Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme
[2005] NSWWCCPD 43
•26 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSW WCC PD 43
APPELLANT: Phillip Quarmby
RESPONDENT: Motor Traders Association of NSW Group Apprenticeship Scheme
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC15057-2003
DATE OF ARBITRATOR’S DECISION: 26 February 2004
DATE OF APPEAL DECISION: 26 May 2005
SUBJECT MATTER OF DECISION: Res judicata; estoppel
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
BACKGROUND TO THE APPEAL
The appellant is Mr Phillip Quarmby (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) made 26 February 2004. The Arbitrator dismissed his application for compensation for permanent impairment to his sexual organs and compensation for pain and suffering on the basis of res judicata.
The respondent to the appeal is the Motor Traders Association of NSW Group Apprenticeship Scheme (‘the Respondent’). The insurer of the Respondent is CGU Workers Compensation (NSW) Limited (‘the Insurer’). The Respondent opposes the appeal.
Mr Quarmby suffered the injury which gave rise to his application to the Workers Compensation Commission (‘the Commission’) on 11 January 2000. There is no dispute that while moving a steel cabinet from the roof of his car in the course of his work the weight of the cabinet fell on his neck and he suffered an injury to his neck and right arm. His application to the Commission was filed on 17 September 2003 and sought compensation for 40% permanent impairment to his sexual organs and associated pain and suffering arising from this injury. He attached medical evidence to the effect that since the injury he has been unable to engage in sexual intercourse with the same frequency and enjoyment as prior to the injury due to the effect of ongoing pain on sexual desire.
Mr Quarmby first brought proceedings in the Compensation Court of New South Wales (‘the Compensation Court’) for compensation for the injury. His application to the Compensation Court was filed on 19 February 2002. A copy of the application is in the material before me. In the application he sought lump sum compensation for the following: percentage permanent impairment of the neck, percentage loss of use of his right arm, severe bodily disfigurement, pain and suffering and for “90% loss of use of the sexual organ”. Those proceedings were determined on 26 November 2002 by Judge O’Meally. His Honour stated in paragraph 1 of his reasons as follows: “The fact of his (Mr Quarmby’s) injury and the fact of impairment of his neck and loss of the use of his right arm are not disputed. What are disputed are the applicant’s allegations of loss of sexual function and of severe bodily disfigurement.” After discussing the evidence in relation to impairment of Mr Quarmby’s neck and loss of use of his right arm His Honour stated in paragraphs 12 and 13 of his judgment:
“12. As noted the applicant makes a claim for loss of sexual organs and for severe bodily disfigurement. Dr Wolfenden, without giving reasons for his conclusion, has expressed the view that the applicant has 90 per cent loss of the use of his sexual organs. Dr Matheson thought there to be no loss. Dr Lyons thought himself not competent to express an opinion and the other doctors whose reports are before me, with the exception of two psychiatrists, effectively did not deal with the question.
13. The applicant did not say that he had an incapacity to engage in sexual intercourse. The impression given to me and to the doctors whose reports deal with the matter seem to indicate that it is rather a loss of interest than an incapacity which has restricted his sexual function. Moreover, I have not been favoured with the opinion of a specialist in the field. I would have thought it not too difficult to have qualified a urologist to deal with this question. The applicant has failed to satisfy me that he has a loss of the use of his sexual organs.”
In respect of bodily disfigurement, His Honour stated in paragraph 14 “If there be disfigurement, I am not satisfied that it is severe.” Judge O’Meally awarded Mr Quarmby the sum of $9,400 in respect of impairment to his neck, $11,200 in respect of loss of use of his right arm and $25,000 for pain and suffering. He did not expressly find that Mr Quarmby had not suffered impairment of the sexual organs or severe bodily disfigurement, but made no award in respect of those aspects of the claim. He did not expressly dismiss those aspects of the claim.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 26 February 2004 records the Arbitrator’s orders as follows:
1.Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 and 67 of the Workers Compensation Act 1987.
2.No order as to costs.
