Tomasevic v State of Victoria
[2018] VSCA 325
•6 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0104
| MILAN TOMASEVIC |
| v |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD DEVELOPMENT) (formerly known as DEPARTMENT OF EDUCATION) |
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| JUDGES: | KAYE, EMERTON JJA and ALMOND AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 November 2018 |
| DATE OF JUDGMENT: | 6 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 325 |
| JUDGMENT APPEALED FROM: | [2018] VSC 428 (Ginnane J) |
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ESTOPPEL — Issue estoppel — Workplace injury — Claim by worker to have suffered serious injury arising out of or in course of employment — Claim for statutory compensation by weekly payments upheld by County Court judge — Proceeding by worker in Supreme Court claiming damages for depressive disorder caused by employment— Whether findings of County Court judge made in relation to fundamental or ultimate issue — Whether findings were in respect of issue that was identical to issue in Supreme Court proceeding.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr A Ingram with Dr J Plunkett | Antony Sdrinis & Co |
| For the Respondent: | Mr S O’Meara QC with Mr S Gladman | Minter Ellison |
KAYE JA
EMERTON JA
ALMOND AJA:
The applicant commenced proceedings in the trial division of the Court (the ‘Supreme Court proceeding’) claiming damages for psychological injury sustained by him in the course of his employment with the respondent between 1999 and 2004. He had previously made a successful claim, in the County Court, for compensation under the Accident Compensation Act 1985 (‘the Act’) for weekly payments in respect of the same injury (the ‘County Court proceeding’). On 2 November 2007, the judge of the County Court, who heard that claim, delivered judgment, holding that the applicant was entitled to compensation in the form of weekly payments in respect of two periods of incapacity for work.[1]
[1]Tomasevic v Department of Education & Training [2007] VCC 1512 (‘County Court Reasons’).
In the Further Amended Statement of Claim (‘the Statement of Claim’) in the Supreme Court proceeding, the plaintiff pleaded an issue estoppel in respect of certain findings made by the judge in the County Court. In its defence, the defendant denied that any estoppel, relevant to the Supreme Court proceeding, arose from the judgment of the judge of the County Court.
At a directions hearing in the Supreme Court proceeding, Keogh J ordered that the proceeding be listed for determination of the estoppel pleaded by the plaintiff in paragraph 28 of the Statement of Claim. Subsequently, after hearing argument in relation to that matter, a judge of the trial division concluded that no issue estoppel, as alleged by the applicant, arose from the decision of the judge in the County Court proceeding.[2] Accordingly, the judge made an order that the application by the applicant to strike out paragraph 28 of the defence was dismissed. The applicant seeks leave to appeal from that decision.
[2]Milan Tomasevic v State of Victoria (Department of Education Early Childhood Development) (formally known as Department of Education) [2018] VSC 428 (‘Supreme Court Reasons’).
Background circumstances
The applicant was born in 1952. In 1990, he obtained a position as a physical education teacher at Deer Park Secondary College. Subsequently, in 1998, he was appointed Key Learning Area Manager with responsibility for the school budget.
In that capacity, the applicant, in 1999 and 2000, formed the belief that a fellow teacher, Mr W, had misappropriated school money. He conveyed his concerns to the acting principal of the school. At that time, he suffered symptoms of depression, for which he received treatment from a psychiatrist. In the Supreme Court proceeding, the applicant claimed that, in response to his report to the acting principal, Mr W had commenced to taunt and abuse him, as a result of which he began to suffer symptoms of psychiatric injury for which he received that treatment. At his request, the acting principal relieved him of his duties as Key Learning Area manager.
In 2000, Mr Van Halen, the principal of the school, who had been absent during 1999, returned to his position. Between May and August 2000, Mr Van Halen initiated disciplinary proceedings against the applicant arising from the allegations that he had made with respect to Mr W.
By letter dated 17 May 2000, Mr Van Halen charged the applicant with unsatisfactory performance as a teacher. In the same letter, he also charged the applicant with serious misconduct. By letter dated 10 July 2000, and subsequent letters, Mr Van Halen directed that the applicant be assessed by a psychiatrist, Dr Nigel Strauss. On the same date, Mr Van Halen also instructed the applicant to remove himself from the school premises. By a letter dated 13 July 2000, he requested the regional manager of Western Metropolitan Region to appoint Ms Julie Chandler to investigate the applicant’s allegations against Mr W and the school. On 18 August 2000, Mr Van Halen wrote to the applicant advising him that Dr Strauss had determined that he was unfit for teaching duties, and he directed the applicant to absent himself from work. The applicant was subsequently suspended from duties at the West Metropolitan Regional Office and was placed on sick leave. On 15 September 2000, Mr Van Halen gave the applicant a written direction not to attend the school.
On 11 May 2002, the applicant lodged a worker’s claim form with his employer seeking weekly payments of compensation pursuant to s 93 of the Act. By letter dated 28 June 2002, the applicant was given notice that his claim for weekly payments had been rejected.
The County Court proceeding
Subsequently, in 2006, the applicant commenced the County Court proceeding against the respondent and its insurer. In the endorsement on the amended writ in the proceeding, the applicant relevantly pleaded as follows:
Over a period of time up to and including 2000 the Plaintiff sustained an injury arising out of or in the course of his employment with the first Defendant and to which his employment was a significant contributing factor, namely depression.
Particulars of injury:
(a) Stress; and
(b) Depression.
In response to that claim, by their amended defence, the defendants to the proceeding pleaded (inter alia):
·the applicant had not suffered any injury, illness or disorder of the mind caused by the defendants and to which his employment was a significant contributing factor;
·the applicant did not have any incapacity as a result of an injury arising out of or in the course of his employment with the first defendant;
·if the applicant suffered an injury consisting of an illness or disorder of the mind caused by stress (which was denied), compensation was not payable by reason of s 82(2A) of the Act.
At the relevant time, s 82(2A) of the Act provided as follows:
Compensation is not payable in respect of an injury consisting of an illness or disorder of the mind caused by stress unless the stress did not arise wholly or predominantly from —
(a)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, redeploy, retrench or dismiss the worker.
The trial of the County Court proceeding took place over eight sitting days. In a reserved decision, the judge upheld the applicant’s claim for weekly payments in respect of two periods, from 21 August 2000 to 21 November 2000, and from 11 May 2002 to 8 August 2003.
In his reasons for judgment, the judge made two principal findings, namely, first, that the action taken by the employer to discipline the applicant was not reasonable action taken in a reasonable manner within the meaning of s 82(2A) of the Act,[3] and, secondly, that between the two periods mentioned, the applicant suffered from a mental injury, being a depressive disorder, arising out of or in the course of his employment and with respect to which his employment was a significant contributing factor.[4]
[3]County Court Reasons [7], [30].
[4]County Court Reasons [29].
In reaching the first conclusion, the judge made a number of findings, that were contained in paragraphs 7 to 15 of his reasons, including:
·Mr Van Halen’s letter dated 17 May 2000 not only charged the applicant with unsatisfactory performance and serious misconduct, but it made a prejudgment of those charges, without giving the applicant any notice of them, and without giving him a reasonable opportunity to answer them.[5]
·the letter only informed the applicant of the charges in bald terms, and did not specify any acts committed by him that were the basis of the charges.[6]
·on 25 May 2000, Mr Van Halen refused to accept from the applicant a letter in which he detailed his allegations with respect to Mr W. Yet, Mr Van Halen instructed the applicant to remove himself from the school premises and directed him to attend Dr Strauss for examination.[7]
·on 4 August 2000, Mr Van Halen wrote a letter to Dr Strauss detailing allegations, observations and opinions about the applicant, and did not provide the applicant with a copy of that letter or notice of those allegations. The assessment by Dr Strauss of the applicant was influenced by the allegations contained in Mr Van Halen’s letter.[8]
[5]County Court Reasons [8].
