s87 of the Work Health Act is rebuttable, nor whether it is
open to the insurer to raise by way of defence, in a claim
under
the Work Health Act against it, defences which might
be available to the employer in a claim for compensation.
If the insurer
is able to raise such defences then they
would be matters clearly better left to trial rather than
being dealt with on an application
for summary judgment.
The application is dismissed."
22. The application for summary judgment: the materials relied on by Union:
In moving for summary judgment in proceedings No.44 of 1990, Mr Riley relied
upon the affidavits of Mr Raynal of 14 November 1990,
Mr Haywood of 12
November 1990 and Mr Morris of 6 February 1992.
23. Mr Hiley objected to parts of the affidavit of Mr Raynal as
irrelevant,
and paras1 and 2, and the first three lines of para3 as hearsay. I consider
that para1 is relevant, and establishes
for present purposes that Mr Raynal
took up duties as Administrator of the employer on 16 May 1988. I uphold the
other objections.
Mr Raynal's affidavit shows that he ceased working for the
employer on 28 July 1989. In November 1988 he said he had completed,
on the
plaintiff's behalf, and forwarded to Union, a Work Health Claim Form. It is
common ground that the plaintiff does not seek
to rely on that form.
24. Mr Hiley objected to parts of Mr Haywood's affidavit: to para3, 4 (except
as to his own general search
and its negative outcome), 5-7, 8 (last 2 lines)
and 9, as hearsay. I uphold these objections, with the exception of the first
3
lines of para3, and the last 2 lines of para8. Mr Haywood's affidavit shows
that he attended on the employer on 25 January 1990 and
there searched for the
claim form of 3 August 1989.
25. Mr Hiley objected to para7 of Mr Morris' affidavit of 6 February 1992, as
hearsay. I uphold that objection.
THE SUBMISSIONS BY UNION
26. Against that background Mr Riley submitted that the sole question
to be
answered to determine these three applications was whether the provision in
s87 of the Act by which, in certain circumstances,
the "employer - - shall -
-be deemed to have accepted (liability for compensation claimed)", applies to
the employer in the circumstances
of this case. He submitted that it did not
apply, because the prerequisites to its application did not exist. It can be
seen that
this was the argument before Martin J; however, there is the new
matter of an issue estoppel said to arise from the findings of Martin
J.
27. (a) Non-receipt by employer of claim form; and issue estoppel: Mr Riley
submitted that the plaintiff's claim form of 3 August
1989, for present
purposes admitted to have been posted, was never received by the employer.
That it was never received had been
found as a fact by Martin J (p28). It will
be recalled that the obligation on the employer under s85(1)(d) of the Act is
to dispute
liability "within 7 working days after receiving a claim for
compensation". Union's argument runs as it did before Martin J. In
a
nutshell: the claim of 3 August 1989 was never received, the employer
therefore never failed to dispute liability in terms of s85(1)(d)
and there
was nothing therefore to enliven the deeming provision in s87, s132(1) and 133
accordingly do not apply, proceedings No.44
of 1990 are accordingly without
any legal foundation and they should be struck out. It can be seen that the
factual foundation for
this edifice of inexorable logic is that the Yuendumu
Community Council Inc. never in fact received the claim form. That was a
specific
finding by Martin J on 21 December 1990. What is the legal
consequence of that finding for present purposes?
28. Mr Riley submitted
that when the plaintiff applied for summary judgment
in proceedings No.44 of 1990, he sought to prove as an essential part of his
case for that relief, that he had served his claim on his employer under
s83(1)(b) of the Act. That is, that the claim of 3 August
had been placed in
a properly addressed envelope and sent on 16 August 1989 by pre-paid post to
Yuendumu Community Council Inc. at
its usual place of business. Martin J
dismissed the application for summary judgment, on 21 December 1990. Mr
Riley submitted
that in doing so, his Honour made findings of fact which bind
the plaintiff and Union, as parties; that is, those findings are final
and
conclusive as between the parties, who cannot now, or ever, seek to controvert
them. In short, they are now estopped from doing
so. One of those binding
findings of fact was "that the employer did not receive the claim for
compensation of August 1989"; see
p28 of Martin J's judgment. Mr Riley
submitted that the plaintiff is estopped from controverting that finding of
fact, with the
consequence that he cannot succeed in action No.44 of 1990, for
the reasons set out in the "nutshell" argument above; that is, because
the
edifice of his claim lacks the necessary foundation of service of the claim.
