Prestige Property Services Pty Ltd v Madzoski

[2008] WASCA 58

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PRESTIGE PROPERTY SERVICES PTY LTD -v- MADZOSKI [2008] WASCA 58

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   7 FEBRUARY 2008

DELIVERED          :   13 MARCH 2008

FILE NO/S:   CACV 94 of 2007

BETWEEN:   PRESTIGE PROPERTY SERVICES PTY LTD

Appellant

AND

LJUPCO MADZOSKI
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA

Coram  :COMMISSIONER NISBET

File No  :C 25 of 2007

Catchwords:

Workers' compensation - One arbitrator determining degree of disability - Second arbitrator asked to determine the degree of disability based on new information - Whether issue estoppel prevented second arbitrator determining degree of disability - No application made by employer to first arbitrator asking for a reconsideration of first determination

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr G W Nutt

Respondent:     Mr D M Bruns

Solicitors:

Appellant:     Jarman McKenna

Respondent:     Separovic & Associates

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

Blair v Curran (1939) 62 CLR 464

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

Castillon v P & O Ports Ltd [2007] QCA 364

Catholic Homes Inc v Williamson, C28‑2006

Collett v Loane (1966) 117 CLR 94

Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234

Jackson v Goldsmith (1950) 81 CLR 446

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363

Makhoul v Barnes (1995) 60 FCR 572

Murphy v Abi‑Saab (1995) 37 NSWLR 280

Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159

Prestige Property Services Pty Ltd v Madzoski, C25‑2007

Ramsay v Pigram (1968) 118 CLR 271

Rogers v The Queen (1994) 181 CLR 251

Santos v Delhi Petroleum Pty Ltd [2002] SASC 272

Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285

'The Sennar' (No 2) [1985] 1 WLR 490

Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55

1. WHEELER JA:  I agree with Pullin JA.

2. PULLIN JA:  This is an appeal against the decision of Commissioner Nisbet (Prestige Property Services Pty Ltd v Madzoski, C25‑2007), who dismissed an appeal by the appellant concerning a determination of Arbitrator Birkelbach dated 18 January 2007.  That determination was that the respondent's degree of disability was not less than 30%.  The determination followed an earlier determination of another arbitrator, Arbitrator Sharp, on 14 December 2005, that the degree of disability was not less than 16%. 

3. In the proceedings before Arbitrator Birkelbach the appellant sought to rely on surveillance evidence gathered since the determination of Arbitrator Sharp which it contended would 'likely displace the former findings [of Arbitrator Sharp]', the further evidence being 'fresh information' which showed the worker to have 'substantially improved from the levels of disability previously certified by various doctors' (Arbitrator Birkelbach's reasons for decision [5]).

4. Arbitrator Birkelbach, and Commissioner Nisbet on appeal, applied the commissioner's decision in Catholic Homes Inc v Williamson, C28‑2006.  This decision was to the effect that there was an issue estoppel created by the determination of Commissioner Sharp which 'precluded [the appellant] from having a further determination of the respondent's degree of disability' (Commissioner Nisbet [7]).

Statutory framework - constraint provisions

1. The following reference to section numbers are to sections in the Workers' Compensation and Injury Management Act 1981 (WA) as they stood when Arbitrator Birkelbach made his determination. Division 2 of the Act imposes constraints on award of common law damages. The constraints depend on a determination about the degree of disability (as defined in s 93E(1)) suffered by the worker as a result of a work‑related injury. See s 25 and sch 2 of the Act. Section 93E(3) and (4) state that:

   (3)Damages can only be awarded if -

   (a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or

   (b)the worker has a significant injury and elects, in the prescribed manner, to retain the right to seek damages and

the election is registered in accordance with the regulations

(4)For the purposes of subsection (3)(b) the worker has a significant injury if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations.

1. Section 93D, the relevant provisions of which are set out below, provides for the way in which the degree of disability is assessed.  It provides that if the parties cannot agree about whether the degree of disability 'is not less than' the 'relevant level', then the question is referred to the Director Dispute Resolution.  The 'relevant level' is either 16% or 30%, as provided for in s 93D.  Subsections (1) to (10) of s 93D read:

   (1)In this section -

   'relevant level', in relation to a question as to the degree of disability of the worker, means -

   (a)if the question arises for the purposes of section 93E(3)(a), (9) or (12), a degree of disability of 30%; or

   (b)if the question arises for the purposes of section 93E(4), a degree of disability of 16%.

   (2)For the purposes of section 93E, the degree of disability of the worker is to be assessed -

   (a)so far as Schedule 2 Part 1 provides for an injury suffered by the worker, as a percentage equal to -

   (i)if only one item of that Part applies to the injury, the percentage of the prescribed amount provided for by that item, as read with section 25; or

   (ii)if 2 or more items of that Part apply to the injury, the sum of the percentages of the prescribed amount provided for by those items, as read with section 25;

   (b)to the extent, if any, that paragraph (a) does not apply, as the degree of permanent impairment assessed in accordance with the AMA Guides;

   (c)to the extent, if any, that neither paragraph (a) nor (b) applies, in accordance with the regulations,

   or if more than one of paragraphs (a), (b) and (c) applies, as the cumulative sum of the percentages assessed in accordance with those paragraphs.

