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High Court of Australia Transcripts |
Last Updated: 3 May 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M176 of 2010
B e t w e e n -
MAURICE BLACKBURN CASHMAN
Appellant
and
FIONA HELEN BROWN
Respondent
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL
J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 3 MAY 2011, AT 10.17 AM
Copyright in the High Court of Australia
MR M.F. WHEELAHAN, SC: May it please the Court, I appear with my learned friend, MR S.A. O’MEARA, for the appellant. (instructed by Minter Ellison)
MR P.W. TREE, SC: May it please the Court, I appear with my learned friend, MR S.R. McCREDIE, for the respondent. (instructed by Lennon Mazzeo)
FRENCH CJ: Yes, Mr Wheelahan.
MR WHEELAHAN: Your Honours, the resolution of this appeal requires that attention be directed to the terms of the legislation. I propose to take the Court to the legislation first.
FRENCH CJ: I am glad to see there is something other than numbers on your outline.
MR WHEELAHAN: When we get halfway the Court will see that we do not have far to go.
HAYNE J: The mathematics of that are remarkable, Mr Wheelahan, yes.
MR WHEELAHAN: I propose to work from reprint 17. As we work on reprint 17, I will note any relevant amendments for the Court’s assistance.
FRENCH CJ: What number of authorised version is that? I have authorised version No 170.
MR WHEELAHAN: That will be sufficient, yes.
FRENCH CJ: Thank you.
MR WHEELAHAN: The authority whose role is central to the resolution of this appeal is a statutory body established by section 18 of the Act. Its functions are prescribed by section 20 of the Act. The functions include, under subsection (1) are to:
(a) administer the WorkCover Authority Fund;
(aa) receive and assess and accept or reject claims for compensation;
(b) pay compensation . . .
(f) provide insurance –
and we will have to return to that topic –
(g) defend actions against employers under this Act and at common law;
(ga) determine, collect and recover premiums –
Under section 32 there is provision made for the establishment and maintenance of the WorkCover Authority Fund. Subsection (3) makes provision for payments into the fund and they include, under paragraph (fa), premiums. Subsection (4) makes provision for payments out of the fund and they included, under paragraph (a):
payments of compensation or any other payments required under this or any other Act –
and they also include, under paragraph (ha):
any payment arising under or in connection with a WorkCover insurance policy –
Under section 39 of the Act, what is called “exclusive jurisdiction” is conferred on the County Court in relation to any question or matter under the Act. Could I just ask the Court to note that although it is described as “exclusive jurisdiction”, there is also a concurrent jurisdiction conferred on the Magistrates Court under section 43.
Section 45 of the Act is the first place where we see reference to medical questions and, as we note in our written submissions, there are a number of ways in which medical questions may be referred to a medical panel for opinion under the Act, this is the first way, and its reference by the court, which would be either the County Court or the Magistrates Court. “Medical question” is defined in section 5 of the Act but, as we shall see, the definition of “medical question” should not be relevant for the purposes of this appeal because the relevant questions were prescribed by section 104B(9).
We next turn to section 55A of the Act which is another instance where medical questions may be referred to a medical panel for opinion and in this instance, it is upon referral by a conciliation officer after application has been made to the senior conciliation officer. The relevant provisions are in subsections (1) and (3) of section 55A. Section 56(6) makes reference to conciliation officers. It provides:
A Conciliation Officer may refer a medical question to a Medical Panel for an opinion under this Division.
And, we would submit, therefore subject to the limitations in that division. Section 63 of the Act makes provision for the establishment and constitution of medical panels and we see from subsection 63(2) that:
For the purpose of constituting Panels, there is to be a list of members consisting of medical practitioners –
We turn next to section 65 which makes provision for procedures and powers of the medical panel and we see from subsection (1):
A Panel is not bound by rules or practices as to evidence, but may inform itself –
We will see through this legislation that the process is, in our submission, an inquisitorial process rather than an adversarial process. Subsection (2) provides that:
The Panel must act informally –
Subsection (4) provides that:
Any attendance of a worker before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.
Subsection (5) provides that:
A Panel may ask a worker –
(a) to meet with the Panel –
In paragraph (c) the panel may ask the worker:
to submit to a medical examination by the Panel or by a member of the Panel.
thus, reinforcing the nature of the inquisitorial process. Under section 65(6) the panel may, with the consent of the worker, make inquiry of a treating medical practitioner. That is not the words of the subsection but that is the substance of it. Subsections (6)(a) and (6)(b) make provision for the submission of relevant documents to the medical panel to assist it in its opinion process. Now, there is no provision in terms in subsections (6)(a) or (6)(b) which permit that submissions be made to the medical panel, but we say to the Court it is the practice that often written submissions are made by both the authority and workers.
FRENCH CJ: Is that a requirement or covered by the guidelines referred to in subsection (8)?
MR WHEELAHAN: I am not able to answer that question. I will make inquiries and come back to that question. We turn then to section 67. Section 67 states, perhaps repetitiously, that:
The function of a Medical Panel is to give its opinion on any medical question –
Section 67(2) provides for a process which we submit is different to the submission of a medical question. Subsection (2) empowers the:
Conciliation Officer, the County Court, the Authority or a self-insurer –
to require a worker –
to submit himself or herself for examination –
That subsection does not in terms provide for the submission of medical questions. Section 47 of the Act makes provision for the admission of a report following a medical examination into evidence in a proceeding under this Act and it is our submission that a proceeding under this Act for the purposes of section 47 is a compensation proceeding and not a common law proceeding. We turn now to section 68 - - -
CRENNAN J: May I just interrupt for one moment. Just going back for a moment to section 65(6A) and (6B)? You were talking about submissions often being made. That would not include an employer, I expect?
MR WHEELAHAN: No, because the authority would have the carriage of the claim both under the Act as an administrator of the Act and as the insurer with a right of carriage of the claim, save where the employer is a self-insurer, which is not this case. We come to section 68, subsection (4) of which was central to the Court of Appeal’s decision in this case. Subsection (2) provides that the medical panel is to give a certificate. This is one of the sections where I said I would note an amendment. The amendment here is there is now, as a result of the 2010 amendments, a requirement that the panel give reasons. At the time the medical panel gave its opinion in this case on 28 June 2006 there was no requirement in the Act that the panel give reasons. There was an ability, however, for interested persons to request reasons, not under the compensation legislation but rather under the Administrative Law Act 1978 (Vic). We turn now to subsection (4) and we note the controlling words at the commencement of the section which are:
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied -
We will submit that those controlling words confine the operation of the section to those matters to which the reference of medical questions to the medical panel related. The next section we take the Court to is section 82, which is the general provision permitting or providing for statutory compensation, and it is in a form with which the Court will be familiar. A cognate provision in the Workers Compensation Act 1987 (NSW) was considered by this Court in Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473. The significance of this provision is that the circumstances under which compensation is payable are of course quite different to the facts which would engage a duty of care giving rise perhaps to a breach and a liability to pay common law damages. The scope of the section is obviously much broader.
In relation to psychiatric injuries, there are some exceptions in paragraph (2A) which are not relevant to this proceeding because the injury was accepted. We note that (2A) appearing in this version of the Act was substituted in 2010 and one would need to look at an earlier version, say in reprint 12, that version applicable at the time of this worker’s claim and injury.
BELL J: May I just inquire, the Court of Appeal said that relevantly the Act was to be construed as it stood before the amendments introduced by Act No 9 of 2010. Is that in issue?
MR WHEELAHAN: I do not believe that is in issue.
BELL J: Thank you.
MR WHEELAHAN: There is just one aspect of the amendments and that is that subsection (19A) of 134AB was introduced by the 2010 amendments and under the amending Act it was deemed to have commenced operation on 10 December 2009. Subsection (19A) is not directly relevant to this proceeding but its introduction may be relevant to the context in which other subsections of 134AB are to be construed. If we look at 134AB perhaps as a chord, one of the notes in the chord has been changed.
Assessment of impairment is subject to the requirements in section 91 of the Act and there are two subsections which are relevant; firstly, subsection (1) which requires that, generally, assessment is to be made in accordance with the AMA guides, but for the purposes of this case we have to look at subsection (6) which relates to psychiatric impairment. For the purposes of psychiatric impairment, the legislation substitutes for Chapter 14 some other guidelines. I will take the Court to the guidelines shortly.
The next section is section 98C. Under former workers compensation legislation there was what was known as a table of mains which made provision for lump sum payments. Under this Act, in respect of injuries occurring subsequent to November 1997, lump sum payments are subject to a different regime whereby a formula is applied to calculate the level of the lump sum payment. There are two subsections of 98C which are relevant; firstly, subsection (1), which is the general entitlement to a lump sum payment for non-economic loss and then subsection (3), which is the provision applicable to psychiatric impairment.
Could we hand to the Court a page containing the version of subsection (3) which appears in version 140 of the Act, that being the version applicable to the respondent’s claim in this case. In concept, the two versions are similar, namely, that there is a formula and there are fixed figures which are contained in the Act and then in both versions there is a variable which is identified as D and the variable is the worker’s degree of impairment expressed as a number. That appears in the last phrase in subsection (3). So, as we will see, one of the purposes of assessing the level of impairment pursuant to subsection 91(6) is to arrive at a figure which is then put into this formula pursuant to which the entitlement to the lump sum payment is calculated.
We turn now to section 104B which, in broad outline, sets out a process for the handling and determination of claims for, amongst other things, the lump sum payments under section 98C. We see from subsection (1) of 104B that it is stated expressly that it applies to claims for compensation under section 98C. Subsection (2) provides, in substance, that the authority or self-insurer must, within 120 days of receiving a claim, obtain assessments of impairment in accordance with section 91. That is referred to in paragraph (b). Paragraph (c) then requires the authority itself to determine the degree of permanent impairment and that determination is after taking into account the assessments obtained under paragraph (b).
In paragraph (e) the authority is then required to calculate the entitlement to compensation. So that would involve putting into the formula under section 98C(3) a figure arrived at for (d). Paragraph (f) then makes provision for the authority to advise the worker of two relevant things, firstly, the authority’s determination of the level of impairment and, secondly, the authority’s calculation of the entitlement to lump sum compensation. Subsection (2A) provides that the authority is not bound by the assessments which are obtained under paragraph (2)(b). Subsection (5) is, in our submission, an elaboration of paragraph (2)(b). Subsection (5A) requires the worker to include all injuries arising out of the same event or circumstances as part of the claim for compensation.
We turn next to subsection (6B) and it is at this point that the claims process goes down two paths and the paths may be described as follows. If the worker accepts the authority’s impairment assessment and calculation of the compensation which is payable, there is then an obligation on the authority to pay the compensation under subsection (8). Subsection (7) makes provision for the process which is to apply where the authority or self-insurer disputes liability for the injury. Now, that would occur, for instance, if the authority or self-insurer considered that the injury was outside the terms of section 82, that is, the injury did not arise out of or in the course of employment. Where that dispute arises, that dispute is then to be determined in accordance with other provisions of the Act including the judicial power conferred on the County Courts and the Magistrates Court.
We come now to subsection (8), which I have already mentioned, and it provides that the authority is to make the payment within 14 days. Just pausing there, this subsection, in our submission, is to be read together with section 125A, to which I will come, but 125A casts the obligation on the employer – rather, the liability on the employer for the payment of compensation under this Act. Subsection (8) has to be reconciled with section 125A and the way it is reconciled is to read subsection (8) as making provision for the mode and manner of the payment of compensation by the authority which will either be the statutory insurer of the employer under the Accident Compensation (WorkCover Insurance) Act 1993, to which I will take the Court, or separately liable in circumstances where there is an uninsured employer, but the primary liability remains at all times, in our submission, on the employer, itself.
