Nemesis v Meatpak Australia Pty Ltd - [2020] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
NEMESIS v MEATPAK AUSTRALIA PTY LTD
[2020] SASCFC 22
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
31 March 2020
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
Appeal against a decision of the Full Bench of the South Australian Employment Tribunal (the Full Bench and the Tribunal respectively) in which it allowed an appeal against an order of a Deputy President of the Tribunal setting aside consent orders.
The consent orders, made in 2012, purported to award lump sum compensation for permanent impairments, pursuant to s 43 of the now repealed Workers Rehabilitation and Compensation Act 1986 (SA) (the repealed Act), from which the appellant was suffering, or might suffer in the future, by reason of an injury sustained in 2009. The consent orders expressly referred to impairments to the appellant’s right knee but also ordered that he had ‘no further or other entitlements pursuant to section 43’ (the no further entitlements order).
A claim subsequently made by the appellant for lump sum compensation for permanent impairments to his hip, neck and lower back was dismissed by a Deputy President. The appellant did not appeal that decision but instead brought the application to set aside the consent orders.
Two questions of law arise on the appeal:
1. Whether the Workers Rehabilitation and Compensation Tribunal (the WRCT) was empowered by s 88DA of the repealed Act to make consent orders which purported to resolve claims for lump sum compensation for future disabilities which neither existed nor were claimed to exist as at the time the order was made (ground 3.2).
2. The scope of the power of the Tribunal to set aside its determinations pursuant to s 110 of the Return to Work Act 2014 (SA) (grounds 3.1 and 3.3).
Held per Kourakis CJ (Nicholson and Parker JJ agreeing), granting permission to appeal and dismissing the appeal on grounds 3.1 and 3.3, and allowing the appeal on ground 3.2:
1. The subsequent legislative change is not a proper ground on which a judgment could be set aside.
2. The only consideration warranting the setting aside of the no further entitlements order in this case is the invalidity of the order insofar as it purports to preclude an award for lump sum compensation for a permanent impairment contracted after the date of the order. The consent orders must be set aside because, unless amended, it is beyond power.
Workers Rehabilitation and Compensation Act 1986 (SA) ss 43, 88DA, 88H; Return to Work Act 2014 (SA) s 110, sch 9 cl 34, referred to.
Nemesis v Return to Work SA [2016] SAET 24; Nemesis v Return to Work SA [2017] SAET 54; Return to Work SA v Nemesis [2018] SAET 140; Stephenson v Return to Work Corporation of South…

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: [2020] SASCFC 22
Decision Date: 31 March 2020

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the South Australian Employment Tribunal by Mr Nemesis against a decision of Gilchrist DPJ. The dispute arose from Mr Nemesis's claim for lump sum compensation for alleged injuries to his neck, lower back, and hips, stemming from an incident in November 2009. WorkCover SA's agent had rejected this claim, and Mr Nemesis disputed this determination. The core of the dispute was whether earlier consent orders, which included a "no further entitlements order," precluded Mr Nemesis from pursuing these subsequent claims.

The legal issues before the Full Court were whether the principles of issue estoppel and res judicata applied to prevent Mr Nemesis from pursuing his claims for injuries to his neck, lower back, and hips. Specifically, the court had to determine if these earlier consent orders, intended to provide a "full s 43 discharge," effectively barred any future claims for injuries not explicitly included or pursued at the time the orders were made. The court also considered the significance of Mr Nemesis's awareness of these injuries at the time the consent orders were finalised.

The Full Court allowed the appeal, finding that the principles of issue estoppel and res judicata did not apply in this instance. The court reasoned that the earlier consent orders, while intended to provide a full discharge, did not specifically address or determine the existence or extent of the injuries to Mr Nemesis's neck, back, and hips. Crucially, the court noted that Mr Nemesis had not pursued claims for these specific injuries at the time the consent orders were made, despite being aware of them. The court held that for issue estoppel to apply, the issue must have been actually litigated and decided in the prior proceedings, which was not the case here. Similarly, for res judicata to apply, the claim must have been decided, which also had not occurred for these particular injuries.

The Full Court set aside the decision of Gilchrist DPJ and remitted the matter to the Tribunal for determination according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I will refer to that paragraph as a ‘no further entitlements order’. Apparently, a clause to that effect is commonly included by WorkCover SA in those consent orders which are intended to give ‘a full s 43 discharge’, whatever that may mean.The further claim decision On 5 May 2014, Mr Nemesis sought lump sum compensation on account of alleged injuries to his neck and lower back arising out of the incident on 18 November 2009. WorkCover SA’s agent Gallagher Bassett rejected that claim. Mr Nemesis disputed that determination. In the course of that dispute, the initial claim rejected by Gallagher Bassett was expanded to included impairments for Mr Nemesis’ left and right hip. Gallagher Bassett contested Mr Nemesis’ claims on the grounds that they were precluded by the earlier consent orders. Gilchrist DPJ upheld WorkCover SA’s determination on the ground that Mr Nemesis’ claims were precluded by the principles of issue estoppel and res judicata.[2][2] Nemesis v Return to Work SA [2016] SAET 24. On the trial before Gilchrist DPJ, Mr Nemesis testified that he was not told that the settlement would exclude claims for disabilities in other body parts. Mr Nemesis gave evidence that he had not pursued a claim for other injuries at that point because his focus was on his leg. He said that he knew at the time that he had ‘issues with his neck, back and hips’. A written statement made by Mr Nemesis dated 22 December 2015 was also put in evidence and relevantly stated:[46]My right hip is impaired due to the altered gait from my right knee injury. This injury did not present itself straight away. I noticed that it was grinding and it was sore, it also effected [sic] my walking.…[55]I started noticing issues with both my neck and lower back at the same time that my knee injury occurred, but they become more prominent and established around the time my hip was operated on.…[57]The pain in these areas began quite subtly but then started to build up to become an issue as they are now. Dr Meegan’s report says that these issues starting [sic] appearing around two years ago. However I believe that they have been there the whole time, but as my knee and hip were the primary injuries, I did not notice the smaller problems. In cross-examination, Mr Nemesis conceded that he was aware, before the making of the consent orders, that he ‘had trouble’ with his neck, back and hip. Mr Nemesis gave the following evidence:Thank you. Now, I think you made a claim for further section 43 payments for injuries to your hip, neck and lower back sometime in May 2014?---Correct.And what I wanted to ask you about, if I may, is when you first noticed problems with your hip and your lower back, and your neck, okay? Now, in relation to your neck and your lower back, I think you first became aware of problems in those two areas at around the same time of your initial injury in 2009. Is that right?---That’s right.Thank you. And in relation to your hip, you first started to notice some problems with your hip shortly after your initial injury in 2009. Is that right too?---Correct.And I think you say, and I just want to confirm that this is accurate to ensure there is no doubt about it, in paragraph 18 of your affidavit that at the time of the consent orders, the claims for your hip, your back and your neck had not gone in. And when you say, ‘Had not gone in,’ you mean hadn’t been submitted at that time?---That’s correct.But you go on to say that you had never brought them up, even though you were physically feeling problems in your neck, back and hip at that time. When you say, ‘At that time,’ you’re referring to the time of the consent orders, aren’t you?---I always had problems in my neck, back and hip, but there was a lot of pressure on saving my leg and my life.Sure?---The importance was on my leg, saving my leg.Sure. I think what I’m getting at is you were aware in many months leading up to the making of consent orders that you had trouble with your neck and your back, and your hip?---Correct.

Ratio Decidendi

Legal Principle Established

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