[6]County Court Reasons [9].
[7]County Court Reasons [10].
[8]County Court Reasons [11].
Having made those findings, the judge proceeded to examine the medical evidence concerning the applicant’s condition. Based on that evidence, in paragraph 29 of his reasons, his Honour stated the following conclusions:
I am satisfied that during the periods from 21 August 2000 to 21 November 2000, and from 11 May 2002 to 8 August 2003, the plaintiff suffered from a mental injury, being a depressive disorder, arising out of or in the course of his employment and with respect to which his employment was a significant contributing factor. I am satisfied that the plaintiff’s injury, being an illness or disorder of the mind, was caused by stress due to the charges of unsatisfactory performance and serious misconduct brought against the plaintiff by his employer, the procedures followed by his employer with respect to those charges, and the procedure followed by his employer with respect to the plaintiff’s allegations against a fellow teacher and the school.
I am satisfied that during these periods the plaintiff was not able to work either in his pre-injury employment or in suitable employment and had an incapacity for work arising from his injury.[9]
[9]County Court Reasons [29].
The judge then, in paragraph 30 of his reasons, expressed the conclusion that the applicant was not prevented from receiving payments for compensation by sub-section (2A) of s 82 of the Act for two reasons. First, he concluded that a significant cause of the stress, which had caused the applicant’s depressive disorder, was the manner in which the employer had dealt with his allegation of misappropriation of money by Mr W; accordingly, it could not be said that the stress, causing the applicant’s illness or disorder, arose either wholly or predominantly from action taken to discipline him. Secondly, for the reasons already given, the judge did not consider that the action taken by the employer to discipline the applicant was reasonable action taken in a reasonable manner.[10]
[10]County Court Reasons [30].
The Supreme Court proceeding
In the Statement of Claim in the Supreme Court proceeding, the applicant pleaded the matters relating to his suspicions concerning Mr W, and that in about 1999, Mr W had commenced to repeatedly taunt and verbally abuse him. In paragraph 8, it was pleaded that in early 1999, by reasons of those matters, the applicant began to suffer from symptoms of psychiatric injury for which he received treatment. In paragraphs 10 to 22, the applicant set out the steps taken by the principal, Mr Van Halen, in response to the applicant’s complaints concerning Mr W, and in respect of the disciplinary charges against the applicant, which we have earlier summarised.
In paragraph 23 of the Statement of Claim, it was pleaded that the respondent owed a duty to the applicant to take reasonable care to protect him against the development of reasonably foreseeable psychiatric injury, ‘particularly in circumstances where from in or about 1999 the defendant was aware that the plaintiff was suffering from symptoms of psychiatric injury for which he had received medical treatment’.
In paragraph 24 of the Statement of Claim, it was pleaded that, in breach of that duty, the respondent had exposed the applicant to a reasonably foreseeable risk of psychiatric injury on and from 20 October 1999 in the circumstances set out in the preceding paragraphs of the pleading. Relevantly, the particulars of negligence contained (inter alia) the following:
·a particular alleging a failure by the respondent to have in place any adequate procedure for budgetary Key Learning Area activities (sub-paragraph (g));
·particulars relating to the failure of the respondent to respond appropriately in relation to the allegations made by the applicant of misappropriation by Mr W (sub-paras (h) to (o));
·particulars relating to the steps taken by Mr Van Halen in respect of the charges of unsatisfactory performance and misconduct made by Van Halen (sub-paras (p) to (kk)).
In paragraph 27 of the Statement of Claim, it was alleged that, by reason of ‘the matters aforesaid’, the applicant had suffered injury, loss and damage, consisting of adjustment disorder, mood disorder, recurrent depressive disorder and anxiety.
Paragraph 28 of the Statement of Claim contained the plea of issue estoppel in the following terms:
Each of the matters referred to in paragraphs 10-22 whilst a finding of fact made by Judge Howie in reasons for judgment delivered 2 November 2007 in proceedings to which the Plaintiff and the Defendant were parties and necessary for the determination then made that the Plaintiff in fact had suffered compensable injury in the course of his employment and that:
(a)the Plaintiff’s injury, being an illness or disorder of (sic) mind, were caused by stress due to the charges of unsatisfactory performance and serious misconduct brought against him by the Defendant;
(b)the procedures followed by the Defendant with respect to those charges and the procedures followed by the Defendant with respect to the Plaintiff’s allegations against Mr W and the school resulted in the Plaintiff being not able to work either in his pre-injury employment or in suitable employment and that he had any capacity for work arising from his injuries in the period 21 August to 21 November 2000 and
11 May, 2002 to August 2003;
(c) further that the actions of Van Halen were not for a purpose to transfer the notes, discipline redeploy, retrench or dismiss the Plaintiff and accordingly the Plaintiff’s injuries did not arise either wholly or predominantly from actions taken to discipline him; and
(d)the action taken by Van Halen to discipline the Plaintiff was not reasonable action taken in a reasonable manner and further that by prejudging his guilt without notice, refusing his request for particulars, not giving him the opportunity to be heard, influencing the assessment of Dr Strauss, the Defendant’s actions fell far short of reasonable action taken in a reasonable manner —
And the Defendant is now estopped from denying the foregoing matters in this proceeding.
As mentioned, by paragraph 28 of its defence, the respondent denied that the matters pleaded in paragraph 28 of the Statement of Claim gave rise to an estoppel.
On 12 June 2018, Keogh J made the following order in the proceeding:
The proceeding is listed on 1 August 2018 before the Honourable Justice Ginnane for determination of the estoppel pleaded in paragraph 28 of the Further Amended Statement of Claim filed 16 January 2014.
During the hearing of the matter before the Ginnane J, counsel for the applicant provided to the Court a document setting out the pleaded facts, as found by the County Court judge, that were said to give rise to an issue estoppel in the Supreme Court proceeding. The document listed the pleaded facts by reference to the relevant paragraph of the statement of claim. The document was in the following form:
Matters alleged to give rise to issue estoppel
Paragraph 10
That Dr Strauss received a letter of instruction from Van Halen dated
4 August 2000.
Paragraph 11
That Van Halen:
(a)pre-determined that the Plaintiff’s performance had been unsatisfactory without specifying any act or particular of wrong doing and without specifying any evidence to support such determination;
(b)pre-determined that the Plaintiff had engaged in serious misconduct without specifying any act or particular of wrong doing and without specifying any evidence to support such determination;
(c)required the Plaintiff to attend a psychiatric examination by Dr Strauss without specifying any basis for the undertaking of such examination; and
(d)referred the Plaintiff’s allegation for investigation by Chandler who was within a departmental hierarchy against which the Plaintiff was making allegations, including the failure by Brown and Van Halen to investigate adequately or at all the actions of Mr W.
Paragraph 13
That Van Halen failed or refused to provide the plaintiff with specific details of his alleged wrong doing, of what he was being accused of saying to whom, of his alleged inappropriate behaviour and any alleged threatening behaviour either at any time.
Paragraph 19
(a)That the letter Van Halen wrote to Dr Strauss dated 4 August 2000 detailed his allegations, observations and opinions with respect to the Plaintiff; and
(b)the subsequent report dated 10 August 2000 prepared by Dr Strauss was influenced by those allegations, observations and opinions.
Paragraph 20
That after Van Halen directed the plaintiff to absent himself from work, the plaintiff was thereafter suspended from his duties at the Western Metropolitan Regional office of the Department and was absent from work on sick leave.[11]
[11]Supreme Court Reasons [7].
