (1953) 88 CLR 1 at 15-16.” (per McHugh JA at 603D)
Quite clearly the findings of fact made by Neilson J, referred to at [27] and [28] above, were legally indispensable to his decision. The parties are bound by them, subject to the power of reconsideration. In discussing the inter-relationship between res judicata and the reconsideration power, Neilson J in Bruce said:
“Of course, the doctrine of res judicata, meaning cause of action estoppel, and also the doctrine of issue estoppel can have no application in a claim for reconsideration pursuant to section 17(4). It is to overcome such principles that the power of reconsideration exists. That is what Rainbow J was referring to in Humphreys v Shell Co of Australia Ltd. However, in my view, absent an application under section 17(4) of the Compensation Court Act 1984, any determination made by this Court does create an issue estoppel: see Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285. Therefore, there is no reason in principle why a determination of this Court could not in appropriate circumstances create a cause of action estoppel, absent an application under section 17(4).” (at 264D)
The operation of the doctrine of res judicata, and the distinction between that doctrine and issue estoppel, was described in Blair v Curran (1939) 62 CLR 464:
“The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment so that it has merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” (per Dixon J at 532).
Accordingly, it is in my view clear that the decision of Neilson J created a cause of action estoppel (or res judicata), which well justified the decision of the arbitrator that the matter could not be pursued. However this is subject to any questions regarding whether the appellant was attempting to pursue an application for reconsideration of the decision of Neilson J.
It does not appear, from the Reasons for Decision of Ms Robinson, and the Reasons on appeal of Fleming DP, that the pleadings in matter no 9183-2003 were framed as an application for reconsideration. The Application to Resolve a Dispute in the current proceedings is not framed as a reconsideration application. However it has been observed it is inappropriate in the Commission to require a strict reliance on pleadings, providing a party has notice of the case against it, and an opportunity to respond (see Far West Area Health Service v Radford [2003] NSWWCCPD 10, Barbour v BHP Steel Pty Limited [2004] NSWWCCPD 42). In circumstances where the appellant is unrepresented, it would be inappropriate to seek to confine him strictly to his case as pleaded, if it was clear he was attempting to present (and had available to him) some other case (see State Rail Authority of NSW v Reodica (2000) 21 NSWCCR 308). This would obviously be subject to maintaining the role of the Commission as an impartial adjudicator (Reisner), and affording the respondent procedural fairness.
The manner in which the appellant sought to present his case, both on the appeal hearing before Fleming DP in matter no 9183-2003, and before the arbitrator on the teleconference in the current proceedings, made it tolerably clear he was seeking to agitate the same issues which had previously been decided against him in the judgment of Neilson J, and to use additional medical evidence in this regard. If the appellant has an arguable case based upon the reconsideration power (now contained in section 350(3) of the 1998 Act), it would be appropriate to remit the matter to the arbitrator for that to be pursued.
There are competing views, expressed in recent decisions of Presidential members, regarding the scope of the reconsideration power. In Comensoli v Department of Juvenile Justice [2006] NSWWCCPD 138 Fleming DP, applying decisions of the NSW Court of Appeal in CSR Limited v Bouwhuis (1991) 7 NSWCCR 223 (‘Bouwhuis’), and of Johns J in D’Arcy v CSR Limited & Anor (1997) 14 NSWCCR 586 (‘Darcy’), concluded the reconsideration power should not be read broadly. She said:
“The power is wide and discretionary, however an application for reconsideration of a Commission decision should only be granted where there are exceptional circumstances so that the reconsideration is necessary to address a “manifest injustice” in the particular case.” (at [64])
In Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 Roche ADP reached the view the authorities referred to in [53] above should be confined to the particular statutory framework in which they occurred, they being an appeal from the Dust Diseases Tribunal, and a decision from a judge at first instance in that Tribunal. He did not conclude the reconsideration power should be confined to “exceptional circumstances”. He stated the section gave the Commission a “wide discretion to reconsider its previous decisions”, and set out the principles he distilled from the various authorities as governing the power of reconsideration (at [58]).
