Rapley v Gordon Briggs t/a Gordon Briggs Drilling
[2007] NSWWCCPD 234
•29 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rapley v Gordon Briggs t/a Gordon Briggs Drilling [2007] NSWWCCPD 234
APPELLANT: Stephen Rapley
RESPONDENT: Gordon Briggs t/a Gordon Briggs Drilling
INSURER:Allianz Australia Workers’ Compensation
FILE NUMBER: WCC2379-07
DATE OF ARBITRATOR’S DECISION: 25 June 2007
DATE OF APPEAL DECISION: 29 November 2007
SUBJECT MATTER OF DECISION: Section 350 of the Workplace Injury Management and Workers Compensation Act 1998; res judicata
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: Higgins & Higgins
Respondent: Goldbergs
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 June 2007 is confirmed.
No order is made as to the costs of the appeal.
BACKGROUND
Mr Stephen Rapley, the Appellant Worker, commenced employment with the Respondent Employer, Gordon Briggs trading as Gordon Briggs Drilling, as a drilling assistant, in 1997.
Allianz Australia Worker’s Compensation (‘the Insurer’) was the Respondent Employer’s insurer at all relevant times.
Mr Rapley claims to have injured his right shoulder on 26 January 1998 while hauling rods from a drilling site. He resigned from his position with the Respondent Employer on 31 January 1998.
Mr Rapley commenced proceedings in the Compensation Court of New South Wales (matter no. 35996 of 1999) in which he claimed weekly benefits compensation and compensation under sections 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). On 15 June 2000 Campbell CJ made the following orders:
“1.Award applicant under s.36 at the rate of $443 per week from 1 February 1998 to 28 February 1998 and from 21 April 1998 to 18 May 1998.
2.Under s.40 at rate of $158 per week from 1 March 1998 to 20 April 1998 and from 19 May 1998 to 29 June 1998.
3. Medical expenses – s.60.
4.I expect the parties to agree upon the claim for interest but grant liberty to apply to the parties if they are unable to do so.
5. The respondent is to pay the applicant’s costs and I publish my reasons.”
On 24 February 2003 Mr Rapley lodged an ‘Application to Resolve a Dispute’ in the Commission (matter no. WCC7163 of 2003) claiming injury to his neck, back and right arm due to the nature and conditions of his work. Mr Rapley claimed weekly compensation from 26 January 1998 to date at a rate of $1,200 per week pursuant to section 43(2) of the 1987 Act. He also claimed a general order for medical expenses; an amount of $20,000 lump sum for 5% permanent impairment of his neck; an amount of $24,000 lump sum for 30% permanent loss of efficient use of the right arm at or above the elbow and $12,500 pursuant to section 67 of the 1987 Act.
On 18 September 2003 a teleconference was held in this matter at which time the Arbitrator directed the parties to file brief written submissions on the two primary issues involved, estoppel and privilege.
On 23 October 2003 the Arbitrator made an ex tempore decision as follows:
“1.The Commission does not have jurisdiction to hear the Application as the Applicant’s claim has already been the subject of a decision of the Compensation Court. Therefore I order that the Application be struck out.”
On 24 December 2003 Mr Rapley sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission, against that decision.
On 23 June 2004 Deputy President Fleming refused leave to appeal on the basis that the appeal application was filed out of time.
A further ‘Application to Resolve a Dispute’ (‘the Application’) was registered with the Commission on 5 April 2007 (matter no. WCC2379-07). Mr Rapley’s matter is brought as a fresh Application in respect of weekly payments for a closed period between 19 October 2004 and 14 December 2005, and a lump sum payment of $8,800 pursuant to section 66 of the 1987 Act, in relation to permanent impairment of the right upper arm. In the alternative, Mr Rapley sought a reconsideration of his claim pursuant to section 350 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In its Reply filed on 26 April 2007 the Respondent Employer disputes the claim and submits that Mr Rapley is estopped from proceeding further, because of the decision of Campbell CJ dated 15 June 2000, and the decisions of the Commission dated 23 October 2003 and 23 June 2004.
The dispute was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 21 May 2007, and the parties attended a further conciliation/arbitration hearing on 29 May 2007. The Arbitrator issued a decision on 25 June 2007 in terms set out below, at paragraph 26.
Mr Rapley lodged with the Commission an ‘Application to Appeal Against Decision of Arbitrator’ on 23 July 2007.