   (3)For the purposes of section 93E(4) only, if item 36A of Schedule 2 applies to the injury, subsection (2)(a) applies as if the percentage of the prescribed amount provided for by that item were 100% instead of 60%.

   (4)If section 25 applies, the percentage under subsection (2)(a) is calculated in accordance with the formula -

   Where -

   PD is the percentage of the diminution of full efficient use.

   TD is the relevant percentage set out in Column 2 of Schedule 2.

   Example 1

   …

   A worker loses 40% of the full efficient use of one eye.  The percentage under subsection (2)(a) is -

   Example 2

   …

   A worker loses the little finger of the left hand, 30% of the full efficient use of one eye and 10% of the full efficient use of the right arm below the elbow.  The percentage under subsection (2)(a) is -

   Example 3

   …

   A worker loses 10% of the full efficient use of the back (including thoracic and lumbar spine) and 15% of the full efficient use of the neck (including cervical spine). The percentage under subsection (2)(a) (for the purposes of section 93E(4) only) is -

   (5)If the worker and the employer cannot agree on whether the degree of disability is not less than the relevant level, the worker may, subject to subsection (6), refer the question to the Director.

   (6)A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level.

   (7)As soon as practicable after receiving a referral under subsection (5) the Director is to notify the employer in accordance with the regulations.

   (8)If within 21 days after being notified under subsection (7) the employer notifies the Director in accordance with the regulations that the employer considers that the degree of disability is less than the relevant level, a dispute arises for the purposes of Part XI.

   (9)The Director is to consider the dispute in consultation with the parties.

   (10)Except in a case to which subsection (11) applies, if the dispute is not resolved by agreement it is to be dealt with under Part XI, and for that purpose -

   (a)an application is taken to have been made by the worker under section 181; and

   (b)the requirement to give copies under section 182 does not apply.

2. Regulations made under the Act provided that a referral under s 93D(5) is made in Form 22.  The form requires a worker must nominate a level of disability of not less than 16% or not less than 30%.  Regulation 19J(9) of the Workers' Compensation and Injury Management Regulations 1982 (WA) states that the worker in Form 22 is to nominate 'one, and only one, relevant level of disability'. There is nothing to prevent a worker submitting two Form 22s, one claiming a level of disability of not less than 16% and the other claiming a level of disability of not less than 30%.

3. Other relevant portions of s 93E read:

   (1)In this section -

   'agreed' means agreed between the worker and the employer, whether under section 93D(12) or otherwise;

   'degree of disability' means the degree of disability of the worker assessed in accordance with section 93D(2);

   'determined' means determined or decided when dealt with as described in section 93D(10) or (11);

   'termination day' means the day that is 6 months after the day on which weekly payments commenced.

   (2)Weekly payments of compensation ordered by an arbitrator to commence are to be regarded for the purposes of this section as commencing or having commenced on -

   (a)the first day of the period in relation to which weekly payments are ordered to be made; or

   (b)the day that is 5 months (or such shorter period as is prescribed) before the day on which the order is made,

   whichever is later.

   (3)[See above]

   (4)[See above]

   (5)Subject to subsections (6), (6a), and (7), if weekly payments of compensation in respect of the injury have commenced an election cannot be made under subsection (3)(b) after the termination day.

   …

   (8)Subject to subsections (9) and (11), if an election has been made under subsection (3)(b) compensation under this Act is not payable in respect of the injury, or any recurrence, aggravation or acceleration of it, in relation to any period after the day on which the election is registered or any expenses incurred during such a period.

   (9)Subsection (8) ceases to apply if, after the election is made, it is agreed or determined that the degree of disability is 30% or more and that agreement or determination is recorded in accordance with the regulations.

   (10)Subsection (9) relates only to the degree of the original injury, and any recurrence, aggravation or acceleration of it is not to be taken into account.

   (11)If an agreement or determination under subsection (9) is recorded, the worker may apply for any compensation which, but for subsection (8), would have been payable under this Act in relation to a relevant period or expenses incurred during a relevant period.

   (12)In subsection (11) -

   'relevant period' means any period -

   (a)which is after the day on which the election is registered and before the agreement or determination under subsection (9) is recorded; and

   (b)during which the degree of disability is agreed or determined to have been not less than 30%.

Statutory framework - Part XI of the Act - dispute resolution

1. The reference in s 93D(10) to Pt XI is a reference to a part of the Act concerned with dispute resolution.  This part of the Act contains a provision stating that arbitrators have exclusive jurisdiction to 'examine, hear and determine all disputes' (s 176(3)) 'for which provision is made under this Act for determination by an arbitrator' (s 176(1)(c)).  Section 181 provides that a proceeding before an arbitrator commences when the application is accepted by the Director. 

