Ozbilgi v Bradnams Windows & Doors Pty Ltd
[2011] VSCA 210
•26 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0074
| AHMET OZBILGI | |
| Appellant | |
| v | |
| BRADNAMS WINDOWS & DOORS PTY LTD | Respondent |
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JUDGES: | WARREN CJ, BUCHANAN JA and SIFRIS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2011 | |
DATE OF JUDGMENT: | 26 July 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 210 Third Revision: 9 September 2011 | |
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ACCIDENT COMPENSATION – Claim for weekly payments – Purported termination of payments for non-compliance with return to work provisions of the Accident Compensation Act 1985 – First proceeding dismissed by consent – Whether second claim for weekly payments precluded by issue estoppel or res judicata – Whether employment a significant contributing factor to a deterioration of an injury solely because the original injury occurred in the course of employment – Appeal dismissed — Accident Compensation Act 1985, ss 82(2C)(c), 93CB(3), 93CB(4) – Interpretation of Legislation Act 1984, s 14(2)(d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr CB Thomson | Simon Legal |
| For the Respondent | Mr MF Wheelahan SC and Mr SA O’Meara | Minter Ellison |
WARREN CJ:
Introduction
The appellant, Mr Ozbilgi, is a former employee of the respondent, Bradnams Windows and Doors Pty Ltd. In 2008 the appellant commenced a proceeding against the respondent in the County Court. The appellant was seeking weekly payments under the Accident Compensation Act 1985 (‘the Act’) in respect of injuries sustained by the appellant in the course of his employment with the respondent. The learned trial judge dismissed the appellant’s proceeding, holding that his claim was barred by the doctrine of issue estoppel or res judicata. The appellant now appeals against that ruling.
For reasons that will follow, I would dismiss the appeal.
Background
The facts giving rise to this appeal are not in dispute. The appellant suffered injuries in the course of his employment with the respondent in two separate incidents in 2002 and 2003. On 2 May 2003 the appellant submitted a claim for compensation under s 103 of the Act. The claim related to the 2003 incident. The claim was accepted and the plaintiff started to receive weekly payments under the Act. On 14 July 2003 the appellant submitted a second claim for compensation in respect of both the 2002 and the 2003 incidents. The second claim alleged a more extensive range of injuries, including psychiatric injuries. The authorised agent of the Victorian WorkCover Authority, CGU Workers Compensation (Vic) Ltd (‘CGU’), initially rejected the second claim. However, at a conciliation held on 16 October 2003 CGU accepted liability for the physical injuries and liability for the medical expenses in respect of the psychiatric injury.[1]
[1]Ozbilgi v Bradnams Windows and Doors Pty Ltd (Unreported, County Court of Victoria, Judge Wischusen, 27 May 2010), [8] (‘Ruling’).
On 28 October 2003 CGU issued a notice advising the appellant of CGU’s decision to terminate weekly payments from 31 October 2003. The notice stated that CGU had determined that the appellant is no longer entitled to compensation payment because he had failed to participate in an occupation rehabilitation service or a return to work plan and did not make every reasonable effort to return to work in suitable employment with the respondent.
The appellant disagreed with CGU’s decision. Following an unsuccessful conciliation, the appellant commenced a proceeding in the County Court against CGU. In his statement of claim dated 9 March 2004, the appellant claimed, inter alia:
A.Weekly payments at the rate of having no current work capacity from 31 October 2003 to date and to continue in accordance with law;
B. A declaration that he had no current work capacity; and
C. Medical expenses.
On 1 December 2004 the appellant and CGU entered into a settlement agreement. The agreement provided as follows:
1.The parties agree to the making of the following Orders by consent:
(a)The Plaintiff have leave to amend the Statement of Claim by deleting paragraph C of the Prayer for Relief;
(b)The Defendant pay the Plaintiff’s costs to be taxed in default of agreement on Magistrates’ Court Scale E;
(c) The proceeding be otherwise dismissed.
