Stephenson v Return to Work Corporation of South Australia

[2020] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

STEPHENSON v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

[2020] SASCFC 20

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

16 March 2020

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL

Interlocutory application by the Return to Work Corporation of South Australia (RTW) seeking that the Court set aside a judgment and re-open the action, revoke order 3 of its orders made on 25 July 2019 and order instead that the matter be remitted to the Full Bench of the South Australian Employment Tribunal (the Full Bench) to determine the balance of its grounds of appeal.

On 25 July 2019, this Court delivered its reasons for judgment in this matter on an appeal brought by Mr Stephenson against orders made by the Full Bench setting aside an award of lump sum compensation made by a Deputy President in favour of Mr Stephenson. The Court allowed the appeal and, in order 3, ordered that the appeal against the orders of the Deputy President be dismissed.

Held per Kourakis CJ (Nicholson and Parker JJ agreeing), refusing the application:

1.  It would be unduly oppressive against Mr Stephenson to now allow RTW to re-open the appeal.

Supreme Court Civil Rules 2006 (SA) r 242, referred to.
Stephenson v Return to Work Corporation of South Australia [2019] SASCFC 89; Martin v Return to Work SA [2016] SAET 95; Return to Work SA v Mitchell [2017] SAET 81; Return to Work SA v Stephenson [2018] SAET 29; Return to Work Corporation of South Australia v Mitchell [2019] SASCFC 34, discussed.
Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165, considered.

STEPHENSON v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 20

Full Court:      Kourakis CJ, Nicholson and Parker JJ

1. KOURAKIS CJ:      On 25 July 2019, the Full Court delivered its reasons for judgment in this matter on an appeal brought by Mr Stephenson against orders made by the Full Bench of the South Australian Employment Tribunal (the Full Bench and SAET respectively).  The Full Bench allowed an appeal, brought by the Return to Work Corporation of South Australia (RTW), against an award of lump sum (permanent impairment) compensation made by Hannon DPJ in favour of Mr Stephenson.  The Full Bench set aside the award on the ground that Mr Stephenson’s claim was precluded by an earlier consent order made in the Workers Compensation Tribunal.  That consent order awarded lump sum compensation for permanent impairments to Mr Stephenson’s thoracic spine and left shoulder, but included an order that:

   The worker has no further or other entitlement pursuant to section 43 of the [Workers Rehabilitation and Compensation Act 1986 (SA)] arising from his compensable injuries sustained on 19 January 2009 mentioned in paragraph 1.1 above and/or any sequel thereof.

2. The orders of the Full Bench were that the appeal be allowed, that the judgment of Hannon DPJ be set aside, and that the determination of RTW rejecting Mr Stephenson’s claim be confirmed.

3. In Stephenson v Return to Work Corporation of South Australia,[1] this Court held that the Full Bench had erred and that Mr Stephenson’s claims for lump sum compensation, for subsequent impairments arising as a consequence of his back injury and psychological sequelae, being the impairments resulting from the collateral effects of medication, were not precluded by the terms of the consent order. 

   [1] [2019] SASCFC 89.

4. The orders of this Court disposing of the appeal were:

   1. Appeal allowed.

   2. Set aside orders of the Full Bench of the South Australian Employment Tribunal.

   3. That the appeal against the orders of Hannon DPJ be dismissed.

   4. Respondent to pay the appellant’s costs.

   5.Certified fit for Senior Counsel.

5. The orders were not sealed, even though RTW applied to the High Court for special leave to appeal against them, because they were the subject of an interlocutory application.

6. On 5 August 2019, RTW brought an interlocutory application that the Court set aside a judgment and re-open the action, revoke order 3 of its orders, and order instead that the appeal be remitted to the Full Bench of the SAET to determine certain other grounds of appeal against the orders of Hannon DPJ, which the Full Bench declined to determine.

7. On the appeal to the Full Bench, RTW’s primary contention was that the claim made by Mr Stephenson for lump sum compensation for the consequences of his back injury and psychological sequalae and the side‑effects of medication was precluded by the earlier consent order.  It contended, in the alternative, that Hannon DPJ had erred in law in holding that impairments arising from the collateral effects of the medication could be combined with other impairments for which Mr Stephenson had received lump sum awards for the purpose of assessing the quantum of the lump sum compensation because they did not arise from the same trauma.  RTW also contended that the Deputy President had erred in fact by failing to differentiate between medication taken for work injuries and medication taken for other reasons.

8. The first of the alternative grounds challenged earlier decisions of the Full Bench.  In Martin v Return to Work SA[2] (Martin), the Full Bench held that an impairment caused by surgical treatment arose from the same trauma as that which caused the treated injury.  The Full Bench took the same approach to treatment by medication in Return to Work SA v Mitchell[3] (Mitchell).  Accordingly, in its written submissions before the Full Bench, RTW formally submitted that the ruling in Martin could not be applied to the side-effects of medication in order to preserve its position should it lose on the preclusion ground. 

   [2]    [2016] SAET 95.

   [3]    [2017] SAET 81.

9. The second of the alternative grounds was dismissed by the Full Bench for the following reasons:[4]

   [20]On the combining point it noted that Mr Stephenson took pain relieving medication for a variety of conditions and not just for his lower back. It submitted that in such circumstances the Judge erred in attributing all of the consequences of the use of pain relieving medication to the lower back injury such that he erred in combing all of the assessments.

   …

   [27]It is convenient for us to deal with the second point first. Mr Stephenson led evidence that the problems that he had with his teeth and his upper and lower gastrointestinal systems resulted from his use of pain relieving medication for his compensable injury. He was never asked to differentiate between the pain relieving medications that he was taking for his compensable injury as opposed to that which he was taking for other non-compensable medical issues. This issue was not pursued with any of the medical witnesses.