We come now to subsection (9), which is central to this case. It provides, in substance, that if the worker disputes the impairment assessment, then the authority must refer medical questions to a medical panel. The medical questions which are to be referred are prescribed by paragraphs (a) and (b) and they are, firstly, the degree of impairment, secondly, whether the worker has injuries which are in the nature of a total loss for the purposes of 98E. We are not concerned with paragraph (b) in this case, only paragraph (a). It will be our submission, in due course, that the jurisdiction, if one can use that word, of the medical panel, is confined to these statutory questions. It can go no wider or more widely. It is a very specific jurisdiction. It does not extend to the determination for general purposes of any questions which might arise between parties.
Subsection (10) makes provision for the authority advising the worker of the opinion of the medical panel. Subsection (10A) provides that the worker must either accept or dispute the entitlement to compensation, but no reference to determination in subsection (10A).
FRENCH CJ: Just before you leave subsection (9), you say that, as I understand it, the assessment of degree of impairment is defined by and according to statutory criteria which are imported by reference through section 91?
MR WHEELAHAN: Yes. Subsection (10B) is much like subsection (8), that is, it provides that the authority is to pay the compensation within 14 days of the worker advising that the worker accepts the entitlement to compensation.
BELL J: In the event the worker disputes the entitlement, again, is that a matter that is dealt with by the County Court under the statutory regime?
MR WHEELAHAN: Yes, that is our submission. So in theory the authority might make an arithmetic error in calculating the entitlement to compensation. That would then give rise to a dispute in respect of which the County Court or the Magistrates Court would have jurisdiction, but the impairment assessment itself is taken outside the provisions for judicial resolution of disputes under this Act by subsection (12), which is the next section to which we turn. Subsection (12) simply provides that:
No appeal lies to any court or Tribunal from a determination or opinion –
(a) as to the degree of permanent impairment –
Now, that subsection must be read, of course, subject to the Victorian Court of Appeal’s decision in Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, and there is a long line of cases which follow it, whereby the court held that, amongst other things, the medical panel is under an obligation to accord natural justice; that therefore engages the Administrative Law Act (Vic). Opinions of medical panels have been held by the Court of Appeal to be the subject of judicial review, but that, of course, is an entirely different process to appeal. We turn next to section 125A, which I have already mentioned.
FRENCH CJ: At the time of Masters v McCubbery, was the provision for ministerial guidelines relating to procedural fairness in place?
MR WHEELAHAN: I do not know the answer to that question. I will make inquiries. Section 125A, and in particular subsection (2), provides that:
the liability to pay compensation is to be assumed in all cases by the worker’s employer.
Now, there seems to us to be no limit on the type of compensation which would be the subject of subsection (2) and we submit that it extends to the lump sum payments of compensation under section 98C. We next take the Court to section 129R and we do so because it may be relevant to determine whether there is any privity of interest between the authority and the employer. The authority has a statutory right under section 129R to conduct the defence of common law proceedings against employers.
We turn next to section 134AB which, as has been noted before, contains no fewer than 38 subsections. Our submission is that 134AB establishes a comprehensive scheme for filtering those injuries which may be the subject of common law proceedings and confining common law proceedings to those in respect of injuries which enter one of the four gateways in this section which I will identify for the Court. The starting point is subsection (1) which the Victorian Court of Appeal has held contingently extinguishes the common law cause of action. We have referred to the relevant authorities on that question in footnote 13 of our written submissions. Subsection (2) is, in our submission, a descriptive provision. It provides that:
A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if . . . the injury is a serious injury –
Our submission is that the words “if the injury is a serious injury” is descriptive of the four gateways which appear in subsequent subsections. A further point to note before we move forward is that each of the gateways is to be satisfied prior to the commencement of a proceeding. In other words, whether the injury is a serious injury for the purposes of subsection (2) under the scheme of this section could never arise at the trial of the proceeding. Subsection (3) contains a prohibition on the bringing of a proceeding unless, firstly, a determination of the degree of impairment has been made under section 104B and an application is made under subsection (4), that that reinforces that the gateway process must be engaged prior to the commencement of a proceeding.
Subsection (4) makes provision for the application. That must be read with subsection (5). We note that subsection (5) has been substituted by the 2010 amendments but, for present purposes, it is similar in concept to the previous version. We go from subsection (5) then to subsection (7) and it makes provision for a response by the authority or self-insurer to the application and the subject matter of the response is prescribed by subsection (7). The authority must:
advise the worker in writing –
(a) that the worker is deemed to have a serious injury; or
(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate –
We see there two of the four gateways. The first gateway is the deemed serious injury. The second is consent under paragraph 16(a). A third gateway is in subsection (9). So if there is default in providing the advice under subsection (7), again there is deemed to have been suffered a serious injury. Just pausing there, on the Court of Appeal’s reasoning, if the authority failed to provide timely advice under subsection (7), it would have the effect that for the purposes of that common law proceeding the worker is deemed to have a serious injury and that would be effective against any defendant whether or not an employer, which, in our submission, is a radical consequence of a default of the nature referred to in subsection (9). We turn then to subsection (15) which was one of the provisions central to the Court of Appeal’s reasoning. It provides that:
If the assessment under section 104B . . . is 30 per centum or more, the injury is deemed to be a serious injury –
The different positions of the appellant and the respondent may be framed as follows. The appellant’s position or submission is that the deeming effected by subsection (15) has a logical purpose and that purpose is for the assessment of applications by the authority made under subsection (4) and for the provision of advice by the authority under subsection (7). It is not necessary to give subsection (15) any wider purpose. Subsection (15) is in similar terms to section 93(3) of the Transport Accident Act and in our written submissions we have given a very brief background to these types of provisions. No one has ever suggested that section 93(3) of the Transport Accident Act has similar effect to that which the Court of Appeal determined in this proceeding.
We turn now to subsection (16) and we see again reference to gateways. Subsection (16) is relevant to two gateways; (a) is consent, (b) is adjudication by the court. In either case, whether it be the court or the authority, there must be satisfaction that the worker has suffered a serious injury, which is a term defined by subsection (37), that the assessment of serious injury is subject to subsection (38), and I will take the Court to those subsections. Subsection (16)(b) must be read together with subsection (19) which commands that the court:
must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury –
Subsection (19)(c) has been repealed. It was repealed by the 2010 amendments which I referred to before, but it might be conveniently found in reprint 12 of the Act. That was the paragraph which contained the reference to issue estoppel. It was referred to by this Court in its decision in Dwyer and Calco Timbers. It provides that:
no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue estoppel.
Now, we will come back to that provision. The Court of Appeal thought it was relevant to its construction of subsection (15), but we note for present purposes that the starting point is that no finding shall give rise to an issue estoppel. An exception is made for the finding that the injury is a serious injury. That, of course, is an issue framed by the Act. What the subsection does is it strips away from the statutory conclusion any supporting facts. So the only issue in respect to which there is an issue estoppel is the conclusion of serious injury which of course is therefore without any factual content. The only way in which the bare conclusion of serious injury can have relevance, in our submission, is to unlock one of the gateways because when we go back to subsection (2) and subsection (16)(b), it is the characterisation of the injury as a serious injury which unlocks the gateway. We turn now to subsection (23). In our submission, subsection (23) is very important to the resolution of this appeal.
FRENCH CJ: Sorry, just before we do that, can I just go back to (16)(b) for a moment, the adjudication gateway. That does not attract any serious injury criteria. That is a discretion, is that right?
MR WHEELAHAN: In our submission, it is not so much a discretion but a judgment on questions of fact and degree, but it does attract serious injury criteria through subsection (19) and subsection (38), to which we will come.
FRENCH CJ: I see, all right. Yes.
BELL J: Did you say you were coming back to the question of the statutory estoppel in (19)(c) as it existed?
MR WHEELAHAN: Yes, but I am content to address any questions now.
BELL J: No.
MR WHEELAHAN: Subsection (23), in our submission, is very important to the resolution of this appeal. It provides that a number of matters must not be addressed to the jury. It is important, in our submission, not to read paragraph (b), which is particularly important in isolation. One starts with paragraph (a), the monetary thresholds. That is an indication that the jury is to assess damages without regard to monetary thresholds under the Act. These are critical, in our submission, to the determination of this appeal because the jury is not to be informed, amongst other things, that the injury has been deemed to be a serious injury.
Let us take this case. The effect of the Court of Appeal’s decision is that a critical plank of the respondent’s case at trial will be the deemed serious injury and counsel would probably want to open that to the jury. The judge would certainly have to direct the jury as to the effect of subsection (15) as construed by the Court of Appeal.
HAYNE J: Does not this conundrum point to the underlying issue question, to what issue at trial would the finding of serious injury go?
MR WHEELAHAN: It goes to no issue, in our submission. That submission is supported by some dicta of Mr Justice Brooking in Petkovski v Galletti [1994] VicRp 32; (1994) 1 VR 436 at 437. Indeed, Justice Ashley, in this very case, recognised that by itself the questions determined by the medical panel do not go to any issue in the proceeding.
HAYNE J: Before we dive into the authorities, can I just go back to the scheme that is created by 134AB. Section 134AB(1) says, in effect, no action. Section 134AB(2) then qualifies that, and a jurisdictional fact or a requirement is injury a serious injury, you may sue if and only if there is a serious injury and 134AB then has a number of ways in which that question is worked out.
MR WHEELAHAN: Yes.
HAYNE J Once you have established that you have an action, you have an action because the injury is a serious injury, what is the issue at trial of that action that is affected by the subject of touched on by what has happened under the Act in connection with serious injury?
MR WHEELAHAN: Our submission is that there is no issue at trial as to the existence of a serious injury as defined by this section.
HAYNE J: What does the Court of Appeal say is the issue or the point to which this determination of serious injury is said to go?
MR WHEELAHAN: That is reflected in the terms of the Court of Appeal’s orders. The orders appear at page 114 of the appeal book over onto 115.
FRENCH CJ: You say that the unbundling in those orders highlights the problem, do you not?
MR WHEELAHAN: Yes, because what the Court of Appeal had to do, it had to give content to this statutory conclusion of serious injury and it did so, in our submission, impermissibly by importing assessment criteria which appear in subsection (38).
HAYNE J: At their most general level in the common law action the issues are duty, breach, damage?
MR WHEELAHAN: Yes.
HAYNE J: To which of those issues do these, if you like, unbundled answers given by the Court of Appeal go or to which of those issues does the Court of Appeal say that these matters go?
MR WHEELAHAN: One could say implicitly that the Court of Appeal would say that the serious injury determination goes to the existence of an injury, firstly; secondly, the severity of the injury and, thirdly, causation, but, in our submission, that would not be supported by a proper construction of the section. The issues at trial are of duty, foreseeability in this case because it is a psychiatric injury, breach; causation and damage are to be determined by a court on evidence and not by reference to a label, the label “serious injury”, which has arisen by reference to different criteria. What the Court of Appeal had to do here in order to frame the orders is to backfill this term “serious injury” with the assessment criteria under subsection (38), which of course had no application to this case because it was an impairment assessment under 104B.
FRENCH CJ: Is it right to say that, if you like, the sufficient condition for the engagement of jurisdiction in the common law claim is not the fact of serious injury but the opinion or assessment of the medical board which then attracts that characterisation?
MR WHEELAHAN: Yes, and in our - - -
FRENCH CJ: There is one sufficient condition, assessment of serious injury, consent by the authorities, another sufficient condition, leave granted by the court is another sufficient condition, default is the fourth sufficient condition.
MR WHEELAHAN: Yes. The submission I made earlier was that subsection (2) is, in effect, descriptive of those four different facts which might then engage the right to bring the common law proceeding.
FRENCH CJ: You were going to take us at some point back to what the County Court looks at when it decides whether there has been a serious injury.