2. The task of the arbitrator is to determine the 'question' or 'dispute' (s 93D(5) and s 93E(10)) about whether the degree of disability is not less than the relevant level and to determine this dispute or question the arbitrator has to determine the degree of disability: Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 [38]. The arbitrator's determination of the degree of disability expressed as a percentage is antecedent to the determination about whether the degree of disability is not less than the relevant level. The latter determination is consequential on the decision determining the degree of disability.

3. Sections 186 and 187 are in Pt XI, and they read:

   186Arbitrator may review decision

   (1)In this section -

   'new information' means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.

   (2)If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and -

   (a)vary or revoke the decision previously made; or

   (b)make any further decision,

   as the arbitrator considers appropriate having regard to the new information.

   187Decisions of arbitrator

   (1)Except as otherwise provided by this Act a decision of an arbitrator -

   (a)is final and binding on the parties and is not subject to an appeal; and

   (b)is not to be vitiated because of any informality or want of form.

   (2)A decision of an arbitrator or anything done under this Act in the process of coming to a decision of an arbitrator is not amenable to judicial review.

The consequences of the determination of a dispute

1. A decision by an arbitrator determining that the degree of disability is not less than the relevant level has various consequences, some of which appear from the provisions of the Act set out above.  A determination that the degree of disability is a percentage between 16% and 30%, and the consequential determination that the degree of disability 'is not less than 16%', gives rise to the right in the worker to elect to sue for common law damages.  In turn this has the consequence that compensation under the Act will not be payable after the election is registered.  There is another consequence of a determination that the degree of disability is not less than 16%, and that is to be found in s 93F(1).  This consequence is that the court may only award damages in the manner specified in s 93F. 

2. On the other hand, if a determination is made that the degree of disability is 30% or more, and there is a consequential decision determining that the degree of disability is 'not less than' 30%, then the constraint on recovery of common law damages is removed entirely.  The worker may sue for common law damages and continue to receive worker's compensation, although the compensation paid has to be deducted from any award of damages.

Determination of Arbitrator Sharp

1. These proceedings commenced with the filing of a Form 22 on 18 December 2001, describing the disability as 'back, right foot and right ankle' in relation to an accident on 30 July 2001 when the worker slipped and fell while undertaking cleaning services.  The respondent sought a determination that his degree of disability was not less than 16%.  The appellant disagreed with this and the dispute was referred to Arbitrator Sharp by the director. 

2. Arbitrator Sharp determined that the respondent had a degree of disability of 35% in relation to the physical injuries equating to a total body disability of 35%.  As to the respondent's psychiatric disability, Arbitrator Sharp determined that the worker had a psychiatric disability of 15%.  Although Arbitrator Sharp did not expressly say so, she therefore determined that the total degree of disability was 50%.  The consequence of this determination was that the worker had a degree of disability of 'not less than 16%' and Arbitrator Sharp so certified.

3. It is not in dispute that the arbitrator made a mistake in relation to the physical disability.  Mistakes can be corrected - see s 216 of the Act.  It is not in dispute that the percentage should have been 21%, which when added to the psychiatric disability of 15%, amounted to a determination that the total degree of disability was 36%.  The correction of this mistake did not require any amendment to Arbitrator Sharp's determination that the degree of disability was 'not less than' 16%.

Second application

1. Before Arbitrator Sharp published her determination, the respondent filed another Form 22 application seeking a determination of degree of disability of not less than 30%.  The disability was described as being 'lower back together with secondary psychiatric condition and sexual dysfunction'.  This disability was said to have been suffered on 30 July 2001 (ie as a result of the same injury which was the foundation for the proceedings before Arbitrator Sharp) and was made up according to the application as follows:

   8% of Item 37     =  4%

   35% of Item 36A  =                   21%

   Psychiatric         =                   15%

   ___

   Total  40%

2. Before the determination was  made in relation in relation to this second Form 22, the application was amended to remove the claim of 4% disability in relation to sexual dysfunction.  Thus the respondent in effect sought a determination from Arbitrator Birkelbach that, based on Arbitrator Sharp's determination of the degree of disability in relation to the same disabilities, that there should be a certification that the level of disability was not less than 30%.

Further evidence the appellant sought to present to Arbitrator Birkelbach

1. Arbitrator Birkelbach related the earlier history of the matter, and said:

   The [appellant] has garnered a fair amount of video surveillance and further medical evidence since the determination of Arbitrator Sharp.  In their view this further evidence would likely displace the former findings as there was now fresh information which showed the worker to have substantially improved from the levels of disability previously certified by various doctors.

2. The arbitrator then said:

   However the [respondent] has asked that I make my determination on the basis that there is an issue estoppel arising from the findings of Arbitrator Sharp on the previous application. 