The basis of the Arbitrator’s decision was that Mr Quarmby was estopped from bringing the claim for permanent impairment to his sexual organs and associated pain and suffering by reason of the judgment of Judge O’Meally in the Compensation Court. The Arbitrator found that Mr Quarmby had claimed permanent loss of his sexual organs in those proceedings and that that claim was dismissed by Judge O’Meally. Accordingly, by virtue of the principles of res judicata, Mr Quarmby was prevented from bringing that claim again.
ON THE PAPERS REVIEW
Both parties to the appeal seek that an oral hearing be held. The Appellant submits in relation to this issue: “The Arbitrator…delivered a judgment on the 26.02.2004, when he found that the Applicant’s claim must fail because of rejudicata [sic]. The determination of this issue is vitally important to the Applicant and we submit that it would cause injustice if the issues were determined on the papers.” The Respondent submits that “due to the complexity of this matter, oral submissions would be necessary. It is anticipated that reference to statute and cases quoted will be necessary, as will an examination of the context of the wording used by O’Meally, CCJ.”
The Commission is permitted to determine appeals on the papers where that is appropriate. Sections 354(1) and (6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provide:
“(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matters permits.
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Commission’s approach in relation to determination of matters ‘on the papers’ is set out in Practice Directions Numbers 1 and 6. Practice Direction 1 sets out a number of factors that will be considered in relation to whether or not to proceed on the papers. I consider the following of those factors to be relevant in this case:
(1)The fact that the dispute concerns issues of law and the correct interpretation to be given to the written judgment of O’Meally CCJ only.
(2)The complexity and substance of the legal and factual issues involved.
(3)The financial or other ramifications of the dispute for the parties.
(4)The fact that neither party seeks that the matter proceed on the papers.
In addition I take into account the following:
(5)That both parties were invited to and did make written submissions both before the Arbitrator and in this appeal as to the application of the principle of res judicata and any other relevant matters.
(6)The obligation of the Commission to conduct proceedings with as little formality and technicality as the proper consideration of the matter permits (section 354(1) of the 1998 Act set out above).
(7)The objectives of the Commission as set out in section 367 of the 1998 Act, and, in particular, the objective to provide a “fair and cost effective system for the resolution of disputes” (sub-section (1) (a) of section 367).
Factors (3) and (4) listed above favour an oral hearing. However, I consider that these are outweighed by the other factors. I do not consider the issues to be so complex that they were not capable of adequate elucidation by written submission. Each party has made written submissions, and referred to relevant authorities in those submissions. I consider that I have sufficient information to proceed without oral hearing, as permitted by sub-section (6) of section 354 of the 1998 Act, and that in all the circumstances this is fair, cost effective and the appropriate course.
LEAVE
Before proceeding to deal with an appeal the Commission must first determine whether the appeal was filed in time and whether leave to appeal should be granted. These requirements are set out in section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged on 5 March 2004 and so within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Neither party has addressed the requirements for the grant of leave. The Appellant sought the sum of $28,800 in his application to the Commission. This satisfies the requirements of sub-section 2(a) of section 352 of the 1998 Act. No amount was awarded to the Appellant because he was unsuccessful. A number of Presidential decisions, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that sub-section 2(b) is not applicable to appeals against decisions in which no award is made. I find that the appeal satisfies the threshold requirements of section 352 and grant leave to appeal.
ISSUES
Section 352(5) of the 1998 Act states that “An appeal under this section is to be by way of review of the decision appealed against.” The section does not otherwise specify the basis or permitted grounds of appeal. Case law has established that the basis of appeal to the Commission from the decision of an Arbitrator is that the Arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
The Appellant does not set out in what respects he says the Arbitrator erred in reaching his decision. In his appeal form, the Appellant merely attaches the submissions he made before the Arbitrator and continues “Therefore, the Applicant seeks that the Order made by (the Arbitrator) dated 26.02.2004, be set aside.” I take this to be an assertion that the Arbitrator erred by rejecting the submissions put to him by the Appellant. This is also the interpretation placed on the appeal by the Respondent in its submissions.
