Workers' Compensation and Rehabilitation Commission v WILLIAMS - [2000] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WORKERS' COMPENSATION AND REHABILITATION COMMISSION -v- WILLIAMS [2000] WADC 122

CORAM: REGISTRAR KINGSLEY

HEARD: 5 APRIL 2000

DELIVERED : 15 MAY 2000

FILE NO/S: CIV 3972 of 1999

BETWEEN: WORKERS' COMPENSATION AND REHABILITATION COMMISSION
Plaintiff
AND
STEPHEN GEOFFREY WILLIAMS
Defendant

Catchwords:

Practice - Order 14 Rules of the Supreme Court - Plaintiff claiming moneys paid pursuant to s174 Workers' Compensation and Rehabilitation Act - Defendant submitting he was not the employer - Held defendant estopped from now denying he is the employer.

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff. Execution stayed.

Representation:

Counsel:

Plaintiff: Mr R L Pearce
Defendant: Mr A J Prentis

Solicitors:

Plaintiff: State Crown Solicitor
Defendant: Mossensons

Case(s) referred to in judgment(s):

Arnold v National Westminster Bank Plc [1990] Ch 573
Blair v Curran, Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Henderson v Henderson (1843) 3 Hare 100
Kubitza v Twentieth Super Pace Nominees Pty Ltd & Ors, unreported; DCt of WA; Library No D970406; 15 December 1997
Linsley v Petrie [1998] 1 VR 427
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E & B 780

Case(s) also cited:

Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332
Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
McNair v Mayne Nickless Ltd T/as Metropolitan Security Services & Anor, unreported; SCt of WA; Library No 970100; 19 March 1997
McNair v Press Offshore Ltd & Another (1996) 17 WAR 191
Talbot v Berkshire County Council [1994] QB 290
Theseus Exploration NL v Foyster (1972) 126 CLR 507

REGISTRAR KINGSLEY: The plaintiff pleads that the defendant carried on business as Augusta Building and Cabinets Supplies and was an employer as defined in s5 of the Workers' Compensation Rehabilitation Act 1981 ("the Act"). In September 1996, in the course of his employment with the defendant, Neil Bennett ("Bennett") suffered a disability for which the defendant became liable to pay compensation. Following proceedings in the Conciliation and Review Directorate the defendant was ordered to pay $17,691.89. In April 1997 Bennett suffered a further disability for which the defendant again became liable to pay compensation. Following proceedings in the Conciliation and Review Directorate the defendant was ordered to pay Bennett weekly payments of compensation.
The plaintiff pleads that as the defendant was not insured, the payments totalling $40,544.69 were made from the general fund pursuant to s174 of the Act. The plaintiff pleads it is entitled to be reimbursed by the defendant to the full extent of these payments.
The plaintiff's application is pursuant to O14 Rules of the Supreme Court and is supported by an affidavit of Michael John Strange sworn 14 January 2000. That affidavit exhibits the record of proceedings held in the Conciliation and Review Directorate on 15 and 29 August 1997 and 1 December 1997. A Conciliation Certificate dated 13 November 1997 is exhibited.
The defendant opposes the application and says that he ceased trading as Augusta Building and Cabinet Supplies on 16 August 1988. The defendant deposes that the company, Augusta Builders Pty Ltd, commenced trading on 22 August 1988 and that he, the defendant, is the sole director. The defendant goes on to exhibit a copy of the Australian Taxation Office Prescribed Payments Schedule showing payments of wages and withholding taxes in relation to the employment of Bennett by Augusta Builders Pty Ltd. Thus, the defendant says that he has a good defence to the plaintiff's claim on the basis that he was not the employer of Bennett at the time of the disability giving rise to the claim of compensation. The defendant deposes that the recovery action brought by the plaintiff should be more properly brought against Augusta Builders Pty Ltd on the basis that it was that company who was the employer of Bennett at the material dates.
The plaintiff's counsel submits that the defendant is estopped from denying that he is the employer of Bennett. The plaintiff's counsel submits that the decision by the Review Officer that the defendant personally is the employer creates an issue estoppel such that the defendant cannot in these proceedings contend that he was not the employer. In Kubitza v Twentieth Super Pace Nominees Pty Ltd & Ors, unreported; DCt of WA; Library No D970406; 15 December 1997, Hewitt DR cited the classic expression of the principle of issue estoppel as set out by Dixon J in Blair v Curran, Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464 where in the course of his judgment, his Honour referred to the phraseology of Coleridge LJ in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E & B 780 that the judicial determination concludes not merely the point actually decided but matters which were necessary to decide and which were 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 necessary to assert that the former decision is erroneous.
Thus, the plaintiff's counsel submits a necessary part of a Review Officer's determination that weekly payments of compensation be made is the finding that those compensation payments be made by an employer. In this case the Compensation Review Certificate states that it is the defendant who is the employer.
The whole point of issue estoppel (and of res judicata and Anshun estoppel) is that there should be an end to litigation. It is for the parties to conduct their litigation so that the decision arrived at can be regarded as putting an end, once and for all, to all the problems thus raised: Linsley v Petrie [1998] 1 VR 427 at 441. The defendant's counsel submits that in England there has developed a qualification whereby a Court may, under special circumstances, permit parties in subsequent proceedings to open the same subject matter of litigation in respect of matters which might have been brought forward in the earlier litigation but which were not, either from negligence, inadvertence, or even accident. Henderson v Henderson (1843) 3 Hare 100 at 115. Whilst this qualification to the principle that there should be an end to litigation appears to have been adopted in the United Kingdom: See Arnold v National Westminster BankPlc [1990] Ch 573. In Australia there has been a less enthusiastic adoption of a qualification.
In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Justices Brennan and Dawson were of the view that once the operation of res judicata was found to be applicable to the facts, there was no discretion to refuse its application because of special circumstances. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, Justice Brennan at 258 commented that in his view Arnold v National Westminster Bank Plc rested on uncertain foundation. In Linsley v Petrie, Calaway JA indicated that he shared the scepticism of Brennan J. Calaway JA in Linsley v Petrie commented that once an issue, narrowly defined, has been decided against a party who had an opportunity to litigate it in that party's own interest, it may not be unfair to say that the issue has been determined once and for all.
The plaintiff's counsel submits that no special circumstances exist as the defendant attended before the Review Officer on 15 and 29 August and was aware of the proceedings. The defendant did not raise the matters at the review proceedings and it is unreasonable for him now to raise them in these proceedings. Further, the plaintiff's counsel submits this Court does not have jurisdiction to make a determination as exclusive jurisdiction rest with the Directorate. Finally, the plaintiff's counsel submits that the defendant had, and it is submitted by the plaintiff's counsel still has, the opportunity to appeal the decision made in the Conciliation and Review Directorate or to request a Review Officer to review the decision.
I am of the opinion that the defendant is estopped from now denying that he was the employer. Whilst the defendant was not represented before the Conciliation and Review Directorate, he was present at all times during the course of those proceedings. The finding that the defendant was an employer was a necessary step in the awarding of compensation to Bennett for the disability. Accordingly, I am in the opinion the plaintiff ought to have judgment against the defendant.
As the defendant may wish to have the opportunity to pursue the issue in the Conciliation and Review Directorate I propose that any execution on the judgment be stayed for a period of time. I will hear counsel as to the form of orders.