3. It is necessary at this point to clarify what the appellant intended by seeking to rely on the 'fresh information' consisting of video surveillance and further medical evidence. The provisions of s 186 would have allowed the appellant to seek to invoke the section for the purpose of an order revoking the determination of Arbitrator Sharp (as to the proper construction of s 186, see Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55). Section 186 is discussed in more detail later in these reasons.

Appellant's concession about what was in issue before Arbitrator Birkelbach

1. The statement in Arbitrator Birkelbach's reasons that the video surveillance evidence and further medical evidence would 'likely displace the former findings as there was now fresh information' might have suggested that the appellant was seeking to invoke s 186, and was asking for a decision revoking or varying Arbitrator Sharp's determination as to the degree of disability delivered by her.

2. However, counsel for the appellant informed this court that it should proceed on the basis that the appellant did not seek to invoke s 186. Counsel for the appellant informed this court that at the hearing before Arbitrator Birkelbach the appellant only wished to place the video surveillance and further medical evidence before Arbitrator Birkelbach for the purpose of opposing the application for a determination of the degree of disability at a level of not less than 30%.

1. It may be observed that this would have involved asking Arbitrator Birkelbach to first make a determination that the degree of disability was at a percentage less than the 36% determined by Arbitrator Sharp, and indeed, at a percentage less than 30%. 

Arbitrator Birkelbach's decision

1. Arbitrator Birkelbach referred to the decision of Catholic Homes Inc v Williamson and held that an issue estoppel arose from the findings of Arbitrator Sharp. Arbitrator Birkelbach said that after the amendment to remove the reference to the claim for sexual dysfunction, that what was then placed before him was 'the issues of permanent degrees of disability arising from Item 37A and for the psychiatric condition, being the same claimed conditions before Arbitrator Sharp' [8]. Arbitrator Birkelbach recorded the respondent's submission as follows:

   In essence the [respondent] then asked that I apply the reasoning in the Williamson case to the facts of this case and find that, by reason of an issue estoppel, the determinations of Arbitrator Sharp be allowed to stand as the final facts upon which I should calculate if he had a permanent disability of not less than 30%.

2. The arbitrator noted the respondent's arguments which were that the determination of the degree of disability was not a 'final' decision.  Arbitrator Birkelbach said:

   To this I would point out that a determination on [sic] a permanent percent disability has been reserved to the jurisdiction of the Dispute Resolution Directorate. As I understand it neither party would be likely to import the percentages found here into the issues of negligence or damages before the other jurisdictions. Our determination is no more than a sine qua non after which the applicant may be made an award of damages. It is not subject to review as to final facts by another jurisdiction. [11].

   It may be appealed on a matter of law within this jurisdiction, but that does not mean that it is not final. Rather, I believe that it is final in the sense required to establish the existence of an issue estoppel. [12].

3. The second submission made by the appellant to Arbitrator Birkelbach was that the same question was not involved in the application before him, compared with the question in the application before Arbitrator Sharp.  In other words, the question before Arbitrator Birkelbach was whether the respondent had a degree of permanent disability of not less than 30% while the question before the former arbitrator was whether the degree of disability was not less than 16%.  Arbitrator Birkelbach answered this by quoting from the Catholic Homes case, where Commissioner Nisbet said:

   Accordingly, as can be seen, each of sections 93D(1), 93E(3)(a) and 93E(4) all require (formerly) a review officer and, since 14 November 2005, an arbitrator, to determine the worker's degree of disability.  Different consequences flow from the determination if it is not less than 16% or not less than 30% but the determination is of the same issue, namely the worker's degree of disability.

4. Arbitrator Birkelbach also dismissed the submission that because two applications had been made and were permitted, and indeed, required in the directorate, there was no issue estoppel.  The arbitrator's view was that the findings relating to permanent degree of incapacity (or disability) of each body part in dispute were essential and ultimate findings.  He then continued:

   Once those findings are made there is only the application of legal formulae to convert them, if required, to a final value or to amalgamate them. The question referred is answered by the comparison of those values to the legislated thresholds of not less than 16% or not less than 30%. This final step is no more than an administrative function as to the conversions made by the formulae. The essential findings of fact are the permanent percent disabilities found through weighing the medical and other evidence. [15].

5. As a result, Arbitrator Birkelbach adopted the findings of Arbitrator Sharp concerning the degree of physical disability and the psychiatric disability, determined that the overall permanent percentage was therefore 36% and determined that the respondent had a permanent percentage disability of not less than 30%.

Commissioner Nisbet's reasons

1. Commissioner Nisbet granted leave to appeal on the basis of the appellant's contention that his Honour should not follow the Catholic Homes decision.  His Honour concluded that he would not depart from his reasoning in Catholic Homes.  He was not satisfied that it was wrong or attended by sufficient doubt that he should change his mind and therefore dismissed the appeal.  His Honour therefore dismissed the appeal against Arbitrator Birkelbach's determination of a degree of disability of not less than 30%.

