High Court of Australia|2004-08-03|Before: Heydon JJ

For the reasons just given, the doctrine of issue estoppel does not prevent the worker from pursuing the District Court proceedings.

In the course of argument other issues arose, which might have supported that outcome. But in the circumstances, it is not necessary to decide them.

One issue turned on the worker's argument that even if the second review officer's finding that the 23 March 1994 ankle injury had "resolved" created an issue estoppel, it did so only in relation to a closed period. A second issue also arose in argument as to whether the second review officer, though having jurisdiction to decide a particular class of matter, lacked jurisdiction to determine conclusively the correctness of ancillary matters which he had to decide in the course of exercising his jurisdiction. Since the reasoning set out above precludes any issue estoppel, these two issues, on which there was very little argument, need not be considered.

A final issue was raised by the form of the second review officer's reasoning. In the passages quoted above, apart from the finding that the injury had "resolved", the second review officer did not make any positive findings that the worker did not have disabilities or that the worker did not have an incapacity for work. Rather, the second review officer's reasons speak of the evidence failing to establish the worker's case, of not believing that there were grounds for finding it, and of the worker not satisfying the onus upon him.

In the leading Western Australian decision, which the majority of the Full Court applied, and which it was the purpose of this appeal to test, Owen J said that where "a party has failed to prove a fact in workers' compensation proceedings that party may be estopped in a common law action from asserting the existence of that fact"[44]. With one exception, the authorities then cited do not support that proposition[45]. The exception is Egri v DRG Australia Ltd[46], where Clarke JA rejected an argument that a failure by the worker to establish that he had a disc lesion was insufficient to create an estoppel preventing him from later contending that he did. The reasoning is not clear, and it was not supported by McHugh JA, who found that, in substance, there had been a positive finding that there was no disc lesion[47].

In general, disbelief in a witness's evidence does not establish the contrary[48]. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way[49]:

"[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden."

A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings.

For example, in Jackson v Goldsmith[50], Williams J approved a passage from Halsbury's Laws of England[51] including the following:

"A party is precluded from contending the contrary of any precise point which, having been once distinctly put in issue, has been solemnly found against him."

Much here turns upon what is involved in the phrase "solemnly found". The form of the first proceeding, particularly the issues joined or admitted on any pleadings, will be important. In Hoysted v Federal Commissioner of Taxation[52], Higgins J said:

"A point or an issue may be actually controverted, may be in actual controversy, in actual litigation, although it is not argued, or argued properly. A point may be in controversy although counsel may address no arguments to it, or may overlook certain aspects."

An issue admitted on pleadings or other formal process or otherwise conceded at a hearing may, from the nature of the outcome, necessarily have been decided. But what of other questions arising in the first proceeding? In Blair v Curran[53], Dixon J observed that a "judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue". His Honour went on to distinguish findings concerning only "evidentiary facts" not the "ultimate facts" which formed the very title to rights in dispute[54]. This analysis, with the emphasis on decision-making, would require more than non-satisfaction.

However, although this important issue was raised by the Court during argument, the primary submissions of the parties were not directed to it, the authorities were not examined and it is not necessary to decide it in the present case. Accordingly, like the other matters just identified, it may be put on one side.

1. Appeal allowed with costs. > > 2. Set aside the orders of the Full Court of the Supreme Court of Western Australia dated 24 June 2002 and in place thereof order that: > > (a) the appellant's appeal to the Full Court be allowed with costs; > > (b) the orders of the District Court of Western Australia dated 18 October 2000 (in WC 93 D 775 of 1997 and CIV 4575 of 1998) be set aside and the matter remitted to the District Court for hearing; and > > (c) the respondent pay the appellant's costs of the said District Court proceedings both before Deputy Registrar Harman and Commissioner Ley.

[1] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 (Malcolm CJ, Steytler and Templeman JJ; Wallwork and McLure JJ dissenting).

[2] See r 12 of the Rules.

[3] Section 93D(4) of the Act, which was repealed and replaced with a new provision by the Workers' Compensation and Rehabilitation Amendment Act 1999 (WA), required the worker to obtain leave before commencing proceedings for damages.

[5] The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 at 453 per Gibbs J.

[6] McNair v Press Offshore Ltd (1997) 17 WAR 191; Waddington v Silver Chain Nursing Association [1998] WASCA 331; (1998) 20 WAR 269. See also Re Monger; Ex parte Wilderness Equipment Pty Ltd [2003] WASCA 202 at [46] and [50] per Wheeler J.

[7] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 155 [76] per Malcolm CJ, 179 [208] per Steytler J, 181 [226]-[229] per Templeman J.

[8] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 170 [166] per Wallwork J, 195-196 [322] per McLure J.

[9] Section 84A defined "review" as meaning "procedures taken by a review officer under Division 3 for the resolution of a dispute."

[10] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 168 [139] per Wallwork J, 180 [219]-[223] per Templeman J, 189-190 [285]-[286] per McLure J.

[11] [1963] HCA 50; (1963) 109 CLR 285 at 297-298.

[12] [1927] HCA 23; (1927) 39 CLR 381.

[13] [1927] HCA 23; (1927) 39 CLR 381 at 390. Isaacs J added: "This can only be ascertained by construing the Act as a whole."

[14] The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 at 454 per Gibbs J.

[15] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest.

[16] For example, s 36(1) of the Workers' Compensation Act 1926 (NSW), discussed in Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285 at 297: see above at [25].