29. Mr Riley submitted that the only other possible
basis on which the
plaintiff could found his action No.44 of 1990 against the defendant would be
the other "leg" in s132(1)(b) of
the Act, that "the employer has agreed to pay
compensation". He submitted that affidavit evidence showed that there was no
such
agreement; and, further, the plaintiff does not contend that any such
agreement exists. That does not appear to be formally correct;
in para5 of his
Statement of Claim the plaintiff alleges:- "The employer has agreed to pay
any compensation or the liability of
the employer has been established in
accordance with the Act."
30. Further, the only affidavit evidence on the point appears to
be para7 of
Mr Morris' affidavit of 6 February 1992, which was objected to and not
received in evidence.
31. As noted above, Martin
J found at p28 of his judgment that "the employer
did not receive the claim for compensation" and concluded (at p29) that
therefore
"an essential precondition to the making of a claim on the defendant
has not been satisfied". His Honour's judgment is of course
under appeal, in
proceedings No.AP1 of 1991. Mr Riley submitted that that appeal cannot succeed
because his Honour's finding - that
the claim was not received by the employer
- is a finding of primary fact, with which a Court of Appeal will not
interfere. The
characterization of this finding as one of primary fact is not
correct; his Honour ruled first (pp26-7, 28) that as a matter of law
(and
assuming that s25 of the Interpretation Act applied) the deeming provision of
s25 involved a rebuttable presumption of service of the claim, permitting
proof to the contrary. Having so ruled, he considered the
evidence (pp27-8)
and held (p28) that it established that in fact the employer had not received
the claim form. That ultimate finding
of fact depends on the correctness of
the earlier ruling of law as to the construction of s25; it cannot be said to
be unarguable that the Court of Appeal will take a different view of the
construction of s25 - deeming provisions involve notoriously difficult
problems.
- (b) The question whether the envelope was "properly addressed";
and issue
estoppel: Mr Riley noted that, for present purposes, it was accepted that the
plaintiff's former lawyers on 16 August
1989 had posted a claim form dated 3
August 1989, with a covering letter dated 11 August, in an envelope addressed
to "Christopher
Raynal, Administrator C.M.B. Yuendumu Community Council via
Alice Springs 0872". Section 83(1)(b) of the Act provides for service
of a
claim by post, but requires that the claim must be placed "in a properly
addressed envelope". Mr Riley noted that the evidence
before Martin J was to
the effect that when the claim was posted on 16 August, Mr Raynal was no
longer employed by the Yuendumu Community
Council, having left its employment
on 28 July 1989. At the time of the accident, 18 October 1988, he had been
the Council's "Administrator".
Accordingly, Mr Riley submitted that the
envelope posted on 16 August 1989 was not "properly addressed", as required by
s83(1)(b),
in that the name "Christopher Raynal" appeared as part of the
addressee. Section 25 of the Interpretation Act, in setting out the
circumstances in which service by post is deemed to be effected, also requires
as a precondition that the envelope
be "properly addressed"; so it advances
the plaintiff's case no further, in that respect. Mr Riley submitted that
Martin J had found
(at p29) as a primary fact that the envelope was not
"properly addressed", and that was a finding which could not now be affected
by any other evidence. Since that fact was now finally established as between
the parties, one of the preconditions to enlivening
the deeming provision in
s25 of the Interpretation Act had not been met; therefore s25 did not operate,
and service of the claim of 3 August 1989 upon the employer was not deemed
thereby to have been effected.
- I
observe that his Honour's finding that the envelope was not "properly
addressed" was based on the evidence then placed before him
in the application
for summary judgment. His Honour also found (at p29) that the envelope was
"addressed - - to the Administrator
of the Association". There was no
evidence before his Honour as to extent of the authority of the Administrator.