On 10 October 2007 Mr Rapley filed an ‘Application to Admit Late Documents’ which consisted of a progress ‘Workcover NSW Medical Certificate’ dated 6 September 2007 certifying that he is unfit to work from 21 February 2007 to 21 December 2007.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. Mr Rapley’s appeal was lodged on 23 July 2007, within 28 days of the Arbitrator’s decision, and therefore complies with section 352(4) of the 1998 Act.
For the Commission to grant leave to appeal, the threshold imposed by section 352(2) must be met. It provides:
“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.”
Mr Rapley claims in his submissions on appeal that he claims weekly payment of compensation from 1 February 1998 to date and continuing together with lump sums totalling $8,800.00, and therefore exceeds the threshold.”
The Respondent Employer concedes that the potential loss to Mr Rapley exceeds $5,000. However, it is noted that Mr Rapley’s ‘Application to Resolve a Dispute’ was amended at the hearing on 21 May 2007 to limit the claim for weekly compensation to a period from 19 October 2004 to 18 August 2005” (transcript p 2, lines 16 - 26).
The Arbitrator awarded no compensation, the amount of compensation at issue being determined by reference to the amount of compensation claimed in the ‘Application to Resolve a Dispute’. Mr Rapley claimed weekly payments for a closed period between 19 October 2004 and 14 December 2005 and compensation of $8,800 under section 66 in respect of 11% permanent impairment of the right upper arm. The amount of compensation at issue therefore, exceeds the $5,000 threshold (section 352(a)), and because no compensation has been awarded, the 20% threshold (section 352(b)) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraph 22).
I note that the locus of the injury is referred to variously in the documents on file as the right upper arm, as well as the right shoulder, or in some instances, both. The Arbitrator has used the term “shoulder” in his ‘Statement of Reasons for Decision’. Clearly, it is one and the same injury, notwithstanding the variations in terminology.
Leave to appeal is granted.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Mr Rapley submits, “the matter deals with significant issues of general application and lends itself to detailed argument and submissions which may go beyond the information available ‘on the papers’.” He seeks to have the decision of the Arbitrator set aside and the matter remitted to the Commission constituted by the Arbitrator to be determined according to law.
However, the Respondent Employer submits that the appeal is suitable for determination on the papers and makes reference to the Commission’s Practice Direction No.1, submitting that the matters in dispute concern only questions of law and involve complex legal issues rather than factual issues, questions of credit or conflicting facts. The Respondent Employer refers to the section in the Practice Direction which deals with ‘Factors relevant to a Determination on the Papers’ and submits that on the basis of these factors, in particular the fact that Mr Rapley has been legally represented, it is appropriate that the matter be determined on the papers and it is “inappropriate that the matter be remitted to an Arbitrator.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions made by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 June 2007, records the Arbitrator’s determination as follows:
“1. Award for Respondent.
2.No order as to costs.”
ISSUES IN DISPUTE
Mr Rapley relies on the following as grounds of appeal, being that the Arbitrator erred:
1.in his understanding and application of the doctrine of res judicata;
2.in forming opinions which were against the evidence;
3.in his understanding of the applicable law, and
4.in his reasoning.
Ultimately, the substantive issues in dispute on appeal amount to whether the Arbitrator erred in:
1. finding that Mr Rapley is unable to re-litigate his claim by reason of the doctrine of res judicata, because of the decision of Campbell CJ in the Compensation Court on 15 June 2000, and
2. finding that the Commission does not have the power to reconsider a decision of the Compensation Court, pursuant to section 350 of the 1998 Act.
APPLICATION TO ADMIT LATE DOCUMENT
Mr Rapley submits as a late document, ‘WorkCover NSW Medical Certificate’ dated 6 September 2007. No supporting reasons or submissions were put in support of the application to admit this document, as a late document. Mr Rapley makes no submission as to the precise relevance of the document, and I note that there is no claim of further deterioration. However, no objections were raised by the Respondent Employer and I note that the document did not exist, and was therefore, not available, when the appeal itself was lodged in the Commission. I note further, that the application to admit the late document and a copy of the document itself were properly served on the Respondent Employer.
The document is admitted in these proceedings.
SUBMISSIONS, DISCUSSION AND FINDINGS
Res judicata and reconsideration
Mr Rapley submits that the Arbitrator erred in finding that a “matter in issue” between the parties had already been decided by Campbell CJ on 15 June 2000 and erred in finding that Campbell CJ’s ‘reasoning’ rather than his ‘express findings’ could amount to an estoppel or res judicata. In addition Mr Rapley submits that the Arbitrator failed to “take into account the effect of the ability to reconsider, in compensation matters, on the determinative nature of a judicial finding”. This encapsulates the essential issues in dispute in this appeal.
