Return to Work Corporation of South Australia v Stephenson [2019] HCATrans 249 (13 December 2019)

Last Updated: 16 December 2019

[2019] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A17 of 2019

B e t w e e n -

RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA

Applicant

and

PAUL STEPHENSON

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 13 DECEMBER 2019, AT 11.33 AM

Copyright in the High Court of Australia
MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR S.A. McDONALD and MR B.J. DOYLE for the applicant. (instructed by Minter Ellison Lawyers)

MR M.J. RODER, SC: If the Court pleases, I appear with MR J.K. WARREN for the respondent. (instructed by Palios Meegan & Nicholson)

MR LIVESEY: This case provides an opportunity to consider how cause of action estoppel applies to consent orders in a claims‑based statutory scheme despite the difficulties described by Chief Justice King in Salmon Street, the relevant extracts of which appear at application book pages 90 and 91.

GAGELER J: Mr Livesey, you open attractively in generic terms but we are here concerned with a peculiarly South Australian problem, are we not?

MR LIVESEY: We are, save that the Chief Justice has articulated what appears to be a novel and new proposition in absolute terms which appears at paragraph 29, application book page 95, where he speaks, presumably, of all claims‑based systems where there is a determination of an award and the scope for which cause of action estoppel can apply. That is a principle that does not limit itself in terms or effect to legislation in South Australia.

It is a principle, we say a wrong statement of principle because it misstates the proper application of cause of action estoppel quite apart from its mistaken effect of the act to all claims‑based systems. Might I add, your Honours, that whilst there is a particular concern about this case in South Australia, that is underscored by the fact that there are very many of these types of resolutions by consent order. Another example is ‑ ‑ ‑

GORDON J: Do you not now, though, Mr Livesey, have the benefit of a decision which will enable you to craft and/or draft these orders to, in effect, address this problem? Is there not a practical solution to it?

MR LIVESEY: Not for the 20 years of settlements that have already been made with orders such as these. What this decision does is open the door to new claims for sequel injuries and impairments years after conciliated resolution and notwithstanding the parties on the face of it intended that there be finality. This is a decision which defeats finality and which is inconsistent, not only with the terms of the former Act but the terms of the current Act.

The path to this new principle that the Chief Justice articulates is taken by means of the reading down of a jurisdiction provision, that is 88DA, which can be found at application book 91, contrary to the usual approach to read jurisdiction provisions broadly – an example of that is the decision of this Court in Shin Kobe Maru – and a reading down of the objects provision which appears at paragraph 35 on application book 96.

What the Chief Justice does by articulating this suggested new principle is emphasise the future nature of injuries or impairments and whether they are specified in a particular manner, both of which criteria are vague and difficult to apply and without regard to the terms of the legislation or, indeed, the terms of the order.

This was a case, of course, where the worker knew at the time of the consent orders that he had injuries productive of symptoms, on the finding made by the trial judge, and he had not appreciated that they were permanent impairments, or that they had a particular legal effect. The Chief Justice regards that as critical, as appears at application book page 98, paragraph 45. As the Chief Justice puts it, because the claim:

proceeded on the premise that he was not suffering the . . . impairments . . . It follows that there can be no cause of action estoppel.

That is quite apart from the clear meaning and effect of the order which appears at application book 88 where the parties following a conciliation agreed the terms of those orders and, critically, agreed to expand the jurisdiction to encompass the new contentious claims concerning thoracic spine and left shoulder injuries but in effect said “no more. We will accept, by compromise, those claims” – claims made after the 2009 work injury, emerging around 2011. But by the time of the consent orders in 2013, the parties effectively agreed no more. At 3.2:

The worker has no further or other entitlement pursuant to section 43 of the Act arising from his compensable injuries sustained on 19 January . . . or any sequel thereof -

clearly articulating a causal connection with the earlier injuries. But that is simply ignored by the Chief Justice, with respect, on a flawed view of the Act, as appears at application book page 100 where his Honour articulates, as regards paragraph 3.2 of the orders, that it could “do no more than declare” that which was in existence as at the date of the consent orders. His Honour held that that was the natural meaning but, critically, that was also the construction it must bear by reference to 88DA. Then he went on to explain at application book page 101:

Only a subsequent claim which required . . . a finding of fact that Mr Stephenson was suffering that impairment –

at the date of the consent orders could be precluded.

