Kuligowski v MetroBus [2004] HCATrans 120 (21 April 2004)

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Kuligowski v MetroBus [2004] HCATrans 120 (21 April 2004)

Last Updated: 21 April 2004

[2004] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P91 of 2003

B e t w e e n -

MAREK KULIGOWSKI

Appellant

and

METROBUS

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 APRIL 2004, AT 12.24 PM

Copyright in the High Court of Australia

MR B.L. NUGAWELA: May it please your Honours, I appear with my learned friend, MR G.E. NAIRN, for the appellant. (instructed by D’Angelo & Partners)

MR G.T.W. TANNIN, SC: May it please the Court, I appear with my learned friend, MR B.P. KING, for the respondent. (instructed by State Solicitor’s Office (Western Australia))

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: Thank you, your Honours. The central question in this appeal is whether as a matter of statutory construction the Part IIIA Division 3 jurisdiction of a review officer was intended by Parliament to be final or conclusive such as to attract the doctrine.

GLEESON CJ: When we resume at 2.15, Mr Nugawela, we are going to invite Mr Tannin to interrupt you for a moment just to tell us precisely what was the issue the subject of the issue estoppel.

MR NUGAWELA: Yes. Your Honour, on the question of the source of the jurisdiction of the review officer - - -

GUMMOW J: Wait a minute. In the appeal book at volume 2, page 213 there is a decision of a reviewing magistrate.

MR NUGAWELA: Yes, your Honour Justice Gummow.

GUMMOW J: Well, what has that got to do with it? That is the later decision. Does that have anything to do in this case?

MR NUGAWELA: In our respectful submission no, your Honour.

GUMMOW J: He dismissed an appeal by your client.

MR NUGAWELA: Yes, it was an appeal.

GUMMOW J: On a question of law.

MR NUGAWELA: An appeal involving a question of law, yes. We say the relevant basal decision is the decision of Review Officer Cocker on the merits.

GUMMOW J: The magistrate was acting under 84ZN(2), which picks up Division 4. What the magistrate did seems to be dictated by 84ZP. It affirmed the decision appealed from. He affirmed it.

MR NUGAWELA: This issue, your Honour Justice Gummow, did not seem to - - -

GUMMOW J: I am not saying you are wrong. I am just trying to work out how it all fits together, how this litigation fits together.

MR NUGAWELA: We say the converse, your Honour. If the appeal to the magistrate had succeeded, then it would be relevant on the question of whether the initial decision was a final decision or not, but here that the appeal was dismissed we say is a neutral consideration. It was not a consideration that agitated the Full Court either, the fact that the appeal was dismissed. We say the relevant decision is the decision of Review Officer Cocker and on the reasoning of the majority, which was made under Part IIIA Division 3 of the Act, which your Honours would see from tab 2, the index at tab 2, solely concerned with the powers of a review officer.

GUMMOW J: Then, if we are looking at that earlier decision, the question is, what is the content here of this notion of final in this doctrine of estoppel?

MR NUGAWELA: What is the content, your Honour?

GUMMOW J: Yes.

MR NUGAWELA: Indeed, that is the central question that this appeal raises.

GUMMOW J: Is not the starting point, or a starting point, what this Court has said about it in Somodaj v Australian Iron and Steel?

MR NUGAWELA: It is a starting point, your Honour. It is one of the cases with which we do not quarrel, but that does not foreclose the central issue, which is a question of parliamentary intention within the context of this - - -

GUMMOW J: It says you have to look at the whole of the Act. I understand that.

MR NUGAWELA: Indeed. I was going to say something very quickly, your Honours, about the source of the jurisdiction, and in the courts below, argument was raised in relation to whether the review officer’s decision was under one section or another. Having regard to the way the special leave application was argued, we accept that it is probably not propitious to try and argue here, anything other than what the majority of the Full Court found, that is, that in fact, the review officer was exercising his jurisdiction - - -

GUMMOW J: Now, is Somodaj on the list of authorities?

MR NUGAWELA: I think it might be in my learned friend’s list, your Honour. It is not?

GUMMOW J: No.

MR NUGAWELA: Her Honour Justice McLure made reference to Somodaj - - -

GUMMOW J: I hope she did.

MR NUGAWELA: Her Honour made reference to Somodaj, I think from recollection, at page 302 of the reasons.

GUMMOW J: That refers one to Ainslie v Ainslie and Justice Isaacs’ decision, and that refers one to the notion of finality in private international law enforcement to foreign judgments. That is where it comes from, from Ainslie.

MR NUGAWELA: We understand and accept that, your Honour. Her Honour Justice McLure did look at Somodaj at paragraph 308, again looked at Somodaj in a way which was positive for the appellant by saying that the statutory regime in Somodaj did not have a provision - - -

GUMMOW J: The relevant passage in Somodaj is at 297 and 298, the joint judgment of three members of this Court.

MR NUGAWELA: Yes, and that is picked up in the reasons for her Honour Justice McLure at 318, where her Honour said:

In a number of case in which it has been held that the doctrine of issue estoppel applies to bodies other than courts, the statute under consideration expressly provided that the relevant decisions were final - - -

GUMMOW J: I understand that is not disputed, is it?

KIRBY J: There was such a provision but it slipped out, did it not?

MR NUGAWELA: It was specifically taken out in 1993.

GUMMOW J: But the notion of this common law doctrine can apply, as between a court on the one hand, and some tribunal which is less than a court on the other, and as I understand it is not disputed.

MR NUGAWELA: Yes, it is not disputed between – certainly not.

GUMMOW J: In this case.

MR NUGAWELA: Correct.

KIRBY J: What is the exact status of the decision-maker in question? He holds an office under a statute and he is, in fact, an officer of the District Court. Is that correct?

MR NUGAWELA: He is not, your Honour. He is just an officer of the WorkCover jurisdiction, also known as the Conciliation and Review Directorate. He is not required to hold any legal qualifications or training. He is appointed by the executive arm of the government and, either directly or by delegation to the executive director, through the executive director, WorkCover. Notwithstanding any of those observations, it is accepted by the appellant that his or her decision is adequately judicial to attract the operation of the doctrine in this case.

KIRBY J: Is the test that it must be judicial, or is the test – I think Justice Gibbs in one of the cases says it can be a tribunal. I mean, there are members of the Australian Industrial Relations Commission who have the status of a Federal Court judge who are deputy presidents who do not have legal qualifications. So that is not the essence of it, one would - - -

MR NUGAWELA: The notion of judicial for the purposes of attracting the doctrine of issue estoppel is broader than the conventional notion, your Honour Justice Kirby, and does include and rope in tribunals even with ad hoc status to determine finally the rights of the parties. So it is in that broader sense that we can say that the review officers were exercising a judicial function for the purposes of the doctrine.

KIRBY J: Is the test that the person must act in a judicial manner rather than be quasi-judicial, because that can cover a multitude of sins?

MR NUGAWELA: The Australian position does not admit of that potentiality - - -

KIRBY J: It is just a little hazy that the cases say obviously a judge, but then they say a tribunal which acts in a judge-like manner, I suppose.

MR NUGAWELA: Yes.

GUMMOW J: It has to include foreign courts for a start.

MR NUGAWELA: I am sorry, your Honour Justice Gummow.

GUMMOW J: It has to encompass foreign courts and decision-making bodies to apply the doctrine to the private international law aspect of it, but tell me why this decision here of the reviewing officer was not “completely effective unless and until it should be rescinded, altered or amended by” the reviewing magistrate under Division 4? Now, is not the issue posed by Somodaj at the top of 298?

MR NUGAWELA: Yes, your Honour, it is one of the indicia in deciding whether or not the decision is - - -

GUMMOW J: They said it was the decisive one.

MR NUGAWELA: Having regard to the statutory scheme in Somodaj we say that - - -

GUMMOW J: Which is analogous to this. It is a workers’ compensation system as we know.

MR NUGAWELA: Except there was a specific provision which said that the decision-maker’s decision there was final, whereas this was removed from the Western Australian statute at the relevant time.

HAYNE J: I understand the weight you place on removal, but the question remains what effect do you say the decision had? Do you say it had none, or do you say it was effective until rescinded, altered or amended?

MR NUGAWELA: Clearly in a sense, your Honour Justice Hayne, it has effect until it is rescinded or till amended, but that is answering and asking a different question. The pre-eminent question, we say with respect, that has to be asked and answered is, notwithstanding that reality, did Parliament intend that this decision is sufficiently final for the purposes of attracting the doctrine of issue estoppel. It requires, in our respectful submission, exactly what the majority reasoning of the Full Court did, to look at a number of indicia of Parliament’s intention.

GUMMOW J: What is the parliamentary intention?

MR NUGAWELA: In the reasoning of the majority?

GUMMOW J: No, what do you say is the parliamentary intention you are looking for?

MR NUGAWELA: We say that Parliament did not intend for the beneficial operation of this workers’ compensation statute for decisions of review officers under that specific regime with all its attendant provisions to create an issue estoppel in - - -

GUMMOW J: But that becomes circular, does it not? We are trying to work out what the content of this notion “final” is in this common law doctrine.

MR NUGAWELA: I think the answer, your Honour, I can provide it, I suppose, better by going through the reasons of the majority in the Full Court, because we embrace and we adopt the approach taken there in ascertaining Parliament’s - - -

GUMMOW J: Yes. I am putting to you it may not be an adequate approach.

McHUGH J: I have a more fundamental problem, and that is that you have to define what the issue estoppel is with precision, particularly here where you are dealing with a tribunal of very limited jurisdiction. A decision on an ultimate issue binds the parties. An issue concerning an evidentiary fact does not. It is important to determine whether what the issue that is said to give rise to the estoppel is an ultimate issue and when you are dealing with an inferior tribunal, there is another issue and that is that the tribunal does not have jurisdiction to determine collateral matters.

For example, in New South Wales it has been held by Sir Frederick Jordan in the Full Court that a magistrate who had jurisdiction to determine whether fees were payable by a member of the union could not make a finding that created an issue estoppel in respect of membership of the union because that was not what his jurisdiction was. It might have been a condition of him getting into the court. So you have to define what is the issue and I must say, reading the pleadings that the defendant relies on, I am at loss to understand what it is precisely is the issue estoppel. Until you determine that, you cannot determine a large number of questions, including whether it is final.

MR NUGAWELA: Yes. Your Honours, we propose to address that question when we look at the question of the indispensability of the decision of the review officer, but also whether there is an identity of issues from the review officer’s decision to the common law courts. There is an overlap on indispensability and identity of issues in that respect. Accepting, your Honours, for present purposes, that the decision of Review Officer Cocker was made under Part IIIA, Division 3 of the Act - - -

McHUGH J: You keep talking about the decision, but what was the issue that he decided? What do you say is the issue estoppel?