- As to what
is connoted by "properly addressed", in the two Acts, Mr Riley
submitted that service of the claim upon the employer could have been
effected
under s24(1) of the Associations Incorporation Act, by sending it by post to
the employer's public officer; however Mr Raynal
was clearly not its public
officer. He submitted that the envelope should have been addressed to
"Yuendumu Community Council Inc.",
not to an individual by name or by office.
- . The distinction between res judicata and
issue-estoppel is that in the first the very right or cause
of action claimed
or put in suit has in the former
proceedings passed into judgment, so that it is merged and
has no longer an independent existence,
while in the second,
for the purpose of some other claim or cause of action, a
state of fact or law is alleged or denied the
existence of
which is a matter necessarily decided by the prior judgment,
decree or order."
- Mr Riley also referred to
Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at p466,
per Fullagar J.
- I note that Carl-Zeiss Stiftung v Rayner and Keeler Ltd (No.2) (1967) 1
AC 853 shows that to set up an issue estoppel arising from the findings of
Martin J, Union must establish four matters. First, that the
issue in
question was also involved in the proceedings before Martin J. That is clear.
Second, that the issue was actually litigated
and determined before Martin J.
That also is clear. Third, that its determination was necessary to his
Honour's judgment. Fourth,
his Honour's decision on the issue must have been
final. As will appear, I do not think that the third and fourth matters have
been
established.
- (d) The application to strike out proceedings No.44 of 1990 for want of
prosecution: On the application of 26
March 1992 under Rules 48.03 and 24.01
to strike out proceedings No.44 of 1990 for want of prosecution, Mr Riley
informed me that
nothing had occurred since the pleadings had closed on 26
June 1991, except for certain correspondence concerning discovery; see
the
annexures to Ms Fong Lim's affidavits of 11 February 1992 (in file AP1 of
- and 26 March 1992. In this connection, Mr Riley
observed that the cause
of action arose in August 1989, the writ had issued in January 1990, but the
action had not yet been set
down for trial under R48.02.
- (e) The application to strike out appeal AP1 of 1991: As to the
application to strike out the
appeal, Mr Riley relied on Mr Morris' affidavit
of 6 February 1992. This showed that the judgment of Martin J was delivered
on 21
December 1990 and the plaintiff had filed his application for leave to
appeal on 1 February 1991. The appeal remained dormant for
the rest of 1991
but was restored to the "active" appeals list on 20 January 1992. Mr Riley
said that he understood that the plaintiff
did not wish to pursue the appeal
unless Union amended its Defence in proceedings No.44 of 1990 so as to plead
issue estoppel. He
said that Union had not yet chosen to do so.
THE PLAINTIFF'S SUBMISSIONS
- (a) General: Mr Hiley QC of senior counsel for the
plaintiff made the
following submissions. The findings by Martin J in his judgment of 21
December 1990 cannot give rise to an issue
estoppel in the hearing of the
present applications or at the trial of the action. The only reason that the
plaintiff has kept his
appeal AP1 of 1991 against Martin J's judgment on foot,
is the possibility that it might ultimately be held that the submission above
is incorrect and that those findings give rise to an issue estoppel;
otherwise, appeal AP1 of 1991 is totally unnecessary.
- He
submitted that it was trite that when ruling upon an interlocutory
application, any findings then made on the issues between the
parties are made
only for the purposes of that application. The final determination of those
issues must await the trial of the
action. In this connection, Mr Hiley
stressed the differences between the hearing of an interlocutory application
and the trial
of an action. In the former, evidence may be adduced on
affidavit and a defendant may rely on hearsay evidence; for example, in
the
hearing before Martin J, Union had relied pursuant to R22.04(2) on the hearsay
evidence contained in the affidavit of Mr Haywood.