The Respondent Employer submits that Mr Rapley has not identified “a matter in issue” between the parties, but that if those purported “matters” are incapacity and permanent impairment of the right arm, then:
“(1)His Honour Judge Campbell in his judgment of 15 June 2000 (paragraphs 48 and 58) found that the Appellant was not incapacitated for work after 27 June 1998 and also found that the Appellant had not suffered a permanent loss of efficient use of his right arm as a result of his injury.
(2)The Arbitrator was correct in finding that those issues had been finally determined and were subject to the principle of res judicata.”
The Respondent Employer submits that the Arbitrator states (transcript, page 30, line 45) that the Application was “put on two bases. It’s put on the basis of a fresh application and, alternatively, it’s a reconsideration.” The Arbitrator, in [32]-[37] of his decision, specifically considered the power of the Commission to reconsider a judicial decision, and he reached a decision, which the Respondent Employer submits, is correct.
Moreover, the Respondent Employer submits that paragraphs 48 and 58 of the judgment of His Honour Judge Campbell contain binding statements in the determination of the matter that was before him. The Respondent Employer also submits that the Arbitrator’s reasoning was consistent with Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 (‘Quarmby’), “which was the only relevant authority submitted by the parties and was correct”.
In the Arbitrator’s Statement of Reasons for Decision dated 25 June 2007 he stated:
“18.The Applicant is not claiming a further deterioration of his condition in this Application nor does he claim any new heads of damages other than what was claimed in the original proceedings before the Compensation Court.
…
24.An examination of the pleadings (see the Application for Determination in matter No. 35996 of 1999 dated 21 May, 1999) discloses that the Applicant made the following claim:-
1.Weekly payments of compensation at the rate of $500.00 for the period 26 January, 1998 to date and continuing under “Section 36, 38 or 40”.
2. Section 66 lump sums of $26,000 made up as follows:-
(i)25% permanent loss of efficient use of the right arm at or above the elbow.
(ii) 15% permanent impairment of the neck.
3. Section 60 expenses.
4. Section 67 – 50% - $25,000.00.
25. The Applicant claims in the present proceedings:-
(a)Weekly payments for a closed period between 19 October 2004 and 14 December 2005.
(b) Section 66 lump sums for $8,800 being 11% permanent impairment of the right upper arm
26.The heads of damages claimed by the Applicant are the same as were claimed in the original proceedings before the Compensation Court.
…
29.Campbell CJ was not satisfied that the Applicant was incapacitated for work nor was he satisfied that the Applicant suffered permanent loss of efficient use of the right arm or neck. The Judgment and reasons identify the issues and make findings which of their very nature must be final, as both parties have had the opportunity to put their evidence and submissions to the Court on its merits. After an examination of the pleadings in both matters and the Award given by Campbell CJ I am of the view that the Applicant’s right to relitigate his claim is at an end and his only remedy may be reconsideration based on new evidence.
The emergence of further medical evidence which could or could not have been unearthed at the time of the original Hearing is not grounds to reopen the matter and redecide the claim.”
…
33.The threshold issue is whether the Commission has the power to reconsider a Decision of the Compensation Court of New South Wales.
34.The power to reconsider has been the subject of comment in the following authorities:-
(a)Relevant extract from Quarmby v Motor Traders Association of NSW Group Apprenticeship Scheme [2005] NSWWCCPD 43 (26 May 2005) is as follows:-
‘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.”
(b)Relevant extract from Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (7 July 2006) is as follows:-
‘103. It is true that section 350 was discussed in Quarmby but held not to apply to the facts in that case. There the earlier award was an award of the Compensation Court of NSW. Section 350(3) only empowers the Commission to reconsider prior decisions made by the Commission, not prior decisions of the Compensation Court. There is nothing in Quarmby that would prevent reconsideration under section 350(3) in the present case.’
35.This issue was dealt with by Dr Gabriel Fleming when this matter was referred to her on an Application of Leave to Appeal. A relevant extract from her Decision (Rapley v Gordon Noel Briggs t/as Gordon Briggs Drilling [2004] NSWWCCPD 35) is as follows:-
‘I have read the Transcript of Justice Campbell’s decision on the Appellant Worker’s motion to re-open the matter in the Compensation Court (transcript of 11 November, 2003). I do not, with respect, appreciate where the Arbitrator has misconceived what was being asked of her. The matter before the Arbitrator was not an application to reconsider a previous decision of the Commission pursuant to section 350 of the 1998 Act. The Compensation Court Repeal Act 2002 (Section 7) and the Compensation Court Repeal (Transitional) Regulation 2003 provide for the transfer of jurisdiction from the Compensation Court to the Commission in certain circumstances. However, there is no legislative provision that allows a Commission Arbitrator to ‘reconsider’ a decision of the Compensation Court.’