MR NUGAWELA: We say the issue estoppel is picked up in the Form 1 application that was made by the respondent, which is in volume 2 on page 193 of the appeal book, under “Details of Dispute”, your Honours. What was sought was a suspension of weekly payments under section 60 of the Act:

UNTIL SUCH TIME AS THE WORKER PROVES HE SUSTAINED AN INJURY –

The defence which was pleaded in the District Court proceedings – and this is in volume 1 on page 10, paragraph 9. Paragraph 9(f), for instance, states the issue that was decided by the review officer. It is clear, when one looks at 9(f), that - - -

McHUGH J: I am sorry, what page are you referring to? Earlier, you referred to page 5 and then you switched to 193.

MR NUGAWELA: Yes. I was looking at - - -

McHUGH J: What numbers are we talking about?

GLEESON CJ: Volume 1.

McHUGH J: Yes, I know, but the printed numbers at the top of the page?

MR NUGAWELA: The printed numbers, your Honour.

McHUGH J: The big numbers, or the handwritten - - -

MR NUGAWELA: No, the printed numbers on the top right-hand side. I first took your Honours to the launching application made by the employer at the Directorate, and that, your Honour Justice McHugh, was in volume 2 of the appeal book, at page 193.

GUMMOW J:

SEEKS AN ORDER SUSPENDING PAYMENTS UNDER S60 - - -

MR NUGAWELA: Yes:

UNTIL SUCH TIME AS THE WORKER PROVES HE SUSTAINED AN INJURY ON 23.3.94.

So, at least at that stage, the concern was, did the worker in fact sustain an injury or not? The review officer found ultimately that the worker sustained an injury, albeit a minor injury. We say, beyond that, that was the extent of the issue that the review officer was required to determine. To remove any doubt, when the issue estoppel was then pleaded by the respondent – and this can be found in appeal book volume 1 on page 10, in paragraph 9 of the defence – I was taking your Honours to 9(f) – we say it clearly shows that the issue was purely a statutory issue. It was not concerned with future entitlements at common law.

HAYNE J: I just do not follow what that is telling me. You will need to explain it more carefully or differently.

MR NUGAWELA: Yes, certainly, your Honour. Paragraph 9(f) says that the review officer made this finding that:

there were no grounds for finding that a recurrence or aggravation of an ankle inquiry within the definition of disability under section 5 of the Act had occurred.

GUMMOW J: Do you dispute that?

MR NUGAWELA: No, we do not. We are happy with that. We accept that. That was the review officer’s finding. The definition of “disability” is an exclusive definition in section 5 of the Act and there are four limbs to it: (a), (b), (c) and (d). A worker is entitled to statutory benefits if he or she falls under one of those four statutory limbs.

What the worker was seeking in the common law proceedings was damages at common law and in order to obtain that you needed to demonstrate to the court, which he did at least before the Deputy-Registrar, that his future pecuniary loss at common law was likely to exceed the prescribed amount. He had to show future prospects, future losses in the common law jurisdiction, whereas for the purposes of statutory benefits the review officer was only concerned with the then current medical condition of the worker at the time he assessed it.

GUMMOW J: But the pleading has to be taken further, does it not? You have to go to page 11, do you not? This is where it gets mysterious:

By reason of the matters pleaded in paragraphs 5 to 10 hereof and the Review Officer’s findings –

which I guess is paragraph 9 –

the Defendant says . . . estopped - - -

HAYNE J: And the estoppel alleged is:

estopped from alleging . . . serious disability within the meaning of –

another provision.

MR NUGAWELA: “Serious disability” is defined as future pecuniary loss in excess of a prescribed amount. It is defined in – and I am talking of tab 2, your Honour Justice Hayne – section 93D, from recollection, which is on page 112 of that reprint:

(1) Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.

Subsection (2) effectively defines “serious disability”. The operative condition was (2)(b). The prescribed amount at the time was some $119,000, from recollection. Then on the next page, 113:

(4) Proceedings in which damages are sought are not to be commenced without the leave of the District Court.

(5) Leave is to be given if –

and you have (a), (b) and (c). Paragraph (c) is the relevant criterion here:

the court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.

So we say, in answer to your Honour Justice McHugh’s question, that there was no identity of issues required to be determined by the review officer – see 9(f) of the defence – with the issue required to be considered by the District Court as to whether the worker had a serious disability for the purposes of obtaining leave to commence a common law action for damages.

GLEESON CJ: Is that a convenient time, Mr Nugawela?

MR NUGAWELA: If it please your Honours.

GLEESON CJ: We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: Your Honour the Chief Justice was indicating before the lunch break - - -

GLEESON CJ: I am sorry, I did want to ask Mr Tannin a question, yes. Mr Tannin, what is the issue in respect of which the estoppel operates?

MR TANNIN: Can I answer that by reference, firstly, to the Act, then to the findings of the review officer. The Act was designed to limit access to common law. Under section 93D(4):

Proceedings in which damages are sought are not to be commenced without the leave of the District Court.

Relevantly, under section 93D(5)(c), leave is to be given if:

the court determines that the worker is likely to have future pecuniary loss resulting from the disability –

“Disability” is defined in section 5 of the Act, and “disability”, as defined in section 5 of the Act, is the same definition applied for the purposes of liability determined by the review officer as it is for the purposes of leave. Under section 5, “disability” means:

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions;

and relevantly –

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence –

The review officer here conducted a review. Under section 84A, a review is a procedure defined for the purposes of the “resolution of a dispute”. A “dispute” is in turn defined in section 84A as meaning:

a dispute in connection with a claim for compensation under this Act and includes –

(i)	a dispute as to liability –

under the Act. Liability, under section 18 of the Act - - -

GUMMOW J: That gets you back to disability.

MR TANNIN: Your Honour, that says:

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation –

That is what the review officer was doing under Part IIIA.

McHUGH J: Sorry, what section is that, about liability?

MR TANNIN: Section 18, your Honour.

McHUGH J: I just do not seem to have it in my copy.

MR TANNIN: I think it is in the book of materials my friend provided. It is not paginated.

McHUGH J: I think I have missed out.

MR TANNIN: It simply reads that:

If a disability of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation –

The point is that what the review officer here was doing was conducting a proceeding under Part IIIA – and I realise I am not going into the argument about finality. That was the procedure he was undertaking. He was undertaking a procedure, not the section 60 procedure my friend was referring to, and review officer’s findings are made in that jurisdictional context. That is a context designed to determine what, if any, liability occurred in terms of disability as defined.

Then if you go to appeal book 2, at page 209, you have the reasons for decision of the review officer. At page 209, line 30 – and bearing in mind this is in the context where the review officer had gone through the evidence and given detailed reasons, disinclined to believe the appellant and made findings as to his credibility. The finding that is relevant for the purpose of issue estoppel is that:

Specifically, I believe the evidence fails to establish that the applicant’s present injuries arise out of or in the course of his employment with MetroBus –

I interpolate there, that is the first part of the definition of disability that is met, and, secondly –

nor do I believe that there are grounds for finding that a recurrence or aggravation of the ankle injury within the definition of disability under the Act has occurred.

That is in the context of the earlier finding that the injury originally suffered by the appellant had resolved.

McHUGH J: That finding is, in effect, in the negative. It is not a positive finding. He says “the evidence fails to establish . . . nor do I believe there are grounds for finding”. Now, is that sufficient?

MR TANNIN: Well, in this context it is, your Honour, because there is an earlier finding that the injury had resolved.

GLEESON CJ: So do you say that there are two issues that were determined: one, that the present injuries of the applicant did not arise out of or in the course of his employment - - -

MR TANNIN: Yes.

GLEESON CJ: And, secondly, that no recurrence or aggravation of the ankle injury, within the definition of “disability” under the Act, had occurred.

MR TANNIN: Yes, and in that context, in our submission, that is a finding of no disability, which is how the issue estoppel effectively prevented the grounds of leave. Can I just add for your Honour’s information, the Full Court on this point was unanimous, and it held against the appellant on this point. Can I just simply take your Honours to the references?

KIRBY J: On which point, which of the two?

MR TANNIN: On the question of the findings of the – the character of the findings of the review officers, best illustrated I think if I just take your Honours briefly to the judgments. At page 291 in paragraph 102 of his Honour the Chief Justice’s judgment – I will not read them to your Honours - in the judgment of his Honour Justice Templeman at pages 327 to 328, paragraph 240; in the judgment of her Honour Justice McLure at pages 340 to 342 where her Honour undertook the same analysis of the effect of the legislation, as I have just done, and his Honour Justice Wallwork agreed with Justice McLure, and finally Justice Steytler at page 322. In my submission, on that point, the Full Court was entirely against the applicant.

GLEESON CJ: Yes, Mr Nugawela.

MR NUGAWELA: Thank you, your Honours. Prior to the lunch break I was about to address your Honours on the question of finality as a matter statutory construction. All we say about that, your Honours, are brief points. The majority reasoning of the Full Court comprised the reasoning of his Honour Justice Wallwork, at reasons paragraph 147 to 165. If I can briefly say that these were the indicia that his Honour considered relevant to the question of Parliament’s intention on finality. For instance, at reasons 153 his Honour referred to section 84ZB, which is a provision that says that:

an answer given by a person summoned by a review officer is not admissible in evidence against the person in any civil or criminal proceedings other than proceedings for perjury etc.

HAYNE J: What has that got to do with the realm of discourse that we are now in? What is the relevance of that?

MR NUGAWELA: Well, in his Honour’s opinion, the question of finality is a multi-factorial question, and his Honour went through the different provisions of the Act and said, “Well, I don’t discern from the provisions of the Act an intention that Parliament intended decisions of review officers to be” - - -

GUMMOW J: In what respect is it not final? I just do not understand.

MR NUGAWELA: In his Honour’s reasoning or - - -

GUMMOW J: No, in your submission. Why was not it completely effective except insofar as there was successful reagitation of a point of law before a magistrate or a stated case to the Magistrates Court?

MR NUGAWELA: Yes. Her Honour Justice McLure looked at that specifically and essentially held that the removal of the words “final and conclusive” in the section of the Act, combined with leaving the words “final and conclusive” in section 117 of the Act, evinced parliamentary intention that review officers’ decisions - - -

GUMMOW J: This is 84ZN, is it?

MR NUGAWELA: That is correct. I can take your Honours to the relevant parts of the decisions of the majority which we - - -

HAYNE J: Before you do that, can I just follow out that thought? First, it does not seem to be suggested that this decision of a review officer is merely advice to someone else who must exercise an independent decision-making function. Is that right?

MR NUGAWELA: Yes, that is right.

HAYNE J: Is there anything that suggests that the review officer on the invitation of the parties or a lone motion can go back and say, “Well, I have thought about it some more and I want to change my mind”?

MR NUGAWELA: The power to reconsider on his own volition?

HAYNE J: Or on application of the parties? “I held today that X has no disability, but I now want to go back and think about it again and say X has a disability or had a disability on that day.”

MR NUGAWELA: At the time this decision was made, section 84ZF(3), which provided the power to reconsider on the provision of new information, was not in force. That is a point which his Honour Justice Steytler made in his reasons for decision. Section 84ZF(3) is in tab 3, your Honours, of the book of legislation. In its original form it was subsections (1) and (2) and in 1999 subsections (3) and (4) were added. The short answer to your Honour Justice Hayne’s question is that it would appear no.

