Tasmania Feedlot Pty Ltd v Stagg
[2011] TASSC 48
•2 September 2011
[2011] TASSC 48
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania Feedlot Pty Ltd v Stagg [2011] TASSC 48
PARTIES: TASMANIA FEEDLOT PTY LTD
v
STAGG, Nigel
FILE NO/S: 230/2011
JUDGMENT
APPEALED FROM: S v Tasmania Feedlot Pty Ltd [2011] TASWRCT 11
DELIVERED ON: 2 September 2011
DELIVERED AT: Hobart
HEARING DATE: 18 August 2011
JUDGMENT OF: Evans J
CATCHWORDS:
Workers' Compensation – Alternative rights against employer and/or third parties and consequences thereof – Actions for damages against employer – Time for instituting action for damages – Where claim for compensation made or compensation received – Extension of time – Generally - Whether second application an abuse of process.
Workers Rehabilitation and Compensation Act 1988 (Tas), s138AB.
State of Tasmania v Clements [2009] TASSC 114, applied.
D A Christie Pty Ltd v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139, referred to.
Aust Dig Workers Compensation [250]
REPRESENTATION:
Counsel:
Appellant: B R McTaggart
Respondent: R J Phillips
Solicitors:
Appellant: Wallace, Wilkinson & Webster
Respondent: Phillips Taglieri
Judgment Number: [2011] TASSC 48
Number of paragraphs: 27
Serial No 48/2011
File No 230/2011
TASMANIA FEEDLOT PTY LTD v NIGEL STAGG
REASONS FOR JUDGMENT EVANS J
2 September 2011
The appellant appeals against a determination of the Workers Rehabilitation and Compensation Tribunal, constituted by Chief Commissioner Carey, which rejected the appellant's contention that a referral made to the Tribunal by the respondent worker was barred by reason of res judicata, issue estoppel, or was an abuse of process.
The relevant facts are not in dispute. On 5 September 2007, the worker was injured in the course of his employment with the appellant. On 14 September 2007, he lodged a worker's compensation claim in relation to his injuries with the appellant and it was accepted.
At that time, the Workers Rehabilitation and Compensation Act 1988, s138AB, relevantly provided:
"138AB Election to claim damages
(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against an employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%.
(3) …
(4) …
(5) An election is to be lodged within 2 years after the date on which the claim for compensation is given to the employer of the worker, or person designated by the employer, under section 34.
(6) The Tribunal may extend the period within which an election is to be made if –
(a) there is a dispute as to the level of the worker's impairment; or
(b) the injury is not stable and stationary.
(7) If there is a dispute as to the degree of impairment, the worker may apply to the Tribunal for a determination of the degree of impairment.
(8) An application under subsection (7) is to be –
(a) accompanied by evidence from a medical practitioner that he or she is of the opinion that the degree of impairment is not less than 30% of the whole person; and
(b) made not less than 21 days before the expiration of the period referred to in subsection (5).
(9) If the Tribunal determines the degree of impairment to be not less than 30% of the whole person, the worker is to lodge his or her election within 21 days after the determination."
On 1 September 2009, the worker filed with the Tribunal a referral (the first referral) by which he applied:
" … to extend the period within which an election to claim damages under Section 138AB(1) of the Workers Rehabilitation & Compensation Act 1988 may be made by the worker, with respect to multiple injuries sustained by him on 5th of September 2007, on the basis that:
(a)the worker is yet to obtain a final opinion from a medical practitioner as to the degree of his whole person permanent impairment caused by his injury and/or
(b)his injuries are not yet stable and stationary."
I infer that the worker filed this referral when he did, as the two year time limit within which he could file an election, pursuant to subs(5), was to expire within fourteen days. Whilst on this basis the filing of the referral may have been a prudent thing to do, it was not necessary. That two year time limit did not apply to an application pursuant to subs(6) for an extension of the period within which an election could be made.
Between 3 March 2009 and 17 September 2009, the worker had been treated by Dr Peter Blombery. His report, dated 11 November 2009, to the worker's solicitor included advice:
· that the worker may require the implantation of a spinal cord stimulator, and that if this procedure was successful, it would cause a marked reduction in the worker's level of pain;
· that there would be no significant change in the worker's level of disability in the foreseeable future; and
· that if his assessment of the worker's degree of impairment was sought, he would need to re-examine the worker.
A copy of that report was provided to the appellant's solicitor under cover of a letter dated 19 November 2009, in which the worker's solicitor commented that it seemed from the report that the worker's condition may not be final, given the possibility of a spinal cord stimulator being inserted.