The Appellant put four submissions before the Arbitrator as follows:
(1)The Workers Compensation Commission has been established to resolve disputes. A dispute exists, therefore the Applicant is entitled to bring his claim.
(2)The Applicant and Respondent before the Compensation Court had not had the Applicant medically examined by a qualified specialist in sexual relations, and so the issue as to whether or not he had suffered a loss of use of his sexual organs remains undetermined.
(3)The judgment of His Honour Judge O’Meally did not find that the Applicant did not have any impairment to his sexual organs, merely that he had failed to satisfy him of that loss on the medical evidence available.
(4)By virtue of Part 3 Rule 17 [sic] of the Workers Compensation Act 1984 [sic- the reference should be to the Compensation Court Act 1984] the Applicant could request the Compensation Court to reconsider the judgment of Judge O’Meally and therefore the Applicant is entitled to have this matter determined before the Commission.
The Arbitrator rejected all of these submissions.
The Appellant subsequently filed a further submission in this appeal, in which he set out portions of an advice from counsel, the relevant portions of which are as follows:
“His Honour did not find that the Applicant did not have a loss of use of his sexual organs. He simply found that the Applicant had failed to satisfy him of that loss on the medical evidence available. If the Applicant does wish to reconsider that aspect of his claim, he can do so by way of further application, unfortunately, to the Workers Compensation Commission. His Honour has, unfortunately, not given liberty to apply to the Court in that regard.”
The quoted portion goes on to recommend the obtaining of further medical evidence, from a sexual function specialist.
I take this submission to be by way of further support of the Appellant’s original submission numbered 3 above, that Judge O’Meally did not find that the Applicant did not have any impairment to his sexual organs.
The Respondent submitted before the Arbitrator that Mr Quarmby was estopped from bringing a claim for loss of sexual function because this claim had been determined by Judge O’Meally in the Compensation Court proceedings. In the alternative, the Respondent submitted that the principle of Port of Melbourne Authority v Anshun Pty Limited [1981] 147 CLR 589 applies. The Respondent summarised the effect of the judgment of the High Court in that case as follows:
“The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
The Arbitrator accepted the submissions of the Respondent and found that the Appellant (in those proceedings the Applicant) was estopped from bringing the claim. In relation to the Appellant’s submissions he held as follows:
(1) The power of the Commission to determine claims is subject to law, including the principle of res judicata.
(2) Failure to call the appropriate evidence in the earlier proceedings does not entitle a party to re-litigate.
(3) The Compensation Court determined the issue of loss of function of sexual organs.
(4) In relation to section 17 of the Compensation Court Act 1984 “This Act does not apply to the Commission and in any event there is not similar provision in the Workplace Injury Management and Workers Compensation Act 1998. I do not accept that the Legislation referred to would entitle the Court to re-determine a matter already decided because a party proffered different evidence that was clearly available at the time of the trial.”
EVIDENCE AND SUBMISSIONS
Neither party seeks to rely on any fresh evidence. The material before me consists of the following:
(1)The documents attached to the Appellant’s original application and the Respondent’s reply. These include the application to the Compensation Court, the judgment of His Honour Judge O’Malley and medical reports;
(2)The parties’ written submissions before the Arbitrator;
(3)Statement of Reasons for the Arbitrator’s decision;
(4)The parties’ written submissions on the appeal.
In addition to the submissions on res judicata before the Arbitrator, the Respondent to the appeal makes the following further submissions:
(1) Section 17 of the Compensation Court Act 1984 has no application by virtue of the Compensation Court Repeal Act 2002.
(2) The remedy available to the Appellant at the time of the decision of Judge O’Meally was an appeal to the Supreme Court pursuant to section 32 of the Compensation Court Act 1984
(3)Judge O’Meally did make a determination of the disputed claim for loss of function of sexual organs.