2.With the Defendant denying liability to do so, in the settlement of the Plaintiff’s claim herein, the Defendant hereby agrees to pay weekly payments of compensation at the rate appropriate to “no current work capacity” from 30 October 2003 to 1 December 2004 (both inclusive).
3.The payment of the weekly compensation referred to in paragraph 2 hereof be subject to the provision by the Plaintiff of the relevant certificates of capacity, and is subject to the requirements of CentreLink.
On the same day, the County Court made consent orders in terms that reflected para 1 of the settlement agreement.
Weekly payments referred to in para 2 of the settlement agreement were paid to the appellant.
In September 2006 the appellant commenced a proceeding against the respondent in the Magistrates’ Court seeking reinstatement of weekly payments from 31 January 2006. In its defence, the respondent denied the plaintiff’s claim and relied, inter alia, on the effect of the consent order made in the County Court proceeding. On 28 June 2007 the Magistrates’ Court proceeding was dismissed by consent.
In 2008 the appellant made a request for reinstatement of weekly payments. The request was refused. On 26 August 2008, following an unsuccessful conciliation, the appellant commenced a proceeding against the respondent in the County Court. In his amended statement of claim the appellant sought weekly payments from the date of the settlement of the Magistrates’ Court proceeding.
The respondent’s defence contended, inter alia, that the operation of the doctrine of issue estoppel and res judicata barred the the appellant’s claim. The learned trial judge dealt with this matter as a threshold issue. His Honour held that the consent order dismissing the first County Court proceeding barred the appellant’s claim on the basis of either issue estoppel or res judicata. Accordingly, his Honour dismissed the proceeding.
Legislative framework
CGU’s notice of its decision to terminate weekly payments to the appellant stated that the decision was made pursuant to s 114(2)(b)(ii) of the Act, which provides that the WorkCover Authority may terminate weekly payments on the ground that the worker is not, or is no longer entitled to weekly payments. The notice stated that the appellant was no longer entitled to weekly payments due to s 93CB sub-ss (3) and (4) of the Act. At the time the notice was issued, these sub-sections provided as follows:
(3)A worker is entitled to receive weekly payments under this section only if—
(a) where sub-section (2)(a) applies, the worker—
(i)makes every reasonable effort to participate in an occupational rehabilitation service or a return to work plan; and
(ii)makes every reasonable effort to return to work in suitable employment; and
(iii)participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when requested to do so from time to time by the employer or the Authority or self-insurer;
(b) where sub-section (2)(b) applies, the worker—
(i)participates in an occupational rehabilitation service or a return to work plan; and
(ii) makes every reasonable effort to return to work in suitable employment at the worker's place of employment in cooperation with the employer and the Authority or with the self-insurer (as the case may be);
...
(iv)participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when required by the Authority or self-insurer.
(4)Where a worker does not make reasonable efforts to return to work and in particular does not comply with the requirements of sub-section (3) that are applicable in his or her case, the worker's entitlement to further weekly payments in respect of the injury shall thereupon cease and determine.
It was common ground that, but for the termination, the appellant would have been entitled to receive weekly payments under s 93CB(2) of the Act.[2]
[2]Ruling, [17].
Section 93CB was repealed by Accident Compensation Amendment Act 2010.[3] The repeal came into force on 5 April 2010.[4]
[3]Accident Compensation Amendment Act 2010, s 31.
[4]Accident Compensation Amendment Act 2010, s 2(7).
The decision below
It is helpful to summarise the reasoning of the learned trial judge because it deals with most of the arguments raised by the appellant before this Court.