HAYNE J: Then what is left? Leave aside what the Full Court said. What is it that makes it not final?

MR NUGAWELA: The nature of the jurisdiction.

GUMMOW J: What does that mean? That is circular.

MR NUGAWELA: To develop my submissions - - -

GUMMOW J: You have the privative clause in 84ZN(1), but that does not get you over the line. 84ZN(1) is a privative clause of a fairly familiar sort.

MR NUGAWELA: On its own I accept that that is not sufficient, your Honour Justice Gummow, but to do justice to the decision of the majority, one cannot just look at section 84ZN(1); one must look at all the indicia that the majority did look at in deciding whether there was an intention of finality for the purposes of issue estoppel.

GUMMOW J: I just do not understand that.

MR NUGAWELA: Can I take your Honours through the reasoning of Justice McLure on that point commencing at paragraph 312.

GUMMOW J: Now, does her Honour explain what she means by “final” before she starts out on this inquiry?

MR NUGAWELA: Yes, her Honour does.

GUMMOW J: Whereabouts?

MR NUGAWELA: Her Honour distinguishes in 312 that the question of finality for the purpose of issue estoppel is different from the question of finality, say, for the purposes of an appeal. Then at 312 her Honour makes this observation:

A decision or determination which is not final does not prevent a further application although the application is not likely to succeed unless supported by additional evidence or a different argument.

GUMMOW J: Whereabouts is this?

MR NUGAWELA: Paragraph 312, line 31.

GUMMOW J: That is not what Hall v Nominal Defendant is about, is it? It is a question of interlocutory judgments for appeals here, is it not?

MR NUGAWELA: Yes, I accept that.

GUMMOW J: Orders for new trial.

MR NUGAWELA: Yes, I accept that. At 313 her Honour says:

In general, a decision is not relevantly final for issue estoppel if an applicant can bring a fresh application.

GUMMOW J: That is right. Now, can you bring a fresh application?

MR NUGAWELA: Indeed, section 58(6) specifically provided, for instance, that the dismissal of an application under section 58 does not prevent the worker from bringing a further application. It specifically provided that material time.

McHUGH J: Yes, but that does not prevent an issue estoppel arising, does it? If my recollection is right, in Somodaj’s Case there was a provision in the Worker’s Compensation Act that the award could be reviewed and set aside by the Commission. I may be wrong about that.

GUMMOW J: That is right.

MR NUGAWELA: Yes, her Honour, dealt with that as one of the - - -

GUMMOW J: The reference that Justice McHugh has in mind is at page 297, about point 7:

nothing in sub-s (1) shall prevent the Commission from reconsidering any matter –

etcetera.

MR NUGAWELA: Yes

GUMMOW J: That was rejected.

MR NUGAWELA: In Somodaj it was, and her Honour Justice McLure did deal with that in her reasons. I was at paragraph 313, your Honours, of Justice McLure’s decision. The point we were making was that if the applicant can bring a fresh application, that is wanting to show that the decision of the review officer is not a final decision, we say that applies in this case. In fact, in this type of jurisdiction, even a finding of permanent and total incapacity is not a final determination – and we have cited the decision of the magistrate in Warcon v Leighton Contractors for that proposition that a decision under section 84E that a worker’s incapacity is permanent and total is in itself not a final determination, and it can be - - -

HAYNE J: But that is because that is a determination carrying within itself the temporal element fully expressed. The finding is that X, the worker, is now temporarily and permanently disabled, known constat that tomorrow for other reasons you might conclude to the opposite effect.

MR NUGAWELA: And that is, indeed, your Honour Justice Hayne, the very nature of this jurisdiction. It is a jurisdiction to provide statutory benefits on a day-to-day – on a weekly basis.

HAYNE J: But the case against you is there was a finding, “was not disabled”. Now, that does not have the same temporal element.

MR NUGAWELA: The finding against us was that the worker did not show to the satisfaction of the review officer that he was incapacitated at the point in time he was seeking wages, workers’ compensation payments and nothing more. It was not a statement or finding that this worker had no disability, full stop. As I read section 84E, your Honour Justice Hayne, there is nothing within section 84E that says that it is subject to review from time to time. It just says in 84E(3):

The total liability of the employer ordered under this section is not to exceed the lesser of -

(a) the sum of $50 000; or
(b) weekly payments at the rate to which the worker was entitled at the time when the total weekly payments for the disability of the worker reached the prescribed amount –

et cetera. The illustration I was making in relation to the decision in Warcon was that even determination by a review officer that a worker is permanently, totally incapacitated for work – and this is subsection (1) – itself is not a final determination. Nothing in the legislation, this beneficial workers’ compensation legislation, including section 58(6) is intended to finally preclude a worker from coming back and making another application to a review officer. The removal of the words “final” and “conclusive” in section 84ZN, its intentional retention in section 117 are all other indicia to show that review officer decisions were not intended to be final.

It would be incongruous, in our submission, for Parliament to say to a worker, on the one hand, in section 58(6), that if the dismissal of your application does not create an estoppel you can come back. Why would it, in Part IIIA of the Act, expect to the contrary? We say that would not make any sense.

As to my learned friend’s submission, your Honours, that the purpose of the Act – the nature of the proceedings, I suppose – was to limit access to common law damages, we say two things. That was not the purpose of the Act insofar as the starting and ending of statutory compensation was concerned. There was a separate division which was introduced, commencing in section 93A to 93F, that specifically dealt with the restrictions on the award of common law damages.

Nothing in Hansard that has been referred to by the respondent supports the suggestion that it was Parliament’s intention to restrict access to common law damages by somehow allowing the doctrine of issue estoppel to apply. In fact, as we say in our replying submissions, the doctrine of issue estoppel can apply both as a sword and a shield, and it can in some circumstances increase access to common law damages. So there is no necessary conclusion that the Act was designed to limit access to common law damages and that this is a relevant intention in ascertaining Parliament’s intention – the question of issue estoppel.

The second point about limiting access to common law damages, your Honours, is this. Contrary to the respondent’s submission, common law damages are not only awarded in respect of disabilities. A primary disability can give rise to secondary sequelae. The secondary sequelae are not compensable under the Act because they do not meet, for instance, the definition of disabilities under section 5, but nonetheless are taken into account by a common law court in assessing common law damages.

This is the very point that was made in the Full Court decision in Re Monger; Ex parte United Constructions, which is No 8 on our list of authorities. We have given your Honours the specific page references and the reasons for that decision, and it was a unanimous decision on that point. So it is not correct to say that the issue estoppel pleaded in the defence in paragraph 9(f) precludes the award of damages at common law in respect of secondary sequelae that do not meet the section 5 definition of disability. That is wrong.

GUMMOW J: Just forget about the common law proceedings for a moment. What is the section that you say entitled your client – faced with page 209, case rejected – to reapply under the compensation structure?

MR NUGAWELA: For instance, your Honour Justice Gummow, section 58(6).

GUMMOW J: Section 58(6). Is that right?

HEYDON J: Are you sure that is the right reference? It does not seem to say anything about reapplication.

MR NUGAWELA: No, it does not say about reapplication, but the practice in the jurisdiction, your Honours, is that - - -

HAYNE J: The lore.

MR NUGAWELA: One needs to understand the nature of the jurisdiction and the beneficial nature of the jurisdiction which is permissive. Read with 58(6), the removal of the words “final” and “conclusive” from review officers’ decisions, we say all in the view of the majority correctly enabled a worker to issue another application for weekly payments of compensation. That was what the majority held or majority reasoning held - - -

GUMMOW J: What was the section that founds the application that appeared at 193?

MR NUGAWELA: Section 60.

GUMMOW J: Is that agreed? I thought it was disagreed.

MR NUGAWELA: At 193 it was manifestly section 60, but then it was converted into an application under either Part IIIA of the Act or section 58 of the Act.

GUMMOW J: What are those sections again?

MR NUGAWELA: Section 58 or Part IIIA. His Honour the Chief Justice was of the view that the conversion was made under section 58. The majority was of the view that the conversion was made under Part IIIA. We say it does not matter whether the conversion was under Part IIIA or section 58.

GUMMOW J: I do not understand. What is this word “conversion”? Where does that appear anywhere?

MR NUGAWELA: What happened, your Honour Justice Gummow, factually, was that the employer brought the section 60 application which appears on page 193, satisfied the first review officer that there was a genuine dispute in relation to its liability to pay compensation, and then sought to persuade the review officer to discontinue payments, but the review officer said, “No, I will not discontinue payments, but what I will do is direct the worker to bring an application under section 58 of the Act - - -

GUMMOW J: Where do we see that?

MR NUGAWELA: We see that in the reasons of the learned magistrate, for instance, where his Worship summarises what happened on page 214, line 19 onwards, and it goes on to page 215. Can I continue to take your Honours through the reasons for decision of Justice McLure at paragraph 315.

GUMMOW J: The relevant applicant seems to have been the employer.

MR NUGAWELA: Initially, yes, on the section 60 application – established there was a genuine dispute under section 60 but did not persuade the review officer to grant it the relief, or one of the forms of relief, that was available under section 60. The review officer then directed the worker to bring an application under section 58 for the commencement of weekly payments.

GUMMOW J: There is no reference to section 58 on page 214.

MR NUGAWELA: No, your Honour is quite right. On page 194, the paragraph numbered 2.

HAYNE J: What is the purport of lines 5 to 12 on page 215, in particular, the direction appearing at the end of paragraph 1 of the order of the review officer at the directions hearing? What is all that intended to engage?

MR NUGAWELA: That simply meant that the worker did not need to file a fresh form, but in the continued proceedings the worker is treated as if he was the applicant carrying the onus of proof.

HAYNE J: Had he been required to file a fresh form, that would have been a form seeking relief under what section?

MR NUGAWELA: We say it would have been under section 58 of the Act because the division of the Act that deals with the commencement and cessation and suspension of payments is specific. It is Division 5 of Part III.

HAYNE J: The competing point of view is, is it, that by that direction the matter entered a stream governed by Part IIIA? Is that the competing point of view?

MR NUGAWELA: Yes. Your Honours, can I turn back to paragraph 315 of Justice McLure’s reasons. Her Honour was also of the view that the removal of the former section 116 of the Act was also an important indicia of Parliament’s intention. Can I explain section 116 of the Act in the following way. Section 116 of the Act appears in tab 1 of the book of legislation. That concerned the predecessor Workers’ Compensation Board. I say “predecessor” in the sense that the Workers’ Compensation Board was the previous decision-maker and the review officer assumed the functions of the Workers’ Compensation Board. When the legislation changed in 1993, or prior to the legislative change, the Workers’ Compensation Board under section 116, their decisions were final and conclusive.

When a review officer replaced the Workers’ Compensation Board as a decision- maker under section 84ZN, Parliament removed the words “final and conclusive”, and her Honour felt that this was again another specific indication of Parliament’s intention that review officers’ decisions were not meant to be final. Her Honour says, combined with the fact that when creating the new compensation magistrate’s court in section 117 of the current legislation, it provided that a compensation magistrate’s court’s determination is final and conclusive, and her Honour dealt with that at paragraph 317 of her reasons for decision. In addition to that, her Honour looked at medical assessment panels under section - - -

GUMMOW J: Well, 117 has to be looked at with 118, does it not?