Catholic Homes Inc v Williamson

1. In the Catholic Homes case a review officer found that the degree of disability in relation to injuries being 'left wrist, left upper limb, psychological' amounted to 31%.  This decision was made on a form 22, claiming a disability of not less than 16%.

2. Following that decision, the respondent filed a second form 22 application, seeking a determination that the degree of disability was not less than 30%.  The employer responded by contending that the degree of disability was 'nil'.  The arbitrator hearing this second application decided he was bound by the finding of the review officer about the degree of disability, there being an issue estoppel preventing the issue from being re-litigated and this decision was made the subject of the appeal to Commissioner Nisbet. 

3. After setting out the statutory provisions in Catholic Homes, his Honour said:

   Accordingly, when the applicant notified the Director that it objected to the respondent's assessment of her degree of disability as being not less than 16% the dispute which was referred by the Director to the review officer was a dispute as to the respondent's degree of disability, and when the review officer undertook her review, took evidence and made a determination, it was of the worker's degree of disability.

   In my opinion the review officer was bound to determine the respondent's degree of disability in respect of each of the separate injuries laid before her.  If she found that the degree of disability was 31% when the respondent had only sought a finding of a degree of disability of not les than 16% then that affected the consequences of the decision, not the decision itself which it was still necessary to make for all of the reasons which 1 pointed out in examining this issue in Heatley v Jovista Pty Ltd, C12‑2006.  In my opinion the finding of the precise degree of disability as far as the evidence permitted was legally indispensable to the review officer in the conclusion that she reached.  It would not have been good enough for the review officer simply to have dealt with the physical aspects of the respondent's disabilities and made a finding that they were in excess of 16% and accordingly the respondent had succeeded with her application, without determining the degree of psychiatric disability which the respondent claimed. This must surely be obvious. What if the review officer, having taken that course, the applicant appealed against the finding in respect of the physical aspects of the claim, complaining that the review officer had made an error of law in her assessment of the degree of disability of the physical aspects of the claim at 16%, and the respondent had not had a finding about her claimed disability in respect of her psychiatric symptoms?  The review officer was bound to determine the degree of disability on each of the alleged injuries as were put to her by the respondent. It was legally indispensable to her conclusion for, without them, her decision could have been attacked for the reasons outlined in Heatley.

   I turn now to the issue before the arbitrator. As with the review officer, the issue before the arbitrator was the degree of disability of the respondent. Had he permitted himself to proceed upon the arbitration he would have been investigating precisely the same issues as those before the review officer, and hence it was not the same situation as pertained in Kuligowski. [15] ‑ [17].

4. His Honour then made reference to [40] of Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 and to what Barwick CJ said in Ramsay v Pigram (1968) 118 CLR 271, 276. His Honour then concluded that the issue to be determined before the arbitrator was the identical issue which was determined by the review officer, namely the respondent's degree of disability. His Honour concluded that the same question had been decided, that the judicial decision creating the estoppel was final and that the parties were the same and as a result, concluded that the appeal should be dismissed.

5. Nothing in the reasons of the commissioner suggest that the employer in the Catholic Homes case sought to invoke s 186 by making 'new information' available.

Grounds of appeal

1. The appellant contends by its grounds of appeal that:

   (a)that the commissioner erred in concluding that an issue estoppel arose;

   (b)the commissioner erred in concluding that the determination of Arbitrator Sharp was final; and

   (c)the commissioner erred in applying and following his decision in Catholic Homes Inc v Williamson.

Leave to appeal

1. Pursuant to s 254 of the Act, a party may appeal to this court from a decision of the commissioner on a question of law.  The grounds raise, in each case, a question of law and leave is granted.

Decision on the appeal - resort to doctrine of issue estoppel unnecessary

1. Arbitrator Birkelbach and the commissioner decided the hearing and the appeal by concluding that an 'issue estoppel' arose from the findings of Arbitrator Sharp. It is not strictly necessary to consider the doctrine of issue estoppel because the decision of Arbitrator Sharp determining the degree of disability at 36% (after correction) was itself rendered final by s 187. This is because as a matter of construction the word 'decision' in s 187 is wide enough to cover that decision as well as the subsequent and consequential determination of the dispute which had been referred for a determination of Arbitrator Sharp, namely whether the degree of disability was 'not less than the relevant level'. The word 'decision' is defined very broadly in s 5 as 'including an order, award, direction or determination'. The task of Arbitrator Sharp was to make a decision determining the degree of disability: Pilcher [38]. The decision of Arbitrator Sharp determining that the degree of disability was 36% (after correction) was a decision within the meaning of the Act. It was therefore final, meaning it was 'completely effective unless and until it could be rescinded, altered or amended': Kuligowski v Metrobus [39]; Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285, 298.

2. The High Court's decision in Collett v Loane (1966) 117 CLR 94 may appear to bear on what is stated above. That case is discussed later in these reasons.