The reasons for judgment of primary judge
In his reasons for judgment, the primary judge recited paragraph 28 of the Statement of Claim, the document entitled ‘Matters Alleged to Give Rise to Issue Estoppel’, and the paragraphs of the County Court judge’s reasons, which were said to give rise to the issue estoppel claimed by the applicant. His Honour, having referred to Blair v Curran,[12] Brumar (Vic) Pty Ltd v Norris[13] and Forster v Legal Services Board,[14] concluded that none of the facts, which were said by the applicant to give rise an issue estoppel as a consequence of the County Court judge’s reasons, were the legal foundation or justification for that decision. His Honour stated:
In my opinion, the findings of [the County Court judge], which the plaintiff says give rise to an issue estoppel, were not findings as to ultimate, cardinal or fundamental facts. His Honour was considering a statutory provision which required, inter alia, an assessment of whether the employer’s action, taken as a whole, was reasonable action taken in a reasonable manner. None of the findings that his Honour made appeared fundamental to his decision that the employer’s conduct was not reasonable action taken in a reasonable manner. Nor do I consider that the findings relied on, taken in the aggregate or as a whole, can be properly regarded as findings as to ultimate, cardinal or fundamental facts. They were evidentiary findings made as part of an assessment of an issue raised by the defendant, of whether the employer had engaged in reasonable action taken in a reasonable manner.[15]
[12](1939) 62 CLR 464.
[13](2010) 28 VR 665 (‘Brumar’).
[14](2013) 40 VR 587.
[15]Supreme Court Reasons [18].
Grounds of application for leave to appeal
In his Application for Leave to Appeal, the applicant specified four grounds in support of his application for leave to appeal, namely, that the primary judge:
(1) erred in finding that the findings of fact made by the County Court judge at paragraphs 8 to 12 of the County Court judgment were not findings as to ultimate facts or fundamental facts;
(2)erred in finding that the findings of fact made by the County Court judge at paragraphs 7 to 12 and 30 of the County Court judge’s reasons were not findings as to ultimate, cardinal or fundamental facts;
(3)failed to determine the applicant’s claim that an issue estoppel arose by reason of the findings of fact by the County Court judge at paragraph 29 of the reasons of the County Court judge;
(4)failed to provide any or any adequate reasons for determining that the applicant had not established an issue estoppel in the terms pleaded in paragraph 28 of the Statement of Claim.
In the Application, the applicant seeks orders including six declarations, which may be summarised as follows:
(1)The applicant suffered compensable injury, namely, injury arising out of or in the course of his employment with the respondent, over a period of time including during 2000.
(2)Such compensable injury consisted of an illness or a disorder of the mind caused by stress.
(3)Such compensable injury caused the applicant to suffer incapacity for employment for the periods 21 August 2000 to 21 November 2000 and 11 May 2002 to 8 August 2003.
(4)The disciplinary action initiated by Mr Van Halen in about May 2000 was not reasonable action taken in a reasonable manner, but was initiated by Van Halen in circumstances in which he had prejudged the charges, and made a judgment without giving the applicant adequate notice or an opportunity to be heard.
(5)The investigation initiated by Mr Van Halen in about July 2000 was flawed in that Van Halen directed the applicant to be examined by Dr Strauss in circumstances in which Van Halen had influenced Dr Strauss by the allegations contained in the letter that he sent to the doctor on 4 August 2000.
(6)Consequent actions taken by Mr Van Halen: on 10 July 2000, directing the applicant to remove himself from the school premises; on 2 August directing the applicant to report for duty at Western Metropolitan Regional Office; on 18 August writing to the applicant directing him that he was unfit for teaching duties; and on 15 September directing the applicant not to attend the school, were not reasonable actions taken in a reasonable manner to discipline the applicant.
Preliminary issues
Before turning to the proposed grounds of appeal, it is necessary, first, to outline two preliminary issues which arose in the application. The first issue was relatively minor, and procedural. The second issue was more substantive.
The first issue concerned the nature of the proceeding that took place before the primary judge. As earlier mentioned, on 12 June 2018, Keogh J made an order directing that the proceeding be listed before the primary judge for determination of the estoppel pleaded in paragraph 28 of the Statement of Claim. Quite evidently, his Honour, by that order, directed that the question, whether the judgment of the County Court judge gave rise to a relevant issue estoppel, as pleaded in paragraph 28 of the Statement of Claim, was to be determined as a separate issue pursuant to Order 47.04 of the Supreme Court (General Civil Procedure) Rules2015 (‘the Rules’). In the applicant’s written submissions, that were filed before the commencement of the oral hearing before the primary judge, counsel for the applicant sought an order that paragraph 28 of the respondent’s defence (which denied that the matters pleaded in paragraph 28 of the Statement of Claim gave rise to an issue estoppel) should be struck out. In his reasons for judgment, the primary judge noted that the applicant sought an order that paragraph 28 of the respondent’s defence be struck out. In the orders made by the judge consequent on his reasons for judgment, his Honour therefore directed that the applicant’s application to strike out paragraph 28 of the respondent’s defence be dismissed.
Notwithstanding the orders so made by the judge, it is clear, from the text of his Honour’s reasons, that he did determine, as a final issue, the question whether the matters, pleaded in paragraph 28 of the Statement of Claim, gave rise to a relevant issue estoppel in the Supreme Court proceeding. In discussion with counsel at the commencement of the hearing of the application for leave to appeal, it was agreed that the proceeding, that was before the primary judge, was not a pleading summons, but, rather, constituted the final determination of the issue pleaded in paragraph 28 of the Statement of Claim pursuant to Order 47.04 of the Rules. Accordingly, depending on the outcome of this application, it will be necessary to make orders in the proceeding that have the effect of recording the disposition by the Court of the matter referred by Keogh J to the primary judge, namely, the determination by the Court whether any of the matters, pleaded in paragraph 28 of the Statement of Claim, give rise to a relevant issue estoppel in the Supreme Court proceeding.
The more substantive issue, that arose at the commencement of the application for leave to appeal, concerned the proper identification of the content of the estoppel, that was pleaded in paragraph 28 of the Statement of Claim, and of the precise ambit of the estoppel contended for by the applicant before the primary judge, as well as a consideration of whether the proposed grounds of appeal are directed to the matters that were argued before the primary judge.
In essence, the County Court judge made two particular findings in his reasons for decision. First, the judge made the findings, set out in paragraph 29 of his reasons, that the applicant suffered a depressive disorder arising out of or in the course of his employment, and with respect to which his employment was a significant contributing factor. Second, in paragraph 30 of his reasons, the judge gave two reasons why the applicant was not prevented from receiving payments for compensation by s 82(2A)(a) of the Act.
The plea of issue estoppel, that is contained in paragraph 28 of the Statement of Claim, is, to say the least, confusing and ambiguous. Paragraph 28 commences by pleading that the matters referred to in paragraphs 10 to 22 of the Statement of Claim were findings of fact by the County Court judge. It is not clear, from the face of it, whether the issue estoppel, pleaded in that paragraph is thus limited to the matters pleaded in paragraphs 10 to 22 (inclusive) of the Statement of Claim. Those paragraphs relate solely to the second issue decided by the County Court judge, namely, the section 82(2A) point. On the other hand, the first two matters, pleaded in subparagraphs (a) and (b) of paragraph 28 of the Statement of Claim, are directed to the first point decided by the County Court judge, namely, that the applicant suffered injury in the course of or arising out of his employment, while subparagraphs (c) and (d) are directed to the section 82(2A) issue.
In oral submissions before this Court, counsel clarified the matter, by stating that the estoppels, that were intended to be pleaded, were those set out in each of subparagraphs (a) to (d) of paragraph 28 of the Statement of Claim. Accordingly, the application for leave to appeal was conducted on that basis.