MR NUGAWELA: Yes, it does. Her Honour also looked at the medical assessment panel determinations under section 145E of the Act, and subsection (5), again there is a legislative reference to:

final and binding on the worker –

Importantly, any –

written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined.

Her Honour then turned, in paragraph 318 of her reasons, to the Ainslie v Ainslie considerations and also referred to Somodaj and at 320, said this:

I see no warrant in the statutory context or history to confine the words “final” and “conclusive” to the ousting or limiting of appeals. It clearly cannot be so in relation to s 116 and s 136 of the Act as they were before the 1993 Amendment Act. Further, such a construction does not explain the use of those words in s 117 –

and that is the current section 117 –

but not in s 84ZN(1) of the Act in circumstances where the statute provides for limited avenues of appeal from decisions of compensation magistrates and review officers.

Her Honour then looked at other indicia of parliamentary intention at paragraph 322 in a compendious way: the informality of the decision-making processes by review officers, the absence of the right to legal representation, that the provisions in section 58(6) itself which said that a dismissal does not prevent a further application being brought. Her Honour referred to the provisions in section 60, which, as we know, your Honours, are the genuine dispute provisions. Section 60(1) says:

Where weekly payments are made to a worker pursuant to this Division, the employer may apply to the Directorate at any time for an order that such payments be discontinued or reduced.

It is always speaking. In section 62, the nature of the provisions there are also always speaking in the sense that it refers to “the past or present condition of the worker”.

Her Honour formed the view that when you look at the division it deals with the commencement, suspension, review and discontinuance of weekly payments. The nature of that jurisdiction was that there was no intention for finality. This is not, we say, difficult to understand, given that medical conditions of workers are not static things, they are transient. There was reference by his Honour Justice Wallwork to this very point at paragraph 165 of his Honour’s reasons for decision, in setting out the English decision in Radcliffe. In addition to Radcliffe, your Honours, we have cited as authority 4.2, the George Gibson decision, particularly the dicta of Lord Sumner, which also makes the point that medical conditions - - -

GUMMOW J: Now, section 60(2) is rather akin to section 36 of the old Workers’ Compensation Act (NSW) considered in Somodaj, is it not?

MR NUGAWELA: There is not a reference to finality, unlike in Somodaj, where, to my recollection - - -

McHUGH J: This is what puzzles me, despite what has been said by Mr Tannin. The proceedings which are alleged to have given rise to the issue estoppel are proceedings that were launched under section 60(2), is that right?

MR NUGAWELA: Yes.

McHUGH J: Right. Well, now, if you look at subsection (2), the jurisdiction is:

If the employer satisfies the Directorate that there is a genuine dispute as to liability –

Is that term “genuine dispute” defined? I could not find a definition of it.

MR NUGAWELA: No, it is not defined, your Honour.

McHUGH J: So if you are satisfied there is a genuine dispute as to liability:

the Directorate may order that the payments be suspended for such time as the Directorate directs –

There has to be a genuine dispute, and then you have a discretionary power to order that payments be suspended from such a time. In this particular case, they were suspended from a time long after, apparently, the Commissioner thought that injury had ceased or did not exist. I just cannot understand where the issue estoppel comes in here.

MR NUGAWELA: We will address that very quickly when we come to the part that deals with the identity of issues, your Honour, very briefly, and take your Honours through the relevant reasons for decision which we say support our argument.

HAYNE J: I know you accepted the premise of Justice McHugh’s question. I am a bit slower than his Honour – can I just look at that? I had understood – wrongly, obviously, yet again – that the application at 193 was an application under section 60(1) and that section 60(2) was in the nature of interim relief.

MR NUGAWELA: It is the same section, your Honour.

CALLINAN J: And that, afterwards, the parties agreed that the substantive, final issues would be decided, and that agreement was made before they were decided.

MR NUGAWELA: Yes.

HAYNE J: But the ultimate question raised by what was filed, as appears at 193, was the employer’s application for an order of discontinuance for payments.

MR NUGAWELA: That is correct, under section 60.

HAYNE J: And subsection (2) enables the making of interim orders while the dispute is resolved, does it?

MR NUGAWELA: No, not at all.

HAYNE J: No?

MR NUGAWELA: Subsection (2) simply provides the extent of the relief that can be provided if a genuine dispute is shown to exist.

HAYNE J: I see.

MR NUGAWELA: That is it. The employer did not succeed in persuading the review officer to grant that relief, but the review officer said, “What I’m going to do is direct you, the worker, to bring a substantive application to establish your rights and you carry the burden of proof without filing another piece of paper”.

GUMMOW J: And what would the other piece of paper be?

MR NUGAWELA: The Form 1 that is in the nature of page 193, except that the “Details of Dispute” would be - - -

GUMMOW J: It would not refer to section 60. What section would it refer to?

MR NUGAWELA: It would probably, in our respectful submission, refer to section 58 which is the commencement of payments.

GUMMOW J: I think there is disagreement about that.

MR NUGAWELA: There is.

McHUGH J: What happened here is, according to 197, an application was commenced on 21 June – that is the document that is at 193. That was apparently filed under section 60(1).

MR NUGAWELA: Yes.

McHUGH J: And then on 197, down at line 36:

On 19 July 1996 –

that is 28 days later –

a review officer determined that the applicant employer had established that it had a proper basis to genuinely dispute its liability . . . and ordered that they continue until further order.

Then what Commissioner Cocker did, which must have been under subsection (2), is what is alleged to have given rise to the estoppel.

MR NUGAWELA: The majority of the Full Court I think found that what Review Officer Cocker did was decide the matter under Part IIIA of the Act generally. The Chief Justice, his Honour Chief Justice Malcolm, decided that it was an exercise of jurisdiction under section 58.

CALLINAN J: Was it not approached upon the basis that your client would not be obliged to file a further application under section 58(1)(b)?

MR NUGAWELA: He was not - - -

CALLINAN J: Was not the effect of it that a genuine dispute was held to exist?

MR NUGAWELA: Yes.

CALLINAN J: If there is a genuine dispute:

the Directorate may, on the application of the worker hear and determine the question of liability to make the weekly payments claimed.

That is 58(1)(b) and 58(1). Did not the parties agree that that application need not formally be made but that the hearing which had been directed to be conducted would proceed as if such an application had been made and that the parties should be prepared to bring forward all of their evidence and argue the substantive issue and the substantive issue was, in fact, argued and determined?

MR NUGAWELA: Your Honour Justice Callinan is referring to 58(1)(b)?

CALLINAN J: And the words following it. I am not asserting that; I am just asking you.

MR NUGAWELA: There is no reference to genuine dispute.

McHUGH J: With great respect to Justice Callinan, I thought 58 only arose where the worker has not received payments, and 57A makes a claim. Here, the worker had been receiving payments and he continued to receive payments until they were cut off from – what is it – 26 September 1996, or some date in September 1996?

MR NUGAWELA: Yes, that is right.

McHUGH J: So it seems to me that the only power that was being exercised by the review officer, Cocker, was the power under section 60(2).

MR NUGAWELA: Alternatively – and that was an argument that was rejected by the Full Court, although it was taken on appeal – alternatively, section 60(2) of the Act. This goes to the question of the source of the statutory jurisdiction. Our proposition, your Honours, is that regardless of the source of the statutory jurisdiction, whether it is under section 60 or section 60(2) or section 58 – for instance, see section 58(6) – decisions in this jurisdiction are not meant to be final, particularly where they concern - - -

McHUGH J: You are getting into this area of finality. There is an anterior point that interests me at the moment and that is whether there is any relevant issue estoppel. I dealt with this issue at some length when I was a judge of the Court of Appeal in New South Wales in a case called Cachia v Isaacs (1985) 3 NSWLR 366, and it is at 386 and following that I discuss it. Given the issues that have to be determined under section 60, I have difficulty in seeing what is the fact that was legally necessary to establish the cause of action, defence or reply.

MR NUGAWELA: We entirely accept that, your Honour, and we will develop that when we are dealing with the identity of issues point. We say that there was really no identity of issues in the Directorate compared with before the District Court. Before we leave the finality point, just to conclude, your Honours, we say that the question of the transient nature of medical condition in workers’ compensation jurisdictions itself, the nature of the proceedings, not disclosing an intention of finality, decisions like Radcliffe and George Gibson, was picked up by her Honour Justice McLure at paragraph 304 in this way. The last sentence in paragraph 304, at line 15:

Another way of analysing the outcomes in those cases is on the basis that where the question in issue is a person’s medical condition from time to time, issue estoppel does not apply because the relevant issues for determination are not identical: Weeks v Harbour Works Clough.

So it was more than mere removal of the words “final and conclusive” and its retention in the jurisdiction of the compensation magistrate in section 117. It was more than the insertion of the words “final” and “conclusive” and “binding” in section 145E. It included the absence of legal representation, the limited right of appeal to correct factual error. All of these were factors that the majority considered in coming to the compendious conclusion that Parliament could not have intended a decision on a worker’s transient medical condition from time to time to be finally binding for all purposes in other jurisdictions.

Can I turn, your Honours, to the legal indispensability point and the identity of issues point. His Honour Justice Templeman at paragraph 239 expressed it this way:

It was submitted on behalf of Mr Kuligowski that Review Officer Crocker did not determine whether his ankle had been so affected by the 1994 injury that he remained susceptible to further injury: nor was the Review Officer obliged to consider that issue.

That is the point, your Honour Justice McHugh, that we make in our submissions, that the issue before the review officer was the worker’s then current medical condition capacity, not the issue of susceptibility to further recurrences. To the extent that the review officer might have even made a finding that the worker, for instance, is susceptible to further recurrences, such findings would not be legally indispensable to his decision not to grant the worker weekly payments of compensation at the time. The view expressed by the Chief Justice at paragraph 69 on this same issue we say is wrong. His Honour said:

In the present case the issue before the Review Officer was whether the subsequent injury was a recurrence or aggravation of the personal injury by accident arising out of or in the course of his employment due to his susceptibility to injury as a result of the earlier accident. In my view that was a question of fact which the Review Officer had the jurisdiction to decide.

The review officer was not concerned with that issue, as his Honour Justice Templeman correctly points out.

HAYNE J: What is said against you is that the review officer finds two things: (1) the present injuries did not arise out of employment; (2) there was no recurrence or aggravation of the earlier injury and therefore no disability. Two questions. First, is that what the review officer found?

MR NUGAWELA: Yes.

HAYNE J: Second, if it is, does that generate an estoppel?

