Commissioner of Police v Police Association of New South Wales [2010] NSWIRComm 188 | Case summary

Commissioner of Police v Police Association of New South Wales [2010] NSWIRComm 188 | Case summary | Zoe

[40]

A Fitness to Work Summary is attached. 15 On or around 8 January 2007, an application for Ms Davies' medical discharge was made. 16 On 10 January 2007, the appellant advised Ms Davies that she had been submitted for medical discharge. On 11 September 2007, Ms Davies applied for a partial and permanent disablement ('PPD') benefit pursuant to the Award. On 10 October 2007, the appellant discharged Ms Davies from the NSW Police Force on the medical ground that she was partially and permanently disabled to continue employment with the appellant. Ms Davies received an 'off duty' PPD benefit in accordance with the Award (the quantum of the payment for an on duty PPD benefit is generally higher than for an off duty PPD benefit). Ms Davies requested the appellant to make a payment of an on duty PPD benefit. The appellant declined to do so. 17 On about 8 March 2008, Ms Davies lodged an application to refer a dispute for determination to the Workers Compensation Commission of New South Wales ('WCCNSW') claiming an entitlement to weekly benefits and medical expenses under the Workers Compensation Act 1987 ('the WC Act'). In her workers' compensation application form, Ms Davies claimed weekly compensation benefits from 24 January 2006 onwards. 18 On about 31 July 2008, Ms Davies and the appellant's representatives attended a conciliation conference, to seek to resolve the dispute between the parties regarding these issues. The conciliation conference was conducted by an arbitrator of the WCCNSW under s 344 of the Workplace Injury Management and Workers Compensation Act 1998. 19 Arising out of the conciliation conference, the parties reached an agreed resolution of the matters in dispute embodied in a document titled 'Certificate of Determination - Consent Orders' ('the Certificate'). 20 The respondent subsequently notified an industrial dispute pursuant to s 130 of the Act regarding Ms Davies' claim for the payment of an on duty benefit under the Award, but subsequently discontinued the notification. 21 On 29 September 2009, the respondent filed an application seeking declaratory relief in respect of three members, Ms Kristy Davies, Ms Jodie Kemp and Mr Trent Southworth. The declarations sought concerned alleged entitlements for an on duty PPD benefit under the Award. On 27 January 2010, the respondent filed an Amended Application. 22 The parties compromised the claims of Ms Kemp and Mr Southworth. The respondent consequently only sought declarations in respect of Ms Davies. FIRST INSTANCE DECISION

[48]

(g) Ms Davies acknowledged and agreed that she had no economic incapacity from 7 May 2008. 24 His Honour noted the case for the appellant consisted of the following propositions (at [38]): [T]he Court does not have jurisdiction to make the orders sought and … in the alternative that, assuming jurisdiction, the orders should not, or could not be made, because the award and determination of the WCC cannot give rise to an estoppel for two reasons. Firstly, because the WCC is not the kind of body whose decision can give rise to an estoppel, and secondly, because the determination of the WCC was by consent, no estoppel arises from a consent determination. The respondent also contended that Ms Davies had failed to comply with the mutual obligations requirement in cl 9 of the Award ... 25 Staff J reached the following relevant conclusions: (a) the Court has the jurisdiction to make the declarations sought in the amended application (at [65]-[66]); (b) the Certificate created an estoppel by determining that Ms Davies had suffered an injury arising out of or in the course of employment, for the purposes of compensation under the WC Act, on the basis that: (i) the WCCNSW is a body capable of giving final judgments and deciding issues between the parties (at [67]); (ii) the Certificate estopped the appellant from denying that Ms Davies had suffered an injury for the purposes of the WC Act (at [68]-[71]); (c) Ms Davies' injury in the WCCNSW proceedings was the same injury as the injury that gave rise to her medical discharge from the NSW Police Force (at [72]-[73]); (d) if it had been necessary, similar relief could have also been granted on the basis of estoppel by convention. An estoppel by convention was created ad hoc, expressly, by a course of dealing and conduct with the intention of affecting the legal relationship between Ms Davies and the appellant (at [79]); (e) the Court should not, in the exercise of its discretion, decline relief where merits would otherwise justify the grant of the relief (at [81]); (f) the respondent had standing to make the application for the declarations (at [82]-[84]). APPEAL GROUNDS

[74]