However, before the commencement of the oral hearing before the primary judge, the parties had each filed written submissions in relation to the matter that was referred to the primary judge by Keogh J. The plaintiff’s submissions were directed solely to paragraphs 10 to 22 of the Statement of Claim. In oral submissions, before the primary judge, counsel for the applicant only addressed the judge on those paragraphs of the Statement of Claim. In the course of those submissions, his Honour pointed out to counsel that a number of those paragraphs had been admitted by the respondent in its defence, so that it was not necessary for the applicant to claim an issue estoppel in relation to them. Accordingly, his Honour requested counsel to prepare a document that set out each of the facts, that were not admitted by the respondent in its defence, and which the applicant claimed were subject to the estoppel pleaded in paragraph 28 of the Statement of Claim. After a short adjournment, counsel for the applicant provided to the judge the document entitled ‘Matters alleged to give rise to issue estoppel’, which is quoted in paragraph 24 of these reasons. It is to be noted that that document restricted the matters, on which the applicant based its claim for an issue estoppel, to the matters pleaded in paragraphs 10, 11, 13, 19 and 20 of the Statement of Claim.
Contrary to the submissions by counsel for the applicant in the present application, it is clear that those paragraphs of the Statement of Claim were directed solely to the question of the reasonableness of the conduct of the respondent in its consideration of the applicant’s allegations against Mr W, and in its processing of the disciplinary charges that it brought against the applicant. In other words, they were solely directed to, and based on, the matters pleaded, as constituting an issue estoppel, in subparagraphs (c) and (d) of paragraph 28 of the Statement of Claim.
It is for that reason that the primary judge confined his reasons for judgment to the question whether the matters pleaded by the applicant in paragraphs 10, 11, 13, 19 and 20 of the Statement of Claim (and which were based on findings in paragraphs 8 to 12 and 30 of the judgment of the County Court judge) constituted an issue estoppel in the Supreme Court proceeding arising from the County Court judge’s conclusion on the s 82(2A) issue. In other words, based on the manner in which the issue was argued before him, the judge, correctly, confined his reasons to the question whether the findings by the County Court judge, in respect of the s 82(2A) issue, gave rise to a relevant issue estoppel pleaded in subparagraphs (c) and (d) of the Statement of Claim in the Supreme Court proceeding.
Notwithstanding the manner in which the matter was conducted before the primary judge, however, it became evident, from the proposed grounds of appeal, and the relief sought in the notice of application for leave to appeal, that the applicant sought in this Court to argue error on behalf of the primary judge by failing to deal with the question whether the findings of the County Court judge gave rise to an issue estoppel in the Supreme Court proceeding in relation to the issue whether the applicant suffered a depressive disorder, and the issue whether that disorder was caused by or arose in the course of his employment with the respondent. In the relief sought in the notice of application for leave to appeal, the applicant, as the first three grounds of relief, sought declarations by this Court that he had suffered a ‘compensable injury’ arising out of or in the course of his employment with the respondent, that that injury consisted of an illness or disorder of the mind caused by stress, and that the injury caused him to suffer incapacity for two periods between August 2000 and August 2003.
When we raised this matter at the commencement of argument before us, counsel for the applicant sought to contend that he had argued before the primary judge that the findings by the County Court judge gave rise to an issue estoppel in relation to the questions of the applicant’s injury, and the cause of it. When it was pointed out to counsel that it was clear from the transcript of the hearing before the primary judge that that point was not argued before the primary judge, counsel suggested that his submissions must have been misunderstood by his Honour, and (by inference) were also misunderstood by us.
In our view, it is clear that counsel did not contend, before the primary judge, that any of the matters, pleaded in the Statement of Claim, gave rise to an issue estoppel in relation to the questions whether the applicant had suffered a psychological injury, and whether that injury was caused by any aspect of his employment. Thus, if, the matter stood there, that none of the grounds of appeal, contained in the application for leave, would raise the issue whether the findings by the County Court judge gave rise to an estoppel on the issues of whether the applicant suffered injury, and, if so, the cause of that injury. As a consequence, that aspect of the issue estoppel, pleaded by the applicant, would not be resolved by judicial determination, notwithstanding the order made by Keogh J referring the question of the issue estoppel, pleaded in paragraph 28 of the Statement of Claim, for separate determination with Rule 47.04.
Understandably, counsel for the respondent objected to an amendment to the grounds of appeal, to enable the applicant, in some form, to raise that matter before this Court, in circumstances in which he had not argued it before the primary judge.
Nevertheless, after giving the matter consideration, we decided that the only practicable course was to permit the matter to be argued before us. Otherwise, as we have noted, the issue, raised by subparagraphs (a) and (b) of paragraph 28 of the Statement of Claim, would not be the subject of judicial determination, when the proceeding ultimately comes on for trial. This case concerns events that occurred almost 18 years ago. The proceeding was issued in 2010. In those circumstances, and notwithstanding our reservations about the matter, we considered that it was practical and fair to permit the applicant to amend his proposed grounds of appeal, to include a ground that ensured that the whole of the matters pleaded in paragraph 28 of the Statement of Claim, as constituting an issue estoppel, were determined by the Court before trial.
Upon being granted such leave, the applicant sought, and was granted, leave to add a further ground to its proposed grounds of appeal, namely:
5.It ought to have been determined that the findings made by Judge Howie at [29] gave rise to an issue estoppel in the present proceeding being a finding of depressive disorder to which employment with the respondent was a cause.
In granting leave to the applicant to rely on that further ground, we sought, and received, from counsel for the applicant an assurance that that ground covered each of the matters pleaded in subparagraphs (a) and (b) of paragraph 28 of the Statement of Claim, so that the resolution of the further ground 5 would thereby constitute the final determination of the question whether the matters, pleaded in those two subparagraphs of paragraph 28, gave rise to an issue estoppel in respect of a material issue in the Supreme Court proceeding.
Issue estoppel ― principles
Before we consider each of the proposed Grounds of Appeal, it is convenient, first, to set out some of the principles concerning issue estoppel that are relevant to the resolution of those Grounds.
An issue estoppel operates to preclude a party from disputing, in a subsequent proceeding, an ultimate issue of fact or law which was necessarily resolved as a step in reaching a determination made in the judgment of an earlier proceeding between the same parties.[16] The principal requirements, for the establishment of an issue estoppel, were stated in the oft-cited speech of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2)[17] that, for the doctrine to apply, it must be demonstrated:
(1)That the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.[18]
[16]Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 517—518 [22] (French CJ, Bell, Gageler and Keane JJ).
[17][1967] 1 AC 853.
[18]Ibid 935.
It has been established in a number of cases, and is not in dispute in this application, that findings made in worker’s compensation proceedings may, in an appropriate case, give rise to an issue estoppel in subsequent common law proceedings between the same parties.[19] The two principal requirements for the establishment of the issue estoppel, that is pleaded by the applicant, and that are in issue in this application, are, first, whether the findings of the County Court judge, sought to be relied on by the applicant, were findings of an ultimate issue of fact or law in the judgment of the County Court judge, and, secondly, whether those findings are identical to any of the issues that are to be determined in the Supreme Court proceeding.
[19]Somodaj v Australian Iron & Steel Ltd (1961) SR (NSW) 305; affirmed on appeal in Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285, 292, 294 (Kitto, Taylor and Menzies JJ); Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335; Brumar (2010) 28 VR 665, 690–691 [88] (Ashley JA).
The classic statement of the first requirement is contained in the judgment of Dixon J in Blair v Curran.[20] His Honour defined that requirement in the following terms:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, ‘a fact fundamental to the decision arrived at’ in the former proceedings and ‘the legal quality of the fact’ must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.[21]
[20](1939) 62 CLR 464.
[21]Ibid 531–3. See also Brewer v Brewer (1953) 88 CLR 1, 15 (Fullagar J); Kuligowski v Metrobus (2004) 220 CLR 363, 386 [62]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, 517–518 [22]; Thoday v Thoday [1964] P. 181, 198 (Diplock LJ).
Unsurprisingly, his Honour went on to state as follows:
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.[22]
[22]Ibid 533.