DISCUSSION AND FINDINGS
Res judicata: the law
The authorities establish that there are three types of instances in which a party may be estopped from raising an issue, claim or defence in subsequent proceedings because, in broad terms, of the principle of res judicata. These are as follows:
(1)Cause of action estoppel (res judicata in the narrow sense)
(2)Issue estoppel
(3)Anshun estoppel.
The difference between res judicata and issue estoppel was expressed as follows by Dixon J. in Blair v Curran (1939) 62 CLR 464 (as quoted by Priestley J.A. in Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 at 240):
“ 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.”
The Anshun estoppel is different from both cause of action and issue estoppel. It relates not to what was determined by the previous proceedings, but what could have been. The principle was discussed by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. It arises where a party seeks in subsequent proceedings to raise a defence (and possibly a claim) that could have been raised in earlier proceedings between the same parties, but was not. In certain circumstances, the party may be estopped from raising that defence or claim in later proceedings. In the majority opinion, delivered by Gibbs C.J., Mason and Aickin J.J, the Court expressed the view (strictly obiter to the determination of that case) that the estoppel will not arise unless “the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.” (paragraph 37) In that case the appellant, the Port of Melbourne Authority (“the Authority”), sought to rely in subsequent proceedings on an indemnity given by the respondent although it had not raised that indemnity in previous proceedings taken by an injured worker against both the Authority and the respondent as defendants. Those proceedings had concluded with judgment against both defendants. The judges of the High Court expressed slightly different views as to the ambit and rationale of the estoppel, but all agreed that on the facts of that case the appellant must fail because “the judgment which the Authority seeks to obtain in the present action is one which would contradict the judgment which has been entered in the (previous) action.” (Gibbs C.J., Mason and Aickin JJ. at paragraph 16).
The Anshun estoppel has been the subject of a number of subsequent cases. I will not discuss it further because for the reasons given below, I do not consider this to be a case where an Anshun estoppel arises.
The question that next arises is the extent to which the principles of res judicata and issue estoppel apply to proceedings for workers compensation. The Appellant relied before the Arbitrator and in this appeal on The Commonwealth v Matheson [1955] CLR 403 (‘Matheson’). That case concerned the Commonwealth workers compensation legislation. It has been taken (see King C.J. in Salmon Street Ltd (In Liq) v Jorgenson (1991) 56 SASR 158)(‘Jorgenson’) to stand for the principle that there is no single cause of action for compensation to a worker injured in a particular accident. This view was accepted in relation to the New South Wales legislation by Neilson J. in Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247 (‘Bruce’). He stated on the basis of his examination of the authorities that “There is no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights” (paragraph 7). A worker may, for example, be able to claim in one set of proceedings weekly payments and in another lump sum compensation for impairment or pain and suffering although both claims arise from the same injury. Similarly, a worker may be able to claim injury to one part of the body in one set of proceedings and injury to another party of the body in another, although both injuries arise from the same incident. This contrasts starkly with the situation at common law, where a party who seeks damages in tort for personal injury arising from the negligence of another must claim all heads of damage in the one proceedings (Giles J. in Onerati v Phillips Constructions Pty Ltd (In Liq) (1989) 16 NSWLR 730, citing earlier authority). Onerati concerned an action for damages for defective building work arising from breach of contract. His Honour held that in that instance, as in tort, there was only one cause of action, and particular defects, or injuries, were but heads of damage.
Thus Matheson supports the right of the Appellant in these proceedings to make separate claims for impairment to distinct parts of his body arising from the one incident. It does not go further, however, and assist the Appellant in his argument that he can make the same claim twice. That situation did not arise on the facts in Matheson and there is no discussion of the principles of res judicata or issue estoppel in that case. Neilson J. in Bruce considered that although there is no single cause of action for compensation arising from the one incident, where a particular claim has in fact been determined then an estoppel will apply to prevent that claim being made again. He quoted with approval McGrath C.J. in Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370 (‘Thompson’) and King C.J. in Jorgensen to this effect. Jorgensen arose under the South Australian workers compensation legislation, but Neilson J. considered that legislation analogous to the New South Wales legislation. In Thompson McGrath C.J. stated:
“It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication.”