MR NUGAWELA: The answer to the first part of your Honour’s question is yes, that is what the review officer found. The answer to the second part is no, it does not generate an issue estoppel. The reasons we say that are as follows. The fact that the worker’s current injuries did not arise out of the March 1994 injuries does not mean, as we say in our written submissions, that the worker does not have a susceptibility to developing further injuries in the future. Your Honours would recall that the entitlement to weekly payments of compensation, as my learned friend puts it in paragraph 23 of his outline, is quite simple. It is this:

The jurisdiction exercised by Review Officer Cocker was to resolve a dispute between the parties as to the Respondent’s liability to make weekly payments of compensation for incapacity for work resulting from a work related disability.

That was all. So a finding that this worker’s current injury did not arise from a previous injury is determinative of that issue alone – is the worker’s then incapacity at the time that decision is made.

If the finding is that there is no causation there, then this worker is not entitled presently to weekly payments of compensation. It has nothing to do with the possibility that this worker has a susceptibility to developing future conditions at common law to recurrent ankle strains and ligaments. This is the very point that was made in the Full Court decision in Re Monger; Ex parte United Constructions. It was a five-member decision and their Honours unanimously agreed that in order to access common law damages, one does not have to establish every injury as a disability under the Act. You can have sequelae and consequences of the disability.

The second aspect of the finding that the worker did not suffer recurrence or aggravation within the meaning of “disability” is actually pleaded in paragraph 9(f) of the defence. Again, if I take your Honours to the definition of “disability” in section 5 of the Act – it is under tab 2 – towards the bottom of the page, “‘disability’ means”, and your Honours will see (a), (b), (c) and (d), and (e) on the next page.

All of that is concerned with the commencement and entitlement to statutory benefits, to weekly payments of compensation. A finding by the review officer that the worker did not suffer recurrence or aggravation of the original injury simply means that subsequent injuries were not a disability in its own right under the Act sufficient to enable the worker to have access to statutory benefits. That is all it meant. They are different issues and they do not, we say, create issue estoppel in the common law jurisdiction.

HEYDON J: Can I ask you this. Remember when Mr Tannin was addressing us just after lunch Justice McHugh made an observation to him in which he drew attention to the framing of the finding on page 209 at line 35:

nor do I believe that there are grounds for finding that a recurrence or aggravation . . . has occurred.

MR NUGAWELA: Yes, “within the definition of disability”.

HEYDON J: But what the language does not actually say is, “I find that no recurrence has occurred”. Now, do you take a point that just because your client was disbelieved and just because the officer did not believe there were grounds for finding in his favour is no reason to conclude that no recurrence had occurred?

MR NUGAWELA: Yes.

HEYDON J: You take that point?

MR NUGAWELA: Yes, and, your Honour Justice Heydon, going one paragraph further, you would see:

Consideration of the evidence leaves it open for an inference to be drawn that some other event occurred –

There is no finding there.

McHUGH J: What I am finding difficult to grasp in this case is that you have an issue of estoppel in your favour, namely, that you did sustain an injury on 23 March 1994. That is the injury that you rely on in paragraph 2 of your statement of claim. At best it seems to me that the respondent can say is that there was a closed period between April 1994 and the date of the reviewing officer’s finding that you had no incapacity during that date. But your statement of claim was filed in 1999 and it says – the issue estoppel say nothing about this and cases like O’Donnell v Commissioner of Railways, if I remember rightly, hold that you cannot argue from an estoppel and use it as a sort of foundation to reach another inferential conclusion.

MR NUGAWELA: Yes

McHUGH J: So at the highest it does not seem to me that this case that is put against you closes out your claim. It could establish a closed period estoppel, and you say that it does not even do that, but - - -

MR NUGAWELA: Yes, but picking up on the close period point, it is a point which the New South Wales Court of Appeal recently in Fletcher v Bridge in the year 2000 - - -

McHUGH J: We used to have to deal with it all the time in New South Wales, both - - -

MR NUGAWELA: That is precisely the point that is picked up there, your Honour Justice McHugh, and Justice Handley delivered a very incisive judgment with whom I think your Honour Justice Heydon, as you then were, agreed. It is a point which is practically on that analysis on all fours with this case, in our respectful submission.

McHUGH J: What is the name of the case, Fletcher?

MR NUGAWELA: Fletcher v Bridge [2000] NSWCA 271, and in particular, your Honours, paragraph 7 read with paragraph 8. We say they both have to be read together. Your Honour, we purported to hand up earlier a transcript of some evidence that was led before the review officer, which showed the distinction between disability for statutory purposes, and susceptibility for further injury and recurrence in the future when one is considering future pecuniary loss for access to common law under a different part of the Act. On page 197 of that transcript - - -

GUMMOW J: Transcript from what?

MR NUGAWELA: Well, a transcript of - - -

GUMMOW J: From this case?

MR NUGAWELA: Yes.

GUMMOW J: It seems so.

MR NUGAWELA: Transcript of proceedings before the Review Officer Cocker in relation to Dr Dixon’s evidence.

GUMMOW J: I see.

MR NUGAWELA: Dr Dixon was asked this question:

In your opinion, the injury to Mr Kuligowski’s left ankle on March 94, given the subsequent problems he’s had, would you say that left him with a weakness and a susceptibility to the recurrences?

DR DIXON: Yes.

Now, that did not bother the review officer because that was not legally indispensable to his decision. If the review officer had gone on to make a finding that yes, this worker’s current condition had resolved, but he has a susceptibility to further recurrences which may impair his future earning capacity, that would have been entirely irrelevant to his decision. That throws, in our respectful submission, to sharp relief the distinction between
the two issues – one in the statutory jurisdiction is, “What is the present capacity of the worker?”; the other, for the purposes of access to common law, “What will be the worker’s future economic loss?”

GUMMOW J: I think you have probably reached your best point.

MR NUGAWELA: It might be a convenient time, unless your Honours have - - -

GLEESON CJ: Thank you, Mr Nugawela. Yes, Mr Tannin.

MR TANNIN: May it please the Court. The appellant has repeatedly asserted that the jurisdiction exercised here was under section 58 or section 60. In our submission, the history of the application, as set out by the review officer; shows that what happened was there was an application under section 60 – I will take your Honours through it in my submissions - - -

GUMMOW J: Was there ever any application in the first place by the worker which started these payments flowing?

MR TANNIN: No. I think what happened was payments were accepted under the interim scheme, under section 58. They started and thereafter the employer disputed its liability under section 60 and sought to suspend the payments. The review officer who heard that application determined there was a dispute about liability and determined not to suspend the payments, but in light of the fact that the substantive hearing was listed for hearing later in that year in August – this history is set out at page 197.

CALLINAN J: Could I ask you this, at page 198, the review officer says:

At the commencement of the review it was established that the matter would proceed on the basis that there has been a finding of genuine dispute and a dispensation given so that a fresh application was not required -

Now, under what section could the fresh application have been made? To what is the review officer referring there? As Justice McHugh pointed out before, there are problems about treating it as an application under section 58, which at first sight I thought might be the appropriate section.

MR TANNIN: Look, what happened is that, there was a genuine dispute, but there was no determination that payments cease, because the dispute about liability was already listed for August. The parties agreed to that process, and my point is that disputes under this Act are resolved by review officers, not under section 58, not under section 60, which are, or at least, are characterised as interim matters, but under Part III, and that is why I refer to 84A. Under 84A, this is Part IIIA of Division 1, the review officer is a person who undertakes reviews which are designed for the resolution of disputes. Disputes are defined as:

(a) a dispute in connection with a claim for compensation under this Act and includes -

(i) a dispute as to liability to make or continue to make weekly payments -

The substantive jurisdiction that was exercised is under those provisions. It is quite, with great respect to my friend, misleading to continue to refer to whether this application may have been under section 62 or 60, when that simply is not what occurred - - -

McHUGH J: Yes, but Mr Tannin, an order was made and is set out at page 211:

That weekly payments to the worker shall be discontinued as from and including 4 September 1996.

What was the source of the legal authority to make that order?

MR TANNIN: The legal authority to make that order, in our submission, is under Part IIIA of the Act.

McHUGH J: Please, let me have a section.

MR TANNIN: Section 84B.

McHUGH J: That just says:

Proceedings . . . are not capable of being brought other than under this Part.

Surely, the only power is the power under subsection (2):

the Directorate may order that the payments be suspended . . . or discontinued - - -

MR TANNIN: To make that order, yes.

McHUGH J: Yes, well that is the source of the power, so that was what he was doing. That was the issue that he had to determine, whether in the exercise of his discretion, he should have ordered that they be discontinued, or reduced, et cetera.

GUMMOW J: And there was a refund possibility, too.

MR TANNIN: Yes, I think it was pursued at that point and dismissed, and then an appeal happened and it was dismissed again. But, in our submission, the jurisdiction to determine what was accepted to be a genuine dispute as to liability, regardless of the power to make a specific order in relation to the continuation of payments, was the jurisdiction exercised under Part IIIA.

McHUGH J: You talk about that, but the only jurisdiction, ultimately, is the authority. Jurisdiction is the authority of a court to do something, and the authority of the court to do something is under section 60(2). It is that order. The Directorate is authorised to make that order. So it is only – so far as issue estoppel is concerned, an estoppel can cover only those matters which are necessarily established as the legal foundation or justification of that order.

Now, that is what you have to show. You have to show that among the findings of the Directorate were matters that were necessary legal foundations for that order, and then you have to show that in some way they defeat the plaintiff’s claim as pleaded in the statement of claim. This is not an injury case, as in Somodaj’s Case, where the point was whether he had an injury in the course of his employment. It had been held in the Workers’ Compensation Commission, no. It is rather like Tringali v Stewardson in New South Wales, which was a capacity case for a particular period. Now, what are the facts that you rely on as being necessary foundations of that order that is made on page 211?

MR TANNIN: They are summarised in our submissions at paragraph 4, but, critically, the first of the findings we rely upon is that the injury that the appellant suffered to his left ankle on 23 March was of minor severity and that it had resolved. That is to be found at page 207 of the appeal book, at lines 45 to 50.

McHUGH J: Is that finding legally indispensable to the order?

MR TANNIN: Yes.

McHUGH J: Why?

MR TANNIN: Because if the injury had resolved - - -

McHUGH J: Well, it could have been aggravated. So you did not have to rely on that finding.

MR TANNIN: In my submission, there is a series of findings. The first of them is that the first injury had resolved. If it had resolved, then the issue of susceptibility that is put against us falls away.

McHUGH J: Not necessarily, because the statement of claim alleges that in April 1995, as a consequence of ongoing instability in the ankle, the plaintiff’s ankle gave way. That is different from saying the injury is resolved or was of minor severity.

MR TANNIN: The injury has resolved. There is no instability left. There is then the further finding – after the review officer dealt with the credibility and inconsistency of the applicant, to which I referred your Honours just after lunch – that the present injuries did not arise out of or in the course of his employment, that is, he had failed to prove that, to discharge his onus, and further failed to demonstrate a recurrence or aggravation of the ankle injury within the definition of disability. That is a wide definition of recurrence.

McHUGH J: That is only at a particular date. It does not stop a further recurrence, further aggravation.