In Hoystead v Commissioner of Taxation,[23] the Judicial Committee of the Privy Council expressed the requirement in terms similar to those stated by Dixon J in Blair v Curran, namely:
… if in any Court of competent jurisdiction a decision is reached, a party is estopped from questioning it in a new legal proceeding. … The principle … also extends to any point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision.[24]
[23][1926] AC 155.
[24]Ibid 170.
The second requirement, that is relevant to the determination of this application, is that the issue, that was decided in the first proceeding, must be identical to an issue that arises in the second proceeding. That requirement was stated by Barwick CJ in Ramsay v Pigram as follows:
The importance of the identification of the precise issue decided in the first place in order to ascertain whether it is identical with what is sought to be litigated in the second place has been emphasised in the reported cases.[25]
[25](1968) 118 CLR 271, 277. See also Jackson v Goldsmith (1950) 81 CLR 446; Kuligowski v Metrobus (2004) 220 CLR 363, 379 [40]; Brumar (2010) 28 VR 665, 688–9 [81]–[82] (Ashley JA).
Two leading decisions of the High Court, on this aspect of issue estoppel, demonstrate the need to identify, with precision, the issues that were decided in the previous proceeding, and the issues that fall for determination in the instant proceeding, in order to determine whether there is the requisite identity between any of the issues in the two sets of proceedings.
In Jackson v Goldsmith,[26] a collision took place between a motor vehicle driven by Goldsmith and a motor cycle driven by Jackson upon which White was travelling as a pillion passenger. Goldsmith brought a successful action in the District Court against Jackson to recovered damages in respect of the damage to his vehicle, alleging that that damage was caused by the negligence of Jackson. Subsequently, White brought a proceeding in the Supreme Court of New South Wales against Jackson claiming damages for personal injury arising out of the collision. Jackson joined Goldsmith as a third party claiming contribution, on the basis that Goldsmith by negligence had materially contributed to the collision. In response, Goldsmith pleaded an issue estoppel in respect of that claim for contribution, based on the decision of the District Court.
[26](1950) 81 CLR 446.
The High Court held that there was no issue estoppel, arising from the judgment of the District Court, in respect of any issue that was to be determined in the claim for contribution by Jackson against Goldsmith in the Supreme Court proceeding. In the District Court, the judge had found in favour of Goldsmith on the issue as to whether he had been guilty of contributory negligence in respect of the damage to his vehicle. The High Court held that that finding, while fundamental to the judgment of the District Court, was not inconsistent with a finding, in the Supreme Court proceeding, that Goldsmith had breached the duty of care he owed to White. As McTiernan J stated:
… the finding that the (appellant) was not guilty of contributory negligence is consistent with the hypothesis that the respondent did not drive his motor car so carelessly as to commit a breach of his duty to take due care for his own safety. The finding does not necessarily conclude the question whether the respondent drove so carelessly as to commit a breach of his duty to take due and reasonable care for the plaintiff’s safety. This is the question which the appellant raises by the declaration to which estoppel is pleaded. The judgment of the District Court does not in my opinion preclude the appellant from putting that question in controversy in these proceedings.[27]
[27]Ibid 458. See also 455–6 (Latham CJ); 461 (Williams J); 463 (Webb J). Cf 468–9 (Fullagar J, dissenting).
In Kuligowski v Metrobus,[28] the appellant suffered injuries in an accident at work in March 1994. The injuries included a twisted left ankle. After paying compensation to the appellant for some time pursuant to the Workers Compensation and Rehabilitation Act 1981 (WA), the employer disputed the appellant’s ongoing entitlement to further compensation payments. The matter was referred for review under the Act. The review officer ordered that the compensation payments be discontinued from September 1994, holding that the appellant’s injuries had by then resolved. The appellant commenced proceedings in the District Court of Western Australia claiming common law damages in respect of the injuries caused by the accident in March 1994. In his statement of claim, he pleaded that in April 1995, as a consequence of the ongoing instability of his left ankle, his ankle gave way causing him to twist and injure his left knee. The High Court held that the finding, by the review officer, that the appellant’s March 1994 injury had resolved, was not a finding on the issue whether, in April 1995, the appellant had ongoing instability in his left ankle as a result of that accident. The Court expressed that conclusion in the following terms:
The Full Court treated the second review officer’s findings as denying that there was any causal link between the 23 March 1994 accident and the post-April 1995 symptoms. The Full Court said that the issue of whether the 23 March 1994 accident created a susceptibility to later injury was an issue before the second review officer that he had decided adversely to the worker. There is nothing in the reasons for decision of the second review officer suggesting that the worker advanced, or the officer dealt with, any contention that the 23 March 1994 accident caused a susceptibility to later injury. A question on that subject was asked of one of the worker’s treating doctors, was not responsively answered, and was then objected to. To state the issue as being whether the 23 March 1994 accident had ‘‘resolved’’ is ambiguous. If the stated issue is ambiguous, so is the finding. Neither the content nor the context of the second review officer’s reasons for decision removed the ambiguity. Since the second review officer did not direct his mind to the relevant question arising in the District Court proceedings, namely whether the 23 March 1994 accident resulted in a latent susceptibility to injury, his general remarks, which the Full Court categorised as causation findings, cannot work an issue estoppel if only because of their vagueness.[29]
[28](2004) 220 CLR 363.
[29]Ibid 383 [52] (citations omitted).
Finally, in determining whether an issue estoppel has been made out, the court is entitled to look at the record, including the pleadings and reasons for judgment or decision, of the court or tribunal whose determination is claimed to create the relevant estoppel.[30]
[30]Tringali v Stewardson Stubbs & Collett Limited (1966) 66 SR (NSW) 335, 341; Egri v DRG Australia Limited (1988) 19 NSWLR 600, 607 (Clarke JA); Brumar (2010) 28 VR 665, 690 [87] (Ashley JA); Isaacs v The Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69, 75.
Grounds 1 and 2
Grounds 1 and 2 were argued together. They are directed to the conclusion by the primary judge that the findings, in paragraphs 7 to 12 and paragraph 30 of the County Court judge’s reasons, were not findings as to ultimate facts in that proceeding.
As we have mentioned, in paragraph 7 of his reasons, the County Court judge stated that he had formed the view that the action taken by the employer, to discipline the applicant, was not reasonable action taken in a reasonable manner within s 82(2A) of the Act. In paragraphs 8 to 12 of his reasons, the County Court judge set out, chronologically, the various steps taken by Mr Van Halen in the disciplinary proceedings against the applicant. (The findings made by the judge, in respect of those matters, are summarised in paragraph 14 of these reasons.) In paragraph 30 of his reasons, the County Court judge concluded that the applicant was not prevented from receiving payments for compensation by s 82(2A) of the Act, first, because a significant cause of the stress, which resulted in his depressive disorder, was the manner in which the respondent had dealt with his complaint of misappropriation of money by Mr W, and, secondly, because the judge did not consider that the action, taken by the employer to discipline the applicant, was reasonable action taken in a reasonable manner.
In this application, the applicant submits that each of the facts, stated by the County Court judge in those paragraphs of his reasons, were fundamental or cardinal facts in the judge’s finding that the applicant was entitled to weekly payments of compensation in the two periods specified in the reasons. In particular, counsel for the applicant contended that the individual findings, set out in paragraphs 8 to 12 of the County Court judge’s reasons, were necessary and fundamental steps to his Honour’s conclusion that the action, taken by the employer to discipline the applicant, was not reasonable action taken in a reasonable manner within s 82(2A) of the Act.
In response, senior counsel for the respondent submitted that the findings, contained in paragraphs 8 to 12 of the reasons of the County Court judge, were not fundamental to the decision by the judge, but rose no higher than evidentiary findings by the judge as steps to his conclusion that s 82(2A) did not preclude recovery by the applicant of weekly payments of compensation during the nominated periods. In particular, counsel contended that the findings by the County Court judge were not conclusions by his Honour as to essential ingredients of the applicant’s claim for weekly payments under s 93 of the Act, and thus they were not findings that were susceptible to the application of the principles of issue estoppel in the Supreme Court proceeding.