He went on to say that in some instances failure to include a claim in the earlier proceedings may be relevant to costs. In Jorgensen King C.J. characterised an estoppel based on res judicata as follows:
“ If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata.”
In Bruce, Neilson J. held that no estoppel arose. There are, however, many instances of workers compensation cases where an estoppel has been held to arise on the principle summarised in Bruce. In fact this was the situation in one of the other authorities cited by the Appellant, Lambidis v Commissioner of Police (1995) 12 NSWCCR 225 (‘Lambidis’). In that case, the Court of Appeal confirmed the decision of Campbell C.J. in the Compensation Court that Mr Lambidis was estopped from challenging the determination of the Commissioner of Police that he was not “hurt on duty” (for the purposes of superannuation) because of an earlier decision by the Government and Related Employees Appeal Tribunal (“GREAT”) that he was not “hurt on duty” for the purposes of salary while on leave. The Court held that the prior determination of GREAT gave rise to an issue estoppel that prevented the same issue being re-litigated in the Compensation Court.
Did the decision of the Compensation Court here give rise to an estoppel?
In this case the Appellant submits that there is no estoppel because O’Meally C.J. did not make an explicit finding that the appellant did not have an impairment to the sexual organs. The Arbitrator held that “On its face the judgment of O’Meally deals directly with the issue that the Applicant seeks to litigate in the Commission and in my view the Applicant is estopped from bringing this claim by reason of a res judicata.” (paragraph 21 of the Reasons). I do not consider that the Appellant has demonstrated any error in this decision. In fact, I consider it entirely correct. The Appellant claimed an impairment to his sexual organs in the proceedings in the Compensation Court. He claimed the same impairment (though to a less substantial degree) in the proceedings before the Arbitrator. Judge O’Meally did not explicitly find that there was no impairment, or explicitly dismiss the claim, but in my view the clear effect of his reasons and orders is that the claim was dismissed as not proved. That being the case, unless the claim to the Commission was made pursuant to a statutory exception to the general principles of res judicata and issue estoppel, it is barred.
Further, I consider that the Arbitrator’s characterisation of this estoppel as res judicata, rather than issue estoppel or the Anshun estoppel, is also correct. In my view this is a clear instance of a worker seeking to argue the same claim (not just the same issue) again, after that claim has been determined in earlier proceedings. This is the situation set out in the quote from Jorgensen above. This is not a situation where a claim was not argued in the earlier proceedings, but could have been, which might require consideration of the Anshun estoppel. In this case the claim was argued in the earlier proceedings and was determined.
The Appellant relies on State Rail Authority of New South Wales v Reodica (2000) 21 NSWCCR 308 in support of his proposition that Judge O’Meally made no finding that the Appellant did not have a loss of the use of his sexual organs. I do not consider that that case supports that argument. In Reodica there was no dispute about what the Commissioner in the Compensation Court had found. The Commissioner dismissed a claim for compensation based on an assault causing post traumatic stress disorder. The issue before the Court of Appeal in that case was whether the Commissioner should have considered other possible bases for compensation for which there was some evidence, although they had not been pleaded, or even relied on by counsel for the worker. Geraghty CCJ. held that he should have, and the Court of Appeal dismissed an appeal from his decision. The Court of Appeal stated that “the Compensation Court is not a court of strict pleading” and referred to the requirement in section 17(1) of the Compensation Court Act 1984 that the Court decide matters “upon the real merits and justice of the case” (Mason P. at paragraph 58). I do not consider, however, that the Court intended to say that this requirement overruled the principles of res judicata. That issue simply did not arise on the facts of that case. Indeed, there is obiter in the decision which supports the application of the principles of res judicata. The Court referred with approval to the decision of the Court of Appeal in Lambidis, in which Priestley JA. specifically held that section 17(1) was not a statutory exception to the principles of res judicata (discussed further below). Further, the Court of Appeal in Reodica commented that the new hearing ordered by Geraghty CCJ. should be confined to the claim on which the Commissioner had not ruled, because: “It would be unjust for the physical assault claim or the PTSD injury claim (the matters he had determined) to be reventilated.” (paragraph 50)
The Respondent refers to Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 and Ambulance Service of New South Wales v Daniel and Anor [2000] NSWCA 116 in relation to this portion of the appeal. Those cases relate to the obligations of the finder of fact to give adequate reasons for his decision. I do not consider it necessary to discuss those authorities further, because the issue in this appeal is whether Judge O’Meally made a finding that determined the claim for impairment to sexual organs, not the different issue of whether or not his reasons for such a finding were adequate. As stated, I consider the Arbitrator was correct in his determination that a finding was made.