His Honour held that the only issue before the County Court in the first proceeding was whether the appellant’s entitlement to weekly payments had ceased under s 93CB(4) in accordance with CGU’s notice of 28 October 2003. To reach that conclusion, his Honour noted that at the time of the first County Court proceeding, the jurisdiction of the County Court to determine a question or matter arising under the Act was limited in two important ways. First, proceedings could not be commenced unless ‘the dispute between the parties’ had been referred to conciliation and the conciliation officer had issued a certificate stating that all reasonable steps have been taken by the claimant to settle the dispute.[5] Secondly, the County Court’s jurisdiction was confined to questions or matters arising out of a decision of the WorkCover Authority. The Court could not decide whether the worker was entitled to weekly payments at a particular point in time unless the worker’s entitlement at that time was the subject of a decision of the WorkCover Authority.[6]
[5]Ruling, [18]–[19].
[6]Ruling, [21]–[22].
His Honour pointed out that, at the time of the first proceeding, the only decision of the WorkCover Authority that was adverse to the appellant’s entitlement to weekly payments under the Act was the decision of 28 October 2003 to terminate payments under s 93CB(4).[7] Further, the conciliation certificates identified the dispute between the parties as ‘93CB(4) Termination and payments — job offer or rehabilitation after 13 weeks and within 104 weeks’.[8] His Honour concluded that the question whether the appellant’s entitlement had terminated under s 93CB(4) was the only ultimate matter within the County Court’s jurisdiction in the first proceeding. Other matters raised in the pleadings were either factual matters going to the ultimate issue or that were beyond the Court’s jurisdiction.[9]
[7]Ruling, [34].
[8]Ruling, [8], [34].
[9]Ruling, [34]–[40].
It followed, his Honour found, that the consent order dismissing the first proceeding precluded the appellant from subsequently contending that the decision of 28 October 2003 should be set aside. His Honour held that basis of the preclusion was either issue estoppel or res judicata.[10]
[10]Ruling, [41].
I should note that the defendant in the first County Count proceeding was CGU while the defendant in the proceeding the subject of this appeal is the respondent. However, the appellant did not submit that anything turned on this. Presumably the appellant accepted that the respondent was a privy of CGU.
To determine the effect of the 28 October 2003 decision, his Honour referred to Folino v MMI Workers Compensation (Victoria) Limited,[11] a decision of the County Court concerning the interpretation of s 93B(4). Section 93B(4) was, so far as is relevant, expressed in identical terms to s 93CB(4). Folino held that the effect of s 93B(4) was to permanently terminate the worker’s entitlement to weekly payments with respect to an injury. The appellant did not dispute the correctness of the construction of s 93B(4) adopted in Folino or suggest that s 93CB(4) should be construed differently. The learned trial judge accepted that construction as correct and applicable to s 93CB(4).[12]
[11](Unreported, County Court of Victoria, Judge Strong, 21 August 1997) (‘Folino’).
[12]Ruling, [25].
The appellant argued that by agreeing to the settlement agreement, the WorkCover Authority must have also impliedly agreed to set aside the 28 October 2003 termination decision. The appellant argued that the WorkCover Authority had no statutory authority to make weekly payments to the appellant after the date of termination. Accordingly, the agreement to make payments for a period after the date of termination must constitute an implied agreement to set aside the termination decision.
His Honour rejected that submission, holding that the WorkCover Authority had the power to conduct or defend litigation, including a power to compromise claims for weekly payments by agreeing to make payments without admitting liability or setting aside an earlier decision to terminate payments.
It followed that the 28 October 2003 decision had permanently terminated the appellant’s entitlement to weekly payments with respect to the injuries subject of that decision and the appellant was precluded from challenging that decision.
A further argument put by the appellant was that his previous injuries had worsened and that this ‘worsening’[13] constituted a fresh injury under para (c) of the definition of injury in s 5(1) of the Act. Accordingly, the appellant had a new right to compensation with respect to this injury and this right was unaffected by the termination decision. His Honour rejected this argument, pointing out that a worsening of a pre-existing injury will fall within para (c) of the definition of injury only if the worker’s employment was a significant contributing factor to the worsening.[14]
[13]The word ‘worsening’ was used as shorthand for ‘recurrence, aggravation, acceleration, exacerbation or deterioration’.