Counsel for the respondent further contended that the finding, in paragraphs 7 and 30 of the reasons of the County Court judge, that s 82(2A) did not preclude recovery by the applicant of weekly payments, was a finding as to the application of a defence prescribed by statute to a claim for compensation payments under the Act. That issue, he submitted, is not identical to any issue that must be determined in the Supreme Court proceeding. Thus, counsel contended, the findings by the County Court judge, relating to the s 82(2A) issue, do not give rise to any relevant issue estoppel in the Supreme Court proceeding.
For the reasons which follow, the primary judge was correct to conclude that none of the findings, in paragraphs 7, 8 to 12 and 30 of the County Court judgment, gave rise to an issue estoppel in the Supreme Court proceeding.
The ultimate issue, concluded by the County Court judge, was that contained in paragraphs 7 and 30 of his reasons, namely, that the actions, taken by the respondent to discipline the applicant, were not reasonable actions taken in a reasonable manner, so that s 82(2A) of the Act did not preclude the applicant from recovering weekly payments of compensation in respect of the relevant periods of incapacity. That conclusion, of itself, resolved an issue that was essential to the determination by the County Court judge of the applicant’s claim for weekly payments.
In reaching that conclusion, the County Court judge made a series of findings that are expressed in paragraphs 8 to 12 of his reasons for judgment, and which are (in terms) reflected in paragraphs 10, 11, 13, 19 and 20 of the Statement of Claim. However, they were not findings as to matters, that were cardinal or fundamental to the ultimate conclusion by the County Court judge that s 82(2A) did not apply to preclude recovery by the applicant of weekly payments of compensation for the two particular periods of incapacity. Rather, the County Court judge relied on the combination of the various findings, that he made in paragraphs 8 to 12 of his reasons, for that conclusion. There is nothing in the text of the County Court judge’s reasons that indicates that any of his Honour’s findings, in those paragraphs of his reasons, were fundamental or indispensable to his ultimate conclusion that s 82(2A) did not apply to preclude the applicant’s entitlement to weekly payments of compensation. Nor were any of those findings, by their nature, of such a quality. Rather, it is abundantly clear that the judge reached the conclusion, stated in paragraphs 7 and 30 of his reasons, that s 82(2A) of the Act did not preclude recovery by the applicant of weekly payments, as a consequence of the combined force of the several findings that he made in paragraphs 8 to 12 of his reasons. In that way, none of those findings could be properly described as being fundamental or indispensable to his Honour’s ultimate conclusion. For that reason, alone, those findings are not capable of giving rise to an issue estoppel in the Supreme Court proceeding.
In addition, none of those findings are relevantly identical to any of the issues that must be determined in the Supreme Court proceeding. Certainly, some of the findings, made by the County Court judge, in paragraphs 8 to 12 of his reasons, resemble some of the particulars of negligence pleaded in the Statement of Claim. Thus, it might be anticipated that the applicant may seek to contend, for example, that he was unfairly treated by the respondent, because the respondent predetermined the disciplinary charge that it brought against him, and did not provide proper particulars of that charge to him. In that way, the matters, that were the subject of the findings by the County Court judge in paragraphs 8 to 12 of his reasons, might be relevant to the issue of negligence. However, they are not of themselves issues that must be determined in the Supreme Court proceeding. Accordingly, the findings by the County Court judge, in paragraphs 8 to 12 of his reasons, are not possessed of the requisite quality of identity with any of the issues that arise in the Supreme Court proceeding.
As already stated, the conclusion by the County Court judge in paragraphs 7 and 30 of his reasons ― that the action taken by the employer to discipline the applicant was not reasonable action taken in a reasonable manner ― was a finding by his Honour as to an ultimate fact or issue in the County Court proceeding. It was a fundamental finding by the judge, indispensable to his decision that the applicant was entitled to an order for weekly payments of compensation in the two periods of incapacity found by his Honour. However, that finding is not identical to any issue that must be determined in the Supreme Court proceeding. Rather, that finding by the judge was directed to the question of the application of the defence, specified in s 82(2A) of the Act, to the applicant’s claim for weekly payments of compensation under the Act. There is no identical, or even similar, issue that falls for determination in the Supreme Court proceeding.
It may be that the applicant will seek to contend, at trial, that the disciplinary processes engaged in by his employer were conducted in an unreasonable and unfair manner. That contention may (or may not) assist him to establish that the employer acted in breach of its duty of care to him. However, the issue, whether the disciplinary processes, engaged in by the employer in relation to the applicant, constituted reasonable action taken in a reasonable manner, is not an issue that falls for determination in the Supreme Court proceeding. Thus, the issue, determined by the County Court judge, in paragraphs 7 and 30 of his reasons, is not identical to any issue that is to be determined in the Supreme Court proceeding. For that reason, the conclusion by the judge, in those paragraphs of his reasons, does not give rise to any issue estoppel in the Supreme Court proceeding.
Accordingly, the matters, pleaded in subparagraphs (c) and (d) of paragraph 28 of the Statement of Claim, do not give rise to, or constitute, an issue estoppel in the Supreme Court proceeding. It follows, therefore, that grounds 1 and 2 of the application for leave to appeal are not made out.
Grounds 3 and 4
Grounds 3 and 4 assert that the primary judge in the Supreme Court proceeding failed to determine the applicant’s claim that an issue estoppel arose by reason of the findings of fact made by the County Court judge in paragraph 29 of his reasons, and that the primary judge failed to provide any adequate reasons for determining that the applicant had not established an issue estoppel in the terms pleaded in paragraph 28 of the Statement of Claim.
In support of those grounds, the applicant, in his written case, contended that the primary judge had not at any time referred to the findings made by the County Court judge at paragraph 29, and thus his Honour had failed to consider, or provide reasons for rejecting, an issue estoppel arising out of the findings made by the County Court judge in that part of his reasons for judgment.
Grounds 3 and 4 must clearly fail. As we have noted, counsel for the appellant did not, in his written submissions, or in oral argument, before the primary judge, advance any submission that the findings made by the County Court judge, in paragraph 29 of his reasons for judgment, gave rise to an issue estoppel in the Supreme Court proceeding. Thus, the primary judge was not called upon or required to consider or determine any aspect of the estoppel, that was said to arise from the findings of the County Court judge in paragraph 29 of his reasons. Put simply, a judge is not required to ― nor indeed should a judge ― determine any issue which a party does not agitate before the judge. Thus, the primary judge was correct, in this case, not to consider, or determine, whether the findings of the County Court judge, in paragraph 29 of his reasons, gave rise to an issue estoppel in the Supreme Court proceeding.
For that reason, grounds 3 and 4 are unarguable, and are not made out.
Ground 5
As we have stated, as a result of the preliminary matters to which we have earlier referred, in the unusual and perhaps exceptional circumstances of this case, we gave leave to the applicant to rely on a further ground 5. The terms in which that ground have been expressed are important in the determination of it. As we have also noted, counsel for the applicant assured the Court that the estoppel, contended for in ground 5, constitutes the issue estoppel that is pleaded in sub-paragraphs (a) and (b) of paragraph 28 of the Statement of Claim. That assurance to the Court, by counsel for the applicant, was essential, because leave was only granted to the applicant to amend the proposed grounds of appeal, by including the additional ground 5, in order to ensure that the Court be able to adjudicate, finally, on the whole of the content of the issue estoppel, that is pleaded and contended for by the applicant in paragraph 28 of the Statement of Claim.