Alternatively the doctrine of issue estoppel precluded a reconsideration of the issue

1. However, in case what is said above is wrong, the doctrine of issue estoppel applied to preclude Arbitrator Birkelbach from redetermining the respondent's degree of disability. 

2. The doctrine of issue estoppel is concerned, not only with findings of fact, or decisions of law expressly declared in a judgment or order, but to any 'matter which it was necessary to decide, and which was actually decided, as the groundwork for the decision itself': Blair v Curran (1939) 62 CLR 464, 532. As to the juridical foundation for the doctrine of issue estoppel, see Rogers v The Queen (1994) 181 CLR 251 (Deane and Gaudron JJ), Mason CJ agreeing, 273 ‑ 274 where their Honours commented that it is not a true estoppel at all but rather a manifestation of the same policy considerations which support the doctrine of res judicata or cause of action estoppel.

3. Notwithstanding those comments, the High Court still finds it convenient to speak of the doctrine of issue 'estoppel' because it is well understood what has to be established if the doctrine is to apply.  In Kuligowski v Metrobus at 373 the High Court in a joint judgment said:

   In his speech in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935, Lord Guest, after noting that the doctrine of issue estoppel had been accepted by Australian courts for a number of years, indicated that, for the doctrine to apply in the second set of proceedings, the requirements were:

   '(1)   that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.'

   There was no dispute about the satisfaction of requirement (3).  The second review officer was not sitting as a 'court' in any strict or conventional sense, but it was common ground that:

   'The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.'

   [Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453, per Gibbs J]

   The controversy centred on requirements (1) and (2). It is convenient to start by considering requirement (2), that there must be a final decision [21] ‑ [22].

   In this case also, the controversy centred on requirements (1) and (2).

Finality - requirement (2)

1. As already indicated, there were two determinations made by Arbitrator Sharp.  One was the formal determination of the dispute about whether the degree of disability was not less than the relevant level (16%).  The other was the determination of the antecedent question about the degree of disability, resulting in a determination that it was 36% (after correction). 

2. The decision of Arbitrator Sharp, determining that the disability was not less than the relevant level, was the decision to which requirement (2) in the Carl Zeiss case is referring. That decision was final because of s 187, except as otherwise provided by the Act. Section 187 prevents judicial review and appeals other than those provided for in the Act, but the statement in s 187 that the decision of an arbitrator is final and binding on the parties, also means what it says.

3. There are some exceptions to s 187, but they do not apply in this case. The first exception is the one found in s 186 which is set out above. Section 186 allows a party to seek the variation or revocation or a further decision of the arbitrator if there is 'new information'. New information must be relevant, must not have been available to the arbitrator and must in the opinion of the arbitrator, justify reconsideration of the decision which would otherwise be regarded as final. Thus, if there had been 'new information' then Arbitrator Sharp (or if Arbitrator Sharp was not available, then another arbitrator) was authorised by s 186, if the new information so warranted, to vary, revoke or make any further decision the arbitrator considered appropriate. Thus in this case, new information may have warranted an application seeking revocation of the decision, determining afresh the degree of disability and seeking revocation of the decision determining that the degree of disability was not less than 16%. However, the exception based on s 186 did not apply in this case (as conceded by counsel for the appellant).

4. Another exception to the finality provision is found in s 93E(9) to (11) which is set out above.  That assumes that an election has been made under s93E(3)(b) (which will only have occurred if the worker had a 'significant injury'). Notwithstanding that there has been such an agreement, or determination that the degree of disability was not less than 16%, and notwithstanding there has been an election, there may be a further determination that the degree of disability is in fact '30% or more' (that is, higher than the degree of disability determined earlier).  It was not suggested that these provisions applied in this case.

The same question - requirement (1)

1. Finally, it is necessary to consider requirement (1) referred to in the Carl Zeiss case.  That is, that the same question was decided; one which was necessary as the groundwork 'for the earlier decision' (that the degree of disability was not less than 16%).

2. It is true, as the appellant says, that the question before Arbitrator Birkelbach about whether the degree of disability was not less than 30% was different from the question about whether it was not less than 16%.  But that is to concentrate on the wrong question.  The relevant question was the question about the degree of disability.  The decision determining the issue about the degree of disability made by Arbitrator Sharp was indispensable to the consequential decision determining that the degree of disability was 'not less than' 16%.  The appellant was 'estopped' from seeking to reventilate the issue about the degree of disability before Arbitrator Birkelbach.

