Plaintiff v Second Defendant

1 This is an application for judicial review by the plaintiff ('the employer'), pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'), seeking an order in the nature of certiorari quashing the decision of Magistrate Ginnane dated 31 October 2014. His Honour referred medical questions to a Medical Panel under s 45 of the Accident Compensation Act 1985 ('the ACA'), but without referring the following question:

Was employment in fact, or could it possibly have been, a significant contributing factor to the alleged cervical spine injury?

2 The Magistrate held that the employer was estopped from contesting a cervical spine injury alleged by the first defendant ('the worker') on the basis that an issue estoppel arose as a result of the decision of Judge Bourke dated 18 February 2014 in an application for leave to bring damages proceedings under s 134AB(16)(b) of the ACA.

3 The employer relies on two affidavits of Daniel Andrew Schram sworn 24 November 2014 and 19 March 2015. The employer also relies on written submissions dated 30 March 2015. The worker relies on an affidavit of John Karantzis sworn 22 December 2014. The worker also relies on written submissions dated 30 April 2015.

4 In 2013, the worker made an application to the County Court for leave to bring proceedings pursuant to s 134AB(16)(b) of the ACA in relation to an injury suffered while working for the employer in 2008. The alleged serious injury related to permanent serious impairment or loss of body function of the cervical spine, the left and right upper limbs and a psychiatric impairment ('the injuries').[1] As a result, the worker sought leave to bring proceedings for damages in relation to pain and suffering, as well as for loss of earning capacity.

5 Bourke J found that the worker's work duties while working for the employer were a cause of the injuries.[2] With a compensable injury established, the employer conceded that the pain and suffering consequences were serious.[3] However, Bourke J dismissed the application in relation to loss of earning capacity on the basis of limited medical evidence as to the permanency of any loss of earning capacity.[4]

6 Following the decision of Bourke J in the County Court ('the serious injury decision'), the worker filed an Amended Complaint in the Magistrates' Court on 3 March 2014. The worker sought entitlements in the form of a reinstatement of weekly payments of compensation from 3 September 2011 to date. She also sought for these to continue together with reasonable and like expenses pertaining to the cervical spine injury in accordance with s 82 of the ACA.[5]

7 At a hearing before Magistrate Ginnane, the parties agreed that the matter was appropriate to be referred to a Medical Panel for an opinion pursuant to s 45(1)(b) of the ACA.[6] However, the worker disputed the referral of the following question to the panel: 'Was employment in fact, or could it possibly have been, a significant contributing factor to the alleged cervical spine injury?' ('the second medical question'). On 17 October 2014, Magistrate Ginnane held that the employer was estopped from arguing that the worker's employment was not a significant contributing factor to her cervical injury ('the issue estoppel decision'), on the basis that this issue had already been decided between the parties by Bourke J.

8 The worker submits that any application by the employer in relation to the issue estoppel decision should be in the form of an appeal pursuant to s 109 of the Magistrates' Court Act 1989 ('the MCA'). The worker argues that, otherwise than in exceptional circumstances, it is not open to a party to rely on O 56 of the Rules to seek judicial review in relation to an interlocutory decision where an avenue of appeal is available from a final order of the Court. It is therefore submitted that the proceeding before the Court should be dismissed on discretionary grounds.[7]

9 The worker submits that, as outlined in Kuek v Victoria Legal Aid ('Kuek'),[8] there are no exceptional circumstances in this matter that justify the employer pursuing judicial review under O 56 of the Rules as opposed to an appeal under s 109 of the MCA.[9]

10 It is the worker's contention that the standard procedure in cases involving a claim for reinstatement of weekly payments of compensation, such as the present, is for the Magistrate to refer medical questions to a Medical Panel. Once the Medical Panel issues its findings to the Magistrate, the Magistrate is then bound to implement the determination of the Medical Panel. On this basis, the worker contends that the employer's only course is to await the final decision of the Magistrate before undertaking an appeal under s 109 of the MCA should it disagree with that decision.