He submitted that the
evidence to be adduced at the trial of the action would be quite different,
both in nature and content. Further,
the tests applied when making findings
on the evidence were different: at trial, findings were made on the balance of
probabilities;
on an application for summary judgment, such as that before
Martin J, facts in issue did not have to be canvassed in detail - a defendant
showing cause had only to satisfy the Court under R22.06(1) that there was a
real case to be investigated in fact or in law.
On 21 December 1990 Martin J had dismissed an application for summary
judgment. For the purposes of that ruling it was unnecessary
for his Honour
to go as far as he in fact went, in finding that the employer had never
received the claim of 3 August 1989; it was
sufficient to have found that
there was a triable issue as to whether the employer had received it. The
finding of non-receipt could
not, in any event, be binding at the trial of the
action; the question whether the employer had been served was an issue between
the parties, for determination at trial.
43. As to Union's application under R23.01(1)(a) or R23.03 for summary
judgment in proceedings
No.44 of 1990, Mr Hiley submitted that insofar as it
relied on the material in the affidavit of Mr Haywood, much of that material
was inadmissible as hearsay. I do not think that this submission is
necessarily correct; affidavit evidence may be used by any party
under
R23.04(1), and it may contain hearsay in accordance with R43.03(2). Mr Hiley
noted that the application founded on the question
of the employer's
non-receipt of the claim, the question of the proper address on the envelope,
and issue estoppel in relation to
both of those questions. He submitted that
Union could not rely on the judgment of Martin J to support its application,
as giving
rise to an issue estoppel, although in fact that is what primarily
it had sought to do. He submitted that to establish its case
on the
application, Union could only rely on the factual material in the affidavits
on which it relied.
44. As to whether an issue
estoppel arose from the findings of Martin J of 21
December 1990, Mr Hiley noted that his Honour had recounted the evidence
placed
before him, but had also referred to aspects of the case on which no
evidence had been placed before him, although it could have
been. For
example, his Honour referred at p17 to the authority of the Administrator of
the employer, a matter also relevant to the
question at p29 whether the
envelope had been properly addressed. Again, his Honour had referred at pp24
and 27 to the lack of evidence
of the employer's system for handling its
incoming mail or claims, noting at p27:- "The plaintiff has not brought
forward any evidence
as to receipt of the documents by the employer
association." Mr Hiley submitted that evidence on these aspects would be
adduced at
trial.
45. Further, Mr Hiley submitted that a judge at trial would be viewing the
(different) evidence before him on a "probabilities"
basis, and not on the
stricter basis which applies on an application for summary judgment under
R22.02(1), where the plaintiff must
show clearly that there is no real
question to be tried.
46. In summary, then, Mr Hiley submitted as follows. First, the findings
by
Martin J in his interlocutory judgment of 21 December 1990 could not
constitute a basis for issue estoppel. Second, to obtain
summary judgment
Union was required to establish either that the plaintiff had failed to
disclose that he had a cause of action,
or that he could not possibly satisfy
the court at trial, on the balance of probabilities, that the employer had
received the claim
form of 3 August 1989.
47. Mr Hiley submitted that for issue estoppel to apply the relevant finding
of fact had to be a finding
in a final judgment, that is, a judgment which
finally determined the dispute between the parties. A finding in an
interlocutory
judgment could not operate as an estoppel. The judgment of 21
December 1990 was an interlocutory judgment. He also noted that the
matters
of fact said to ground an issue estoppel ought to be pleaded in the Defence,
yet Union had not as yet done so.
48. (b) Plaintiff's
supporting materials: Mr Hiley relied on the five
affidavits which the plaintiff had been relied on before Martin J, viz: the
affidavit
of Mr Grimes of 5 September 1990, of Mr Brown of 5 September 1990,
of the plaintiff himself of 31 October 1990, of Ms Mitchell of
8 November 1990
and of Mr Hill of 9 November 1990. Mr Riley objected to paras4, 5 and 7 of Mr
Grimes' affidavit, as irrelevant;
I uphold that objection.