MR WHEELAHAN: Yes, that is in subsection (38). Before we come to subsection (38) we should go to subsection (37) and that contains the definition of “serious injury” and, for present purposes, “serious injury” might mean:
permanent severe mental or permanent severe behavioural disturbance or disorder –
but our submission is that the definition in this form, which has four alternatives, is suitable to the assessment of whether or not a serious injury exists rather than giving content to a finding of serious injury. The finding or the deeming in this case of serious injury under the Act has not content and what the definition of “serious injury” indicates is that there are four alternatives and what the Court of Appeal has done in this case is it has gone behind the deeming in subsection (15) and given the deeming specific content, in our submission, impermissibly.
The definition of “serious injury” in (37) must then be read with the assessment criteria in (38) and that reinforces my submission that the definition of “serious injury” is concerned with the assessment of whether or not serious injury exists rather than giving content to a bare deeming or finding of serious injury. So we then see that because this is a psychiatric injury, it has to be regarded as severe and not merely serious. The Court and the authority in assessing serious injury must have regard to consequences, both as to pain and suffering and loss of earning capacity. That appears in paragraph (b). Paragraph (d) is concerned specifically with mental or behavioural disturbances or disorders and it gives content to the criterion of severe. In paragraph (f) there are specific conditions relating to loss of earning capacity which must be met before a loss of earning capacity is considered to be serious or severe.
So to go back your Honour the Chief Justice’s question, when the court under (16)(b) assesses whether or not there is a serious injury in accordance with subsection (19), it is to have regard to these criteria. Of course, the medical panel in this case was not concerned with any of those criteria. The medical panel was not assessing loss of earning capacity. The medical panel was engaged in a different exercise to which we will now come. I wish to take the Court to the Government Gazette document titled “Clinical Guidelines to the Rating of Psychiatric Impairment”.
FRENCH CJ: This is annexure E, I think, is it not?
MR WHEELAHAN: Yes. This is the document which subsection 91(6) substituted for Chapter 14 of the guides. Section 91(6) has subsequently been amended and there is now a different set of guidelines, but these were the guidelines which were in force at the time of the assessment in this case. We see from the heading that it is guidelines to the rating of psychiatric impairment. At the top of page 3 there are some introductory words to some principles and it talks about, in the first line “ systematic application of empirical criteria”. Principle 1:
The mental state examination is the prime method of evaluating psychiatric impairment.
So we can see again that the inquiry is inquisitorial. On page 4, second paragraph, first line, it is provided that:
It is ultimately for the clinician, and no one else, to make the clinical judgment whether a specific rating criterion is present.
Going back to the first line of the first paragraph, we see that the extent of impairment is said to be –
a medical issue, and is assessed by medical means –
Over the page on page 5 we see a table and I will explain in brief terms how the table works. There are six mental functions listed down the left-hand column. A clinical judgment is made as to the impairment of each of those mental functions and there is a score given and the score is somewhere between 1 and 5 which is said to be dependent upon the percentage of impairment. I ask the Court to look at the column under “3” where the percentage of impairment is “25% to 50%” and the rating in this case was 30 per cent. We see references to “Moderately Retarded”, “Moderate Deficit”, “Moderate Problem”; not until you get to “4” or “5” that you see references to “Severe”.
Now, what the medical practitioners do under these guidelines is, after assessing six ratings for the six mental functions, they line them up in ascending order and they pick the median. So, for instance, the ratings might be 1, 2, 3, 3, 3, 3, 4, 5, the median would be 3. They then stand back and say, well, because the median is 3, that the range is 25 to 50 per cent. They then form a judgment as to where within the range of 25 to 50 per cent the total impairment should lie. Now, that procedure which I have just described is set out on the following page, page 6, and in the third paragraph it is stated:
It is our considered opinion that the “median method” is the fairest of the three statistical methods –
The last piece of legislation to which we wish to take the Court is section (9) of the Accident Compensation (WorkCover Insurance) Act 1993. Generally speaking, WorkCover insurance is compulsory. That arises from section (7) of this Act. Section (9) prescribes content for the WorkCover policy. Unlike other workers compensation legislation, the legislation itself does not prescribe a form of policy, rather, it prescribes minimum conditions, if you like, that must be contained in the policy. Importantly, for present circumstances, in subsection (2) there is provision:
(a) the Authority as well as the employer is directly liable to any worker or other person insured under the policy and, in the event of the worker’s death, to the dependants . . . and at common law or otherwise for which the employer is liable; and
(b) the Authority is bound by and subject to any judgement, order, decision –
Subsection (3), in our submission, creates a statutory cause of action against the authority. In our submission, the statutory cause of action against the authority is an action on the policy. So the common law would provide the remedy of damages to the worker. In our submission, and this is relevant when we come to question - - -
HAYNE J: Damages or debt?
MR WHEELAHAN: It may be debt, but many of the insurances cases concerned with indemnity indicate that the remedy is damages. This point is relevant when we come to the question of privity. The liability of the authority to a worker through section 9 is, as a result of a statutory cause of action on the policy, the authority is not, in our submission, liable to the worker directly for compensation, and is certainly not a tortfeasor liable to the worker plaintiff in damages. I come now to the first of our material propositions, which is that subsection (15) is simply a gateway.
FRENCH CJ: Would it be possible then for a worker to sue the authority directly, asserting the negligence of the employer, for example, in a common law action, and then the liability of the insurer?
MR WHEELAHAN: In our submission, no. In our submission, there would need to be an anterior proceeding against the employer, which would be the subject of an adjudication, which would then fix the amount for which the authority is liable to indemnify the employer under the terms of the policy, and also the worker through subsection 9(2). Section 9, in our submission, makes no provision for an action in tort to be brought directly against - - -
FRENCH CJ: No, that would be an action on the statute, but given content by reference to the tortious liability of the employer.
MR WHEELAHAN: In our submission, there would be no obligation to indemnify unless the tortious liability is established by compromise or judgment. My learned junior reminds me there is, of course, an exception where the employer cannot be found, but that is a distinct case dealt with through other provisions of the legislation. Our first principle proposition then is that subsection (15), as we have seen, is simply a gateway provision which has relevance only prior to the commencement of a proceeding by engaging subsection (2), and it has no wider purpose. In particular, it is our submission that the terms of subsection (15) must be reconciled with the prohibition in subsection (23), and they can be reconciled if this Court accepts our submission as to the proper construction of subsection (15).
The construction adopted by the Court of Appeal leads to tension. Now, we wish to provide to the Court a copy of the New South Wales Court of Appeal’s decision in Somodaj v Australian Iron and Steel Ltd [1961] SR (NSW) 305. That case went on appeal to this Court. It was affirmed on appeal and it is reported at [1963] HCA 50; (1963) 109 CLR 285. Now, the reason we provide this case to the Court is a submission similar to the submission we make in this case was made to the New South Wales Court of Appeal in relation to section 64A(1) of the Workers Compensation Act (NSW) 1926. We invite the Court to look at page 309 of the reasons of Mr Justice Owen at about point 7 on the page. Mr Justice Owen states:
Counsel also relied upon s. 64A(1) which directs that in the course of a jury action to recover damages for injury to a worker no reference, express or implied, to any benefit under the Act shall be made by or on behalf of the defendant in the presence of the jury.
The submission in Somodaj was that that had the consequence that there was no scope for the operation of issue estoppel. That submission was rejected by the Court of Appeal and we can see the rejection in the balance of the paragraph to which I have referred the Court. No express reference is made to the resolution of that submission in the report of the appeal in the High Court, but the submission itself is referred to at page 294, and at 296 of the CLR the High Court states – I will just read it out quickly:
we would respectfully agree with the way in which that Court dealt with the contentions then raised.
Now, that might be said to be approval of that particular aspect of Somodaj in the New South Wales Court of Appeal. We note that the same approach was taken by the New South Wales Court of Appeal in two subsequent cases, and I will just read the references - - -
HAYNE J: What are we getting out of these earlier cases, or other cases on other legislation, Mr Wheelahan?
MR WHEELAHAN: Only that I wish to draw them to the Court’s attention. Meskenas v British Paints [1964-5] NSWR 1640 at 1645, Tringali v Stewardson Stubbs & Collett Ltd ( 1966) 66 SR(NSW) 335 at 343 to 344. The legislation in this case is, in our submission, distinguishable; it much more emphatic than the New South Wales legislation considered by the New South Wales Court of Appeal in Somadaj, and in particular, when one looks at paragraph (23)(b) in the context of the balance of the section, one can see a legislative intent that issues in common law proceedings are to be determined at trial unhampered by the determination of levels of impairment which occur prior to the commencement of litigation.
The Court of Appeal dealt with our submissions in relation to the effect of subsection (23) in two places. Firstly, the submission was recorded at paragraph 22 of the reasons for judgment of Justice Ashley which appear on page 55 of the appeal book. The submission was then addressed at paragraph 104 of the reasons for judgment which appears at page 82 of the appeal book. His Honour Justice Ashley says in the last four lines:
reliance upon the estoppel need not involve the jury being informed that there has been a determination of serious injury.
In our submission, what that involves is both counsel at trial and the court in giving directions to the jury dancing around one of the most important planks of the plaintiff’s case but without being permitted to mention it and being required to use ingenious devices to put the issue before the jury but without referring to the deeming effected by subsection (15).
In our submission, that reasoning is quite unconvincing. In our submission, the correct view is that the legislature intended that the deeming of a serious injury is irrelevant. Subsection (23) is concerned with directing that the various irrelevant issues listed in subsection (23) are not to be mentioned to the jury.
We come then to our proposition listed number 3 on our list, and that is that section 68(4) is to be construed in this case so that the medical panel opinion was binding on the authority for two purposes, firstly, the authority calculation of the lump sum benefit under section 98C and, secondly, for the purpose of the authority considering the worker’s application under 134AB(4) to commence a common law proceeding and in particular section 134AB(7) makes clear that the authority must advise the worker whether or not the injury is deemed to be a serious injury.
Section 68(4) has work to do. It has the effect that the authority’s own determination, which occurred under 104B, is not to have any effect, that rather the authority is bound by the medical panel’s determination. I referred earlier to the fact that the introductory words of 68(4) are controlling. The matter which was referred to the medical panel for its opinion was a matter concerned with entitlement to lump sum compensation, firstly, and, secondly, whether one of the four gateways in 134AB is engaged.
KIEFEL J: Do I take it from what you have said earlier that the jurisdiction of the County Court relevantly would be to determine a dispute if the authority disputed an assessment under section 104B(7) or if there was a dispute by a worker as to the authority’s calculation under 104B(10B) or, lastly, in relation to the question of leave under section 134AB(16)(b)?
MR WHEELAHAN: Yes.
KIEFEL J: Are they the only three areas in which the County Court would then be affected by section 68(4)?
MR WHEELAHAN: With the exception that the County Court would have no jurisdiction to review the medical panel’s determination of the level of impairment, that any such jurisdiction would be excluded by subsection 104B(12).
KIEFEL J: Automatically, yes.
MR WHEELAHAN: Yes.
KIEFEL J: The only other areas in which section 68(4) would affect the County Court would be when?
MR WHEELAHAN: Your Honour, with respect, gave a very good example. If there was a dispute about the calculation of the benefit, the court would be bound by the impairment assessment and the impairment assessment gives rise to factor D for the purposes of the calculation under 104B(3). The court is bound by that calculation in determining the level of the benefit if there was any such dispute.
FRENCH CJ: I suppose you would read 68(4), or the opening words, as though they read:
For the purposes of determining any question or matter –
to which it is relevant?