Thereafter followed four consent orders concerning the payment of weekly compensation, medical and treatment expenses, and costs. 39 Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (now repealed) ('2006 Rules') provided: (1) Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order. 40 Separate from the consent orders, the Certificate recorded an agreement between the parties concerning economic incapacity since 7 May 2008. This was expressly stated to be 'not a determination of the Commission'. 41 As the respondent submitted: It is apparent on the face of the Certificate therefore that: (a) the parties in the WCC dispute reached an agreement as to the determination of the dispute concerning Ms Davies' entitlements under the WC Act; (b) the WCC made an order determining the dispute in accordance with the agreement of the parties under rule 15.9(1); (c) in doing so, the WCC was required to satisfy itself that the order was one it had power to make; and (d) the order was certified as an order of the WCC pursuant to s 294(1) of the Workplace Injury Management and Workers Compensation Act . 42 The respondent referred to the decision of Merkel J in Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 at [35], where his Honour said: [35] It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments and orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata (3rd ed, 1996) at [38]-[40]. 43 In support of that conclusion Merkel J referred to Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 508, per Deane, Toohey and Gaudron JJ; In re South American & Mexican Company; Ex parte Bank of England [1895] 1 Ch 37 at 45 per Vaughan Williams J; Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq; and Makhoul v Barnes (1995) 60 FCR 572 at 582 (Hill, Cooper and Branson JJ). See also Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 90. 44 As the respondent also submitted, the same principle has been applied to a consent award of the Compensation Court (Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648 at [9]-[10]) and to consent orders of the WCCNSW (Rinker Group Limited v Mackell [2008] NSWWCCPD 100 at [107]-[130]). The appellant, however, referred to Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103 as authority for the proposition that consent orders made by the WCCNSW in respect of Ms Davies' claim did not give rise to an issue estoppel. 45 In Zeaiter, Acting Deputy President Candy held that consent orders involving the payment of a small amount of compensation and medical expenses with respect to a claimed compensable injury did not give rise to an issue estoppel in later proceedings concerning whether the same injury was in fact compensable under the WC Act. His Honour stated at [78]: [78] Having regard to these provisions regarding the procedure to be followed in the Commission, there is a clear legislative intention that the settlement of disputes is to be encouraged and employers would undoubtedly be less willing to enter into consent awards, if as a consequence, they were estopped from denying matters which they wished to deny in later and possibly more substantial proceedings for compensation. 46 His Honour then found at [79]:

[75]

· No authority to which I was referred or which I have discovered has as its ratio decidendi that a consent award, in all circumstances, estops parties from disputing in later proceedings those matters which must be taken to have been conceded as the basis for that award. · In this case, given the worker's failure to notify his injury or make a claim for compensation for almost a year after his resignation, the greatest effect that the consent award can be given, apart from the resolution of the particular dispute to which it relates, is as an admission of those matters entitling the worker to compensation. Such admission like the payment of compensation must be considered in the light of all available evidence as to the occurrence of injury and in my opinion is of very little weight in this case. · The only matter relied on in the earlier proceedings was the failure to report an injury. Unless excused on one of the grounds provided in sections 61 and 254 of the 1998 Act this would have been sufficient to defeat the claim for compensation. Instead the claim was settled for a substantial compromise being a small fraction of the compensation which the worker would have received if successful. This is, in my view, an example of what was referred to in Anshun where a party may justifiably refrain from litigating an issue in one proceeding yet wish to later litigate it. · The emphasis in the workers compensation legislation on the resolution of disputes by agreement rather than the determination of the Commission requires that an issue estoppel should only be held to result from a consent award in those cases where the interests of justice clearly require this. 47 With respect to his Honour, we think he was wrong as to the first and last dot points. The correct position is as it was described in Somanader. Moreover, in the last dot point the Deputy President appears to have treated issue estoppel as a matter of weight having regard to other evidence before him. If issue estoppel is found to apply, it acts as an absolute bar to the matter being re-litigated: Blair v Curran at 531 per Dixon J. 48 The decision in Zeaiter is at odds with Rinker in which it was held at [126]: Applying the principles in O'Donel and Dimovski to the present matter, and assuming that the estoppel can be properly proved, the consent award of 3 August 2006 does create issue estoppels as to the issues "the parties recognised was the subject of the litigation and was fundamental to the judgment or order" ( Spencer Bower , at [39]), but there is no estoppel in situations capable of change. Rinker will be estopped from denying that Ms Mackell suffered an injury that resulted in her need for surgery and in her incapacity from 17 January 2006 until 6 June 2006. It may also be estopped on other issues, such as notice of injury and worker. However, consistent with O'Donel and Spencer Bower (at p102), Rinker will not be estopped from arguing that it has no liability in respect of a later claim for lump sum compensation. In such a claim, the Consent Orders will be of some weight (especially in circumstances where Rinker had a solicitor acting on its behalf at the time the Consent Orders were made), but their probative value must be assessed in the light of all the evidence.