[14]Ruling, [44]–[46].
There being no fresh injury and no entitlement to weekly payments with respect to the old injuries, his Honour dismissed the proceeding.
Grounds of appeal
In his Notice of Appeal dated 7 June 2010 the appellant relied on the following grounds of appeal:
1.That the judgment of the learned trial judge was wrong at law in that the respondent had set aside its decision to terminate the appellant’s weekly payments of compensation by agreeing to pay him weekly payments for the period from 31 October to 1 December 2004.
2.That the learned trial judge did not provide adequate or appropriate reasons for decision and judgment.
3.That the learned trial judge did not give proper or adequate weight to the plaintiff’s evidence that the defendant had consented to pay weekly payments of compensation for a period for which the defendant had previously denied the plaintiff was entitled to receive because the defendant alleged that the plaintiff had not made every reasonable effort to participate in a return to work plain or to return to work in suitable employment.
4.That the learned trial judge did not give adequate or proper consideration in accordance with law that the payment to the appellant of weekly payments in compromise of the County Court proceeding number CI 04-01153 constituted a decision to set aside the respondent’s decision to terminate weekly payments from 31 October 2003.
5.That the learned trial judge erred in application of the decision of Folino v MMI Workers Compensation (Victoria) Limited (1997) (unreported, County Court of Victoria).
The appellant’s argument on appeal
The appellant’s arguments do not, in terms, refer to particular grounds of appeal but cut across multiple grounds. It is therefore convenient to deal with his arguments without categorising them by ground of appeal.
The appellant submits that his Honour erred in relying on Folino because s 93CB(4) of the Act has been repealed. I reject this submission. In the absence of express contrary intention, the repeal of a statutory provision does not ‘affect the previous operation of that ... provision or anything duly done or suffered under that Act or provision’.[15] No contrary intention can be discerned in the Accident Compensation Amendment Act 2010 that repealed s 93CB. It follows that if the appellant’s entitlement to weekly payments had terminated under s 93CB(4), the repeal of s 93CB did not revive that entitlement.
[15]Interpretation of Legislation Act 1984, s 14(2)(d).
I should add that the appellant did not challenge before the learned trial judge, or before this Court, the construction of s 93B(4) adopted in Folino or suggest the identically-worded s 93CB(4) should be construed differently. Accordingly, it is unnecessary for me to decide whether, as Folino held in relation to s 93B(4), the effect of s 93CB(4) is to permanently terminate the entitlement to weekly payments.[16]
[16]See also the discussion of the jurisdiction of the Court of Appeal at [42] of these reasons.
The appellant submits that the 28 October 2003 notice did not purport to permanently terminate his entitlement to weekly payments under s 93CB(4) because it did not use the expression ‘cease and determine’ — the language used in s 93CB(4). Rather, the notice stated that the appellant is ‘no longer entitled to weekly payments (section 114(b)(ii))’.
I reject this submission. The absence of the words ‘cease and determine’ can hardly be determinative. The notice clearly referred to s 93CB(4) and relied on it as one of the grounds to support the proposition that the appellant was no longer entitled to weekly payments. The notice makes it plain beyond argument that CGU had decided, on behalf of the WorkCover Authority, that s 93CB(4) had operated to disentitle the appellant to weekly payments.
Next, the appellant submits that in the first County Court proceeding the Court did not make any finding that the appellant’s entitlement had terminated under s 93CB(4), nor had the appellant made any admission that his entitlement had terminated. The appellant contends that there were two live issues in the first County Court proceeding: (1) whether the purported termination on the basis of s 93CB was valid and (2) whether the appellant had work capacity. The appellant submits that in order to succeed in his claim for weekly payments, he had to succeed on both issues. Succeeding on the question of s 93CB termination alone would not have been enough because the appellant also needed to show incapacity in order to be entitled to weekly payments. Accordingly, the dismissal of his claim without reasons does not necessarily determine the s 93CB issue adversely to him, as his claim might have failed on the basis of the work incapacity issue alone.[17]
[17]The appellant cites Derks v R & J Fibreglass Pty Ltd [2009] VSC 601 as authority for the proposition that where a plaintiff has to establish X and Y in order to succeed in a proceeding, the consent dismissal of the proceeding does not estop the plaintiff from subsequently asserting either X or Y against the same defendant (so long as the plaintiff does not assert both X and Y).