The Arbitrator’s determination of the other submissions of the Appellant
The Appellant submitted before the Arbitrator, and again on this appeal, that he was entitled to bring his claim because the Commission was established to resolve disputes, and in this case there was a dispute with regards to the level of impairment of the Appellant’s sexual organs. The Appellant cited the objectives of the Commission as set out in section 367 of the 1998 Act in support of this submission. Further, the Appellant submitted that the issue remained undetermined because neither party had had the Appellant examined by a relevant specialist in the proceedings before the Compensation Court. In respect of the first of these submissions the Arbitrator held that the Commission is required to determine disputes in accordance with the law, and that includes the principles of res judicata and issue estoppel. In respect of the second, the Arbitrator held that “A failure to call evidence to prove a particular fact or issue in a trial does not entitle a party to re-litigate.” (paragraph 22 of the Reasons)
I do not consider that the Appellant has established any error by the Arbitrator in respect of his decisions on these two submissions. A similar argument to the first submission was put on behalf of the worker in Lambidis. The submission in that case was that section 17 of the Compensation Court Act 1984 evinced a legislative intention that the Compensation Court should not be bound by any form of estoppel arising from proceedings in some other tribunal (there GREAT) and that the Court should examine any matter before it on the merits. It appears from the judgment of Priestley J.A., with whom Powell J.A. agreed, that this argument was put on the basis of Section 17(1) of that Act which provided that “A decision of the Court in any matter shall be upon the real merits and justice of the case.” Priestley J.A. rejected the submission. He stated:
“ There is nothing in the section or the Act as a whole to indicate that ‘the real merits and justice of the case’ are to be determined otherwise than in accordance with rules of law. Section 17 empowers the Compensation Court, where it is necessary to avoid undue hardship, delay or expense to the parties, to depart from a strict adherence to the technicalities of legal procedure and form. It does not, however, exclude the application of the rules of substantive law. If a court is required to decide matters according to law, as the Compensation Court clearly is, it must apply all relevant principles of law to the dispute before it.”
In relation to the second proposition, that the lack of relevant evidence entitles the Appellant to a further attempt to prove his case, the authorities do not establish any such exception to the application of res judicata or issue estoppel.
Section 17(4) of the Compensation Court Act 1984 and the power to reconsider
The final submission put by the Appellant to the Arbitrator, and again on this appeal, is that the Appellant would have been entitled to request the Compensation Court to reconsider its decision by virtue of section 17(4) of the Compensation Court Act 1984. Section 17(4) stated as follows at the time Mr Quarmby’s application was determined in the Compensation Court:
“Section 17(4)
Nothing in subsection (3) (which prevented challenge to decisions otherwise than in accordance with the Act) shall prevent the Court from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court, all of which the Court shall have authority to do.”
There is authority for the proposition that section 17(4) was a statutory exception to the principles of res judicata and issue estoppel (Bruce v Grocon Ltd) but the argument was not put on this basis to the Arbitrator. The Appellant merely submitted that because the Appellant had “statutory entitlements, to request the Compensation Court of NSW to reconsider the judgment by Judge O’Meally” this, when coupled with the submission that Judge O’Meally had made no finding, entitled the Appellant to determination of his claim by the Commission.