In Bouwhuis Kirby P, in considering the operation of the (similarly expressed) reconsideration power found in section 13(6) of the Dust Diseases Tribunal Act 1989 (‘the Dust Act’) set out the reconsideration provisions as they had existed in section 36(2) of the Workers Compensation Act 1926 (‘the 1926 Act’), and section 17(4) of the Compensation Court Act 1984 (‘the 1984 Act’). His Honour reviewed various of the authorities, commencing with decision of the NSW Court of Appeal in Hardaker v Wright & BrucePty Ltd [1962] 62 SR (NSW) 244, and noted “The power so provided is an ample one.” (at 234). His Honour continued:
“Within the former Workers Compensation Commission it was usually required that some change of circumstances should be shown to warrant the exercise of the discretion to rescind or amend a decision previously made. See e.g. Humphreys v Shell Co of Australia Limited (1947) 21 WCR (NSW) 134. The discovery of fresh evidence was the most common ground for applications to reopen such decisions. Yet, from the start, the Workers Compensation Commission adopted an approach that, only if the new evidence was such that , if believed, it would probably have an important influence on the result, would it be admitted and an earlier decision rescinded or amended. See e.g. Gosper v Bulwinkle [1931] 5 CCR (NSW) 204: cf Meredith v Innes (1931) 31 SR (NSW) 104; Deigman v State Coal Mines [1956] 30 WCR (NSW) 169.
In the present case there are particular reasons why an even more stringent approach by the Tribunal to an application for reconsideration is appropriate. The section appears in a statute which establishes a Tribunal with a particular jurisdiction for an especially vulnerable group of litigants.” (at 234G to 235C)
His Honour later continued:
“Because of the public interest in finality, the features of this Tribunal and its jurisdiction, the language of the sub-section and the condition of many of the litigants before the Tribunal, it will require a very strong case to render it appropriate for the Tribunal to reconsider a matter finally dealt with in a contest between the parties.” (at 235F)
In the same case Priestley JA said:
“Section 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context sub-section (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, and that it has happened in regard to a case which because of the nature of the Tribunal’s jurisdiction needs to be dealt with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance.” (at 247B)
In Darcy Johns J, sitting as a member of the Dust Diseases Tribunal of NSW, referred to and applied Bouwhuis, referring to the above passage from the judgment of Priestley JA, and going on to say:
“Given the nature of the Tribunal’s jurisdiction to deal with matters with the greatest available expedition, in the proper circumstances it is more efficient to have such matters dealt with by the Court of first instance, rather than leave the matter to be dealt with by an appeal mechanism.” (at 589D)
On balance, I incline to the view expressed by Roche ADP in Samuel, that the decision of the Court of Appeal in Bouwhuis should be restricted to the specific statutory context in which it was expressed, being litigation pursuant to the Dust Act, and that it is inappropriate to restrict exercise of the reconsideration power contained in section 350(3) of the 1998 Act to “exceptional circumstances” where reconsideration is necessary to address a manifest injustice.
Even adopting this approach to the reconsideration power, I have reached the conclusion the appellant does not have an arguable case for reconsideration pursuant to section 350(3) of the 1998 Act. The significant further evidence upon which he seeks to rely is medical evidence postdating the judgment of Neilson J. This is reports of Dr Dorsch dated 13 March 2003, Professor Billson dated 22 December 2003 and Dr Delaney dated 9 July 2004. He also indicates a desire to call oral medical evidence, although the precise scope of this is not made clear from the Application to Resolve a Dispute, nor the Application to Appeal.
In Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642 Bishop J, dealing with a reconsideration application pursuant to section 17(4) of the 1984 Act, said:
“The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court’s attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v Hilliger (1952) 52 SR (NSW) 105.”
In Blackwell v North Broken Hill Ltd (1998) 17 NSWCCR 237 Curtis J said:
“The authorities upon s 36 generally restricted reconsideration to reopening awards upon the discovery of fresh evidence, it being necessary to show that with reasonable care and diligence, that evidence could not have been brought forward in the original proceedings.” (at [8])
His Honour also quoted the following passage of the judgment of Priestley JA in Merdanic v Pongrass Operations Pty Ltd (NSWCA, No A40500/91, 8 November 1994, unreported):
“S 17(1) of the Compensation Court Act 1984 requires a decision of the Court shall be upon the real merits and justice of the case. S 17(4) especially authorises the Court to reconsider any matter which has been dealt with by it or to rescind or amend any decision previously made or given by the Court. S 17(4) may have the potential for misuse by frivolous, vexatious or stubborn parties. I have no doubt the Court is skilled in keeping such abuse in proper check.”