I reject this submission. First, it appears that there was no dispute between the parties as to whether the plaintiff had some incapacity so as to entitle him to weekly payments, subject only to the question of s 93CB termination.[18] CGU did not allege in its defence that the appellant was not entitled to weekly payments on the basis that he had no incapacity.[19] Nor did the 28 October 2003 notice allege that the appellant had no incapacity. This is not surprising given that CGU’s own medical expert accepted that the plaintiff had some incapacity.[20]
[18]Ruling, [17].
[19]Defence (13 August 2004), para 10.
[20]Report of Associate Professor John Hart (26 August 2003) 6, Appeal Book B56.
In any event, the WorkCover Authority had not made any decision to the effect that the appellant had no incapacity. Nor had a conciliation certificate been issued with a respect to that issue. As the appellant’s counsel conceded before the learned trial judge, in the absence of a decision on the issue, and a conciliation certificate, the issue was not properly before the County Court.
There was indeed a dispute between the parties as to the extent of the plaintiff’s incapacity. The plaintiff alleged that he had no work capacity at all.[21] The defendant denied that allegation.[22] However, the issue was merely an intermediate factual dispute that went to the question whether the plaintiff had complied with the requirements of s 93CB.
[21]Statement of claim (9 March 2004), para 7.
[22]Defence (13 August 2004), para 7.
The sole ultimate question in the first County Court proceeding was whether the appellant’s entitlement to weekly payments had ceased under s 93CB in accordance with the 28 October 2003 termination notice. By dismissing the proceeding, the County Court has determined this matter adversely to the appellant. The appellant is now estopped from asserting that his entitlement to weekly payments had not ceased in accordance with the notice.
The appellant submits that the payment of weekly payments under the settlement agreement for a period following the date of termination constitutes an agreement to set aside the termination decision or an admission that s 93CB(4) did not apply to the appellant. I reject this submission. It cannot, in my view, be doubted that the functions and powers of the WorkCover Authority include the power to compromise proceedings without admitting liability. Further, the settlement agreement expressly states that CGU does not admit liability. Even if the WorkCover Authority lacked the power to make payments without admitting liability, the absence of power may affect the validity of the payments but could not convert an express denial of liability into an admission of liability.
The appellant’s next submission is that it was not open to the learned trial judge to reject the appellant’s allegation of a fresh injury without considering the medical evidence. The appellant submits that the matter should be remitted to the County Court for a retrial on the issue of whether he has a fresh injury. I reject this submission. The appellant claims that his ‘condition has seriously deteriorated’ following the settlement of the first County Court proceeding.[23] A deterioration of a pre-existing injury is compensable under the Act only if employment was a ‘significant contributing factor’ to the deterioration.[24] The appellant claims that his employment was a significant contributing factor to the deterioration of his condition because the deterioration ‘arose primarily as a result of the original work related injury’.[25] That claim cannot be accepted as a matter of law. As the learned trial judge held, employment cannot be a significant contributing factor to a deterioration of an injury solely because the original injury arose in the course of the employment. The appellant’s argument, if accepted, would mean that every deterioration of an employment-related injury constitutes a fresh compensable injury under the Act. This meaning could not have been intended by Parliament and is contrary to the plain wording of the Act. It follows that even if the appellant’s condition has deteriorated in the manner that he alleges, the deterioration cannot constitute a fresh compensable injury under the Act. Accordingly, there was no need for the learned trial judge to consider medical evidence.
[23]Amended Statement of Claim (26 May 2010), para 9.