MR WHEELAHAN: Yes, we do, and we make the submission that the court could not be bound by the determination of an issue which does not arise on the common law trial. Section 68(4), in our submission, has been drafted with a view to accommodating each of the instances which we have identified in which a referral may be made to a medical panel for an opinion, so the referral may be made by the court, the authority itself, a conciliation officer.
HAYNE J: Can I just go back a little, with a view to the observation that it may be that the reference to medical panels and the effect of their determinations may be overelaborating the issue that we confront? Section 134AB(2) permits the bringing of an action if the injury is a serious injury. There are then several subsequent provisions of 134AB that either are described as deeming there to be a serious injury, see for example 7(a), 9 and 15, or in which the relevant criterion is satisfaction in the one case of the authority under (16)(a), in the other of a court under (16)(b), is that right so far?
MR WHEELAHAN: Yes.
HAYNE J: If there is either a deeming or a satisfaction, the condition for engagement of 134AB(2) is met, is it not?
MR WHEELAHAN: If (2) is regarded as itself a condition, rather than being descriptive of the four conditions which exist.
HAYNE J: I understand that you put it in that latter form, but if 134AB(2) is treated as being the description of the circumstances in which action may be brought, those circumstances are met if there is either deeming or satisfaction. Why does it matter at all to the subsequent progress of the action, on what footing? Either there was satisfaction or deeming. Is not the only consideration that is to be met to satisfy 134AB(2) that there is the fact of a deeming under one or other of the provisions we have identified, or the fact of satisfaction under either of the other two provisions that we have met?
MR WHEELAHAN: Yes, we respectfully submit that is so, and it would arise on a common law proceeding only if a defendant pleaded that subsection (2) and the other provisions had not been satisfied, but the issue at trial - - -
HAYNE J: As a matter of pleading, no condition precedent need be pleaded. You would not have to plead perhaps satisfaction of serious injury under 134AB(2) in the statement of claim, but denial of the condition precedent would perhaps appear in the defence.
MR WHEELAHAN: Yes, and in order for a plaintiff to make that denial in the defence the plaintiff would not be permitted to prove a serious injury at the trial; rather, the issue is whether prior to the commencement of the proceeding one of the gateways was engaged.
HAYNE J: Well, the defence - - -
KIEFEL J: It might be a demurrable point.
HAYNE J: May be?
KIEFEL J: A demurrable point.
HAYNE J: Yes, and the defence would be no deeming, no satisfaction. It would not be, and by the way the worker is or is not seriously injured.
MR WHEELAHAN: Precisely.
HAYNE J: The denial would be no satisfaction by a court or VWA, no deeming because none of section 7(a), (9) or (15) was engaged.
MR WHEELAHAN: Yes, that is correct, in our respectful submission. So the issue at trial, if it were raised by a defendant, would be concerned with satisfaction of the process under 134AB prior to the commencement of the proceeding, rather than the existence or not of a serious injury. Our submission is that the Court of Appeal’s construction of 68(4) in Pope v Walker [2006] VSCA 227; (2006) 14 VR 435 is correct. The facts in Pope v Walker were that a conciliation officer referred a medical question to a medical panel, and we saw that that can be done under section 55A of the Act. That was done in the context of determining entitlements to statutory compensation. Later, the worker sought leave under 134AB(16)(b) to commence a common law proceeding. A question arose as to whether the court on the application for leave to commence the proceeding was bound by the opinion of the medical panel on the questions which had been referred by the conciliator. The primary judge held that the Court was bound. On appeal, neither party supported the primary judge’s decision.
HAYNE J: It is always a good feeling, Mr Wheelahan.
MR WHEELAHAN: The heart of the Court of Appeal’s reasons is to be found, firstly, in paragraph 23 on page 440 where Justice Eames stated that unless 68(4) is read down in some way from its literal meaning, it would have the effect that a determination of a medical panel would bind non-employers on a trial of a common law proceeding. Now, it quite frequently happens that occupiers of premises, or medical practitioners who treated a worker after an accident, are joined to proceedings in respect of injuries subject to 134AB, and 134AB extends to such causes of action. The effect of the Court of Appeal’s construction of 68(4) in this case is to prevent such persons from putting in issue the existence and nature and causation of injuries.
FRENCH CJ: There is not issue about reading down 68(4) in this context though, is there? I mean, the logic of the section demands that the question or matter to which it refers must be one to which the opinion is relevant, and the real question that we come back to is, what is the relevance of the opinion? That then goes to the function of the opinion which comes back to the sort of issues, I suppose, that you have been talking about in terms of the conditions for engaging a jurisdiction.
MR WHEELAHAN: That, with respect, correctly reflects the Court of Appeal’s construction in paragraph 41 of Pope v Walker of 68(4). There are two propositions set out by Justice Eames.
HAYNE J: Both of which might be encompassed by simply reading 68(4) as for the purpose of determining any questionable matter under the Act. Is that not what it comes to?
MR WHEELAHAN: It does.
HAYNE J: I do not think that exactly a heroic construction is it?
MR WHEELAHAN: It is not, and we respectfully adopt that position. At appeal book 104 at paragraphs 169 to 170 Justice Ashley relied on the court’s construction of subsection (19)(c) as supporting the construction of (15) and 68(4), and in particular paragraph 170, Justice Ashley stated:
It would be anomalous if an injury which is deemed to be serious injury had no effect in a permitted common law proceeding.
That was after his Honour had determined that the effect of (19)(c) was that there was an issue estoppel arising from an adjudication by a court under (16)(b) which operated for the benefit of a plaintiff at the common law trial. We have three responses to that proposition. The first is that no necessary anomaly arises because his Honour has not put into the picture the consent which is possible under subsection (16)(a), and there is no suggestion that consent of the authority under (16)(a) could give rise to an issue estoppel. So if one accepts that proposition one can see that there is a necessity, there can never be any symmetry.
The second submission we make is that the process under (16)(b) is quite different to an assessment of impairment by a medical panel under 104B(9). Under 104B(9) there is no adversarial process, it is inquisitorial. There is no ability to cross-examine. There is no right of appeal. We see that from 104B(12). In contrast, a court considering an application under paragraph (16)(b) is hearing the proceeding in a normal adversarial way, evidence is called, there is an ability to cross-examine. The court is required under 134AE to give detailed reasons. There is a right of appeal to the Court of Appeal under section 134AC which provides that for the purposes of appeal a decision under (16)(b) is final and not interlocutory.
Under 134AD, which is now repealed, it was repealed again by the 2010 amendments, and it was considered by this Court in Dwyer v Calco Timbers, the Court of Appeal was required to determine for itself whether a serious injury or whether the criteria for serious injury was satisfied. Now, one can see immediately that there is quite a contrast between the two processes, so our submission is that there is no anomaly in according different treatment to what is properly regarded as a first-class judicial process and an inquisitorial process which occurs in private before two doctors.
The third submission we make is that the Court of Appeal’s decision in Brumar v Norris, which was heard together with the present case, is incorrect, and it is incorrect because the court failed to have regard to the words of (19)(c), which is that no finding gives rise to an issue estoppel. The words in brackets are concerned only with the bare conclusion of serious injury, stripped of any supporting facts.
BELL J: How does that estoppel work?
MR WHEELAHAN: At trial in Norris v Brumar the trial judge ruled amongst other things that counsel for the defendant could not cross-examine the plaintiff in a way which was inconsistent with the operation of the estoppel. Our submission is that, firstly, the serious injury issue did not arise on the common law proceeding and so if it had any operation it could have operation only through the statute, but paragraph (19)(c) should be construed so that the estoppel operates only where the existence of the serious injury as defined and for the purposes of the statute is an issue in dispute. So for those reasons we submit that the Court of Appeal was in error in its construction of (19)(c) in Brumar v Norris. Section (19)(c) has of course now been repealed and replaced by (19A).
HAYNE J: But but for (19)(c) there might have been an opportunity for collateral attack upon the County Court decision in a subsequent common law action brought in the Supreme Court.
MR WHEELAHAN: Yes, that is correct, and our submission would be not only by reference to common law principles of issue estoppel but that is quite explicit from the general words of (19)(c). Now, in relation to the proper construction of 134AB and 68(4), the errors of the Court of Appeal appear at pages 104 and 106 of the appeal book at paragraphs 170 and 176. I have already taken the Court to 170, but at the end of that paragraph, Justice Ashley refers to “mandated serious injury consequences” and it is to be taken that what his Honour has in mind clearly is consequences, not simply for the gateway, but for the adjudication of the common law cause of action.
HAYNE J: Does his Honour identify where the mandate is found in the Act?
MR WHEELAHAN: Implicitly it must be in subsection (15), but his Honour said interestingly that his Honour thought that 68(4) was central to the adjudication of the appeal. Our submission is that if our submissions about the proper construction of subsection (15) are correct, there is no occasion to consider 68(4). The second area where there is error is in paragraph 176. The Court of Appeal thought that Pope did not stand in the way of the Court’s construction of 68(4) and, from the fifth line of 176, the Court said:
in a common law proceeding, that the employer is not entitled to put in issue the fact that, at the time when the opinion was expressed, the worker suffered serious injury –
Now, the Court has then given content to “serious injury” by reference to the assessment criteria which of course is an exercise which was never undertaken in this case. Now, in relation to the last two sentences of 176, there is a variance between the consequences pleaded by the respondent, which appear at page 24 of the appeal book, and the orders of the Court of Appeal which appear at pages 114 and 115.
If we go to the reply first on page 24 it was alleged that the appellant could not make any assertion or elicit any evidence which was inconsistent with, firstly, medical opinion - now, that allegation did not make it into the Court of Appeal’s orders; second, that as at 28 June 2006, the plaintiff was suffering a 30 per cent psychiatric impairment - that allegation also was not reflected in the Court of Appeal’s orders and, therefore, was not accepted; thirdly, that as at 28 June 2006, the degree of impairment was permanent within the meaning of that term as defined in the Act.
Now, that allegation was accepted in substance by the Court of Appeal but was also expanded by the court by reference to criteria found in a judgment of the court in Barwon Spinners and also the statutory criteria in subsection (38). The fourth allegation in paragraph (d) on page 24 was not accepted by the Court of Appeal. The orders do not reflect that allegation.
I propose now to move to issue estoppel which is raised by way of contention. The questions considered by this Court most recently in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 included whether the decision of the review officer in that case - the judicial character of the decision in Kuligowski was not in issue and that is recorded at pages 373 to 374 at paragraph 22. This appeal gives rise to the question: what is a judicial decision for the purposes of issue estoppel? We submit that it may be that like judicial power itself it is not possible to frame a definition that is at one exclusive and exhaustive. But in this case, we can fasten upon some characteristics which would indicate that the medical panel’s opinion was not a judicial decision for the purposes of the doctrine.
We say firstly that the medical panel was not engaged in an adjudication but rather, it provided an expert opinion. Our submission is that that function is apparent from the terms of 104B(9) of the Act. We saw that 104B distinguishes between disputes as to injuries and disputes as to the calculation of payments which might be the subject of judicial determination and, on the other hand, the assessment of the impairment which takes place either in relation to accepted injuries or if there is a dispute about the injury following judicial adjudication or compromise.
As to the nature of the judicial function which is required before an issue estoppel operates, we refer firstly to the oft-cited passage in Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276, which was cited in Kuligowski at paragraph 40. At page 276, at about point 2 on the page, Sir Garfield Barwick spoke of, in the third line of the first complete paragraph:
the determination of issues in a proceeding between parties –
In our submission, that envisages some sort of adversarial process, a joinder of issue between parties rather than the provision of an opinion as a result of an inquisitorial process.
HAYNE J: I am not sure you are reading what Chief Justice Barwick said correctly. Is he not there referring to the subsequent proceeding:
to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary - - -
MR WHEELAHAN: Yes, your Honour Justice Hayne is quite correct. I have not read that correctly.