"The Commission shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act, and the action or decision of the Commission shall be final."[17]

Section 117 provided that a determination of a compensation magistrate's court "is final and conclusive".

"Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing a matter in which any such determination is relevant and the written determination given under subsection (3) is, in the absence of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."[19]

Section 116 provided that a determination of the former Workers' Compensation Board was to be "final and conclusive".

[20] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 189 [282] per McLure J. Section 58(6) provided:

"The fact that an application has been dismissed under subsection (5) shall not be taken into account by the Directorate in any other proceedings under this Act."[21]

Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 189 [282] per McLure J.

[22] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 187 [271] per McLure J.

[23] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 181 [227], following McNair v Press Offshore Ltd (1997) 17 WAR 191 at 198 per Owen J.

[24] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 151-152 [59].

[25] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 181 [232].

[26] [1963] HCA 50; (1963) 109 CLR 285 at 298 per Kitto, Taylor and Menzies JJ. Section 37(1) of the Workers' Compensation Act 1926 (NSW) provided:

"No award, order, or proceeding of the Commission shall be ... liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature, on any account whatsoever."[27]

Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 21 September 1993 at 4233-4240.

[28] Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285 at 298 per Kitto, Taylor and Menzies JJ.

[29] [1968] HCA 34; (1968) 118 CLR 271 at 276.

[31] New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1 at 21 per Lord Maugham LC.

[32] [1968] HCA 34; (1968) 118 CLR 271 at 276.

[33] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 154 [69], 159 [102]-[103] per Malcolm CJ, 168 [139] per Wallwork J, 179 [209] per Steytler J, 182 [240] per Templeman J, 191-192 [297]-[301] per McLure J.

[34] Apart from the transcript page containing that question, nothing in the material before this Court indicates the scope of the evidence before the second review officer. Hence no inference as to the issues can be drawn from the materials before him.

[35] Kuligowski v Metrobus [2002] WASCA 170; (2002) 26 WAR 137 at 191 [298] per McLure J.

[36] As Coke said, "every estoppell, because it concludeth a man to alleadge the truth, must be certaine to every intent, and not to be taken by argument or inference": Coke, First Institutes of the Laws of England or A Commentary Upon Littleton, 18th ed (1823), vol 2, par 352b.

[37] Hoysted v Federal Commissioner of Taxation [1920] HCA 29; (1920) 27 CLR 400; Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537; (1925) 37 CLR 290 (PC); [1926] AC 155.

[38] [1921] HCA 56; (1921) 29 CLR 537.

[39] [1925] UKPCHCA 3; (1925) 37 CLR 290 at 304-305; [1926] AC 155 at 171-172.

[40] [1876] USSC 62; 94 US 351 at 353 (1876).

[41] [1921] HCA 56; (1921) 29 CLR 537 at 562-563.

[42] (1988) 19 NSWLR 600 at 604-605 per McHugh JA, 612-613 per Clarke JA.

[43] See Cachia v Isaacs (1985) 3 NSWLR 366 at 386-390 per McHugh JA.

[44] McNair v Press Offshore Ltd (1997) 17 WAR 191 at 197.

[45] No question of issue estoppel arose in Tiver Constructions Pty Ltd v Clair [1992] NTSC 8; (1992) 106 FLR 121. David Jones (Canberra) Pty Ltd v Zapasnik (1982) 42 ACTR 6 did not involve any failure to find a fact. In Makowski v TVW Enterprises Ltd unreported, Supreme Court of Western Australia, 16 December 1994, Owen J stated the proposition which he repeated in McNair's case, but again there was no failure to make a positive finding, and the case turned on other questions. Green v Green (1935) 37 WALR 76 was not a case in which common law proceedings followed workers' compensation proceedings, rather, the applicant sought to commence fresh proceedings in respect of the same injury in the same jurisdiction. No question arose as to whether issue estoppel could be based on a mere failure to be satisfied. Though part of the award in Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285 referred to a failure to establish a fact, the majority of this Court treated the award (read as a whole) as containing a positive finding that the worker had not suffered a relevant injury: at 298-299 per Kitto, Taylor and Menzies JJ.

[47] Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 605.

[48] Hobbs v Tinling (C T) and Co Ltd [1929] 2 KB 1 at 21 per Scrutton LJ.

[49] Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 at 955 per Lord Brandon of Oakbrook; [1985] 2 All ER 712 at 718.

[50] [1950] HCA 22; (1950) 81 CLR 446 at 460.

[52] [1921] HCA 56; (1921) 29 CLR 537 at 562.

[53] [1939] HCA 23; (1939) 62 CLR 464 at 532.

[54] [1939] HCA 23; (1939) 62 CLR 464 at 532.

Compensation and Rehabilitation Act 1981

Compensation (Conciliation and Review) Rules 1994

Compensation and Rehabilitation Amendment Act 1999

Compensation Act 1926

Compensation and Rehabilitation Act 1981

Compensation (Conciliation and Review) Rules 1994

Compensation and Rehabilitation Amendment Act 1999

Compensation Act 1926

Compensation (Conciliation and Review) Rules 1994

Compensation and Rehabilitation Amendment Act 1999

Compensation and Rehabilitation Act 1981

Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 208 ALR 1; 78 ALJR 1031 (3 August 2004)

Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 208 ALR 1; 78 ALJR 1031

At a glance

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Judgment (68 paragraphs)

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Legislation Cited (12)

Cases Cited (16)

Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363; 208 ALR 1; 78 ALJR 1031 (3 August 2004)