Doctor Steve Reid also examined the worker. He advised the worker's solicitor that he assessed the worker's whole of person impairment at 20 per cent, and that it was unlikely that this would change. (In a proof of evidence which he later signed on 24 January 2010 that impairment is said to be 21 per cent.) On 11 January 2010 a tele-conference was held involving the solicitor of each party and the Registrar of the Tribunal. In the course of this conference the worker's solicitor informed the other participants of Doctor Reid's advice and, as noted by the Registrar, it was agreed that the parties would forward a consent memorandum to the Tribunal requesting that the reference be dismissed. Clearly, the worker's solicitor took this course as, on the basis of Doctor Reid's advice, the referral was futile. No benefit would be obtained from an extension of time in the absence of evidence that the worker's impairment was likely to be at least 30 per cent. Moreover, in the absence of that evidence, there was no realistic prospect of obtaining an extension.
Consistent with the abovementioned agreement, by joint letter dated 11 January 2010, the parties, by their solicitors, applied for an order that the referral "be dismissed with no order as to costs". On 14 January 2010 an order to that effect was made by the Tribunal, pursuant to the Act, s61(2). That order was "final and binding on all parties to the proceeding"; s62(1).
At the request of the appellant, the worker was examined by Doctor David Gorman on 28 January 2010. He assessed the worker's whole of person impairment at 13 per cent.
On 9 September 2010, Doctor Blombery re-examined the worker. On 1 October 2010, he provided the worker's solicitors with a report in which he assessed the worker's whole of person impairment at 37 per cent. In result, the worker's solicitors provided a copy of this report to the Tribunal and the appellant's solicitor, and filed with the Tribunal a referral (the second referral), issued on 11 October 2010, in which the worker applied:
" … to extend the period within which an election to claim damages under Section 138AB(1) of the Workers Rehabilitation & Compensation Act 1988 may be made by the worker, with respect to multiple injuries sustained by him on 5th of September 2007, on the basis that there is a dispute as to the level of the worker's impairment."
On 15 November 2010, the worker was assessed by Dr Peter Sharman, who, in a report provided to the worker's solicitors, dated 29 November 2010, assessed the worker's whole of person impairment at 36 per cent, and said that it was likely that his level of impairment would remain above 30 per cent.
Before the Tribunal the appellant objected to the worker's second referral on the basis that by reason of the dismissal of his first referral res judicata or issue estoppel applied, or it was an abuse of process. The Tribunal rejected that objection and the appellant has appealed that decision.
Implicit in the course adopted by the appellant before the Tribunal was a concession that s138AB(6) did not confine a worker's entitlement to apply for an extension of time to a right to apply once only. After all, if that is how the subsection was to be construed, the appellant could have simply relied on that statutory restriction and there would have been no need to rely on res judicata, issue estoppel or abuse of process.
However, from the way in which the matter was argued before me by counsel for the appellant, it seems that no such concession was intended. In any event, I am in no doubt that the subsection does not confine a worker to one only application for an extension of time. In State of Tasmania v Clements [2009] TASSC 114, Blow J, at par[16], held that the subsection should be construed as allowing the Tribunal to extend the period for the making of an election in a particular case more than once. I fully agree with his Honour's decision and his reasons for so deciding. Whilst in that case the first referral had been successful, and in this case the first referral was dismissed, I am unable to see how that difference has any bearing on the construction of the subsection. In either case, it did not confine the worker's entitlement to apply for an extension of time to a right to apply once only.
As explained in Blair v Curran (1939) 62 CLR 464, Dixon J, at 531 – 532:
"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 … . 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.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded."
That the order in this case was made by consent does not mean that it could not provide a basis for res judicata or issue estoppel, although this can make it hard to determine what was necessarily decided by the order; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, at 508. Moreover, whether made by consent or following an adjudication, the order must be final, that is, an order which is not of an interlocutory character but is final and conclusive on the merits; Kuligowski v Metrobus (2004) 220 CLR 363, at 375.
For present purposes it is probably sufficient to say that what differentiates an interlocutory order from a final order is that the unsuccessful applicant is in a position to make a further application; D A Christie Pty Ltd v Baker [1996] 2 VR 582, Charles JA at 611. However, there is more that can properly be said. There is ample authority, based on a variety of different circumstances in relation to various different provisions, to the effect that an order made on an application for an extension of time is not final and it is open to the unsuccessful party to make a further application for an extension of time: Hall v The Nominal Defendant (1966) 117 CLR 423, Taylor J at 440 - 441, Windeyer J at 444, and Owen J at 447; ex parte Britt [1987] 1 Qd R 221, at 227; Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374, Kirby P and Glass JA at 379, and Mahoney JA at 380 – 381; Merton Enterprises Pty Ltd v Nelson (1988) 13 NSWLR 454; Meddings v The Council of the City of Gold Coast [1988] 1 Qd R 528; D A Christie Pty Ltd v Baker (supra), Hayne JA at 601 – 602, and Charles JA at 606; and Nominal Defendant v Manning (2000) 50 NSWLR 139, Mason P par[4] and Foster A-JA par[103], agreed with by Heydon JA par[43].