HAYNE J:
directly decided by a competent tribunal in resolving rights or obligations –
is where you are - - -
MR WHEELAHAN: That is the passage I intended to refer to to support that proposition. So it is a competent tribunal for resolving rights or obligations between parties. The next case which bears upon this issue is The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453. This too is an oft-cited passage. The relevant passage is quite extensive and I will not read them to the Court, but they commence probably properly at 452 at the commencement of the paragraph “On behalf” and continued until the conclusion of page 453.
There are three observations we make about what Sir Harry Gibbs said in these passages. Firstly, this case concerned cause of action estoppel and not issue estoppel, and that appears from the fourth line on page 453. When we look at that together with the last three lines on page 453 his Honour said it would not be necessary to canvass authorities which deal with issue estoppel. That observation gives rise to the possibility that there is scope for having a more confined concept of judicial decision for the purposes of issue estoppel than with cause of action estoppel because although the doctrines are very much related, they may serve different public purposes.
The fact that there might be different considerations has been referred to in three cases. I will just cite them for the purposes of the transcript. Firstly, Thoday v Thoday [1964] P 181 at 196 where Lord Justice Diplock stated in the context of a divorce proceeding that issue estoppel is not easy to adapt where there are inquisitorial processes. What his Lordship had in mind, though, was this, that where a statutes requires the court to inquire, such as the Matrimonial Causes Act, an issue estoppel should not operate inconsistently with the later court’s obligation to inquire. That is the point to which his Honour was really directed.
We would make a slightly different point and that is that the doctrine of issue estoppel has arisen in cases where usually the parties are in control of the issues which are put to adjudication. An inquisitorial process whereby parties may not adduce evidence, may not cross-examine is a process of a different character and to give decisions arrived at through that process effect as an estoppel, may give rise to injustice. There is a solution to that problem which I will come to in a moment. The second of the three cases is Pastras v Commonwealth (1966) 9 FLR 152 at 155 where Sir George Lush stated:
The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal should not be allowed to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity of presenting evidence and argument, it seems to me there is no room for the operation of this principle.
Now, Pastras v Commonwealth has some parallels to the present case. It concerned the question whether a determination by the Commonwealth compensation commissioner gave rise to an issue estoppel and, in our submission, it is very much like the determination of the authority for the purposes of 104B or, in this case, the medical panel in place of the authority. The third case where it was suggested that different considerations might arise in relation to issue estoppel as distinct from cause of action estoppel is Arnold v National Westminster Bank [1991] 2 AC 93 where at page 108G, Lord Keith stated:
But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, the subject matter of the two proceedings being identical, than they do in issue estoppel, where the subject matter is different.
We respectfully adopt that recognition of differences in principle between the two doctrines. We do not suggest that this Court should embrace an exception to the doctrine of issue estoppel which concern the special circumstances which has been embraced by courts in the United Kingdom, Canada and New Zealand.
I mentioned before that there may be a solution to the problems which might arise where specialist bodies which are not engaged in adversarial processes make decisions which might be regarded as judicial and it leads to the second aspect of what Sir Harry Gibbs said in The Administration of the Territory of Papua New Guinea, which is important, and that is that in order for an issue estoppel to arise the tribunal must have jurisdiction to decide finally the question arising between the parties. That comes from the passage at 453 at about point 7 on the page where his Honour said:
The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties –
In our submission, what his Honour should be taken to be referring to there is the fact that many specialist tribunals have discrete jurisdiction to decide discrete questions, but they do not have general jurisdiction to decide finally a question arising between parties. So that we can that by examining carefully the extent of jurisdiction which is given to a tribunal, one may contain the doctrine of issue estoppel so that it does not give rise to injustices and one may do so in such a way as to avoid introducing concepts such as special circumstances which would give rise to idiosyncratic decisions.
FRENCH CJ: I suppose in this case, in any event, the question arising between the parties, if there be one, in the context of a medical panel assessment has to be looked at in the context of the statutory framework which we have been discussing earlier.
MR WHEELAHAN: That is correct, with respect, your Honour. To come back to this case, the only questions which the medical panel had jurisdiction to determine were those referred to in 104B(9). The principal question is the empirical assessment of impairment by reference to guidelines and the medical panel had no jurisdiction to determine any wider question, finally or otherwise, between the parties. So when one compares what the medical panel was authorised to do under 104B(9) and the Court of Appeal’s orders, one can see that there is no correlation.
The second submission we make about judicial function is a distinction which is drawn in arbitration cases between expert determination and adjudication. We refer the Court to In re an Arbitration between Dawdy v Hartcup (1885) 15 QBD 426, particularly at 429 to 430, which is in our list of authorities.
HAYNE J: All this in aid of what proposition?
MR WHEELAHAN: The medical panel did not adjudicate any dispute between any parties. The medical panel was required to exercise its own skill, which is apparent on the terms of the guidelines to which we took the Court, and that is a distinguishing feature between a judicial determination and one which is simply a matter of expert opinion. The medical panel was concerned with the latter and not the former.
What the medical panel did in consequence of its determination was not to adjudicate on existing rights but rather to create a right because upon fixing the assessment of impairment at 30 per cent, there was then created a right to a particular lump sum payment calculated in accordance with section 98C and, secondly, a right to commence a common law proceeding, but that was not, in our submission, the product of an adjudication as to existing rights. Once the expert opinion of the medical panel is formed, it is then for a court, if necessary, to enforce the rights thereby created by the statute.
Finally, in relation to whether the opinion was a final judicial decision, we make the submission that the Court of Appeal’s decision in this case is not consistent with other authority in the Victorian Supreme Court. We refer to two cases. Firstly, Sherlock v Lloyd [2010] VSCA 122, which is in our list of authorities, and we refer to paragraphs 20 and 21. The members of the court in this case were the President, Justice Ashley and Justice Byrne and it was a joint judgment in which Justice Ashley joined.
At paragraphs 20 and 21 the court considered whether the medical panel was exercising a judicial function for the purposes of this issue which arose in Sherlock v Lloyd. Was the medical panel under a common law obligation to provide reasons? In the last three lines of paragraph 20 the court referred to:
the panel operates as a statutory expert, providing an expert opinion for the assistance of the court –
Paragraph 21, the court said that privative provisions in the Act, to which we have taken the Court, do not:
convert into a judicial function what is defined – by the express terms of the Act – as an expert medical function.
Although those observations were concerned with a different issue, in our submission, they apply equally to the question in this case, that is, whether it is a judicial decision for the purposes of an issue estoppel.
FRENCH CJ: Am I right in understanding your primary position is that in any event the question determined or answered by the medical panel is not a question which arises in the common law action?
MR WHEELAHAN: Yes.
FRENCH CJ: Except as a condition precedent to being able to - - -
MR WHEELAHAN: Yes. We make that submission.
HAYNE J: As the specification of the date in the orders of the Court of Appeal rather tends to suggest.
MR WHEELAHAN: Yes, because the medical panel had no jurisdiction to do anything other than make an assessment as at 28 June 2006.
HAYNE J: The estoppel is then further described by the Court of Appeal by reference to date, that the plaintiff at a particular date.
MR WHEELAHAN: At the date of that assessment.
HAYNE J: Yes.
MR WHEELAHAN: The next submission is one to which I have already referred indirectly and that is that the medical panel did not have jurisdiction to determine the questions the subject of the Court of Appeal’s orders. I will not take the Court to the passage, but we rely upon what Sir Frederick Jordan said in Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson [1937] NSWStRp 53; (1937) 38 SR (NSW) 13 at page 19. That case has been applied in Victoria in Torrisi v Oliver, [1951] VicLawRp 54; [1951] VLR 380 in a decision of Dr Coppel, sitting as an acting judge of the Supreme Court. Where in that case Mr Justice Coppel decided that a fair rents board had jurisdiction to determine conclusively only fair rent and nothing more.
Sir Frederick Jordon’s reasons have been referred to also by the Victorian Court of Appeal in Tavares v Tavares [2003] VSCA 12; (2003) 6 VR 577, to which I will turn later when I address the question of privity. The next proposition we make is that there is no identity of parties between the medical panel reference and the common law proceeding. Our primary submission is that there were no parties to the medical panel reference, simply a statutory reference. It is said against us that the authority and the appellant are privies and that was the view taken by the Court of Appeal at paragraphs 159 and 186. We meet that suggestion in the following ways.
HAYNE J: Was all this in answer to the notice of contention, Mr Wheelahan?
MR WHEELAHAN: Yes, it is.
HAYNE J: Well, are you not setting up a series of straw dummies and trying to knock them down? Are we not better to perhaps wait and hear how Mr Tree puts it?
MR WHEELAHAN: I will come back then to the question of issue estoppel. We say in conclusion that the consequences of the Court of Appeal’s construction of the Act is to have radical consequences in Victoria
for the determination of common law proceedings under this Act where a plaintiff has engaged subsection (15) as the relevant gateway and the consequences are radical not only because the deeming binds an employer, but also any other person who might be joined as a defendant or other party to the proceeding.
There is nothing in the history of this legislation or the Transport Accident Act or any prior decision of the Victorian Supreme Court which would indicate that that was Parliament’s intent in enacting this scheme. Unless there is anything with which I can assist the Court, they are our submissions.
FRENCH CJ: Yes, thank you, Mr Wheelahan. Yes, Mr Tree.
MR TREE: Thank you, your Honour. Your Honours will see that we have identified that there are really three matters of substance which concern this Court in relation to this appeal and the notice of contention. Can I turn firstly to the construction of section 68(4) of the Act and invite your Honours again to consider the terms or the text of the legislation which, as we point out in our written submissions, has been described as truly remarkable drafting because of the breadth of the language and the stretch of the operation which a plain reading of it would have. Your Honours will see that a number of, perhaps its wrong to call them “extreme”, but a number unrestrained words are used it the legislation.
KIEFEL J: But all of this tends to suggest you need to look for statutory context and the matters to which a provision like this is directed.
MR TREE: Quite so, your Honour, and essentially, of course, where the parties have joined issue, albeit perhaps not directly, is that there are two competing schemes that are in conflict at this Bar table. The first is the scheme for which we advocate, namely, that there was an intention on the part of legislature at the time when this provision was introduced to put into a position not so much a paramountcy, but of great importance medical panel opinions and that that opinion was to then bind the parties during the course not only of the immediate proceeding in which they were engaged, but was thereafter to set the course for those parties in related or derivative actions, and we say that that was the intention which one finds in this legislation, and that is the reason why its language should not be restrained.
KIEFEL J: Part III is entitled “Dispute Resolution” and this is where you find the reference to the panel and one would think that the disputes to be resolved would be those arising under the Act.
MR TREE: All those which the Act contemplates, with the greatest respect, your Honour.
KIEFEL J: So that there would be some cut off point for actions that the Act did not contemplate because, on your analysis of it, section 68(4) would apply to any litigation involving any party concerning the degree of impairment assessment that the medical panel comes to.
MR TREE: Yes, your Honour. That is not to say that there may not be able to be conjured up some extraordinary example of litigation which may be beyond the scope of the operation off section 68(4), but for present purposes, we are only concerned with common law actions for damages and we say that they are clearly encompassed within the scope of section 68(4).
KIEFEL J: The court body or person referred to in section 68(4), the court would be, prima facie, the County Court, would it not, and perhaps the Magistrates Court eschews the jurisdiction.
MR TREE: That may be the area of the greatest operation of the Act, but it potentially, we would say, would bind any court dealing with a personal injuries claim, including the Supreme Court or perhaps - - -
KIEFEL J: There is reference to the jurisdiction of the County Court at the beginning of Part III, is there not?
MR TREE: There is, and that is specifically in the context of the resolution of disputes in relation to compensation under the Act.