36.In view of the Decision of the Acting President Dr Gabriel Fleming the Compensation Repeal Act 2002 and the Compensation Court Repeal (Transitional) Regulation 2003 do not provide any power for this Commission to reconsider Justice Campbell’s Decision. I have not been taken to any legislation or authority to the contrary.
37.In all the circumstances I refuse the application to reconsider pursuant to Section 350 of the 1998 Act.”
For the purposes of this appeal, I note that section 350 of the 1998 Act provides:
“350 Decisions of Commission
(1)Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
No power resides in an Arbitrator of the Commission to reconsider a decision of the former Compensation Court, and I find accordingly. I agree with Deputy President Fleming’s finding on the matter, in a previous decision between the same parties, referred to at paragraph 35 of these Reasons. Mr Rapley has pointed to nothing of substance in this appeal that indicates otherwise. Consequently, Mr Rapley has failed to demonstrate that the Arbitrator is in error in relation to this issue.
I will return to the issue of res judicata, presently.
Did the Arbitrator err in forming opinions that have no basis in evidence?
Mr Rapley submits that the Arbitrator quoted selected excerpts from the reasons of Campbell CJ dated 15 June 2000 and purported to rely upon them, but omitted excerpts that were relied upon in submissions, such as:
“57. There are cases in which other evidence allows the court to accept a particular level of incapacity despite an exaggerated presentation…
58. I am conscious of the possibility that the Applicant does have a level of continuing incapacity and perhaps impairment…”
Mr Rapley argues that the Arbitrator failed to “consider the effect that the evidence presented in the hearing before the Arbitrator may have had if it had been before His Honour Judge Campbell, and in doing so failed to consider relevant information in forming his decision.”
He submits that the Arbitrator failed to appreciate the difference between reasons for a decision and findings, and that he mistakenly “detected” a positive finding against Mr Rapley’s claim in His Honour’s reasons for decision.
In addition, he submits that the Arbitrator failed to consider the comments of His Honour in subsequent proceedings in determining that His Honour made a binding determination, when it is clear that he had no such intention.
Mr Rapley also submits that the Arbitrator’s opinions are contrary to the principles of procedure set out in Part 12 Rule 70 of the Workers Compensation Commission Rules 2003. However, he does not say why or how this is so.
In reply, the Respondent Employer states that the rule referred to by Mr Rapley is now found in Part 15 Rule 2 [15.2] of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’), and argues that the relevance of Mr Rapley’s submission is unclear in this context.
It is submitted that the Arbitrator in his decision is not required to repeat every submission made on behalf of a party but may refer specifically to submissions that have assisted in formulating a decision.
The Respondent Employer also notes that paragraphs 57 and 58 of Campbell J’s decision were not fully set out in Mr Rapley’s appeal submissions and that in any event are not relevant in determining res judicata in the face of Campbell CJ’s reasoning at paragraphs 48 and 58 of his judgment, where in fact, he finds that Mr Rapley failed to satisfy the Court as to incapacity and impairment.
The Respondent Employer submits that this may have been relevant to a reconsideration application but there is no power in the Commission to reconsider a decision of the Compensation Court, and the Arbitrator was correct in so finding.
The Respondent Employer further submits that the decision of Campbell CJ is binding, and refers to paragraph 58 of his judgment where he states:
“However, the onus lies upon the Applicant and I am not satisfied that more probably then not the injury of January 1998 has produced incapacity or impairment beyond 29 June 1998.”
The Respondent Employer also states that the “subsequent proceedings” that Mr Rapley refers to in his appeal submissions are comprised of the Motion dealt with on 11 November 2003. The Respondent Employer submits that:
“the binding nature of a determination is to be determined from the decision itself. The comments of His Honour Chief Judge Campbell on 11 November 2003 did not result in a determination and the Appellant’s Counsel himself referred to the comments only as ‘a stream of consciousness comments’, which were ‘not binding in any way’. In addition it is submitted that the comments were put to the Arbitrator in some details as a guide only, not as a binding determination.”