Collett v Loane

1. That only leaves for consideration the High Court's decision in Collett v Loane which might seem, superficially, to be at odds with the above reasoning.  In Collett v Loane, the applicant applied for registration as a conscientious objector under the National Service Act 1951 (Cth). A question arose as to whether the applicant was such a person and this question came before a magistrate who declined jurisdiction to entertain the application upon the ground that a previous application of a like nature had been dismissed. An appeal to a court of review against this decision was dismissed. The applicant then sought the issue of a writ of mandamus directing the hearing and determination of the second application. This came before the High Court. The respondent relied on s 29C(7) of the National Service Act, which declared that the decision of the court of review was final and conclusive.  Barwick CJ said  of that section:

   The finality given to the orders of the court of review by s 29C(7) and the definitive nature of the order of a magistrate where there is no appeal there from do not, in my opinion, require any contrary conclusion in the case of abandoned or changed belief. Those orders do determine that the applicant is or is not, at the time of their making, a person to whom s 29A(1) or 29(2) as the case may be applies. As to that fact they are final and conclusive. But it seems to me that they cannot preclude an examination as to a supervening change of fact which it is claimed has taken place in a relevant respect or the making of an order based upon such a change if found in fact to have taken place (101).

2. Taylor J said:

   There is in my view, nothing in s 29C(7) which declares that the decision of a court of review under this section is final and conclusive, to affect this conclusion for the decision of a court of review upon the question before it can only be conclusive of the fact that at the time of the hearing the person concerned did or did not hold beliefs which entitled him to either full or partial exemption (107).

   Windeyer J agreed with Taylor J.  Menzies J dissented.

3. As appears above, Barwick CJ said that the fact that the determination was final could not preclude an examination of a supervening change of fact. The Act in this case similarly does not preclude the examination of a supervening change of fact. In fact, it expressly permits it. However, it spells out how that is to happen. Section 186 says that:

   If new information becomes available after an arbitrator makes a decision the arbitrator may reconsider the decision.

   In Collett v Loane the High Court made it clear that the first determination would remain undisturbed and there could be a subsequent determination to different effect.  They would not contradict each other.  They would simply be determinations made based on different facts at different times based on what the person claimed his beliefs were at the time he made his claim.

1. In this case, the legislation provides that there is to be only one decision so as to prevent the existence of separate determinations which may produce contradictory effect.

2. That is, there is to be only one decision determining the degree of disability even though there may be two consequential decisions, one determining that the degree of disability was not less than 16% and another determining that the degree of disability was not less than 30%.  If new information warrants it, the arbitrator may 'reconsider' the first decision determining the degree of disability and the consequential decision about whether it was not less than the relevant level.  On a reconsideration the arbitrator may vary or revoke the earlier decisions or make further decisions (which must in context mean further decisions to be substituted for the first decisions). 

3. The conclusion Arbitrator Sharp reached was to determine that the respondent's degree of disability was 'not less than 16%'.  The question (or the issue) the appellant wanted to raise before Arbitrator Birkelbach about the respondent's degree of disability was the same question decided by Arbitrator Sharp.  The commissioner did not err in his decision in the Catholic Homes case where he concluded that:

   (a)the decision of the first review officer was final;

   (b)the parties were the same;

   (c)the issue to be determined by the arbitrator was the identical issue determined by the review officer; and

   (d)the review officer's determination of the degree of disability was, to use the words of the commissioner in the Catholic Homes case, 'legally indispensable to her conclusion', ie the degree of disability was not less than 16%.

   The commissioner did not err in the application of that case to this matter.  The doctrine of issue estoppel prevented the question about the

respondent's degree of disability being raised again before Arbitrator Birkelbach.  All grounds of appeal must therefore be dismissed. 

1. The result is that leave to appeal is granted but the appeal must be dismissed. 

2. BUSS JA:  The background facts and the grounds of appeal are set out in the reasons of Pullin JA. 

The critical point in the appeal

1. The critical point is whether Commissioner Nisbet QC was correct in deciding that the appellant was precluded by the doctrine of issue estoppel from asserting, in the second set of proceedings before Arbitrator Birkelbach, that the respondent's 'degree of disability' relating to the injury he suffered on 30 July 2001 was less than 30%.

Section 186 of the Act

1. In my reasons in Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55 [21] ‑ [22], I examined the proper construction of s 186 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). It is sufficient, for present purposes, to note my conclusion that a party may make an application, for the purposes of s 186(2) of the Act, based on information that was not 'available' to the party at the time the earlier decision was made. Also, a party may make such an application based on information that was 'available' to the party at the time the earlier decision was made. In each case, however, the information in question must not have been available to the arbitrator when he or she made the earlier decision, and the arbitrator hearing the s 186(2) application must be of the opinion that the relevant information justifies reconsideration of the matter.

The doctrine of issue estoppel

1. In Blair v Curran (1939) 62 CLR 464, Dixon J explained the doctrine of issue estoppel in these terms:

   A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.  The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.  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 is 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 (531 ‑ 532).

1. More recently, in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [21], Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ approved Lord Guest's formulation, in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, of the requirements of the doctrine of issue estoppel. His Lordship said that, for the doctrine to apply in the second set of proceedings, the requirements were:

   (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies (935).