   [28]It is well settled that parties are bound by the way they conduct their cases at trial and save exceptional circumstances cannot raise for the first time on appeal a new argument which, whether by design or default, the party did not put at trial. This is especially so if, had the argument been put at trial, the other party might have conducted the case differently or could possibly have met the argument now sought to be raised by adducing other evidence. This is such a case. It is therefore too late for EML to raise this issue now.

   …

   [51]If it had come to it, we would not entertain the submission that the Judge erred in failing to identify and isolate any impairment resulting from the use of medication taken by Mr Stephenson to treat non compensable injuries.

   (Footnotes omitted)

   [4]    Return to Work SA v Stephenson [2018] SAET 29 at [20], [27]–[28], [51].

10. RTW appealed to this Court against the Full Bench’s decision in Mitchell.  In Return to Work Corporation of South Australia v Mitchell,[5] the Full Court of this Court held that the decisions of the Full Bench of the SAET in Mitchell and Martin were wrongly decided, that impairments arising from the collateral effects of surgery or medication did not arise from the same trauma as the impairment for which those treatments were prescribed, and that accordingly they could not be combined.

    [5] [2019] SASCFC 34.

11. The Full Court heard the appeal in this matter on 6 November 2018.  The appeal in Mitchell was heard on 12 February 2019 and the decision delivered on 11 April 2019. 

12. On his appeal to this Court, Mr Stephenson sought an order restoring the decision of Hannon DPJ, but, in the alternative, sought an order remitting the matter to the Full Bench.  RTW did not put any submissions on the order which should be made if the preclusion issue were decided against it.  RTW did not raise in this Court the other grounds on which it had appealed to the Full Bench. Its submissions in this Court dealt exclusively with the correctness of the decision of the Full Bench on the preclusion issue. 

13. RTW did not apply to re-open the hearing in this matter after the appeal in Mitchell was heard in February 2019, nor after the Full Court delivered its judgment in Return to Work Corporation of South Australia v Mitchell on 11 April 2019.

14. In its affidavit in support of its application, RTW did not give any explanation for not raising the orders which should be made either on the hearing of the appeal or after 11 April 2019.  On the hearing of the application to set aside the judgment, the Court was informed by counsel for RTW that the issue had been ‘overlooked’.

15. Rule 242 of the Supreme Court Civil Rules 2006 (SA) provides:

    (1)     The Court may correct an error in a judgment at any time.

    (2)     If satisfied that the justice of a case so requires, the Court may—

    (a) vary a judgment; or

    (b) set aside a judgment and reopen an action.

    Example—

    The Court might set aside a judgment and reopen an action if satisfied that the judgment is vitiated by a mistake.

    (3)     The Court may act under this rule on its own initiative or on application by a party.

    (4)     If the Court proposes to act under this rule on its own initiative, it must notify the parties and allow them an opportunity to make representations on the proposed course of action.

16. ‘Judgment’ is broadly defined in rule 4 to include ‘an order or direction’. 

17. Judgments which have not been perfected may be set aside or varied.  Rule 242 confers a wide discretion on the Court but, in the administration of justice, the interests of finality weigh heavily.[6]

    [6]    Clone Pty Ltd v Players Pty Ltd(in liq) (2018) 264 CLR 165 at [69]–[70].

    Discussion

18. The appeal to this Court was brought by Mr Stephenson to correct the preclusion error made by the Full Bench.  If the Full Bench had decided the issue correctly, it would then necessarily have dismissed the ground of appeal on the combination issue in conformity with its decisions in Martin and Mitchell.  On appeal to this Court, RTW did not raise the correctness of those decisions.  Its failure to do so means that Mr Stephenson lost an opportunity, in his own appeal, to persuade this Court that Martin and Mitchell were correctly decided.   Nor did RTW seek to re-open its case after the Court delivered its judgment in Return to Work Corporation of South Australia v Mitchell. 

19. Even though the relief sought by Mr Stephenson was that the orders of the Full Bench be set aside and the orders of Hannon DPJ be reinstated, or, in the alternative, that the matter be remitted to the Full Bench, it was open to RTW to file a notice of contention contending that the appeal was correctly allowed, and the orders of Hannon DPJ were properly set aside, because of the combination error.  True it is that the ultimate result would have been to vary (reduce) the awards made by Hannon DPJ and not a bare confirmation of RTW’s rejection of the claim.  However, a notice of contention in support of the first two of the Full Bench’s orders may properly have been filed.  This Court might then have remitted the matter to the Full Bench to quantify the award.

20. Be that as it may, counsel for RTW accepts that it was not denied procedural fairness and that at all times it was open to it to seek an order remitting the matter to the Full Bench if the preclusion issue were decided against it.

21. RTW’s application to have the matter remitted will not necessarily be decided on a bare application of the decision of this Court in Return to Work Corporation of South Australia v Mitchell.  Mr Stephenson’s counsel informed the Court that he would ask that a court of five be convened to reconsider the decision in Return to Work Corporation of South Australia v Mitchell.

22. Finality in litigation serves the public good.  Finality is all the more important to the parties directly affected by the litigation.  It would be unduly oppressive against Mr Stephenson to now allow RTW to re-open the appeal and advocate for alternative dispositive orders for no other reason than that RTW, or its lawyers, attached so little significance to those alternatives at the time of the hearing, and for some time thereafter, that it overlooked raising them.

23. I refuse RTW’s application.

24. NICHOLSON J:        I agree that RTW’s application to re-open the appeal in this matter should be refused.  I agree with the reasons of the Chief Justice.

25. PARKER J:         I agree with the Chief Justice that RTW should not now be allowed to re-open the appeal for the reasons stated by his Honour.