Mr Rapley states that the “Arbitrator quoted selected excerpts from the reasons of Campbell CJ dated 15 June 2000, and purported to rely upon them, but omitted excerpts that were relied upon in submissions”. The paragraphs referred to are set out in paragraph 39 above.
However, an examination of the reasons of Campbell CJ reveals that, as correctly submitted by the Respondent Employer, Mr Rapley himself omitted key aspects of the paragraphs that he put forward. These paragraphs are set out in full as follows:
“57. There are cases in which other evidence allows the court to accept a particular level of incapacity despite an exaggerated presentation. This is not such a case. Even the report of Dr Roebuck, which is the only medical material lending significant support to an ongoing incapacity, relies upon what I accept was an exaggerated presentation to him.
58. I am conscious of the possibility that the Applicant does have a level of continuing incapacity and perhaps impairment and perhaps impairment and that he has presented himself as he has supposing that such a presentation would impress upon the Court the extent of his loss. However, the onus lies upon the Applicant and I am not satisfied that more probably than not the injury of January 1998 has produced incapacity or impairment beyond 29 June 1998.”
In my view, a proper reading of the Arbitrator’s Reasons reveals no error, as alleged, and I am in substantial agreement with the submissions of the Respondent Employer, as to the matters raised.
As correctly pointed out by the Respondent Employer, the rule that Mr Rapley referred to in his appeal submissions is now found in Rule 15.2 of the 2006 Rules, which provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
As the Respondent Employer submits, Mr Rapley does not elaborate on his assertion that the Arbitrator was in breach of these principles of procedure. His general assertion, in the absence of anything more, is unhelpful.
I do not accept Mr Rapley’s assertions in this regard and agree with the Respondent Employer that no error on the part of the Arbitrator has been demonstrated. Mr Rapley has produced nothing of substance to support his assertions and I am satisfied that the Arbitrator did not form opinions that have no basis in fact, or that he breached any of the principles set out in Rule 15.2. I find accordingly.
Did the Arbitrator err by reason of a flawed understanding of applicable law?
Mr Rapley submits that the Arbitrator “failed to appreciate the fundamentally non-binding nature of decisions under the Workers Compensation Acts of 1926 and 1987, and the Workplace Injury Management and Workers Compensation Act 1988 [sic], unless so expressed” and failed to appreciate the effect of the above on the doctrines of res judicata and issue estoppel. Finally, he submits that the Arbitrator erred in “implying a positive but unstated finding in order to found an estoppel or res judicata.”
The Respondent Employer submits that Mr Rapley gives no authority to support the statement that decisions under the Workers Compensation legislation are “fundamentally non binding … unless so expressed”.
The Respondent Employer submits that the decision of Campbell CJ is binding and that the whole decision of the Arbitrator reflects his appreciation of the doctrines of res judicata and issue estoppel in workers compensation matters, and submits that the principle of res judicata applies to decisions of the Compensation Court and Workers Compensation Commission in the absence of appeal or reconsideration. The issue of res judicata is determined below.
It is submitted that Mr Rapley has not identified the so-called “positive but unstated finding” on which he bases the appeal and in the absence of clarification, it cannot be relied upon as a ground of appeal. I concur in this observation.
Again, Mr Rapley’s assertions are not supported. It is not enough and is unhelpful, to put forward general statements of the kind offered, with little more. Error on the part of the Arbitrator must not only be asserted, but must be demonstrated, in order to succeed on appeal. In my view, a reading of the Arbitrator’s Reasons, with little assistance of substance from Mr Rapley’s submissions on appeal, reveals no error of the kind asserted, that I can detect. I find accordingly.
Did the Arbitrator err by reason of his flawed reasoning process?
Mr Rapley submits that the Arbitrator’s reasoning process was flawed in that he failed to properly apply the law, as stated in the decision to which he was referred, to the facts of the case before him. Mr Rapley suggests that the Arbitrator “failed to follow the reasoning of the High Court in Kuligowski v Metrobus referred to in his decision, in purporting to establish a negative finding from a failure to make a positive finding, such as to establish an estoppel or res judicata.”
In addition Mr Rapley submits that the Arbitrator failed to appreciate the significance of the ability to reconsider under each of the workers compensation acts on the doctrine of res judicata and concentrated instead on the inability of the Commission to reconsider a decision of the Court. He further states that the “significance of the ability to reconsider is in its application to the decision at the time it was made.”