[78]

Whether the Certificate constituted a decision of the WCCNSW for the purposes of s 350 of the Workplace Injury Management and Workers Compensation Act 53 It was submitted for the appellant that the use of the term 'consent orders' rather than the terms 'consent award' or 'consent judgment' suggested that the Certificate was not intended to comprise a judicial determination on the merits of the case. The appellant contended that where a dispute has been determined after an arbitrated hearing, the WCCNSW makes an 'award' (for example, see the Workplace Injury Management and Workers Compensation Act, s 351(5) and s 351(6)). By contrast, in dealing with procedural matters, the WCCNSW may make 'orders' (see r 15.1). Senior counsel submitted this underscored that a consent order was intended to be 'procedural' in nature signalling the end to the application rather than a substantive judicial determination. 54 The distinction sought to be drawn by the appellant has no support in the authorities. Somanader refers expressly to 'consent orders', as does Spencer Bower and Handley, Res Judicata (4th ed, 2009) ('Handley') at [2.16], whilst Rinker refers both to 'consent orders' and a 'consent award' and Dimovski refers to a 'consent award'. 55 Further, we agree with the respondent that the notion that, under the Workplace Injury Management and Workers Compensation Act, the consent orders were merely 'procedural' is to be rejected. Orders requiring the payment of money that are enforceable as a judgment debt could not be characterised as merely 'procedural'. 56 We do not think there is anything in the Workplace Injury Management and Workers Compensation Act to suggest that it was the legislature's intention to preclude issue estoppel in circumstances where consent orders have been made. Section 367 of that Act provides that the WCCNSW has the following objectives: (a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,

[85]

… 58 Section 355(1) provides that an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator's best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. There is a clear emphasis in the WC Act on resolving disputes by conciliation; conciliation must first be attempted before arbitration. The objective is to settle matters in the form of 'durable agreements'. 59 In Kuligowski at [32] the High Court referred to the goal of Western Australian workers' compensation legislation of: [H]aving workers' compensation disputes heard and determined in an informal, quick and cheap manner would not be assisted by a construction of the legislation which prevented the doctrine of issue estoppel from ever applying. That would increase the chance of double litigation of issues and vexation of parties. 60 We think these observations apply with equal force to the New South Wales legislation. Later proceeding 61 It was submitted his Honour erred in finding the issue estoppel claimed in the absence of actual legal proceedings making a claim for an on duty injury benefit under the Award. The appellant argued that the respondent had failed to take into account the essential nature of an issue estoppel. By definition, it was submitted, issue estoppel only arose in the context of proceedings subsequent to those wherein the findings of fact or determinations of law which were said to give rise to an issue estoppel took place, and where the same issues of fact or law arose for determination. 62 The appellant submitted that in the absence of some second set of proceedings, where the same issues arose for determination, an issue estoppel, by definition, could not arise. It was submitted that an application seeking declaratory orders could not be those second set of proceedings; an application for a Declaration of Right seeks a declaration with respect to existing facts, rights or obligations. What the respondent sought in its application was the application of a common law doctrine relating to a hypothetical set of circumstances and not to existing facts, rights or obligations. 63 The appellant referred to what Dixon J said in Blair v Curran at 464: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. 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. 64 The appellant also made reference to what Barwick CJ said in Ramsay v Pigram (1968) 118 CLR 271 at 276: Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual. 65 Neither of these authorities suggests that an application for declaratory relief could not constitute the 'second proceedings' referred to by the appellant. Further, it is notable that the appellant was not able to identify any authority to the effect that in proceedings for declaratory relief an applicant was not entitled to rely on issue estoppel. 66 The appellant submitted that: A binding declaration of right must consider legal rights, privileges or power and what in fact has happened here is seeking something akin to an advisory opinion. There is nothing other than a hypothetical circumstance which may crystallise into a matter and some proceedings at some point, but it has not done so. Until that has occurred then what is being sought is merely hypothetical. Importantly it does not seek to attach to any particular right. That is the difficulty with it. There may be circumstances where a hypothetical proposition can be the subject of a declaration but this is not it. 67 The first thing to be said is that the Court's jurisdiction to make a declaration is a very wide one under s 154 of the Act. The only statutory restriction is that declarations of right may only be made in relation to a matter in which the Court has jurisdiction. 68 If the respondent had sought a bare declaration in relation to a hypothetical issue the court would not grant it under the relevant tests as outlined by Lockhart J (with whom Spender and Cooper JJ agreed) in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 at 670-671: For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows: · The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary Act 1903 and Navigation Act 1912 [1921] HCA 20; (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties. · The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 10; 6 ALR 193 per Gibbs J; or if the court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority New South Wales (1977) 18 ALR 55; 52 ALJR 180 per Mason J at 180 and per Aickin J at 189. · The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J at 437 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.