In respect of this submission, the Arbitrator held that:
“This Act does not apply to the Commission and in any event there is not similar provision in the Workplace Injury Management and Workers Compensation Act 1998. I do not accept that the Legislation referred to would entitle the Court to re-determine a matter already decided because a party proffered different evidence that was clearly available at the time of the trial.” (paragraph 22(4) of the Reasons: emphasis added)
In my view the Arbitrator did err in relation to the underlined portion of his reasons on this point. There is in fact similar provision to the old section 17(4) in the 1998 Act. Section 350(3) of the 1998 Act provides as follows:
“Section 350(3)
The Commission may reconsider any matter that has been dealt with by the Commission and may rescind, alter or amend any decision previously made or given by the Commission.”
In Reodica, referred to earlier in these reasons, a worker was held entitled to have a claim determined even though it was not pleaded, because the evidence before the primary decision maker, there a Commissioner, could support the claim. I have given consideration to whether, on the basis of Reodica, a new hearing before an arbitrator should be ordered in this matter so that the application to the Commission can be dealt with as an application for reconsideration. By analogy with Reodica, the fact that the claim was not expressed in the application form to be a request for reconsideration would not be fatal. This submission was not put by the Appellant, but I have considered it in fairness to him because he did make reference to Reodica, although in support of a different argument. Reodica was decided on the basis of section 17(1) of the Compensation Court Act 1984, but there is a provision to the same effect in the 1998 Act in relation to the Commission. Section 354(3) provides that the Commission is to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.
To apply Reodica would require that, although the claim was not expressed to be a request for reconsideration, there was material before the Arbitrator that could have supported the claim being viewed as a request for reconsideration.
On balance I do not consider that this was the situation in this case. The claim was determined by the Arbitrator without a hearing, on the basis of written submissions only. The Arbitrator states in his Reasons (paragraph 10) that this was by consent, and there is no disagreement with this statement in the appeal. The reason I do not think Reodica applies is that there is no reference in any of the written submissions to or other material before the Arbitrator (or on this appeal) to section 350(3). Mr Quarmby made reference to section 17(4), but that section could not apply to an application to the Commission, as opposed to the Court.This was acknowledged by the Appellant in his submission. It was the Arbitrator who raised the issue of whether there was similar provision in the 1998 Act, not the Appellant. I do not consider Reodica requires the first instance decision maker to put the arguments for the worker- merely to determine any claim that fairly arises on the evidence or submissions, even if not expressly identified by the worker.
Even if the Appellant had sought to rely on section 350(3) that provision relates to reconsideration of a decision previously made or given by the Commission. It would have required detailed analysis of the transitional provisions to determine if a decision by the Compensation Court could be the subject of this provision. The Appellant’s reference to section 17(4) was fleeting and the submission did not address any of the authorities on section 17(4). In fact, those authorities greatly limited the circumstances in which the discretion conferred by the sub-section was as a matter of practice exercised (see Warren v Commissioner of Police [1997] NSWCC 20; (1997) 14 NSWCCR 513 and Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235). As the Arbitrator stated, while fresh evidence could be a ground for exercise of the discretion, Walker J. held in Solomon that “the material to be adduced must be such that it could not with reasonable diligence have been put before the Court at the original proceedings.” (paragraph 26)
For these reasons I have come to the view that the error made by the Arbitrator, in stating that there was no equivalent provision to section 17(4) in the 1998 Act, does not require that the application be remitted to be determined as a request for reconsideration. A basis for considering the application in that way did not emerge from the material before the Arbitrator. On the material before the Arbitrator the application was not an application for reconsideration, but a fresh application in respect of a matter previously determined by the Compensation Court. For the reasons set out earlier I consider that the Arbitrator was correct in his decision that the application was estopped by reason of res judicata.
DECISION
For these reasons I dismiss the appeal and confirm the decision of the Arbitrator.
Robyn Lansdowne
Acting Deputy President 26 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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