In support of the issue estoppel contended for in ground 5, counsel for the applicant submitted that the finding by the County Court judge in paragraph 29 of his reasons[31] ― that the applicant suffered a disorder arising out of or in the course of his employment with the respondent, and to which his employment was a significant contributing factor ― constituted a finding of fact that was binding in the Supreme Court proceeding. Counsel submitted that that finding, by the judge in the County Court proceeding, was identical to an issue in the Supreme Court proceeding, and that it was an ultimate or fundamental finding of fact by the County Court judge in the proceeding before him.
[31]See para [15], above.
In response, senior counsel for the respondent submitted that the finding by the County Court judge, in paragraph 29 of his reasons, was not identical to any issue that must be determined in the Supreme Court proceeding. In particular, he noted that, in the Supreme Court proceeding, the issue will be whether an act or omission of the respondent, which constituted a breach of its duty of care to the applicant, was a cause of injury to the applicant. By contrast, in the County Court proceeding, the issue, that was determined by the County Court judge, was that the applicant’s depressive disorder arose out of, or occurred in the course of, his employment, and that the employment was a significant contributing factor to it. Counsel for the respondent contended that, properly analysed, the two issues are not identical, but they are concerned with concepts that are different in specific respects. In particular, as part of the finding, the judge found that the applicant’s injury was suffered ‘in the course of his employment’, which is not a requirement for the common law cause of action. Secondly, the key finding by the judge was that the applicant’s injury arose out of (or in the course of) his employment; by contrast, in the Supreme Court proceeding, the applicant must establish that a particular act or omission (or acts or omissions) of the employer was (or were) a cause of the applicant’s depressive disorder, such acts or omissions constituting a breach by the employer of its duty of care to the applicant.
In our view, the submissions by counsel for the respondent are correct. Accordingly, the issue estoppel, that is alleged in subparagraphs (a) and (b) of paragraph 28 of the Statement of Claim, and as defined in ground 5 of the application before us, has not been made out by the applicant.
In order to address ground 5, it is necessary, first, to analyse the particular claim that was brought before the County Court judge, and to define, with some precision, the issues upon which his Honour adjudicated.
In the County Court proceeding, the applicant made a claim for weekly payments of compensation under s 93 of the Act. That section provided that the applicant was required to establish that his incapacity for work (during the periods claimed) resulted from, or was materially contributed to by, an injury which entitled the applicant to compensation under the Act.
Thus, in the County Court proceeding, three issues fell for determination by the judge, namely ―
(a) Whether the applicant had an injury which entitled him to compensation;
(b) Whether the applicant’s incapacity for work resulted from, or was materially contributed to by, that injury; and
(c) Whether the applicant’s injury consisted of an illness or a disorder which arose wholly or predominantly from a reasonable action taken in a reasonable manner by the employer to discipline him (the s 82(2A) issue).
In order to succeed on the first issue ― whether the applicant had sustained an injury that entitled him to compensation ― the applicant was required to establish, under s 82 of the Act, that the injury, which he claimed caused his incapacity, was an injury ‘arising out of or in the course of … employment and … (his) employment was a significant contributing factor’. Pausing there, it is important to note that the requirement, in s 82(1) ― that the relevant injury be an injury ‘arising out of or in the course of any employment’ ― is expressed in the disjunctive, and not the conjunctive.
The primary finding, by the County Court judge, in respect of that issue, is contained in the first sentence of paragraph 29 of his Honour’s reasons (quoted in full in paragraph 15 above). It is that finding that the applicant claims, in ground 5 of the application, constitutes the subject of an issue estoppel in the Supreme Court proceeding. As we have noted, the applicant contends that it is that finding that is the basis of the issue estoppel pleaded in subparagraphs (a) and (b) of paragraph 28 of the Statement of Claim, and which is encapsulated in ground 5 of the proposed grounds of appeal.
The conclusion, expressed by the County Court judge in the first sentence of paragraph 29 of his reasons for judgment, was clearly a fundamental and indispensable finding in the determination of the applicant’s claim to be entitled to weekly payments of compensation. It was, in effect, the judge’s finding in respect of the first of the three issues, that his Honour was required to decide. To that extent, the finding by the judge was as to an ultimate fact which formed an ingredient of the cause of action asserted in the County Court proceeding. However, on a plain analysis, it cannot constitute the basis of an issue estoppel in the Supreme Court proceeding, because the issue, that was so determined by the County Court judge, was not materially identical to any issue which must be determined in the Supreme Court proceeding.
As we have noted, the fundamental issue, decided by the County Court judge in paragraph 29 of his reasons, was that the applicant suffered a mental injury (a depressive disorder) ‘arising out of or in the course of his employment and with respect to which his employment was a significant contributing factor’. In the Supreme Court proceeding, the applicant must prove that an act or omission, or acts or omissions, by the employer was, or were, a cause of the injury claimed by him, such act or omission (or acts or omissions) constituting a breach of the duty of care owed by the employer to the applicant. In other words, in the Supreme Court proceeding, the applicant must prove, first, an act or omission by the employer, secondly, that the act or omission, or acts or omissions, was, or were, a cause of his injury, and, thirdly, that that act or omission, or those acts or omissions, was or were a cause of his injury.
So contrasted, there are clearly insuperable obstacles in establishing a mutual identity between the finding by the County Court judge, in the first sentence of paragraph 29 of his reasons, and any issue that falls for determination in the Supreme Court proceeding.
The primary finding by the County Court judge was expressed in the alternative, mirroring the disjunctive test prescribed by s 82(1) of the Act ― that is, that the applicant’s injury arose out of, ‘or’ occurred in the course of, his employment. In order that an injury be found to occur ‘in the course of employment’, for the purposes of s 82, it is not necessary that there be any causal link between the employment and the injury. Rather, it is sufficient, for that purpose, for there to be a relevant temporal connection between the worker’s injury and the engagement by the worker in a function of his or her employment.[32] Thus, the issue, that was determined by the County Court judge ― that the applicant’s injury was sustained by him in the course of his employment ― was not, and could not be, the same as, or identical with, any issue that must be determined in the Supreme Court proceeding.
[32]Kavanagh v Commonwealth (1960) 103 CLR 547, 556 (Dixon CJ), 558–9 (Fullagar J), 575–6 (Menzies J).
In this respect, it is important to bear in mind that the conclusion expressed by the County Court judge was couched in the disjunctive or alternative ― that the applicant’s injury (either) arose out of or (alternatively) occurred in the course of his employment. That composite finding cannot be divided by ignoring or deleting the second part of the disjunctive phrase (‘in the course of the applicant’s employment’). For that reason, there is not a sufficient identity between the finding, so expressed by the County Court judge, and any issue that must be determined in the Supreme Court proceeding.
It might be contended ― although counsel for the applicant did not so contend ― that the finding by the County Court judge, in the first sentence of paragraph 29 of his reasons, should be understood in the context to the remainder of paragraph 29, in which his Honour attributed the applicant’s injury to certain aspects of his employment, and, in particular, to the stress due to the charges of unsatisfactory performance and serious misconduct brought against him, the procedures followed by the employer with respect to those charges, and the procedure followed by the employer with respect to the applicant’s allegations against his fellow teacher. In Zlateska v Consolidated Cleaning Services Pty Ltd & Anor,[33] this Court defined the phrase ‘arising out of … employment’, in s 82 of the Act, to denote a relevant causal connection between the worker’s employment and the injury. The Court, in particular, expressed the test to be applied, in determining whether an injury ‘is one arising out of … employment’, in terms that are equivalent to the common law test of causation that would apply in the Supreme Court proceeding.[34] The principles so stated in Zlateska have been followed and applied in a number of subsequent cases involving questions arising under s 82 of the Act.[35]
[33][2006] VSCA 141 [6]–[11], [73]–[82] (Zlateska).
[34]March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1, 6–7.
[35]See, eg, Martin v Bailey (2009) 26 VR 270, 296 [143] (Robson AJA); Alsco Pty Ltd v Mercevic [2013] VSCA 229 [13] (Osborn JA); Borazio v State of Victoria [2015] VSCA 131 [65] (Osborn JA).