Counsel for the appellant seeks to distinguish these authorities and rely upon Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219. In that case, at pars[70] – [74], Holmes JA, agreed with by Wilson J, held that as the limitation provision in question set a threshold which had to be met before the court's discretion to order an extension of time arose, the rejection of the application involved a positive finding sufficient to attract issue estoppel. Keane JA, the other member of the court, did not find it necessary to rule on the question of issue estoppel.
Counsel for the appellant relies on the fact that s138AB(6) required as a pre-condition to the making of an order extending time that there was either a dispute as to the level of the worker's impairment, or that the worker's injury was not stable and stationary. Counsel, in effect, submits that the dismissal of the worker's reference involves findings against the worker in relation to each of those issues. I do not agree. Neither of those issues was in fact pursued before the Tribunal on the occasion of the first referral, and there is no reason for concluding that the worker's consent to the dismissal of his first referral involved a concession as to either of these issues. As already mentioned, I conclude that the worker agreed to the dismissal of his first referral because it was futile to proceed with it in the absence of evidence that he was likely to have an impairment of at least 30 per cent. At most, the consent order then made reflected an acknowledgement by the worker that on the material then available the extension he sought would not be granted. In this regard, the following passage from the decision of Hayne JA in D A Christie Pty Ltd v Baker (supra), at 599, is apposite:
"[T]o determine whether there is a res judicata, or any issue estoppel, it is necessary to identify whether there has been a final determination as between the parties in the one case of a cause of action and in the other of a particular issue. (It was not suggested … that the order dismissing the … application for extension of time gave rise to any res judicata.) But again the question whether there is any issue estoppel turns, in part, upon whether there has been a final determination of any issue between the parties. If all that the dismissal of the first application means is that the court has concluded that on the material then advanced no order for extension should be made, it is apparent that an order dismissing the application determines no issue between the parties that is raised on the second application for on that second application the issue would be different - whether any extension of time should be made on the new and different material then before the court. … "
I am unpersuaded that the consent order dismissing the first referral finally determined any issue between the parties that is raised by the second referral. Accordingly, I conclude that the Tribunal did not err in rejecting the appellant's reliance on res judicata or issue estoppel. Nonetheless, it remained open to the Tribunal to stay the worker's second referral as an abuse of process.
In D A Christie Pty Ltd v Baker (supra), Brooking and Hayne JJA held that the second application for an extension of time in question was an abuse of process. In Nominal Defendant v Manning, Mason P, who dissented on this issue, was of the view that the second application for an extension of time under consideration was an abuse of process. In both of these cases the initial application for an extension of time had been dismissed on the merits.
Of necessity, what amounts to an abuse of process will depend upon the circumstances of each case. In relation to a second application for interlocutory relief in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315, par[19], Palmer A-JA, agreed with by Mason P and Santow JA, said: "… the overriding principle governing the approach of the court to [successive] interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: … ". See also Nominal Defendant v Manning, Foster A-JA par[97], agreed with by Heydon JA, par[43].
For my part, where an initial interlocutory application has been dismissed by consent without an adjudication on its merits, I find it difficult to conjure up any reason why the interests of justice would warrant barring a subsequent application. Certainly, I am unable to conjure up any reasons for so concluding in the present case. In my view, the course adopted by the worker was the antithesis of an abuse of process. After receiving advice from Doctor Reid on the outcome of his assessment of the worker, the effect of which advice was that the first referral was futile, the worker's solicitor informed the appellant's solicitor of that advice and it was agreed that the first referral would be dismissed. This minimised any waste or inconvenience to the appellant in consequence of the premature institution of the first referral. No issue raised by the second referral had been adjudicated on the first referral. In these circumstances, I consider that the Tribunal quite rightly rejected the appellant's contention that the second referral was an abuse of process.
In the course of the hearing, counsel for the appellant relied upon P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 225 ALR 446. In that case, Goldberg J, having reviewed authorities in relation to successive interlocutory applications, identified at par[49] four circumstances, one or more of which he said should be established before he would rehear an application for interlocutory relief. Those circumstances are that:
"(a)there is new material or new evidence which was not available, or reasonably available, … at the time the [earlier] orders were made … ;
(b)there has been a material change in the circumstances since those orders were made;
(c)there are exceptional circumstances which warrant re-consideration of the matter … and
(d)as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter ... "
I readily accept that considerations such as these aid the assessment of whether a subsequent application is an abuse of process, where an earlier application in relation to the same matter was dealt with on its merits. However, to my mind they do not have the same utility when the earlier application was dismissed by consent without any adjudication. In any event, in the case under consideration I am substantially satisfied that considerations (a), (b) and (d) are established.
The appeal is dismissed.
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