KIEFEL J: Yes, that is right, and what other matters would the County Court be resolving under the Act, apart from disputes as to compensation?
MR TREE: It could be resolving disputes in relation to serious injuries under 134(16).
KIEFEL J: The leave requirement?
MR TREE: Yes.
KIEFEL J: Yes, and they would be the only occasions on which it would make a referral – the latter would be the only occasion on which it would be making a referral to a medical panel.
MR TREE: Specifically arising under this Act, that is so, your Honour, yes.
KIEFEL J: The body contemplated under section 68(4) would most obviously be the authority?
MR TREE: With respect, if the drafter of the legislation had intended to specifically capture the authority and no other body, then the use of that unrestrained language of body is peculiar.
HAYNE J: Well, you have to cope with the self-insurer.
MR TREE: Well, again, with respect, the Act is not shy about specifically identifying self-insurers when it wants to. The reality is that this language is extraordinarily broad and it is a particularly detailed and intricate piece of legislation extending to dizzying levels of - - -
KIEFEL J: Time consuming might be more - - -
MR TREE: Yes, Byzantine levels of complexity and yet here we find a relatively recent, we should say, introduction into the Act which is in such bold and sweeping language.
CRENNAN J: What do you say if there is a common law action in which a non-employer is joined as a party?
MR TREE: We acknowledge that that is a difficult case. It is not directly raised by this appeal, but we say that it is not beyond contemplation that as part of this package of reforms, the Parliament intended to have those perhaps rare and ripple effects on other parties. This is part of the cheap, quick, streamlined process by which those who do satisfy the serious injury threshold have their litigation determined.
BELL J: Can I take up with you Justice Hayne’s question earlier, directed to your opponent, which is to what issue in the common law proceedings, once you have got through the hurdle, does the opinion of the panel apply?
MR TREE: Damages, your Honour.
BELL J: How?
MR TREE: Because potentially an issue in this very litigation is whether the plaintiff has an injury at all.
BELL J: So the answer to the question by the medical panel determines that question?
MR TREE: The question of whether there is an impairment, the question of its degree and the question of its permanency as at that date.
HAYNE J: The moment you inject a date into it, Mr Tree, you present, I think, a serious problem because what is the date for determination of the common law action and how does that relate to this date that you are lowering in – the Court of Appeal lowers in – to this issue?
MR TREE: Well, necessarily, the decision is a determination as at a date and it is mandated to be made at a date albeit with future developments contemplated by the entity. The significance of the date is that it would acknowledge that the estoppel might – I am using the wrong word in 68(4) – but the statutory prohibition of section 68(4) might be able to be circumvented if there is a change of circumstance which would bring into play different circumstances.
The most obvious example of that is a determination of a medical panel which is less than 30 per cent, but which then the would-be plaintiff brings an application under section 134AB(16) and it may be a year or two later, by which time on application of the narrative test, the court is not convinced that the injury is not in fact serious.
HAYNE J: Why should we read 68(4) as precluding a worker in the common law action brought after determination by a medical panel coming along and saying, “Listen, they said, in effect, my injury was 30 per cent. It is catastrophic.” Why should the worker be shut out? Why should the employer be shut out from litigating things according to the facts as they then appear at the date of the action?
MR TREE: Any application under 134AB(16) would necessarily be at a later date and it would necessarily, we say, be incumbent upon the prospective plaintiff to demonstrate that there is a different factual substratum which exists at the time of their application for the application of the narrative test. You see the difficulty which has not been squarely adverted to by our friends is this, that unless section 68(4) has the operation for which we contend, there is the substantial prospect that there will be a determination by a medical panel that there is a significant injury and yet a determination by potentially a judge or a judge and jury which is wholly inconsistent with the medical panel opinion.
KIEFEL J: They do not actually determine that there is a serious injury. They determine a degree of impairment by reference to a particular guide.
MR TREE: They determine three things – that there is an impairment. Here they did not need to do that, of course, because it was an accepted injury; secondly, the degree of the impairment; and, thirdly, its permanency. So there are three strands to the determination.
KIEFEL J: If it is relevant to an issue, it is relevant to sub-issues arriving as to the quantification of damages.
MR TREE: Yes, your Honour - perhaps not so much the quantification of it – the ascertainment and quantification of it.
KIEFEL J: Well, inasmuch as it might involve the existence of an aspect of damage but it might only be an aspect of damage so we might be talking at the edges here in relation to a person with multiple and complex damages.
MR TREE: It might be. Perhaps the best phrase to use would be the description of the damage, the description of the extent of the damage and its permanence.
HAYNE J: The proposition that all estoppels are odious, which is often used, hides the fact that the effect of the estoppel is that in subsequent litigation the parties are not free to litigate the issue fully. Now, that, in this context, is a lack of freedom that can but both ways; it can cut against the worker, it can cut against the employer. Why should we read 68(4) first, otherwise than as saying for the purposes of determining any question or matter under this Act? Do you accept that that is an available interpretation?
MR TREE: Yes, although we would say, or relating to matters arising under the Act, because the Act clearly contemplates that it will have operation in relation to common law damages proceedings.
HAYNE J: That addendum you add invites attention to what for me at the moment seems to be the critical question, how it can have any operation in the common law proceeding.
MR TREE: Well, with respect, it is by virtue of it restraining any party or body or court from acting contrary to the medical panel opinion and that must necessarily carry with it the existence of impairment, the degree and the permanence of it. That is the operation which subsection 68(4) would have. Those are necessarily matters to which the court’s attention will be drawn in the common law damages claim inevitably. True it is that the temporal span may be broader and true it is that there may be subsequent developments in the time since the medical panel opinion but, with respect, it is necessarily a part of the consideration of the judge or jury’s attention as to what was the impairment, its degree and its permanence of the plaintiff as at the time of the medical panel opinion.
HAYNE J: But it would be open on the Court of Appeal orders, would it not, to the defendant employer or the insurer to say that whatever may have been the position at 28 June 2006 this plaintiff is now fully recovered and suffers no injury.
MR TREE: Yes. That is so. We accept that. We accept that so long as there is material upon which the court could properly conclude that there has been a change of circumstance then the estoppel may have a limited span. We do not for a second say that this estoppel is unending and, indeed, the most topical example of that is Ajinvan v Fry - one of the decisions to which we took the Court in Ajinvan v Fry [2001] VSCA 148; (2001) 3 VR 644 where the Court of Appeal was confronted with perhaps a somewhat interesting approach of the court below where the court had referred out to the medical panel a question and then proceeded to make a conclusion different to the medical panel opinion. If your Honours turn to page 650, this is brought into stark contrast in paragraph 16, about the sixth-last line from the page.
In this instance the conflict is stark indeed and, with great respect, I consider that a finding that the plaintiff was totally incapacitated on 26 May was plainly inconsistent with an opinion that the plaintiff was only partially incapacitated on 27 May, given that there was no circumstance or event occasioning such a dramatic alteration: no “miracle cure”, as the judge put it. In my respectful opinion it was simply not open to the judge, being bound by the medical panel’s on 27 May 1998, to make such an inconsistent finding about the plaintiffs’ condition up until that date.
Now, we acknowledge that there will be occasions when it is legitimate to make an assessment that the plaintiff’s condition either was previously different or was subsequently different to that which prevailed on the date of the medical opinion. The point which we make is that if Pope was correctly decided then nonetheless it does not stand in the plaintiff’s way here, we say that the way in which the court chose to identify the operation of section 68(4) nonetheless covers the plaintiff here, particularly if I can take your Honours to the decision of Pope (2006) 14 VR and can I take the Court specifically to page 444 which appears to be relevant conclusion of the Court of Appeal. At paragraph 37 the Court says:
The opening words of s 68(4) are: “For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical panel . . . ”. In my view, the word “any” cannot be interpreted literally, because to do so would give the provision unlimited operation –
which is the point that your Honours have been raising with me here. Skipping over about seven lines, at the end of the line it reads:
Section 68(4) goes on to state that the opinion must be “adopted and applied by any court, body or person”, which means that the opinion is binding on all persons who have a role to play in proceedings of that nature. So construed, an opinion on a medical question referred in a proceeding concerning statutory benefits would not be binding on a court concerned with an application under s 134AB(16)(b).
Now, the point which we make here is that the reference under section 104B(9) was clearly for two purposes. It was for the purposes of determining an entitlement to statutory compensation under section 98C and it was also for the purposes of determining whether or not there was a satisfaction of the 30 per cent threshold imposed by section 134AB(15). So we say that here there was a dual purpose for the referral of the question of the medical panel and hence whilst our primary position is that Pope is incorrectly decided, nonetheless, if we are wrong as to that, then we say that the dual purpose of the referral here means that there is no application of the restriction which flows from the ratio of Pope.
The next point we make, your Honours, is that the purpose of the reference to a medical panel is clearly intended to simplify, cheapen, speed up and have other advantages in the resolution of the plaintiff’s claim and we say that the relitigation of the same issue or an issue which was necessarily determined by the medical panel opinion demonstrates, or would comprise a waste of resources and runs the prospect of inconsistent decisions. For those reasons we say that section 68(4) ought not be read down or even if it is read down in the way in which Pope suggests it ought be, then nonetheless it does not impede the plaintiff’s progress in this claim. Can I then turn to the section 134AB issue which is the second major issue which confronts this Court.
FRENCH CJ: Do you accept either of the propositions that Justice Hayne and I put to Mr Wheelahan about how 68(4) could be read in terms of the relevance of questions, or questions arising under the Act?
MR TREE: I accept that that is a construction to which I think, a little while ago in answer to Justice Hayne, I added some additional verbiage in the form of “or arising out of or related to” proceedings arising under the Act. Your Honours, turning to section 134AB, we accept that subsection (2) creates a gateway which is capable of being satisfied four ways and the satisfaction of the 30 per cent threshold in subsection (15) is one of those ways, but again we say that a proper construction of subsection (15) does not restrict its operation merely to the satisfaction of a gateway.
We invite the Court to consider subsection (19)(c) in the form that it was at the time the matter was argued before the Court of Appeal and specifically to direct attention to the bracketed words in subsection (c). This was a question which I think your Honour Justice Bell posed of our friend and the answer, with respect, was not convincing. What would be the effect of the estoppel which arises from the finding of serious injury? What work could it possibly have to do and we say that the answer is plain.
The work which the estoppel had to do was the work which the Court of Appeal below has identified in Brumar, namely to restrict the way in which the plaintiff and defendant conducted the trial in the Supreme Court. Our friends below sought to argue quite differently to the arguments they make here and sought to argue that the work for the bracketed section was to provide satisfaction and to avoid the possibility of any relitigation in the Supreme Court action of the satisfaction of the gateway of serious injury.
KIEFEL J: Could you remind me how you take what appears in subsection (19)(c) into the common law Supreme Court action given that subsection (19) commences “For the purposes of sub-section (16)(b)”, which is the leave application and I can understand how a finding about serious injury is meant to operate on the leave application heard by the court under (16)(b) but how do you translate (19)(c) into the other action?
MR TREE: Well, the difficulty with the introductory words to subsection (19) applying to subsection (c) is that they cannot.
KIEFEL J: No.
MR TREE: So necessarily in construing subsection (19) the introductory words cannot be construed as applying to subparagraph (c).
KIEFEL J: So to make subparagraph (c) apply to other proceedings you ignore them. Is that the process of construction?
MR TREE: No, with respect, your Honour. One attempts to give meaning to the words which are in the brackets. If one were to restrict the words in the brackets only to proceedings brought under subsection (16)(b) they would have no meaning and no potential operation, so as the Court of Appeal below did, it effectively, for the purposes of subsection (19), ignored the introductory words in subsection (19) when construing subparagraph (c), otherwise the subsection becomes a nonsense.