[120]

That the Respondent pay the Applicant's costs as agreed or assessed. The matter is certified as complex and each party is entitled to a 15% uplift on costs. 84 What may be gleaned from Ms Davies' Application to Resolve a Dispute, the accompanying materials and the Certificate are the following relevant matters: (a) Ms Davies claimed weekly compensation benefits and medical, hospital and rehabilitation expenses for the period 24 January 2006, which was the claimed onset of her injury to the date of the Application 'and continuing'; (b) the claim was in respect of an injury suffered in the course of her employment with the NSW Police Force, namely, post traumatic stress disorder with anxiety and depression caused by 'multiple work-related stressors'; (c) the claim relied on a report of Dr Peter Klug, Forensic Psychiatrist, dated 26 March 2008. The report indicated Ms Davies had suffered from an 'anxiety-based disorder - a chronic post-traumatic stress disorder (or a post-traumatic stress disorder-like syndrome which would necessitate the diagnosis of an anxiety disorder NOS [not otherwise specified]), and her major depressive disorder have been substantially caused by multiple work-related stresses'; (d) additionally, the claim was supported by two reports of Dr Roberts, Consultant Forensic Psychiatrist, indicating Ms Davies suffered from post traumatic stress disorder compounded with an Adjustment disorder with anxiety and depression; (e) the appellant's insurer declined to accept Ms Davies' claim for compensation benefits. The insurer indicated in a letter dated 17 March 2006 that it did not consider the injury was work related and in that respect relied upon a pre-liability psychological assessment by a Consultant Psychologist that Ms Davies did not fulfil the criteria for a clinical diagnosis 'as per Section 11A(3) of the Workers Compensation Act 1987'. That provision defines a psychological injury; (f) on 31 July 2008 the parties, assisted by Mr Duncombe, Arbitrator, and following a conciliation conference, came to an agreed resolution of 'the issues in dispute' which was recorded in a consent order pursuant to r 15.9(1) of the 2006 Rules. In what appears a compromise settlement pursuant to s 40, Ms Davies agreed to a lump sum payment of $10,000 (for a partial incapacity for a period post her medical discharge between 11 October 2007 and 7 May 2008) plus up to $1,000 for medical and treatment expenses plus costs in her favour. This was in lieu of the original claim for weekly compensation from the onset of her injury from 24 January 2006 'to date and continuing'. 85 Before Staff J the respondent, on behalf of Ms Davies, sought declaratory relief to the effect that the appellant was estopped from denying that the injuries that led to the cessation of Ms Davies' employment on 10 October 2007 were 'on-duty' injuries as defined in the Award. Consequently, the appellant was also estopped from denying that Ms Davies was entitled to the on duty partial and permanent disability payment under the Award. 'On duty injury' in the Award is defined as meaning an 'injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act.' 86 The estoppel plea of the respondent relies upon the fact that the appellant consented to a determination by the WCCNSW settling a claim by Ms Davies that she was entitled, under the WC Act, to compensation benefits for an injury suffered in the course of her employment with the appellant. On the face of it, there is an identity of issues: the appellant consented to a determination that Ms Davies be paid compensation and benefits in relation to an 'on-duty' injury that was claimed to be post traumatic stress disorder and now seeks to deny there was such an 'on-duty' injury. The authorities require that the issues in the two proceedings are identical. 87 In this respect, the appellant submitted nothing in the Certificate linked the injury in the WCCNSW proceedings and the injury causing Ms Davies' medical discharge. It was further submitted that to overcome this difficulty, Staff J took the additional step of examining the evidence and concluding that the psychological injuries that led to Ms Davies' medical discharge were the same psychological injuries that were the subject of a dispute in the WCCNSW. Senior counsel submitted his Honour erred in making this finding because the amended application sought declarations based on the Certificate in the WCCNSW proceedings. It did not require or permit Staff J to making his own findings based on his examination of the medical evidence, it was submitted. 88 Senior counsel for the appellant also contended that Staff J wrongly concluded that Ms Davies' period of incapacity determined in the Certificate coincided with the period of the incapacity giving rise to her medical discharge. The Certificate determined that Ms Davies' claim for weekly compensation for a period post her medical discharge between 11 October 2007 and 7 May 2008. However, Ms Davies' claim for an on duty PPD benefit concerned her incapacity at the time of her medical discharge, that is, immediately before 10 October 2007. 89 The Certificate, does not identify the nature of the injury in respect of which compensation was ordered. That raises the question whether Staff J was entitled to have regard to the material filed with Ms Davies' Application in the WCCNSW proceedings and thereby draw an inference in Ms Davies' favour that the compensable injury was post traumatic stress disorder. This material was filed in accordance with the requirements of the 2006 Rules of the WCCNSW and constituted 'all information and documents' on which Ms Davies proposed to rely.