In the current matter, the report of Dr Dorsch dated 13 March 2003 can hardly be considered fresh evidence. Dr Dorsch in that report says he has seen the judgment. (I assume of Neilson J), and says he thought he had made his views regarding causation of the appellant’s fourth nerve palsy clear in his last report (dated 29 January 2003). Dr Dorsch says “The judgement apparently said that he had double vision after the first injury in the 1980’s, but Mr Nan denies this.” The doctor then says he would be willing to express his views in Court should Mr Nan appeal.
This raises one of the fundamental issues in the case, as it was run before Neilson J, being whether the appellant suffered from diplopia prior to the incident relied upon of 3 July 1998. It should be remembered the appellant was cross-examined on this aspect, there was material in evidence (accepted by His Honour) which suggested the appellant had complained of such symptoms prior to 3 July 1998 (see His Honour’s judgment at [23]), and His Honour reached a conclusion on credit “The applicant denies any complaint of diplopia prior to 3 July 1998. In that regard I am unable to accept him.” (at [23])
The report of Dr Dorsch dated 29 January 2003 was in evidence before Neilson J (as part of Exhibit Z), and was discussed in the judgment at some length (at [98] to [102]). This being so, I cannot see that the subsequent short report of Dr Dorsch dated 13 March 2003 adds anything significant by way of new evidence, which would be likely to have affected the outcome of the proceedings. In so far as the doctor’s willingness to give evidence is concerned, it would of course have been an available option for the appellant to have called the doctor in the original proceedings. The appellant was represented by solicitors and counsel in the original proceedings in the Compensation Court, the hearing of which extended over four days ranging from 10 December 2001 to 12 February 2003.
Lastly it should be noted one of the essential bases on which His Honour did not accept the causal connection propounded in the appellant’s case was:
“The first thing to say about the case argued on the applicant’s behalf, which is essentially the thesis of Dr Delaney, an opthalmologist, and Dr Dorsch, a neurosurgeon, is that antecedent to 3 July 1998, the applicant had no diplopia. That is quite incorrect. It is clear the applicant had diplopia in 1986 as it is recorded twice in the records of the Royal Newcastle Hospital.” (at [62])
The report of Professor Billson dated 22 December 2003 sets out various historical matters, and in the penultimate paragraph refers to the Professor’s report of 27 June 2000. That report of 27 June 2000 was also in evidence before Neilson J, and was discussed at [84] in His Honour’s judgment. His Honour regarded it as being consistent with a conclusion the appellant’s fourth nerve palsy resulted from an earlier head injury, rather than that relied upon of 3 July 1998. Professor Billson, in the report of 22 December 2003, notes that he was not called for cross-examination at the trial, and suggests that if he had been another explanation could have been considered for whether the injury of 3 July 1998 caused the fourth nerve palsy. Again, Professor Billson’s views were before the Court in any event, notwithstanding a further report was produced after (and in response to) the judgment. Again it should be noted the Professor could have been called in the original proceedings before Neilson J. I could not be satisfied this further report from Professor Billson is such it would have been likely to have affected the outcome. Nor could I be satisfied the evidence of Professor Billson is such that it could not, with reasonable diligence, have been put before the Court in the original proceedings.
The report of Dr Delaney dated 9 July 2004 is subject to many of the same difficulties. Dr Delaney continues to proceed on the basis of the history he is given by the appellant (and I am in no way being critical of the doctor in saying this). Thus he again records the appellant’s history as “I note that the history detailed in the previous reports remains unchanged and you still have constant double vision as noted previously. I note your belief that there was an error on behalf of Professor Billson and the Judgement as you told me your double vision came on after the injury in 1998.” Dr Delaney then goes on to set out why he disagrees with certain of the views contrary to his expressed by other doctors, and to restate his view that the fourth nerve palsy resulted from the injury of 3 July 1998. Again, it is difficult to regard Dr Delaney’s opinions in this most recent report as constituting fresh evidence. He restates what had originally been his view. In so far as he puts forward reasons for defending his views against contrary viewpoints, again the comment can be made that he could have been called to expand on his views, and defend them, in the original proceedings.