MR TANNIN: In our submission, those findings in combination with an express finding that the injury had resolved must do that. It was indispensable to that conclusion. It is not merely a finding that he had failed to prove disability under the Act, although that would be enough, in our submission, given that disability as defined is the same gateway of disability which is required to be entered in order to obtain leave to issue the District Court proceedings.

The appellant has put before this Court an argument that there is nothing in the legislation, nothing in the parliamentary debate that supports a suggestion that Parliament intended to limit access to the common law. The debates are expressly to the contrary. If I might hand up - - -

McHUGH J: Yes, but there is a difference between evidentiary facts and ultimate facts. They are illustrated in the cases. If you go to a case like Morgan v Morgan where it was found that a finding of refusal of sexual intercourse over a three-year period in support of a claim of constructive desertion did not estop the wife from contradicting the claim with a maintenance action because it was just merely an evidentiary fact. The same in the earlier case of Hindley v Haslam where an employer was not estopped from bringing an action against a worker for damage to materials because in earlier proceedings the same facts had been held not to justify the employer dismissing the employee.

MR TANNIN: Your Honour, it was an essential part of this appellant’s case.

McHUGH J: That does not mean that it is an ultimate fact in accordance with the authorities. It may mean that it is no more than an evidentiary fact. You should read what Lord Justice Diplock said about these things in Thoday v Thoday [1964] P 181.

MR TANNIN: Your Honour, the finding here was that the injuries had resolved. There was a further finding that there was no injury as set out at 209 arising in the course of his employment with this employer and no grounds for finding a recurrence or aggravation. They, in my respectful submission, were ultimate facts. They were not - - -

HAYNE J: What, that there are no grounds?

MR TANNIN: Coupled with the original finding that I referred to, that the injury had resolved.

HAYNE J: Mr Tannin, we are in the area of estoppels. Very precise identification is necessary before one reaches the conclusion that there is an estoppel. In relation to legal indispensability, we need to be clear about the statutory authority for what is being decided because that will tell us what has to be decided.

MR TANNIN: Yes

HAYNE J: Apropos of that Justice McHugh put to you that ultimately it comes back to the exercise of authority granted by section 60(2). Is that right?

MR TANNIN: Yes, but the point we make - - -

HAYNE J: Just before you make your point, another construction of section 60 which I put to you for your consideration is this: subsection (2) concerns the case where there is a genuine dispute as to liability, then certain orders may be made. If that is the legal authority for what was decided, all that was legally indispensable to that conclusion was that there was a dispute, QED, you are out of court.

McHUGH J: Exactly. I was going to suggest to you I just do not see, apart from this issue of genuine dispute, how you can get an issue estoppel under this section.

GUMMOW J: The idea of the opening words of subsection (2) are I think to push you into Part IIIA.

MR TANNIN: Yes, and our point is that under 84B - - -

GUMMOW J: But that does not help you.

HAYNE J: Well, let me offer you a lifeboat and then remove the bung from the lifeboat, so just be a bit careful before you leap aboard, Mr Tannin. The lifeboat is this, that you take section 60 and reading it as a whole you find that section 60(1) is providing the ultimate authority to discontinue or reduce and that the grant of power is implicit when it is said that the employer may apply for an order - I interpolate, final order – and that subsection (2) is concerned with what I describe as “interim relief” in the case of genuine dispute - not a very elegant way of drafting the Act, perhaps it is not the preferable way, but if section 60(1) is the ultimate source for the authority to make an order “Payments are discontinued as from”, why do the findings here, “You have not proved that”, amount to the resolution of any issue?

MR TANNIN: Because, your Honours, whilst section 60 gives authority and power to the court to make a specific order in relation to whether payments be continued - - -

GUMMOW J: Otherwise, you run into 84B.

MR TANNIN: Yes. Section 84B, however, says that:

Proceedings for the resolution of a dispute are not capable of being brought other than under this Part -

which is why I was referring to the finding of a genuine dispute, an agreed procedure for the resolution of that dispute - - -

GUMMOW J: For the resolution, yes.

MR TANNIN: Before the review officer, which occurred, in our submission, and must have occurred under Part III, even if an order was made under section 60 dealing with the specific question of whether payments - - -

GUMMOW J: Not really, because the orders here are at 211, are they not?

MR TANNIN: Yes, they are.

GUMMOW J: This has been.....more than once. Order 1, I think, may be hitched to section 60(2), and order 2 would be hitched to section 71.

MR TANNIN: Yes, but the point is that in terms of the dispute about whether a disability existed sufficient to allow this appellant through the gateway imposed by the Parliament deliberately to limit claims, these findings that there had been a resolution of the original injury and no aggravation or recurrence - - -

GUMMOW J: But the jurisdictional fact is the existence of a genuine dispute as to liability under subsections (2) and (4)?

MR TANNIN: That was what was found.

CALLINAN J: Mr Tannin, I am still troubled by this reference to dispensation with an application and I mentioned that before. It is referred to by the reviewing officer. That would be an application under what section?

MR TANNIN: I will just try and pick up the provision. The review officer, in determining disputes, is not required to - - -

CALLINAN J: At page 198, line 35:

the matter would proceed on the basis that there has been a finding of a genuine of genuine dispute –

That is the jurisdictional fact, I think, to which Justice Gummow has just referred. Then:

a dispensation given so that a fresh application was not required –

Under what section would a fresh application be made? To what sort of a “fresh application” is reference being made there?

MR TANNIN: Under 84ZA, the Act describes how a review is to take place. It takes place - - -

CALLINAN J: On a reference.

MR TANNIN: On a reference.

CALLINAN J: That can be a reference by the applicant.

MR TANNIN: It can be a reference by agreement or by the review officer.

CALLINAN J: Here the parties in fact agreed and the direction reflected that agreement, is that right?

MR TANNIN: Yes. If I can take your Honours to subsection (2) of that section:

The review officer is to act fairly, economically, informally and quickly in resolving the dispute whether by bringing the parties to agreement or otherwise.

CALLINAN J: I understand that, but, in any event, here the parties agreed that something would be heard and directions accordingly were made. That invoked the jurisdiction.

MR TANNIN: Yes.

CALLINAN J: It was a jurisdiction that they could invoke because of that section. Then an order was made and the order could have been made, for example, under 84ZF, is that right?

MR TANNIN: Yes. Indeed, I was going to take your Honours to the scheme of the Act as designed.

CALLINAN J: Just let me finish before you come to that. Then reference to the way in which the review officer expressed the findings, but what about the finding at the foot of page 207 in the last paragraph? That is a finding, is it not?

MR TANNIN: Yes, it is.

CALLINAN J: And it is a finding with respect to the injury with which we are concerned?

MR TANNIN: Yes.

CALLINAN J: He said it is over, it is finished, it is resolved.

MR TANNIN: That is right.

CALLINAN J: Then an order giving effect to that finding was made.

MR TANNIN: That is correct. The order dispensed with the obligation to make the payments which had been continued once a genuine dispute had been found but where, in a context that the parties had already agreed to have the matter determined in August of that year, it was determined that the employer would continue payments. All that happened was that there was a dismissal of the obligation to continue the payments, but that was all dependent on these positive findings. They were findings, in our submission, which – I tediously repeat now – were a Part IIIA exercise.

Under Part IIIA, if I can address now the question that is actually the subject of the grant of special leave – because my friend has discursively gone into all the things he did not get leave for – we have a situation, in our submission, where, whilst the words “final and conclusive” were removed from 84ZN, nothing about the proceedings is indicated to be anything other than final and conclusive. You can see that by the nature of the things that were required to be decided, in terms of the resolution of the dispute about a disability as defined in the Act.

The second point I wish to make is that my friend, at the outset of his submissions, dismissed the significance of the appeal to the workers’ compensation magistrate. That has, in our submission, significance in a number of respects, firstly, in the respect dealt with in the Somodaj decision, which is directly in point, but, secondly, in this case one looks at the fact that there was an appeal on a series of questions, one of which was that the appeals are granted as of right in terms of questions of law, but one of the grounds was that there was a total insufficiency of evidence to found the findings, and that application was dismissed because it was conceded by the appellant that there was evidence.

In respect of the magistrate’s findings, they are said to be final and conclusive. If, in our submission, the finding of the review officer is not final, the magistrate’s certainly is on its own argument that the absence of the clause “final and conclusive” is somehow indicative of Parliament’s intention. It failed because there is the judgment of the workers’ compensation magistrate, which was not appealed, which was not attacked - - -

GUMMOW J: Which is section?

MR TANNIN: Section 117.

GUMMOW J: Section 117, thank you. Yes, we looked at that.

MR TANNIN: So what happens is that the privative clause that existed in relation to where the “final and conclusive” phrase was taken from was simply shifted into section 117. My friend refers also to the fact that in section – sorry, I will just come back to that. Section 117 provides:

Subject to this Act, a determination of a compensation magistrate’s court is final and conclusive and is not open to question or review in any court, and proceedings by or before a compensation magistrate’s court may not be restrained by injunction –

et cetera. So if all that is missing from the review officer’s judgment is this phrase, it is completely supplied by the fact of the later proceedings.

GUMMOW J: Can I ask you this while you have the Act out? Looking at 197 of the appeal book, line 36:

On 19 July 1996 a review officer determined that the applicant employer had established that it had a proper basis to genuinely dispute –

So that looks like section 60(2) -

but did not suspend –

then you go over to 198 -

The notice of listing dated 23 July 1996 contained the following directions for review –

and when you read them, do they look like a reference under 84ZA?

MR TANNIN: Yes they are, in our submission. They are because there is a finding that there is genuine dispute as to the liability of the employer in paragraph 1:

and the parties having agreed prior to that date to have the substantive issue determined at review on 21 August 1996 I direct that the worker be excused from –

filling in the various forms. If that had not happened, your Honours would see that the Act provides for a conciliation process under section 84Y. Sorry, that is the wrong provision - that is the mechanism for conciliation but, in our respectful submission, that is not what - - -

GUMMOW J: And your submission then has to be that the orders at 211, although they might have been made under 60(2) were not, and they were made under the section Justice Callinan referred to, 84ZP – no, not 84ZP, sorry, 84ZF. Is that right?

MR TANNIN: Yes. Your Honour, 84ZA provides the power - - -

GUMMOW J: I am sorry, 84?

MR TANNIN: Section 84ZA. That deals with how - - -

GUMMOW J: Yes, that is right.

MR TANNIN: - - - the dispute is – sorry, how the review - - -

GUMMOW J: Well, you need a reference, you see. The matter is referred.

MR TANNIN: Yes.

GUMMOW J: And it can be referred as it was here, can it not?

MR TANNIN: That was the reference to 84Y:

(1) A conciliation officer is to refer a dispute for review if any of the parties so requests - - -

GUMMOW J: I see.

MR TANNIN: And here we had an agreement. That history is set out at 197. The agreement – well, I do not think it is actually part of the appeal books. At page AB 197:

A conciliation conference on 26 June 1996 did not result in any agreement and the applicant requested that the matter go to review. At a preliminary review on 15 July 1996 –

is the critical date –

the parties agreed that the matter be adjourned to 21 August –

GUMMOW J: What is the difference between a review officer and a conciliation officer?