2. A court, in deciding whether an issue estoppel exists, may examine the record of the first set of proceedings, including the reasons for decision, for the purpose of identifying the issues of fact and of law that were raised and determined in those proceedings.  See Jackson v Goldsmith (1950) 81 CLR 446, 467 (Fullagar J); Rogers v The Queen (1994) 181 CLR 251, 263 (Brennan J).

3. In Ramsay v Pigram (1968) 118 CLR 271, Barwick CJ noted, in relation to the identification of the relevant question which was decided in the first set of proceedings:

   Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case (276).

   Those observations were approved in Kulogowski [40].

4. It is essential, in examining reasons for decision which are alleged to create an issue estoppel, to understand with precision what the judicial officer was required to determine.  See Murphy v Abi‑Saab (1995) 37 NSWLR 280, where Gleeson CJ (with whom Kirby P and Rolfe AJA agreed) said:

   The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions.  One thing, however, is clear.  Only a decision about a matter which it was necessary to decide can create an issue estoppel.  It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide (288).

5. The question which is referred to the Director Dispute Resolution under s 93D(5) of the Act and, where necessary, to an arbitrator under Pt XI of the Act, is this:

   What is the 'degree of disability' suffered by the relevant worker? 

6. The Act requires that a determination be made as to the particular 'degree of disability', and not merely whether the 'degree of disability' is not less than the relevant level.  See Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159, where Steytler P, Wheeler, Roberts‑Smith, McLure and Pullin JJA observed, in relation to a Form 22 referral lodged by an injured worker on 14 December 1999 and in the context of the Act as it stood before the publication in the Government Gazette, later that day, of the 1999 amendments:

   Leaving to one side, for the moment, what was said in Ivey and in McMullen, it seems to us that the question which is referred to the Director under s 93D(5) and, where necessary, by the Director to the review officer under s 93D(10), is that of what is the degree of disability suffered by the worker.  While s 93D(5) speaks of the question "whether the degree of disability is not less than the relevant level", there will, in many cases, be only one relevant level in contention, as we have explained.  The question, then, will be whether the degree of disability reaches that level.  Where the ambit of the dispute ranges (as in this case) between somewhere less than 16 per cent (the insurer's nomination) and 30 per cent or more (the worker's nomination) there will be two relevant levels in contention, unless the worker has made it plain that he or she will elect not to rely upon the lower level.  However, even then, only one relevant level can be determined (or agreed upon, if agreement is reached after consultation with the Director), being either of 16 per cent or more or 30 per cent or more.  Consequently, the question which is referred by the Director for resolution is always the same, being that of what is the relevant level or, to put it differently, what is the degree of disability.  When the operation of the Act is understood in that way, it is not surprising that the original Form 22 should have had the two boxes to which we have referred.  In our opinion, where the amended Form 22 requires the worker to tick only one of the two boxes, that tick and the employer's nomination do no more than delineate the ambit of the dispute.  The regulatory requirement that the worker is to tick only one box has no effect on the task which the Act requires, which is the determination of the degree of disability [38]. (emphasis added)

7. In Carl Zeiss, Lord Guest said that 'final' means 'final and conclusive on the merits' of the cause (935).  Also see 'The Sennar' (No 2) [1985] 1 WLR 490, where Lord Brandon of Oakbrook said:

   a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned (527).

   It is relevant, but not decisive, that the decision which is said to give rise to an issue estoppel was made in an interlocutory application.  See Makhoul v Barnes (1995) 60 FCR 572, 582 ‑ 583; Santos v Delhi Petroleum Pty Ltd [2002] SASC 272 [392] ‑ [400]; Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 [60]; Castillon v P & O Ports Ltd [2007] QCA 364 [55] ‑ [58].

Conclusion

1. In the present case, after correcting Arbitrator Sharp's patent error of calculation in the first set of proceedings, it is apparent that he determined that the respondent's overall 'degree of disability' was 36%. That was a decision on the question which the Director Dispute Resolution referred to him under Pt XI of the Act. Also, subject, relevantly, to s 186 of the Act, it was a decision that was final and conclusive on the merits of the cause. See s 187 of the Act. Further, the decision bound the appellant and the respondent, and their respective privies.

2. Accordingly, subject to s 186 of the Act, Arbitrator Sharp's decision gave rise to an issue estoppel in relation to, relevantly, the respondent's overall 'degree of disability', assessed in accordance with s 93D(2).

3. The issue estoppel is, however, as I have mentioned, subject to s 186 of the Act. In other words, if 'new information' (as defined in s 186(1)) becomes available after Arbitrator Sharp made his decision, the arbitrator may reconsider the decision and:

   (a)vary or revoke the decision previously made; or

   (b)make any further decision,

   as the arbitrator considers appropriate, having regard to the new information.

4. I would grant leave to appeal under s 254(1) of the Act in that the learned Commissioner's decision in relation to the doctrine of issue estoppel was a decision on 'a question of law' within the meaning of that provision, and his decision raises a question of law of some importance, both generally and as between the parties.

5. I would, however, for the reasons I have given, dismiss the appeal.