11 The employer submits that s 109 of the MCA is only applicable to appeals from final orders and is therefore inapplicable in the present matter, which concerns an interlocutory decision by the Magistrate. Section 109 of the MCA provides that 'a party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.'

12 The employer submits that, as the decision of Magistrate Ginnane was not a final order, the application for judicial review does not act as a substitute for a right of appeal.[10] As a result, the employer seeks to distinguish this case from the decision in Kuek, relying primarily on the unreported decision of Justice Beach in Nettleton.[11]

13 The employer contends that an appeal under s 109 would only be available once a final decision had been reached by the Magistrate following the Medical Panel's resolution of the medical questions.[12] The employer argues that taking such a course of action would have resulted in a delay in bringing the appeal, and would have been inconsistent with its overarching obligations under the Civil Procedure Act 2010 ('the CPA').[13]

14 Further, the employer submits that, if it was required to pursue an appeal after a final finding by the Magistrates' Court and the Medical Panel proceeded to consider the medical questions with the second medical question omitted, the questions may become infected by error. The employer submits that, with the second medical question omitted, the Medical Panel would be asked to assess the question of the worker's work capacity by reference to injuries the exact cause of which is contested. The employer argues that this would cause the Medical Panel to infer that the cervical spine injury was caused by the worker's employment.

15 Such a scenario is argued to conflict with the principles set out by the Court of Appeal in Walsh v Department of Human Services ('Walsh'),[14] which held that supervening and unrelated injuries cannot be considered in conjunction with compensable injuries by a Medical Panel in determining work capacity. In Walsh, it was found that non-compensable injuries are irrelevant considerations and fall outside the powers given to Medical Panels under the ACA. A Medical Panel should confine itself to the incapacity that flows from a compensable injury alone.[15]

16 The employer raises the authority of Walsh here in the sense that if the second medical question is omitted from the medical questions referred to the Medical Panel, the Medical Panel will assume that the alleged cervical spine injury was a compensable injury arising out of the worker's employment. However, the employer argues that, if the Medical Panel considered the second medical question, they may find that employment was not a significant causative factor in relation to the alleged cervical spine injury and, therefore, that it was a supervening and unrelated injury, which could not be considered in conjunction with the other injuries.

17 Kuek involved two complaints by a solicitor against Victoria Legal Aid, alleging that the solicitor was entitled to amounts greater than he had been granted under the Legal Aid Act 1978. After the Magistrates' Court had dismissed the solicitor's complaints, the solicitor sought leave to appeal the decision under s 109(4) of the MCA, despite the limitation period having expired. In the alternative, the solicitor sought judicial review of the Magistrates' Court decision under O 56 of the Rules on the basis of error of law on the face of the record. Leave to appeal out of time was refused and Warren J dismissed the separate application under O 56.[16] The solicitor appealed the decision to the Victorian Court of Appeal, which dismissed the appeal on the ground that O 56 was not the appropriate avenue for an application. No exceptional circumstances had been made out by the solicitor demonstrating that an O 56 application was more appropriate than an appeal under s 109 of the MCA.

18 Kuek involved an attempt by the solicitor to circumvent the time periods imposed by s 109 of the MCA. The solicitor had lodged his appeal outside the 30-day time period required by s 109(2), and had therefore sought relief under O 56 of the Rules, where his application fell within the 60-day time period. The Court of Appeal noted in this regard that, 'in substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means and so much was tacitly acknowledged by the form of the originating motion'.[17] Had the s 109 appeal been lodged in time, the matter could have been heard under that provision. [18]

19 The present case involves a different factual basis. I am not convinced that the employer currently holds any right under s 109 of the MCA to appeal the decision of the Magistrate. The issue estoppel decision was interlocutory in nature, with the ultimate fate of the proceedings in the Magistrates' Court awaiting the outcome of the Medical Panel's findings. It would only be at the time the Magistrate had received the Medical Panel's findings and made a ruling that a right under s 109 would be available to the employer. It would not be in the interests of expediency or justice for the employer to be unable to contest the interlocutory decision of the Magistrate, with a right to appeal only crystallising when the Magistrate subsequently reached a final decision on the merits.