The various pieces of further medical evidence also suffer from a basic weakness, which is the credit findings made by His Honour. His Honour had rejected the appellant’s evidence, and specifically rejected his version of events regarding when the appellant commenced to suffer from diplopia. Overall, I could not be satisfied the medical evidence obtained by the appellant subsequent to the original judgment satisfies me such evidence would be likely to have affected the original result, nor that it could not have been available for the original proceedings with reasonable diligence. It is noteworthy two of the three doctors who authored these further reports comment either that they were not called in the original proceedings, or that they would be prepared to give evidence in subsequent proceedings. No doctors were called to give evidence in the original proceedings.
Of course, principles of res judicata would have flowed also from the decisions of Ms Robinson and Fleming DP in matter no 9183-2003. To the extent fresh evidence was put on by the appellant in those proceedings, the failure of those proceedings (which were not the subject of appeal beyond the decision of Fleming DP) also created a cause of action estoppel. It is likely the fresh evidence relied upon by the appellant in those proceedings was the same as the ‘fresh evidence’ relied upon in the current proceedings. It is noteworthy the Grounds of Appeal in those proceedings were effectively identical to those relied upon in the current proceedings. However it is difficult to be sure what further evidence was submitted by the appellant in those proceedings, as the Application to Resolve a Dispute from those proceedings was not one of the documents relied upon by either party in the current proceedings. This being so, the safer course has been to deal with the current matter on the basis of the original res judicata flowing from the judgment of Neilson J.
A further question is the availability of the reconsideration provisions, for the purpose of reconsidering a decision of the Court, in the Commission. Section 350(3) is in the following terms:
“(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
In Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 Lansdowne ADP noted section 350(3) referred only to reconsideration of a decision of the Commission, and observed it would require a detailed analysis of the transitional provisions to determine if a decision of the Court could be reconsidered by the Commission. In the current case, the appeal relates essentially to whether the action of the arbitrator dismissing the proceedings was justified, on the basis of res judicata. It has been necessary to consider to some extent the reconsideration provisions, in reaching a view regarding whether the appellant had some arguable case beyond that actually pleaded, which would have justified the proceedings remaining on foot. For the reasons referred to at [59] to [67] above, I have reached the conclusion that, even if pleaded, the appellant would not have an arguable case for relief under the reconsideration provisions, on the merits. Accordingly it is not necessary, and I would not regard this case as an appropriate vehicle, to embark upon an investigation of whether section 350(3) of the 1998 Act gives jurisdiction to the Commission to reconsider a decision of the Court.
For above reasons, I am of the view the appellant’s current proceedings were estopped due to res judicata. The order made by the arbitrator was that the proceedings be dismissed. The respondent has a defence to the appellant’s claim, in its entirety, on the basis of res judicata. The appropriate order in my view is that there be an award for the respondent; in so far as a contrary order was made, this reflects an error I should correct on appeal. These are at least the third set of proceedings instituted by the appellant for the same relief flowing from the same injury. Given the history of litigation between the parties, the arbitrator was well entitled to reach the view (set out at T24.50) that the claim was vexatious and made without proper justification. This was sufficient to justify the costs order he made, having regard to the provisions of section 341(4) of the 1998 Act.
Costs on this appeal are within the discretion of the Commission. Section 341(4) provides:
“(4) The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.”
Since the original decision of Neilson J the appellant has instituted proceedings for the same relief, relying upon the same injury, in the Commission. When unsuccessful in those proceedings he has appealed unsuccessfully. He has then reinstituted the same matter in the Commission in the current proceedings. When unsuccessful, he has appealed that decision. This is not to mention matter no 19697-2004 (discontinued by consent), which may well have related to the same subject matter, but the pleadings of which are not before me. Having regard to the history of litigation (ignoring matter no 19697-2004), this is now the second set of proceedings the appellant has run to appeal level in the Commission, since losing before Neilson J in the Court, to be met with the same successful defence of res judicata. In my view the claim is frivolous and vexatious, and made without proper justification, such that it is appropriate I order the appellant to pay the costs of the respondent on this appeal.
DECISION
Order number 1 of the decision of the arbitrator dated 23 September 2005 is revoked and the following decision is made in its place:
“1. Award for the respondent.”
Order number 2 of the decision of the arbitrator dated 23 September 2005 is confirmed.
COSTS
The appellant is to pay the costs of the appeal.
Michael Snell
Acting Deputy President
25 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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