FRENCH CJ: Mr Tree, that might be a convenient moment. We will adjourn till 2.15.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
FRENCH CJ: Yes, Mr Tree.
MR TREE: Thank you, your Honours. Your Honours, we accept that in the event that the Court were to determine that the scope of section 68(4) did not extend to common law damages actions, then the Court would not be required to, in the context of the section 68(4) argument, proceed to construe section 134AB because the question would necessarily be foreclosed because we do not contend that 134AB(15), which is the deeming provision, of itself would affect anything other than in conjunction with section 68(4), so in the light of that - - -
KIEFEL J: I am sorry, are you saying that section 68(4) does not operate when the Court is determining a leave application under 134AB?
MR TREE: No, I am sorry if I was not clear.
KIEFEL J: I am misunderstanding you.
MR TREE: I was saying that if the Court were to conclude that section 68(4) did not extend a medical panel’s opinion into any operation in a common law damages claim - - -
KIEFEL J: I see, yes.
MR TREE: - - - then the question of the construction of section 134AB would fall away.
FRENCH CJ: Well, that would just leave you with the issue estoppel question.
MR TREE: Quite so, and we intend to press on with the argument in relation to that.
KIEFEL J: Could I just in that regard go back to our discussion just before the adjournment in relation to section 134AB(19)(c). We were discussing how this operates in conjunction with the leave application under (16)(b). If one puts aside the passage in parenthesis – I know that you have identified that as the problem – there is no difficulty with its statement that:
no finding . . . made on an application for leave . . . shall give rise to an issue estoppel.
MR TREE: No, it would abolish the issue estoppel which would otherwise arise.
KIEFEL J: Which would be contrary to your position, but in any event we were discussing how one can read the part in parenthesis and in particular so that it is consistent with (16)(b) and if one reads the words “a finding made on an application for leave to bring proceedings may give rise to an issue estoppel”, reads it that way, as applying to what is said in parenthesis, it would operate, would it not, in relation to a finding that the injury is a serious injury where proceedings were brought subsequent to the application for leave and relate to the determination made on the application for leave. In that context, a finding that an injury is a serious injury would operate as an issue estoppel, either on a review or an appeal from the determination of leave.
MR TREE: Perhaps, your Honour, although we would embrace the position articulated by Justice Hayne that there are two mechanisms by which subsection (2) can be met, either the satisfaction component or the deeming component and we would not see necessarily as issue estoppel having any part to do in relation to the satisfaction of subsection (2).
KIEFEL J: Yes, I see. Thank you.
MR TREE: Your Honours, could I commence the issue estoppel argument by reminding your Honours of what this Court said in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363. At page 377, paragraph 32 is the relevant passage. There the Court said this:
First, the non-judicial composition of the Directorate, its functions, its speedy and informal processes, the fact that the review officers were not bound by the rules of evidence, and the substantial exclusion of legal representatives – all these things are neutral on the question of finality. The defining feature of a final decision – complete effectiveness unless and until it can be amended – may be absent from proceedings of the most formal and elaborate character, and may be present in proceedings of the most informal and brisk character.
I took your Honours to that passage because it is substantially reflected in the rationale of this Court in the later decision of Dwyer v Calco in which the Court was not then concerned with a medical panel assessment but was, in the relevant passage, concerned with the effect of the estoppel which would arise under a section 134AB(16) application. There at page 130 at paragraph 11 the Court said this:
If leave had been given, the statutory barrier to the bringing of proceedings by the appellant for the recovery of damages would have been removed. In that action for damages the appellant would have had in his favour an issue estoppel arising from the finding that his injury was a “serious injury”, but no other estoppel. This would have followed from para (c) of sub-s (19). The provision respecting the issue estoppel both reflects the importance (by reason of its finality) of the determination in any leave application of the issue of “serious injury” and highlights the requirement that the reasons of the County Court be as extensive and complete as those at a trial of the action.
So there seems no room for argument, and I do not understand our friends to contend to the contrary, that in relation to the process under 134AB(16) an issue estoppel would arise and it is affected by, firstly, subsection (19)(c) and now by subsection (19A), but it is the finality of the determination which feeds the estoppel. Turning then to the medical panel opinion, we say that it is a final judicial decision of the character that the authorities require. We say its finality cannot be doubted by virtue of either section 104B(12), which our friends conveniently took you to earlier today, or section 68(4), or both. So the finality question does not seem to be an issue. Rather what appears to be controversial is whether it is a decision and if it is, whether it is of an apposite judicial character.
In that context, can I take your Honours back to Kuligowski and remind you of the relevant paragraphs of the Court’s decision there. Firstly, can I take your Honours to page 373, the bottom of that page. I do not stay to read paragraphs 21 and 22 but do reply upon them. Your Honours will see that paragraph 22 adopts and approves of the earlier passage of this Court, or Justice Gibbs more precisely, in the Administration of Papua and New Guinea. Next can I take your Honours to page 375. It is the final aspect of the paragraph immediately preceding paragraph 26 which commences:
A “final” decision, then, is one which is not of an interlocutory character –
et cetera, which we rely upon. Next, it is the passage which I took you to a few moments ago at page 377 that we say is relevant to this aspect of the appeal and, finally, at page 383, albeit to get the context of it one needs to commence at the bottom of the preceding page, the Court said:
The second review officer’s statement that “the evidence fails to establish that the [worker’s] present injuries arise out of or in the course of his employment with MetroBus” cannot work an issue estoppel unless it was made in the course of resolving a controversy which the worker is said now to be estopped from agitating.
From those passages we say that it is not the focus of the court in determining whether an issue estoppel arises to weigh up the characterisation of the exercise of the power as judicial or otherwise, but rather one looks to see whether the decision-maker finally resolves an issue in dispute between the parties or a controversy.
HAYNE J: Does this not then point to the horns of the dilemma that confront you? The hypothesis for this branch of your argument is that 68(4) is not engaged, is that right?
MR TREE: Other than achieving finality.
HAYNE J: Well, 68(4) is not engaged with respect to the common law proceeding?
MR TREE: That is right.
HAYNE J: So 68(4) is providing for finality on the hypothesis that underpins this branch of your argument for the purposes of determining any question or matter arising under the Act, but what, the common law steps in and provides some larger preclusive effect beyond that prescribed by the statute?
MR TREE: Yes, by virtue of the finality in section 68(4) or 104B(12).
HAYNE J: Then you have this difficulty of intersection, have you not, between the premise for the branch of the argument that 68(4) is not directly engaged, does not speak to the common law proceeding and yet somehow is creating a finality for other purposes?
MR TREE: But, with respect, it is clear that the issue which was resolved, the controversy which was determined by the medical panel has been finally resolved. The reference under 104 - - -
HAYNE J: I suspect the point I am putting to you is a point about finality. The Act accords the finality prescribed by 68(4) and we accept there is a construction issue that is presented about that. So we are now at the second row of your trenches where the first set of trenches has fallen. Why, if that is so, should we see 68(4) as providing a limited form of finality and yet somehow the common law is filling in and creating a new and larger preclusive effect?
MR TREE: Well, 68(4) works so that the issue that was resolved cannot be re-agitated. With respect, it is not a quantum leap to then say that that finality, which is the essence of the generation of an issue estoppel, that finality is recognised by the common law in relation to the estoppel which is contended for. It is the fact that the parties are not at liberty to re-agitate the resolved controversy which we say is the seed which forms the nucleus of the estoppel at common law. It is the resolution of that discrete matter of reference.
We say that the nature of the work of the tribunal has its genesis in the Act, necessarily, but there are two types of ways in which the medical panel can be required to determine a question relevantly to this argument. The first is the way in which it was engaged here, namely, pursuant to section 104B(9). That, if I can remind your Honours, requires there to be a dispute between the worker and the authority and that dispute is that the authority asserts a particular degree of impairment which is not accepted or disputed by the worker and it is that dispute which is then referred to the panel for its opinion.
That is different to the reference to the medical panel under, say, section 45 where the court simply identifies a question upon which the panel’s opinion is sought and which, upon it being given, binds the court. Here, under 104B(9), the precondition to the panel being asked to give an opinion is the existence of a dispute. We do not accept that. That therefore sits easily with the nature of the work being undertaken by the medical panel being inquisitorial rather than judicial in character. We say that the precise duty of the panel is to resolve the disputation by determining, by reference to the statutory tests, the controversy between the parties.
KIEFEL J: But it does not resolve the dispute by matters put forward for and against, does it? It resolves it by its own inquiries?
MR TREE: But, with respect, the parties do have the opportunities and, indeed, the panel is obliged to be equipped with material from which it can determine the ambit of the dispute. If you look at section 65, it is, perhaps, most useful to commence at subsection (6A):
A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying –
(a) the injury or alleged injury to, or in respect of, which the medical question relates;
(b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
Subsection (6B) I do not stay to read but that is the provision of information. One then goes back in the section to see that the panel can require the worker in subsection (5) to meet with it, to provide documents and to submit to examination, but we say that that is in the context necessarily of compliance with (6A) and potentially (6B). So that, in fact, the section works back to front, in a sense. The panel already is aware of what is in dispute at the time that it is preparing or obtaining further documents or information by way of examination of the worker.
So we say that in fact there is a dispute between the parties and that the parties are given an opportunity, as our friends concede, to place before the tribunal the material upon, or the arguments upon which they rely and, indeed, the referring entity is obliged to provide material which identifies the dispute and identifies the matters relied upon. So we say that it is a determination of competing positions by, we accept, the panel undertaking an assessment by reference to the statutory guidelines.
We say that the fact that this is a reference under section 104B(12) makes the decisions of Sherlock and Georgiou, which our friends have taken you to this morning, makes them distinguishable because there, of course, both cases were involving references under section 45 and we say that that is of a different character to a reference which has, as we say, at its heart the dispute between the worker and the insurer under section 104B(9). On that basis we say that the decision is the adjudication of a controversy and that the adjudication arrived at by virtue of the panel opinion is final and the parties are not free to thereafter re-engage in the disputation in relation to the issues resolved.
Turning then to the question of the identity of issues, which we accept is one of the three matters which the party asserting an estoppel must establish, we again say, as we have earlier today, that the issues which were resolved by the panel’s opinion are threefold; impairment as a fact, the degree of impairment and the permanence of the impairment and we simply repeat the submissions that we have made, albeit in the context of the section 68(4), we say that those issues are identical in the matter before the panel and the common law proceedings.
That then brings us to the third component of the estoppel which is that the parties or their privies are the same in relation to both. We say that it is clear from section 104B(9) and the nature of the controversy which is the source of the reference to panel that there are parties, that they are clearly identified, they are the worker and insurer, and we say that the way in which the panel is obliged to proceed under section 65, particularly in the context of a 104B(9) reference, is, albeit intended to be as the section says informal, is nonetheless of an adversarial character where there are two, in this case, adversaries in the nature of parties. The other issue in relation to – this is of course whether WorkCover is the privy of the appellant.
We say a number of things in relation to this, but firstly can I take your Honours to Ramsay v Pigram, which our friends have already taken the Court to. This involved a clash of litigation where one trial involving one set of parties had been resolved adversely to the driver of the vehicle who then promptly commenced proceedings against the State Government in question which it was said was the employer of the driver. The question arose to whether there was privity between the employer and the driver, and at page 279, third paragraph, about point 3 down the page, Chief Justice Barwick said this:
Of the three classes of privies of blood, of title and of interest, the only one which is submitted and indeed could be submitted to be relevant is that of a privy in interest. But I am unable to conclude that the Government or the Police Department was in this sense a privy of the police officer. The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be a privy.