20 I note that the present case is not an instance where O 56 of the Rules is being used as an alternative in circumstances where the time period for an appeal under s 109 of the MCA has expired. The observations of Justice Beach in Nettleton are applicable in this context:

Kuek can be distinguished from the present case on the basis that in Kuek the plaintiff sought to escape the time limit for appeal by the unmeritorious device of attempting to characterise as an application for prerogative relief for jurisdictional error a question of law which should properly have been agitated by way of appeal.[19]

21 Nettleton involved an application for judicial review by the plaintiff, in relation to a decision by the County Court of Victoria to stay a proceeding brought by him against Vero Insurance Ltd, the defendant. The County Court stayed the proceeding on the basis that it had arisen wholly or predominantly from a domestic building dispute and, therefore, could be heard by the Victorian Civil and Administrative Tribunal. The plaintiff contended that this was an error of law on the face of the record, and the decision should therefore be quashed by the Supreme Court of Victoria.

22 The decision under review in Nettleton was an interlocutory decision. Therefore, Beach J found that there was no right under s 74(2D) of the County Court Act 1958, as it then stood, to appeal the County Court's decision. Section 74(2D) was the County Court equivalent of s 109 of the MCA. Although worded differently, both provisions provided that only final decisions, not interlocutory decisions, can be subject to an appeal.

23 It was previously observed by Gillard J, in Manufacturers of Australia Pty Ltd v King ('King'), that a decision that is not a final decision can be the subject of a judicial review application pursuant to O 56 of the Rules in circumstances where an appeal under s 109 of the MCA would be open at a later period in time once a final decision was reached. In that case, the plaintiff sought judicial review of a decision by a Magistrate to refuse leave by the defendant in the original proceedings to file and serve an amended defence. Justice Gillard noted:

The decision made by the Magistrate was not a final order. However, at the end of the proceeding, it would be open to the plaintiff, if it was unsuccessful in the proceeding below, to appeal the final order and in so doing raise the question of the Magistrate's refusal to permit the amendment. However, that would be a long way down the track. Although it would be relevant to a question of discretion in the present matter, it seems to me that it is appropriate to decide the issues raised which may have some bearing on the proceeding hereafter. In any event, at this stage this is the only avenue open to the plaintiff insurer.[20]

24 In King, the defendant insurer in the original proceedings sought leave to file and serve an amended defence, which addressed new matters that had come to light since the original defence was filed. The application was made six days prior to the date fixed for the hearing. The Magistrate refused to grant leave on the basis that, when considering the question of prejudice, it would cause greater prejudice to the plaintiff for the application to amend to be granted than it would cause to the defendant to refuse leave to file the amended defence.

25 The insurer then sought judicial review of the decision in the Supreme Court of Victoria. Gillard J observed that an appeal under s 109 of the MCA was not open to the insurer at that stage, as the decision of the Magistrate was not a final order and the final hearing had not yet commenced. Gillard J found that it was more appropriate for the insurer to undertake the judicial review application at the time of the refusal of leave to amend, rather than to await the outcome of the final hearing before commencing an appeal.

26 As in King, I consider that the current application under O 56 of the Rules is the appropriate avenue for the employer despite the potential availability of an appeal under s 109 of the MCA at a later date. The issue estoppel decision was clearly interlocutory in nature, and the Magistrates' Court has not reached its final decision in relation to the worker's claim for reinstatement of weekly payments of compensation. This is not to say that judicial review will be appropriate in relation to every interlocutory decision in all proceedings. However, I am satisfied in the current matter that the Magistrates' decision will have a significant impact on the future conduct of the proceedings and, as such, that it is an appropriate exercise of discretion to decide the issue raised on the application.

27 In addition, I consider that it would have been inconsistent with the overarching obligations of the CPA for the employer to have waited until the medical questions were resolved by the Medical Panel and the Magistrate had made a final ruling before bringing an appeal under s 109 of the MCA. Such an approach would waste valuable time and resources on the determination of the proceedings, which would then have to be re-heard in the event that the employer's appeal was successful.