[24]Accident Compensation Act 1985, s 82(2C)(c).
[25]Reply (20 May 2010), para 14.
The appellant also submits that the learned trial judge erred in allowing the respondent to rely on s 93CB(4) as ‘it was not referred not nor relied upon’ by the respondent in its consideration of the appellant’s application for reinstatement of weekly payments. I reject this submission. It appears that this argument was not raised below and the appellant should not be permitted to raise it for the first time on appeal. Further, the notice of the decision refusing to reinstate weekly payments is not in the appeal book and is not before the Court.
In opening counsel for the appellant sought leave to raise a new matter not raised below. He submitted that the issuing of the termination of notice of 28 October 2003 did not accord with the procedures laid down in the WorkCover Authority claims manual. For example, the manual provides that termination under s 93CB(4) should occur only after the worker had received three non-compliance warnings or had his payments suspended for non-compliance. Neither requirement was satisfied in this case. The appellant’s counsel argued that non-compliance with the manual rendered the 28 October 2003 notice invalid.
Counsel for the appellant conceded that the appellant did not rely on the claims manual before the learned trial judge. Counsel for the appellant could not provide any explanation for why this matter was not raised below.
I reject the appellant’s submission based on the claims manual. First, the appellant cannot raise new matters; his right of appeal is limited to questions of law ‘raised during the proceedings’.[26] Secondly, for reasons given earlier, the question of validity of the 28 October 2003 notice was a question that arose and was determined in the first County Court proceeding. The appellant is now estopped from challenging the validity of the notice.
[26]See Accident Compensation Act 1985 s 52(1); Victorian WorkCover Authority v Game (2007) 16 VR 393; and Azzopardi Haulage Pty Ltd v Azzopardi (2008) 21 VR 211, [87]–[89]. The amendments to s 52 effected by the Transport Accident and Accident Compensation Legislation Amendment Act 2010 do not effect this proposition. In any event, the amendments do not apply to this appeal.
Adequacy of reasons
The appellant did not advance any argument in support of his assertion in ground 2 that ‘the learned trial judge did not provide adequate or appropriate reasons for decision and judgment’. Accordingly, I would dismiss this ground. It is unnecessary to decide whether, as the respondent submits, this ground falls outside jurisdiction of this Court under s 52(1) of the Act.[27]
[27]Ibid.
Accord and satisfaction
I should note that the respondent relied on accord and satisfaction as an alternative ground for resisting the appellant’s claim.[28] The learned trial judge did not find it necessary address this issue.
[28]Ruling, [4]; Rejoiner (25 May 2010), para 24(b).
On the face of the facts, in particular the consent orders made on 1 December 2004 and the settlement agreement of the same date, it appears that there was an accord and satisfaction of the appellant’s claim. However, the appellant submits that the settlement was only intended to address the matter of weekly payments at that time, leaving open the question of entitlement to payments after 1 December 2004, or at least leaving open the possibility that payments may be reinstated if the appellant’s circumstances change.
I find that to be an unlikely interpretation of the settlement agreement. In para 2 of the settlement agreement, CGU agreed to pay the appellant weekly payments until 1 December 2004 ‘in the settlement of the [appellant’s] claim’ while ‘denying liability’. The appellant’s claim for weekly payments could only succeed if the purported termination notice of 28 October 2003 was invalid. So it would seem that the settlement agreement precludes the plaintiff from subsequently challenging the validity of the termination notice.
However, it is unnecessary for me to express any concluded views on this issue. As I am not satisfied that the appellant has identified any error in the reasoning of the learned trial judge, I do not need to consider whether accord and satisfaction provides an alternative basis for the dismissal of the appellant’s proceeding.
Disposition of the appeal
For the reasons set out above, I would dismiss the appeal.
BUCHANAN JA:
I agree.
SIFRIS AJA:
I have had the advantage of reading in draft the reasons for judgment of the Chief Justice. I agree with those reasons and would dismiss the appeal.
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