49. In his affidavit the plaintiff deposed to having been injured on 29
October 1988 when driving a motor
vehicle whilst in the course of the
employer's employment, to his resulting incapacity, and to having completed
the claim form on
3 August 1989. Ms Mitchell's affidavit showed that the
public officer of the employer since 2 July 1986 was John Stewart, that the
employer is an association incorporated under the Associations Incorporation
Act, and its address is P.M.B. Yuendumu. Mr Brown is
a solicitor employed by
the former solicitors for the plaintiff. His affidavit dealt with the posting
of the claim of 3 August 1989
to the employer on 16 August. Mr Hill's
evidence shows the course of mail delivery from Alice Springs to Yuendumu.
50. Mr Hiley
observed that, by way of contrast to these materials, Union had
not placed before the court in support of its application for summary
judgment
any evidence from the employer, the employer's public officer, Mr Raynal's
replacement in the employment of the employer,
or any evidence as to who was
conducting the affairs of the employer at the time the claim of 3 August 1989
should have been received
by the employer in the course of post. Mr Hiley
submitted that the material adduced by the plaintiff was sufficient to show
that
there was a dispute as to the facts, a dispute sufficient to prevent
Union from succeeding on its application for summary judgment,
unless Martin
J's judgment of 21 December 1990 created an issue estoppel.
51. As to the application for summary judgment, he submitted
that although it
was made under O23 the main principles applicable to O22 (applications for
summary judgment by a plaintiff) applied.
I accept that submission; the
relevant principles applicable to applications under O22 are conveniently set
out in Australia and
New Zealand Banking Group Ltd v David (unreported, 6
December 1991), at pp2-4 and 9-10. I also accept that when, as here, in an
application for summary judgment, it is clear that not all the evidence is
before the Court, the proper course is to take the view
of the facts which on
the evidence is most favourable to the plaintiff, and on that basis to decide
whether the action is hopeless;
see P.J. Constructions (Vic) Pty Ltd v Nyko
(unreported, Supreme Court of Victoria, 29 October 1981).
52. It followed, in Mr Hiley's
submission, that in light of the effect of the
evidence adduced by the plaintiff, the only basis on which Union could rely
was that
an issue estoppel had been created. As to that, he contended, as
indicated earlier, that an issue estoppel arose only where the
previous
judgment was a final judgment; and further, if it was a final judgment, only
where the finding in question was fundamental
to that judgment. He submitted
that the judgment of 21 December 1990 was not a final judgment, relying on the
authorities conveniently
cited in Heller Financial Services Ltd v Solczaniuk
; at 316. His submission was that since the judgment of 21
December 1990 did not conclude the rights of the parties inter se, it was
of
an interlocutory nature.
53. I noted earlier his submission that the finding at p28 of the judgment of
21 December 1990 which
was relied on as constituting an issue estoppel was not
fundamental to that judgment.
54. As to the applications to strike out proceedings
No.44 of 1990 and appeal
AP1 of 1991, Mr Hiley noted that R48.03 enabled a defendant to set down a
proceeding for trial if the plaintiff
failed to do so under R48.02; he
submitted that that was the proper course of action for Union to have taken.
He noted that the
evidence disclosed that the parties had been corresponding
both on the question of discovery and the question whether Union was going
to
plead issue estoppel. He submitted that the correspondence showed why it was
that the plaintiff wished to defer a hearing of
the appeal until the point
concerning issue estoppel had been cleared up.
55. In Mr Hiley's submission, all three applications should
be dismissed.
CONCLUSIONS
56. For Union's application for summary judgment under O23, whether under
R23.03(1)(a) or R23.03, to be
successful it must show that the plaintiff's
case is unsustainable in fact or in law. Order 23 is intended as a means for
dealing
with actions which are absolutely hopeless, those so obviously
frivolous or unsustainable or untenable that it is plain and beyond
rational
debate that they cannot succeed. The power under O23 is to be exercised by a
Court with great caution; an applicant bears
a heavy burden. If the plaintiff
shows an arguable case, one which is not unworthy of serious discussion and of
evidence being led,
a case not hopeless beyond argument, an application under
O23 should be dismissed. The question is whether it would be open to the
plaintiff on the pleadings to prove facts at trial which would constitute a
cause of action; see Mutual Life and Citizens Assurance
Co Ltd v Evatt ; at p631. The affidavit process is unsuitable when facts are in
dispute, and this also points to the jurisdiction being exercised
only when
the case is obvious and clear beyond doubt.