MR TANNIN: They may be, I think, the same officer, conducting a different function. The conciliation, literally, is to determine whether the parties can agree. The review officer then takes the process further and determines the issue on its merits under Part IIIA.

HEYDON J: The review seems to have been too late – it may not matter. 84ZA says:

Review by a review officer is to commence within 14 days after the day on which a matter is referred for review, or as soon as practicable –

I see. Anyway, that does not seem to matter from the point of view of - - -

MR TANNIN: No, and times do not matter in this Act in the sense that the review officer, once he had jurisdiction, was not bound by rules or technicalities of that character.

HAYNE J: And the worker is still getting the payments.

MR TANNIN: Yes.

HAYNE J: What was legally indispensable to the making of an order under 84ZF?

MR TANNIN: What was legally indispensable, in our submission, was the determination of whether or not there was liability at all to make payments for disability under the Act as defined.

HAYNE J: So the issue was, was section 18 engaged?

MR TANNIN: Yes. As is analysed by each of the judges in the court below, it was an essential part of the appellant’s common law case that the injuries the subject of his claim were causally connected to the accident, the relevant accident, on 23 March 1994. To get leave, he had to demonstrate disability. In relation to that, he failed to do that under section 5 of the Act. In our submission, it is the combination of findings that you find in the review officer’s determination – that the injuries had actually resolved, coupled with the demonstrable failure of the applicant to demonstrate that his injuries arose out of his employment or that there were grounds for finding a recurrence or aggravation within the definition of disability under the Act – and I am quoting the review officer.

McHUGH J: Yes, but a finding that it is resolved is not a legally indispensable fact. It is not an ultimate fact. It is an evidentiary fact.

MR TANNIN: Your Honour, you recall in this case that there is a gateway imposed by the Parliament, that there has to be a demonstration by the appellant of disability under the Act for the purposes of section 93D(4).

McHUGH J: Yes, but there has to be a personal injury arising by accident, arising out of or in the course of employment – that is one definition of disability – or the recurrence of a pre-existing disease was a contributing factor. It has been held here that there was a personal injury by accident, so you do not get anywhere with disability. You may with recurrence, but, so far as personal injury is concerned, the finding is against you. Where is there anything about capacity?

MR TANNIN: Can I just emphasise again the finding is not merely that there was an injury in the course of work; the finding was that it had resolved. That is not ambiguous.

McHUGH J: I understand that, but what I am putting to you is that that finding that it was not resolved was not legally indispensable to the ultimate finding. I mean if you look at all the cases – and at one stage I had read most of these cases for one reason or another – you will find that ultimate issues are very narrowly confined. Even in Hoysted’s Case, where it was held that by assumption there was an ultimate fact, that has been overruled in Caffoor’s Case in 1961. The cases make it plain that there is a difference between what is an evidentiary fact and what are the ultimate facts in dispute. The ultimate fact in dispute here is a personal injury.

MR TANNIN: The findings of the Court below, the unanimous findings which were not the subject of any grant of leave, as I understood it, were that the determination that the ankle injury had resolved was indispensable to the determination that there was no connection between the injuries then sustained and the matters of which the applicant complained for the purposes of granting leave, that is, there was no disability. That is not, in our submission, merely an evidentiary fact.

McHUGH J: Well, I remain to be convinced of that, that that finding about it being resolved was a legally indispensable fact.

CALLINAN J: There could be no order for the discontinuation of the payments, unless there had been that finding, could there?

MR TANNIN: That is correct. This is a jurisdiction granted to a review officer to resolve a dispute. The dispute was whether there was a disability as defined. He resolved that dispute. Without that disability as defined, the gateway for the bringing of leave applications under 93D, that is, disability, could not be opened.

McHUGH J: But he made his finding as at 4 September 1996.

MR TANNIN: That is correct.

McHUGH J: So the payments finish as of that date and you are on this safe ground: that as of that date there was no incapacity. But where was the section that gives the worker his right? It has to be section 18.

MR TANNIN: Yes.

McHUGH J: So that is what we are looking at:

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.

A disability did occur, namely, the suffering of the injury in March, and that was held to be a disability because it occurred in the course of employment. The question then was whether you were liable to pay compensation in accordance with Schedule 1. What is the relevant clause? It must be 7, is it?

MR TANNIN: I do not have the schedule here, but it is for weekly payments. So it would be in relation to incapacity, whether it be 7 or 8 or whatever. The schedule sets out the various items of payment.

McHUGH J: But that shows you what is legally indispensable to the finding. The rest is all evidentiary.

MR TANNIN: The finding in this context was not merely that an injury had happened and then resolved, but that the present injuries – that is, the later injuries referred to at page 209 – did not arise out of or in the course of the employment with MetroBus. That is, no disability. It is the same formula.

McHUGH J: That may be and you may have a point there, but at best, that would only be a case of closed period estoppel. It would not mean that the worker could not show that there were subsequent aggravations or subsequent problems immediately after that date.

MR TANNIN: But, in our submission, it was not merely closed period estoppel. The finding that - - -

McHUGH J: Well, that could not possibly raise any sort of estoppel after September 1996 when the order was made.

MR TANNIN: But the finding here is that the first injury had resolved, and that the other injuries, at the time of the hearing, did not arise out of the course of employment, and were not recurrences or aggravations. In other words, the - - -

McHUGH J: Well, I have put to you about evidentiary facts. The reviewing officer did not believe, that is not an ultimate fact - - -

MR TANNIN: No, I am not - - -

McHUGH J: In one sense, that was indispensable to his findings.

MR TANNIN: But we do not rely on the fact that the review officer found him untruthful as the issue estoppel. Our point is that, given the findings of the review officer, that the chain of causation, any chain of causation between what he was later claiming and what was the responsibility of this employer had been broken, and that was the finding of each of the members of the Full Court below.

McHUGH J: Well, let me read you what Lord Justice Diplock said:

The determination by a court of competent jurisdiction of the existence or non-existence of a fact, the existence of which is not itself a condition the fulfilment of which is necessary to the cause of action which is being litigated before that court, but which is only relevant to proving the fulfilment of such a condition, does not estop at any rate per rem judicatum either party in subsequent litigation - - -

MR TANNIN: Nothing, with respect, that the respondent puts to this Court is in conflict with that, but we put it in the context of section 93D, that is, there was a finding here by the review officer of a resolution of the injury, of no further aggravation or recurrence, of nothing arising out of the employment attributable to the employer. Then this applicant sought leave under section 93D where he had to prove that the disability had occurred, a disability in exactly the same terms, and he failed to do that because he was estopped from raising the very same points. Now that, with respect, is the way the Act was designed to operate. It was a very calculated decision by the Parliament, to limit access to common law. Can I take your Honours to – I will not go through it in detail - the Hansard - - -

GLEESON CJ: Yes, you can hand that up. Thank you.

MR TANNIN: It is the second reading speech by the Minister, Mr Kierath, at the time. The passages I expressly refer to are at page 4233 in the second paragraph:

The Bill, introduces a number of fundamental changes to streamline and improve our workers’ compensation system: First, it addresses escalating common law costs and associated legal expenses by permitting only workers who have a serious disability access to common law. Secondly, the Bill provides for significantly improved statutory benefits for injured workers . . . Thirdly, it simplifies the dispute resolution process by introducing a conciliation and review process. Fourthly, it provides for the appointment of a workers’ compensation magistrate. Fifthly, a medical assessment panel will be established to make determinations on the medical aspects of disputes. Sixthly, journey accidents while travelling to and from work will not be compensible under the Act. Seventhly, the Bill clarifies the definition of disability to reinforce the requirement that a worker’s employment must be a significant contributing factor to a disability for it to be compensible.

The continuing passages your Honours can read. You will see - - -

GUMMOW J: There is a lively debate at 4234 there.

MR TANNIN: It is a very exciting debate, indeed, your Honours. The traditional view - - -

HAYNE J: Views about sanity.

MR TANNIN: Yes. The traditions of Australian debate in Parliament are entirely met within this exchange. I will not read them. The person doing the exchanges is now the Attorney-General. At page 4235, at about point 5, in the paragraph commencing:

There has been a lot of noise and misinformation about the impact of the restrictions on access to common law. However, who are we here to protect? Injured workers or vested interest groups which prosper from the inefficiencies of the old common law system?

GUMMOW J: This is the greedy lawyers reference?

MR TANNIN: Yes, this is the greedy lawyers point, but, going on:

That is the driving force behind our restricting access to common law.

There is no question that that is what the Parliament was seeking deliberately to do. If your Honours then continue, at page 4328, you will see a concise summary of the features of the new system that were intended to be introduced. When the debate resumed after one of the helpful interjections, Mr Kierath said:

The legalised nature of the current dispute resolution system means many workers are unable to pursue their entitlements due to the need to seek legal representation and pay associated legal fees. Even at the chambers level, the complexity of the procedures requires legal expertise.

It continues, in justification, and then deals with the fundamental alterations that the Bill achieved or was designed to achieve:

The Bill fundamentally alters the dispute resolution process and emphasises the use of conciliation. The main features of the new system are as follows –

Conciliation officers will seek to resolve disputes by agreement between the parties. Conciliation officers must have regard to the need to be fair, economical, informal and quick in bringing the parties in dispute to agreement.

Review officers will hear and determine disputes unable to be resolved by conciliation and will review any orders made by Conciliation officers.

A Compensation Magistrate appointed by the Chief Stipendiary Magistrate will hear appeals on questions of law against review officers’ decisions and any matter referred from the review process.

The magistrate will also be empowered to enforce orders of the review officers and convict persons who have committed offences under the Act.

The magistrate’s decision can be appealed on questions of law to the Supreme Court.

Nothing in the tenor of that speech suggests that the court was seeking to exclude the operation of issue estoppel in these proceedings. It is entirely consistent with the aim of the Act, that is, to limit common law claims, particularly where, as in this case, the matter had been heard on the merits.

My friend just commenced to make some assertions about the quality of the hearing, that there was not full legal representation – I think the people were represented by articled clerks. The fact is that the hearing, on any assessment of it, was fair. It was proper. There was no suggestion of any impropriety, or lack of regard for rules of natural justice, or whatever. It was never challenged at all, and it is wrong to approach the matter from the policy view that, given this was a matter before a review officer, somehow the findings that this application, on its merits, did not meet the definition of disability are to be discounted.

I have written careful submissions and I am not going to take your Honours through each of them. In our submission, if you go through the written submissions, each of the indicia of the application of issue estoppel are met and each of the indicia which were analysed before the
Full Court in this matter indicate the indispensability of the findings. That was not the ground for which special leave was granted. It was only in relation to the very narrow matter of finality, and, on that ground, in our submission, there is just simply no credible argument put by the appellant at all. They are my submissions.

GLEESON CJ: Thank you. Yes, Mr Nugawela.

MR NUGAWELA: Your Honours, I will try to be brief. I have seven quick points to make.

GUMMOW J: What do you say about the width of the grant of leave?

MR NUGAWELA: Yes. In ground 2 - - -

GUMMOW J: The order is at page 352, the ground at 352 - looks pretty wide at the moment.