[121]

90 The court may consider any relevant material that shows what issues were raised and decided including the court's reasons in determining whether there is an issue estoppel: Jackson v Goldsmith (1950) 81 CLR 446 at 467 per Fullagar J; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 946, 965. As Lord Hailsham said in Director of Public Prosecutions v Humphrys [1977] AC 1 at 41 (cited in Handley at 8.29): 'The court will enquire into realities and not mere technicalities'. There was no bar to Staff J considering the material lodged with the Application to Resolve a Dispute and the Application itself. However, there was no material filed in the WCCNSW proceedings to indicate what was the position of the appellant in those proceedings. 91 It would not have been open to the Arbitrator to make consent orders he otherwise did not have the power to make: r 15.9(1) of the 2006 Rules. It follows that the Arbitrator must have accepted that Ms Davies had incurred a compensable injury, that is, a personal injury arising out of or in the course of her employment. We accept such an inference is available. 92 The next question, however, is in the absence of any indication of the appellant's position in the WCCNSW proceedings, whether there was any proper basis upon which Staff J could find the compensable injury to which the consent orders were directed was the injury claimed by Ms Davies. It is to be kept steadily in mind that the essential foundation of a plea of an issue estoppel must be that the issue raised in the first proceedings and the issue raised in the second proceedings are identical (Turner at 964) and this test is applied strictly. Therefore, the injury that established the claim for compensation in the WCCNSW proceedings has to be the same injury in respect of which the declarations are sought. 93 At [71]-[73] of his judgment, Staff J found the following: [71] The payments awarded by the WCC are only explicable on the basis that if Ms Davies was not hurt on duty, then she would have been denied any weekly compensation payments. It must follow, as was submitted by Mr Hatcher , that the respondent cannot deny the factual circumstances that may give rise to a right under the Award.

[130]

102 Furthermore, even if we were to accept that the injury in respect of which compensation was ordered in the WCCNSW proceedings was post traumatic stress disorder, an issue estoppel is only established as to the proposition that Ms Davies suffered a compensable injury and that injury was post traumatic stress disorder. The estoppel would not extend to the proposition that the injury led to the cessation of Ms Davies' employment. It was not determined by the consent order that Ms Davies' injury caused the cessation of her employment; it was not an issue 'legally indispensable' to the determination, that is, it was not a matter necessary to decide, that the injury caused the cessation of Ms Davies' employment. 103 Nor does the estoppel extend to the proposition that Ms Davies is entitled to an on duty partial and permanent disability payment pursuant to cl 9 of the Award. A determination that compensation is payable for an injury arising out of and in the course of employment, even though it is to be regarded as an on-duty injury for the purposes of the Award, says nothing about whether the injury gave rise to a partial and permanent disability as defined in the Award. Nor does the issue estoppel extend to the proposition that Ms Davies is entitled to an on duty partial and permanent disability payment pursuant to cl 9 of the Award by virtue of a failure to comply with mutual obligation requirements in cl 9. 104 It follows from what we have said there was not the requisite precise identity of issues. On the one hand, there was a determination under the Workers Compensation Act for a work related injury the nature of which is not known which gave foundation for a closed period claim for partial incapacity after the termination of Ms Davies' employment and on the other hand, a broader issue is for determination, namely: a claim there was an on duty injury in the nature of post traumatic stress disorder causing partial and permanent incapacity, which led to termination such as to establish an award entitlement for a lump sum payment. Staff J, therefore, erred in finding that an issue estoppel had been established which could support the declaratory relief sought by the respondent. Given this finding it is unnecessary to deal with the remaining grounds of appeal. Estoppel by convention

Commissioner of Police v Police Association of New South Wales

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