The Respondent Employer notes that Mr Rapley has not specified in what way and which parts of the Arbitrator’s decision “failed to properly apply the law” and submits that the Arbitrator’s reasoning process was correct. The Respondent also submits that the Arbitrator correctly applied the reasoning of the High Court in Kuligowski v Metrobus [2004] HCA 34, a case in which the Court dealt with the question as to whether or not a finding of a review officer of the West Australian Conciliation and Review Directorate on an application under the Workers’ Compensation and Rehabilitation Act 1981 (WA), gave rise to an issue estoppel for the purposes of a common law action. The Court held that the issue under the Statute and at common law were different and no issue estoppel arose. The Respondent Employer submits that the issue before the Arbitrator was one of cause of action estoppel (res judicata), that is, Mr Rapley seeking to prosecute the same claim as was lost before Campbell CJ: see Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 (at para 50) (‘Nan’) and Quarmby.
Mr Rapley states in his submission on appeal that the matter raises an issue “going to the heart of the interrelationships between the Compensation Court and the Workers Compensation Commission, and raises complex issues of law for the clarification of the profession generally.” However, apart from the broad assertions set out in his Statement of Grounds of Appeal, Mr Rapley essentially fails to elaborate these points in support of his appeal. It is not the duty and function of a Presidential member of the Commission to comb in detail the evidence and the Arbitrator’s Reasons in an attempt to discover some error on the part of the Arbitrator, following broad assertions that error has occurred. It is however, fundamental that an Appellant has some obligation to articulate and demonstrate the error or errors asserted, in order to succeed.
I disagree with Mr Rapley that the Arbitrator did not give proper consideration to the issue of res judicata and that he focussed principally on the question of reconsideration. A reading of the Arbitrator’s Reasons reveals that this is simply not the case. At paragraph 18 of his Reasons, the Arbitrator said:
“The Applicant is not claiming a further deterioration of his condition in this Application nor does he claim any new heads of damages other than what was claimed in the original proceedings before the Compensation Court.”
He goes on to consider the issue of res judicata at some length, in [20] to [31]. At paragraph 28 of his Reasons, he points out that the authorities cited by Mr Rapley “deal mainly with the question of reconsideration and do not specifically address the doctrine of Res Judicata
As raised in the context of these proceedings.” Mr Rapley can hardly complain that the Arbitrator reviewed the cases that he himself put forward. In any event, it is clear that the Arbitrator dealt quite adequately with the issue of res judicata. I agree with his reasoning and the conclusions at which he arrived.
Clearly, principles of res judicata and issue estoppel do have application in workers compensation litigation. Estoppel or res judicata will arise where the relief claimed in second or subsequent proceedings was claimed in the original proceedings: Bruce v Grocan (1995) 11 NSWCCR 247 (‘Grocon’). In that case His Honour Judge Neilson said:
“Estoppel will arise if in second or further proceedings there would be judgment inconsistent with a judgment in the first proceedings or the granting of remedies inconsistent with the remedies originally granted or the declaration of rights of parties inconsistent with the determination of those rights made in the earlier proceedings.”
The Arbitrator gave consideration to Grocon and Salmon Street Ltd (In Liq) v Jorgensen [1991] SASC 2963; (1991) 56 SASR 158 (‘Jorgensen’) in determining this issue. As required by Jorgensen he examined the “pleadings” in the prior proceedings before Campbell CJ in the Compensation Court, and the terms of the award in order to determine whether the subsequent claim is barred. He concluded, correctly in my view, that
“The Judgment and reasons [of Campbell CJ] identify the issues and make findings which of their very nature must be final as both parties have had the opportunity to put their evidence and submissions to the Court on its merits. After an examination of the pleadings in both matters and the Award given by Campbell CJ I am of the view that the Applicant’s right to relitigate his claim is at an end and his only remedy may be a reconsideration based on new evidence.”
I have already found that the Arbitrator had no power to reconsider a decision of the former Compensation Court.
A judicial determination directly involving an issue of fact or law disposes of that issue once and for all and it cannot be raised again between the same parties (Blair v Curran [1939] HCA 23; 62 CLR 464, per Dixon J at 531. For discussion see also Sereni v Wallgrove Convalescent Home Pty Limited t/as Wallgrove Nursing Home [2006] NSWWCCPD 203); and Nan).
The Arbitrator’s consideration of res judicata was quite adequate and properly reasoned. I agree with the Respondent Employer that he did not fall into error. I find accordingly.
For the reasons set out herein, the appeal is not successful.
DECISION
The Arbitrator’s determination dated 25 June 2007 is confirmed.
COSTS
No order is made as to the costs of the appeal.
Gary Byron
Deputy President
29 November 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
6
0