57. Setting aside the question of issue estoppel, I do not consider that
Union
has discharged the burden on it to establish the matters referred to
above; that is, I am satisfied that the plaintiff has an arguable
case.
58. I turn to the question whether the plaintiff is estopped by the findings
of fact at p28 in the judgment of 21 December
1990, that the employer did not
receive the claim of 3 August 1989, and that the envelope was not properly
addressed. Union contends
that the plaintiff is thereby estopped from relying
on a fact essential to his action - that his claim was in fact served on his
employer.
59. I accept Mr Hiley's submission that an issue estoppel cannot arise unless
there is a final judgment between the parties;
that is, a judgment which
finally determines their dispute. The judgment of 21 December 1990 was not,
in my opinion, of that character.
It was an interlocutory judgment, and that
will not suffice to create an issue estoppel; see Somodaj v Australian Iron
and Steel
Ltd ; , and Morgan v Odhams Press Ltd at p1253 and 1263. Judgments are conclusive as between parties, as to
the facts thereby decided. But this is not the case with
interlocutory
judgments; see Huntly (Marchioness of) v Gaskell at p667, per
Cozens-Hardy LJ. An application for summary judgment is interlocutory in its
nature; the fact that it fails does not
mean that the plaintiff is forever
barred from renewing it, though R22.02(4) requires that he first obtain an
order from the Court
to do so.
60. Accordingly, I think the argument that the plaintiff is estopped by the
findings in the judgment of 21 December 1990
must fail. The application for
summary judgment must be dismissed.
61. As to the applications to strike out proceedings No.44 of
1990 and AP1 of
1991 for want of prosecution, it is sufficient to say I consider that in the
circumstances revealed it would be wholly
inappropriate to make such orders.
Those applications are dismissed.
OBSERVATIONS
62. If Union considers that it should pursue the
issue estoppel argument, it
is open to it to seek leave to plead issue estoppel in its Defence under
R13.02(2), and to apply under
R47.04 to have that question tried as a
preliminary issue. As to the advantages of this course see the observations
of Walsh J in
Co-Ownership Land Development Pty Ltd v Queensland Estates Pty
Ltd at pp521-2.
63. I consider that these proceedings should not remain in their present
"stagnant" state, as Mr Riley described it.
Mr Riley asks that action No.44
of 1990 be stayed until appeal AP1 of 1991 is heard, and that the appeal (or
application for leave
to appeal) be listed for early hearing before the Court
of Appeal. I consider that it is preferable that both proceedings No.44
of
1990 and AP1 of 1991 be referred to the Registrar to monitor their respective
progress and to issue the directions necessary to
ensure that they flow again.
As a first step, I order pursuant to R48.05 that proceedings No.44 of 1990 be
set down for trial; and,
pursuant to R48.07(1), that a listing hearing of that
action take place without a duly completed Certificate of Readiness for trial
being filed. This will enable the Registrar to give early consideration to
the matters listed in R48.09(3), and to keep those matters
under continual
review.
64. I note that the type of litigation embodied in proceedings No.44 of 1990
can hardly be what the legislature
had in mind when it passed the Work Health
Act into law. Yet that litigation stems directly from the provisions of the
Act and it
is, I think, likely to increase. The reason in my opinion is that
the period of "7 working days" in s85(1) of the Act takes insufficient
account
of the realities of outback Territory life. Some relaxation of the rigidity
and brevity of that time limit is essential
if claims are to be litigated on
their merits before the Work Health Court instead of devolving into
complicated litigation such
as this, in which the issues bear no relationship
to the merits of the case at all. I respectfully commend the matter of
appropriate
amendments to the attention of the legislature as worthy of
consideration.
ORDERS
65. Union's applications are dismissed. The plaintiff
must have his costs.
The other orders I have made to expedite this litigation are set out on p26.