Thus, it might be contended that the County Court judge, in his reasons, was satisfied that the applicant’s injury (the depressive disorder) was caused by the circumstances of his employment. However ― assuming, without accepting, that proposition ― that is not the same issue as any issue which must be determined in the Supreme Court proceeding. As we have stated, in the Supreme Court proceeding, the applicant must prove that his injury was caused, not by his employment, but by an act or omission ― or by acts or omissions ― which constituted a breach by the respondent of its duty of care to the applicant. That issue might bear some superficial resemblance to the issue that was decided by the County Court judge, but it lacks the requisite degree of identity with the issue so decided in the County Court proceeding.
In particular, the critical issue ― decided by the County Court judge in the applicant’s favour ― was that the applicant’s injury (his depressive disorder) arose out of (or in the course of) his employment. As we have earlier noted, in the endorsement of the applicant’s claim in the amended writ in the County Court proceeding, the applicant claimed an injury, consisting of stress and depression, occurring over a period of time, up to and including 2000, arising out of or in the course of his employment, and to which his employment was a significant contributing factor. It was that issue (among others) that fell for determination ― and was determined ― by the County Court judge. It is that issue that is the focus of ground 5 of this application. That is, in this application, the applicant claims an issue estoppel in relation to that finding by the County Court judge. By contrast, in the Supreme Court proceeding, the critical issue is whether the applicant’s injury (his depressive disorder) was caused by an act or omission (or by acts or omissions) which constituted a breach of the respondent’s duty of care to him.
Thus, in the County Court proceeding, the relationship, which the judge found had been established, was between the applicant’s employment and his injury; by contrast, in the Supreme Court proceeding, the critical causal link, which must be established, is between a specific act or omission, or specific acts or omissions, of the respondent (which constituted a breach of duty of care by the respondent), and the applicant’s injury. In that way, the issue determined by the County Court judge is not identical to the issue to be determined in the Supreme Court proceeding in a critical respect.
The specific findings made by the County Court judge ― that the applicant’s injury was caused by stress due to the charges against him, due to the manner in which the employer dealt with those charges, and due to the manner in which the employer dealt with the applicant’s allegations against the fellow teacher ― were steps in the judge’s reasoning that led to the finding, stated in the first sentence at paragraph 29 of the judgment, that the applicant’s injury arose out of, or occurred in the course of, his employment. However, those findings are not the findings that are said, in ground 5, to constitute an issue estoppel in the Supreme Court proceeding. Further, and in any event, they were not ultimate findings in the decision by the judge to award the applicant compensation in the form of weekly payments for the two periods stated in his judgment. They were not, individually, indispensable to that decision. As such, they do not give rise to an issue estoppel in the Supreme Court proceeding. In other words, to apply the test articulated by Dixon J in Blair v Curran, the agitation of any of those findings in the Supreme Court proceeding would not necessarily involve an assertion that the decision of the judge in the County Court proceeding was erroneous.
In addition, on a close analysis, those intermediate findings by the judge ― that the applicant’s injury was caused by stress due to the charges against him, the procedures followed by the employer in respect of the charges, and the procedure followed by the employer with respect to the applicant’s allegations against the fellow teacher ― are not identical to the matters, pleaded by the applicant in the Statement of Claim, as constituting the acts or omissions of the respondent, as his employer , that caused his injury, and which constituted a breach by the respondent of its duty of care to the applicant.
In paragraph 24 of the Statement of Claim, the applicant pleaded that, in breach of its duty of care, the respondent had exposed the applicant to a reasonably foreseeable risk of psychiatric injury ‘in the circumstances described in paragraphs 2 to 22 hereof’. On analysis, those paragraphs of the Statement of Claim were the basis, it seems, of four alleged acts of negligence by the employer, namely:
(1)In paragraph 2 of the Statement of Claim, it is alleged that the applicant was given extra duties as Key Learning Area manager, including budgetary responsibility for the area’s activities at the school. In the particulars of negligence under paragraph 24 of the Statement of Claim, subparagraph (g) alleged a failure by the respondent to have in place ‘any or adequate procedures for budgeting for KLA activities’. That is, the applicant pleaded and relied on an allegation of stress due to the nature of his work. That allegation was not made, nor was it the subject of any finding by the judge, in the County Court proceeding.
(2)In paragraphs 4, 5, 6 and 8 of the Statement of Claim, it is alleged that the respondent failed to respond to the applicant’s complaints of misappropriation of monies by the fellow teacher Mr W. That allegation was the subject of an intermediate finding by the judge in the County Court proceeding.
(3)In paragraphs 7 and 8 of the Statement of Claim, it is also alleged that Mr W commenced to repeatedly taunt, verbally abuse and racially slur the applicant, and that the respondent failed to respond to the applicant’s complaints relating to that conduct by Mr W. That aspect of the claim is also reflected in subparagraphs (k), (l), (m) and (n) of the particulars of negligence provided under paragraph 24 of the Statement of Claim. Apart from a brief reference to that conduct by the fellow teacher, in a section of a report of a psychiatrist quoted by the County Court judge in his reasons[36], that matter was not, it seems, agitated before the County Court judge, and it was not the subject of an intermediate finding by his Honour.
(4)In paragraphs 10 to 22 of the Statement of Claim, the applicant alleges the various steps taken by the respondent in respect of the disciplinary charges brought against him. Those matters were the subject of the County Court proceeding and were the subject of an intermediate finding by the judge against him.
[36]County Court Reasons [20].
Thus, there is not the requisite identity between the ( intermediate) findings of the County Court judge, and the issues which are to be determined in the Supreme Court proceeding.
Accordingly, for the reasons that we have discussed, it follows that the findings by the County Court judge, in paragraph 29 of his reasons for judgment, do not, in respect of the Supreme Court proceeding, constitute or give rise to the issue estoppel specified in ground 5 of the application (which, according to the applicant, constitutes the estoppels alleged in paragraphs (a) and (b) of paragraph 28 of the Statement of Claim).
For those reasons, ground 5 of the application must fail.
Conclusion
For the foregoing reasons, the application by the applicant for leave to appeal must be refused. The primary judge was correct to decide that the reasons for judgment in the County Court proceeding do not give rise to the issue estoppel pleaded in sub-paragraphs 28(c) and 28(d) of the Statement of Claim. For the reasons that we have given in respect of ground 5, the reasons for judgment in the County Court proceeding do not give rise to the issue estoppel pleaded in sub-paragraphs 28(a) and 28(b) of the Statement of Claim.
As discussed, the hearing before the primary judge constituted the determination, pursuant to Order 47.04 of the Rules, of the question whether the applicant had established the issue estoppel pleaded in paragraph 28 of the Statement of Claim. The effect of the conclusions of the primary judge, which we have upheld, and of our conclusions in relation to ground 5, is that the applicant has failed to establish any aspect of the issue estoppel pleaded in paragraph 28 of the Statement of Claim.
We have already noted that the formal order of the judge went no further than directing that the applicant’s application to strike out paragraph 28 of the defence be dismissed. That order is not sufficient to record that the primary judge (and this Court in relation to ground 5) made a final determination of an issue in the proceeding pursuant to Order 47.04 of the Rules. Accordingly, and subject to hearing from counsel, we would propose that the following orders be made by the Court:
(1)The application for leave to appeal be refused.
(2)In lieu of clause 1 of the Order of the Hon Justice Ginnane dated 3 August 2018, it be ordered as follows:
It is the judgment of the Court that the reasons for judgment of his Honour Judge Howie in the County Court proceeding Milan Tomasevic v Department of Education and Training and CGU Workers Compensation (Vic) Limited [2007] VCC 1512 do not estop the respondent from denying any of the matters pleaded in paragraph 28 of the Further Amended Statement of Claim in this proceeding.
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