GAGELER J: Do you dispute that it was the natural meaning?

MR LIVESEY: Yes, we say that is plainly wrong. But of course the Chief Justice gets to that point only by the prism of passing through the way in which the Act operates under 88DA and the objects provision too, and applies erroneously a constricted approach to their meaning. But what this leads to is the absurd proposition that only where the applicant actually has the permanent impairment at the date of the consent orders can they be the subject of preclusion, in effect, only once all of the requirements for a claim under section 43 – or as it is now, section 58 – exist, can there be a preclusion. Only good claims can be precluded, not claims the subject of contentions or, as it appears here, agreement that there can be no further claims which can be easily supported on the basis of those contentions if plainly tenable.

We say that is, with great respect, an absurd outcome which is only arrived at by this new statement of principle which utterly misconstrues the approach that Chief Justice King articulated in Salmon Street. That is an approach, in my respectful submission, which does nothing to promote finality as the objects of the Act, both former and current, require and it does not reduce litigation – rather, it promotes litigation.

It undermines the conciliation process which the parties are exhorted to embark upon and to achieve compromises, including by expanding the issues under 88DA – or as it is now, section 65 of the South Australian employment tribunal legislation. But one of the concerns – to take up your Honour Justice Gordon’s question – is not merely whether the prospective claims can be addressed but what occurs with respect to claims which have already been resolved.

At application book page 31, the Court will see a reference to Nemesis which is presently reserved before the Full Court and which, as its centrepiece, has the order that can be seen at paragraph 111. On the Chief Justice’s approach – notwithstanding the specificity of that order – it is beyond power. It is beyond jurisdiction and it must be struck down and read down in the way in which the Chief Justice suggests.

GAGELER J: You say this is currently reserved before the Full Court of the Supreme Court?

MR LIVESEY: It is, and, on the ruling of Stephenson, it is very likely to go the same way as Stephenson.

GAGELER J: Is the submission you have just made consistent with the submission that was made to that court?

MR LIVESEY: Yes, yes, it was. The debate – and I should say a debate in which I was involved – was about whether there was some significance about the use of the word “impairment” rather than “permanent impairment”. But it is clear on a reading of the whole of his Honour’s – that is to say the Chief Justice’s – judgment, that he highlights the importance of the absence of a permanent impairment at the time of the consent orders as precluding the operation of cause of action estoppel.

That leads to the absurd outcome that I have earlier described, notwithstanding, for example, that where there is to be a matter determined by the Tribunal, the Tribunal could easily make findings that, notwithstanding the compensability of the original injury in 2009, compensability was no longer apparent by 2011 or 2013 for matters such as other injuries or events, but perhaps more importantly it undercuts the scope of the parties to agree the scope and extent of their compromise by consent orders. We emphasise at application book page 92, section 92C, the role for the conciliator - at subsection (6):

The conciliator presiding at a conference may make a determination or order –

such as occurred here:

to give effect to a settlement -

Now, the effect of the Chief Justice’s new principle is that that is beyond jurisdiction for reasons which are both unsound and contrary to principle. If the Court pleases, my client urges this Court to intervene to demonstrate how this important principle can be applied to achieve finality in relation to these matters which we emphasise extend to a large number of matters. If the Court pleases.

GAGELER J: Thank you, Mr Livesey. Mr Roder, we do not need to hear from you, thank you.

The decision of the Full Court of the Supreme Court of South Australia concerns the construction and application of a peculiarly South Australian statute. We are not satisfied that the application for special leave to appeal from that decision raises a question which warrants the intervention of this Court as a national Court of Appeal. Special leave to appeal is refused.

Do you seek costs, Mr Roder?

MR RODER: I do, your Honour.

GAGELER J: Mr Livesey?

MR LIVESEY: Nothing to put against that, your Honours.

GAGELER J: Special leave to appeal is refused with costs.

The Court will now adjourn to 3.30 pm on Monday, 3 February 2020 in Canberra.

AT 11.46 AM THE MATTER WAS CONCLUDED