I wish also to take your Honours to the decision of Tavares [2003] VSCA 12; (2003) 6 VR 577, which I think our friends were taking your Honours to shortly before I rose. At page 580 Justice of Appeal Phillips said this in paragraph 5:
As to the “issue estoppel” itself, one may start with the proposition that an issue estoppel, if properly so-called, binds the parties and their privies: Blair v Curran; Ramsay v Pigram. In this context that refers to those who are privy in interest and one who is not a party is the privy in interest of another who is a party if – and only if – the former claims “under or through” the latter: Ramsay. To that extent a privy is in a secondary position: or to put it another way, the privy will be bound only if the party is bound.
Here we say that the statutory regime and, indeed, the finality expressed in section 68(4) means that it is not able for the appellant here to assert in the words of Tavares that it is not bound by the medical panel opinion. The easiest way of demonstrating that is simply by reference to section 68(4), but we also say that an analysis of both section 9 of the Accident Compensation (WorkCover Insurance) Act, which our friends took you to this morning and I do not stay to take you to again, but your Honours might remember it says that the policy of insurance requires both the insurer and the employer to be liable to the worker, and also section 20 of the Accident Compensation Act itself point to the close relationship between the authority and employer. If one looks at section 20, one sees that the authority by subsection (1)(e) is to:
conduct or defend proceedings before a court or tribunal;
. . .
(g) defend actions against employers under this Act and at common law –
Perhaps I should have taken your Honours initially to (1)(aa):
receive and assess and accept or reject claims for compensation –
We say that the closeness of the interrelationship between the employer and the authority demonstrates that the authority is the privy of the employer. It is by statute required to act in relation to all aspects of the management of the statutory claim and, indeed, in relation to the common law claim. So we say that an analysis of the provisions of the Act, even absent section 68(4), demonstrates the relationship of privy between the parties.
We understand that our friends also seek to refute the existence of the estoppel by virtue of the alleged inconsistency between the estoppel and section 134AB(23)(b), which is the preclusion in relation to providing certain information to the jury, but as to that we say two things. We say that subsection (23)(b) is designed to ensure that a jury is not told of matters which are in fact irrelevant and the determination of serious injury, we would say, is a matter that is irrelevant to the jury’s determination in relation to any aspect that arises.
Secondly, even if we are wrong as to that, we say that it is not impossible for the jury to be instructed by way of direction or by way of the parties being restrained from making certain submissions. It is not impossible to ensure compliance with the statutory prohibition of the provision of information to juries and, indeed, the authority which our friends took you to this morning – I think there were several of them, I did not get a note of their names – but they appear to, albeit in the context of quite different schemes, recognise that the estoppel which is generated by the final determination of controversies by panels or other tribunals can be moulded or can be workably entwined with the statutory prohibition of the provision of certain information to juries.
KIEFEL J: Would the quantum of damages be a jury issue in relation to common law proceedings?
MR TREE: Just bear with me a moment, your Honour. I think the answer is yes, but there may be a statutory cap in relation to this. Essentially, yes, albeit subject to the qualification that I identified. For those reasons, your Honours, we say that we satisfy the requirements of the establishment of an issue estoppel. We say that on that basis the decision of the Court of Appeal is supportable even if the section 68(4) argument fails and on that basis, that the appeal ought be dismissed. Unless there is anything further, your Honours, those are our submissions.
FRENCH CJ: Yes, thank you, Mr Tree. Yes, Mr Wheelahan.
MR WHEELAHAN: If the Court pleases, I commence firstly by answering two questions which your Honour the Chief Justice asked this morning directed to the question of ministerial directions and conveners’ directions under the Act. The answers to the questions are as follows. At no relevant time have there been any ministerial directions made under subsection 65(8) of the Act. There now are and were at the time of the determination by the medical panel in this case conveners’ directions made under subsections 65(7) and 65(9) of the Act. There have been three versions of conveners’ directions dated respectively 1 March 1999 – and they were applicable at the time of this reference – 1 September 2006 and 1 March 2008.
We provide to the Court copies of the directions dated 1 March 1999 and 1 March 2008. Your Honour the Chief Justice asked me whether those directions had anything to say in relation to two issues; firstly, procedural fairness and, secondly, written submissions. Taking the 1999 direction firstly, they do not themselves impose any duty of procedural fairness that arises under general law, however, there are various provisions of the directions which give content to what we would submit is an assumed duty of procedural fairness, and we give by way of example paragraphs 9 and 21 of the 1999 document. The 1999 document says nothing about written submissions.
That position then changed in relation to written submissions so that in both the 2006 document and the 2008 document, which we have given to the Court, paragraph 29 specifically contemplates that there will be written submissions. The later document, like the 1999 document, assumes a duty of procedural fairness and there are paragraphs, for instance, paragraph 24 of the 2008 document which would give content to the obligation of procedural fairness.
By way of reply, we make the following submissions. Our learned friends accepted as an hypothesis for his submission that an issue estoppel arises, that it would arise if section (68)(4) is not engaged. In our submission, that is fatal to our learned friend’s submission as to the existence of an issue estoppel because it necessarily follows that the imposition of an issue estoppel would give rise to an incoherence. The issue estoppel could not sit with the terms of the Act because section (68)(4) speaks on the question of finality of the medical panel’s opinion.
Next, our learned friend referred to a decision of Justice Osborn which we propose to cite to the Court in the case of Georgiou. I will give the Court the citation, it is in our list of authorities, Georgiou v Capitol Radiology [2011] VSC 158. The nature of the function of a medical panel was referred to by Justice Osborn at paragraphs 57 and 58 and 61 of his Honour’s reasons. The observations of Justice Osborn in this case are consistent with the submissions we make to this Court as to the nature of the function being an expert rather than an adjudication function. However, our learned friends submitted that Georgiou was a reference under section 45 of the Accident Compensation Act.
We note that it was not a reference under the Accident Compensation Act, rather it was a reference under the Wrongs Act, and the nature of the reference under the Wrongs Act in Georgiou is very much akin to the reference to the medical panel in the present case. In other words, one of the parties, that is alleged tortfeasor, disputed an impairment assessment made by a medical practitioner. The Wrongs Act made provision for the reference of the impairment to a medical panel. Justice Osborn made the observation at paragraph 39 that the provisions of section 28LZ of Wrongs Act are analogous to section 65 of the Accident Compensation Act.
Our learned friend submitted that there is identity of issues between the issue determined by the medical panel and the issue arising in the common law proceeding. We refer to the submissions we advanced earlier and the test for that proposition is simply to compare the jurisdiction of the medical panel in 104B(9) with the orders made by the Court of Appeal in this case and there is no correspondence.
I turn now to privies. Our learned friends made the submission that there was a closeness of relationship between the authority and the employer. That may be admitted but it does not give rise to privity of interest. Our learned friend referred to what Sir Garfield Barwick said in Ramsay v Pigram as to the concept of privity. In our submission, it is also desirable to refer to what was said by Mr Justice Taylor and Mr Justice Windeyer in Ramsay v Pigram on that topic. At page 287, Mr Justice Taylor, at about point 6 on the page, referred to the text Taylor, Treatise on the Law of Evidence and extracted some propositions from that American text.
On the following page, Justice Taylor considered the question whether the effect of the particular legislation in that case permitted privity of interest and his Honour determined that that was not the case. His Honour specifically referred to United States decisions at about point 6 on the page and observed that the law in this country has developed along different lines. We submit that the effect of that observation is the doctrine of privities are very confined, or more particularly privity of interest is very confined in this country and always has been.
It is also necessary to look at what was said by Justice Windeyer, commencing at the foot of page 289 and the top of page 290. Justice Windeyer undertook a slightly different analysis to that undertaken by Justice Taylor. Justice Windeyer expressed doubt whether at common law – this is at the top of page 290:
the liability of one tortfeasor, found in an action, means that he and all others who then stand in the position of joint tortfeasors with him are to be regarded as having been his privies -
The closest one gets to a suggestion that there might be a privity of interest in the case of joint liability in this case, that is in Ramsay v Pigram, is if the two parties were regarded as joint tortfeasors. The present case before this Court is quite different, because this is not a case of joint liability. The causes of action which would exist against the authority and the employer are separate causes of action. At common law, the liability of the employer is in the tort of negligence. The liability of the authority is a statutory liability arising under subsection 9(3) of the WorkCover Insurance Act.
On the question of privity, we refer the Court also to the observations of Justice Gummow, sitting in the Federal Court, in Trawl Industries v Effem Foods – I will not take the Court to the passage, but the reference is [1992] FCA 272; 36 FCR 406 at page 414. Our learned friend took the Court to the decision of the Victorian Court of Appeal in Tavares v Tavares [2003] VSCA 12; (2003) 6 VR 577. Our learned friend took the Court to a particular passage of the reasons of Justice Phillips. In our submission, it is necessary to go to the conclusion which Justice Phillips expressed at the foot of page 580, the last sentence on that page.
Now, can I just set this up by making some brief observations about the facts in Tavares? It was a transport accident case. Under the Transport Accident Act there was a gateway very much like the, in concept at least, like the gateways under 134AB and there were gateways to benefits, that is no fault benefits under the Transport Accident Act and also to the commencement of a proceeding for common law damages.
Under the Transport Accident Act, a decision of the Transport Accident Commission was, at the time relevant to Tavares, reviewable in the Victorian Administrative Appeals Tribunal. Tavares concerned an application under the Transport Accident Act for leave to commence a common law proceeding, much like (16)(b) in the Act we are concerned with in this case.
The question arose whether a finding made by the Administrative Appeals Tribunal gave rise to an issue estoppel which bound the court and one of the submissions which was necessary for the plaintiff to make was that the tortfeasor was a privy of the Transport Accident Commission, much like the submission our learned friends makes here, that the employer is a privy of the authority. Justice Phillips, at the foot of page 580 concluded on that issue:
in no sense at all is the first-named appellant the privy of the commission, for he is claiming neither under nor through the commission. He is a party in his own right, joined in the application for leave because he is the alleged wrongdoer –
In our submission, those observations apply equally to the circumstances of the present case.
Our learned friend referred also to the fact that the authority is able to control litigation and, in our submission, that is insufficient to give rise to any privity of interest. Under laws of the United States, control of litigation may be a factor which gives rise to privity and that is referred to in the American Restatement of Judgments 2nd Edition in section 39. Finally, on that issue, the suggestion that control might be sufficient to give rise to privity was rejected by your Honour Justice Hayne in Linsley v Petrie [1998] 1 VR 427 at page 441, lines 15 to 20.
HAYNE J: Is that not a dissenting opinion? It may have been. Perhaps I am mistaken. Anyway, it was written a long time ago, Mr Wheelahan. Later thoughts are often better thoughts.
MR WHEELAHAN: It would be a substantial departure from accepted authority in this country to entertain the prospect that control might give rise to privity. That is our submission. Unless there is anything else - - -
HAYNE J: One matter, Mr Wheelahan. The undertaking you gave on behalf of your client at leave was that your side would pay the costs of the appeal including the costs of this application. If you were to succeed, why should the plaintiff lose her costs in the Court of Appeal? This is in the nature of a test case, is it not?
MR WHEELAHAN: Yes, for two reasons; the issue before the Court of Appeal was one raised by the plaintiff before the primary judge in the County Court by way of amendment to the plaintiff’s reply, so the issue was
introduced by the plaintiff. That is the first reason. The second reason is that the plaintiff joined in the application to refer the case stated to the Court of Appeal. I have no further submissions on that point.
FRENCH CJ: Yes, all right. Thank you, Mr Wheelahan.
MR WHEELAHAN: If the Court pleases.
FRENCH CJ: The Court will reserve its decision. The Court adjourns until 10.15 tomorrow.
AT 3.06 PM THE MATTER WAS ADJOURNED
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