MR NUGAWELA: Yes, “could and did apply”.

GUMMOW J: Yes.

GLEESON CJ: My recollection from the special leave application is that the reason for the restriction to their ground was that the other grounds did not add anything to it or were regarded as argumentative elaborations.

KIRBY J: The Chief Justice’s recollection conforms with my reading of the transcript of the special leave hearing this morning.

MR NUGAWELA: Yes. And our simple point is “could and did apply” is sufficient.

KIRBY J: It began with calling upon the respondent.

MR NUGAWELA: Yes.

KIRBY J: And then you were brought into it.

MR NUGAWELA: Yes.

KIRBY J: That led to the questioning of whether you needed anything else than the essential one and you said that is the core of it.

MR NUGAWELA: Yes. There was one of the points I was going to make in reply, your Honours. My learned friend started by saying that the decision of the review officer was not made under section 58 or section 60 and he conceded that had it been made under section 58 or section 60 there would have been interim matters, he said. However, he said that the jurisdiction of the review officer arose generally under Part IIIA.

If your Honours looks at the scheme of the Act under the index to the Act, your Honours would see that division, specifically Division 5, under Part III. Part III deals with matters relating to compensation, and Division 5, specifically “Commencement, review, suspension, and cessation of payments”.

We say that if my learned friend’s submission is correct that there is somehow a general jurisdiction arising out of Part IIIA, then the entire Division 5, which has been in existence since the inception of the Act, would be otiose. There is just no need for it.

On the question of the resolution of the disability or the injury, your Honours, turning to page 207 of the appeal book, lines 45 to 50 – and this is in development of our obscurity point, the obscurity point which was agitated in the notice of appeal to the Full Court at page 255, ground 2:

The learned Commissioner was wrong in law and in fact in holding that the determinations of the Review Officer were legally indispensable to the issue falling for determination by him in that the application before the Review Officer was obscure –

Coming back to the finding on page 207, the review officer clearly found, on the basis of the final medical certificate, the injury resolved. If we skip a few pages back, your Honours, to page 200, line 20, he refers to the same final medical certificate and finds, in effect, that all the final medical certificate did was certify a partial recovery. The final medical certificate is reproduced in volume 1, page 47. Under paragraph 6, it clearly says that the worker is “PARTIALLY recovered” and a “Full recovery [is] expected”.

As your Honour Justice Hayne put to my learned friend, it is important, at least, to have a precise identification of what the issue was determined and how it was determined, and we say, particularly because Australian law does not have the safety mechanism of discretionary exceptions to issue estoppel, unlike other jurisdictions, there must be a very strict, we say, application of the elements of the doctrine.

My learned friend then made the submission that section 84ZA was a source of the review officer’s jurisdiction, and he referred to the need for reference in section 84ZA(1), but your Honours, the reference arises out of section 84Y. Section 84Y deals with the powers of a review officer. One can conveniently see the scheme of the Act by looking at the index again, and in index under Part IIIA, you have dispute resolution. Division 2 talks about conciliation and conciliation officers, and ends 84Y, which says, essentially, that if a conciliation officer cannot bring the parties to a conciliated outcome, he or she must refer the matter to the review officer, and that is where Division 3 is introduced, powers and duties of a review officer. So that the identity of a conciliation officer is actually different from a review officer. A conciliation officer who conciliates and then you have the longitudinal - - -

GUMMOW J: But it can be the one human, can it not?

MR NUGAWELA: No, it cannot, not under the way the Directorate has been set up. They are distinct creatures, with respect.

GUMMOW J: Are you saying that one person cannot hold both offices?

MR NUGAWELA: Correct. Page 197 of the appeal book, line 15, and it referred to a conciliation conference occurring on 26 June 1996, and that was where the matter went off to the review officer. Well, that is not right. The conciliation conference referred to in that paragraph was the conciliation conference of the original section 60 genuine dispute application and it was that that was referred to the review officer. That was determined on the following basis, that there was a genuine dispute but the review officer did not discontinue or interfere with the continuance of payments under section 60. Once that referral had been made by the conciliation officer, it was extinguished.

GUMMOW J: Where was the power to refer it?

MR NUGAWELA: From the conciliation officer?

GUMMOW J: Yes.

MR NUGAWELA: Section 84Y. So what happens is that a party files the application – that looks like page 193 – either party does that. Your Honours would see at the top of the page it is an application referring a dispute for conciliation. The conciliation officer tries to conciliate the matter. If it cannot be conciliated, then under 84Y it is referred to a review officer, which is what happened here. The first review officer then became seized of the matter under 84ZA upon the referral from the conciliation officer and then decided that, whilst a genuine dispute existed, he was not going to grant the relief that he could grant under section 60(2), and that was the end of the dispute.

CALLINAN J: Did not the parties then invite the reviewing officer – they invoked the jurisdiction of the reviewing officer to decide the very matter that the reviewing officer decided. Is that not right?

MR NUGAWELA: I think there was a direction, your Honour Justice Callinan.

CALLINAN J: Well, a direction, but the direction gave effect to the agreement. That really appears from paragraph 1 on page 198. The question might be precisely what the reviewing officer decided, but there is no question that, whatever he decided, he was invited to decide by both parties, including your client.

GUMMOW J: Why was the order that he made not an order under 84ZN?

MR NUGAWELA: Section 84ZF – I am coming to that very quickly. In answer to your Honour Justice Callinan, I understand that and I agree with that, but, in answer to my learned friend’s submissions and the specific questions from your Honours as to the specific statutory source of the jurisdiction, we say it cannot arise under Part IIIA. That is the true legal position. The fact that the parties might have agreed to a future course - - -

CALLINAN J: It sounds to me like a jurisdictional point. There is quite a lot of authority against you, is there not, if in fact you have invoked jurisdiction and then later on you try to say that the jurisdiction could not be exercised? It is all discussed in Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381.

GUMMOW J: Did you not cross-appeal to the magistrate?

MR NUGAWELA: I think the worker appealed.

GUMMOW J: That is under 84ZN(2).

MR NUGAWELA: It is.

GUMMOW J: That postulates a review officer making an order under Part IIIA.

MR NUGAWELA: Yes, it does, and the majority found that was under Part IIIA.

CALLINAN J: Your complaint before the magistrate was substantially that the onus should not have been imposed upon your client, according to the magistrate’s recitation of the grounds of appeal.

MR NUGAWELA: Yes, that was one of the grounds - - -

CALLINAN J: I know there are others, but it seemed to be the one that loomed largest. It seems to me you are trying to take a jurisdictional point in respect of a matter that you invoke the jurisdiction.

MR NUGAWELA: Your Honours, in relation to my learned friend’s submissions concerning the compensation magistrate’s decision - and we referred your Honours to section 117 of the Act which says that the magistrate’s decision is final and conclusive - we make three or four sub-points. Section 118 itself, as your Honour Justice Gummow noted earlier, provides that a magistrate’s court may reconsider that decision. The next point is that it really misconceives the nature of the compensation magistrate’s appellate jurisdiction. That is only excited upon an error of law being involved. All the compensation magistrate - - -

GUMMOW J: It is not limited to a question of law.

MR NUGAWELA: No, just where a question of law is involved.

GUMMOW J: It is like our 190 of the Tax Act.

MR NUGAWELA: And in Bond and cases like that, but the magistrate does not hear an appeal by way of rehearing on fact and by way of rehearing. All the magistrate does, in our submission, is that he or she finds that an error of law is shown or is not shown and grants relief. It does nothing more than that and when read with section 118, we say it does not confer basis for invoking the doctrine of issue estoppel.

One considers my learned friend’s pleadings on the point. That is also manifest because there is no real reliance, in our submission, upon the magistrate’s decision as a ground in the issue estoppel. When one reads paragraph 9 together with paragraphs 10 and 11, might we say that paragraph 10 saves my learned friend, but when one goes back to paragraph 11 and looks at the particulars of the issue estoppel there is no reference whatsoever to the magistrate’s decision. It is all the review officer’s findings.

An ultimate point, your Honours, by way of reply is this: the nature of the statutory rights that the worker has and this concept of disability, my learned friend referred your Honours to section 18 and clause 7 of the first schedule. The entitlement of a worker to weekly payments of compensation, which is what this case is concerned about, arises upon the satisfaction or proof that such a worker has an incapacity for work, so that it is not just section 18 of the Act that is relevant but also section 21. Section 21 of the Act as it stood is in the same form as section 21 as it now stands. Regrettably, it is not in the material before your Honours, but it is a very short section and it reads:

Compensation from date of incapacity

An employer is liable to pay compensation under this Act from the date of incapacity resulting from the disability but clause 9 applies in any case.

If one goes to clause 7, again it is posited upon the existence not just of a disability but an incapacity resulting from a disability. Subclause (1) speaks of “when total incapacity for work results from the disability” then a weekly payment, et cetera, is made in accordance with that section.

So, on the one hand, what the review officer is asked to determine is not whether there is an existence or otherwise of a disability, because often a disability may not result in incapacity – I might injure my little finger, fracture it, your Honours, but still have the capacity to do my job. I have a disability and impairment but no incapacity. The Act is predicated upon a disability causing incapacity which then gives rise to weekly payments.

The fact that a review officer makes a finding that a worker, on the evidence before him or her at the time, does not have an incapacity resulting from a disability has nothing to do, we say, with the concept of future pecuniary loss, and that future pecuniary loss is the gateway for access to common law damages.

My learned friend made the submission that in order to access common law damages, every aspect of the injury has to constitute a disability. We say that is wrong. Once there is already a finding that there is a personal injury by accident that is a disability, that personal injury by accident could give rise to all sorts of sequelae. A back injury could give rise to depression. The holistic assessment of common law damages takes into account not just the back injury, but the depression, the sequelae. Statutory payments do not arise out of the sequelae; they arise out of the disability causing incapacity for work.

This is the identity of issues point. When the District Court is deciding future pecuniary loss for the purposes of access to common law damages in the future, all it has to do is find that there is a disability and then consider all aspects of that disability, including susceptibility to further injury. There can be, in our respectful submission, not just temporally, in terms of time and place, but also conceptually, no identity of issues between current capacity for work at this point in time and future pecuniary loss under the gateway access to common law damages. So much, again, is made clear by the Full Court decision in Re Monger; Ex parte United
Constructions. That was the five member decision which we have referred to in our outline of submissions.

Your Honours, we have looked at the reference to Hansard. The references to Hansard in relation to the entire Amendment Act are almost one lever-arch file in size and they deal with the substantial amendments made in 1993. My learned friend has taken your Honours to that part of the commentary of the Minister’s statement that dealt with the rationale for restricting access to common law damages. We say that does not speak at all of Parliament’s intention on the question of issue estoppel. When one goes through all of Hansard, there is no reference as to Parliament’s intention on the question of issue estoppel and finality. Unless your Honours have anything for us, those are our submissions by way of reply.

GLEESON CJ: Thank you, Mr Nugawela. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 4.32 PM THE MATTER WAS ADJOURNED