28 An application for leave to bring proceedings under s 134AB(16)(b) of the ACA was brought by the worker in the County Court in 2013, in relation to the injuries she allegedly suffered while working for the employer in 2008. The worker argued that she had suffered permanent serious impairment or loss of body function as a result, and was seeking leave to bring proceedings for damages.

29 The worker relied upon four affidavits and gave viva voce evidence and was cross-examined, while the defendants relied upon affidavits from a number of the worker's former colleagues. Numerous medical reports were also tendered by both parties. In particular, there was competing medical evidence from the parties as to the injuries and how they arose.

30 For example, evidence from the worker's neurosurgeon, Mr Brownbill, supported the worker's case that the work activities were a significant contributing factor to the cervical spine degenerative change.[21] On the other hand, Bourke J also considered the evidence of Dr Karna, a rheumatologist who, unlike Mr Brownbill, was of the opinion that the worker's cervical disc lesions and some of the cervical nerve root irritation and associated pain could not be linked to her work, as it had arisen chronologically outside of her work context.[22]

31 In finding that a serious injury had arisen, Bourke J considered the various medico-legal and other evidence to determine whether an injury had occurred and whether its consequences met the statutory definition of serious injury. This included deliberation as to whether the work duties had caused the worker's injuries. Bourke J was particularly swayed by the evidence of Mr Brownbill that the worker's neck problems related to her work duties, despite her late reporting of such pain.[23]

32 Bourke J found that the worker's work duties while working for the employer were a cause of the injuries.[24] With a compensable injury established, the employer conceded that the pain and suffering consequences were serious.[25] However, Bourke J dismissed the application in relation to loss of earning capacity on the basis of limited medical evidence as to the permanency of any loss of earning capacity.[26]

33 Magistrate Ginnane found that the employer was estopped from contesting causation in relation to the cervical injury suffered by the worker, and accordingly held that the second medical question was not a proper question.[27]

34 In considering whether the decision of Bourke J was a final decision creating an issue estoppel, Magistrate Ginnane noted that no previous authorities could be found on the issue of whether a magistrate - in a weekly compensation payments proceeding - was bound by findings of fact made by a judge in a serious injury application. Nonetheless, his Honour undertook an extensive review of authorities in relation to issue estoppel.[28]

35 Magistrate Ginnane re-stated the principle that a final decision is not one of an interlocutory character and found that the decision of Bourke J could not be characterised as an interlocutory decision. This conclusion was reached on the basis that the decision could no longer be appealed, and was not likely to be amended, rescinded or altered in any material respect.[29] It was found that Bourke J had made an express finding of fact that it was not appropriate to contest.

36 In relation to s 134AB(19A) of the ACA, Magistrate Ginnane found that it did not apply in the present proceedings as the exact wording of the subsection did not apply to proceedings outside of those for common law damages.[30] His Honour concluded that the decision of Bourke J fell within the class of case described by Lord Diplock in Thoday in that a specific issue, being the question of causation, was conclusively determined. It was, therefore, not open in subsequent proceedings - including the matter before his Honour - to re-litigate the question of causation.[31]

37 The employer contends that an issue estoppel does not arise in relation to the decision of Bourke J that the worker had a compensable injury to the cervical spine that had arisen in the course of the worker's employment with the employer. In treating the decision of Bourke J as giving rise to an issue estoppel, the employer argues that Magistrate Ginnane erred in law.[32] The crux of the employer's argument is that the decision of Bourke J was not a final determination of an issue on the merits, and therefore an issue estoppel did not arise.[33] The employer relies on the following case law for the principle that issue estoppel will only apply in relation to a final decision on the merits.

38 In Kuligowski v Metrobus ('Kuligowski'), the High Court made the following statement as to the question of finality:

A 'final' decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be 'final and conclusive on the merits': 'the cause of action must be extinguished by the decision which is said to create the estoppel'.[34]

39 The phrase 'final and conclusive on the merits' - to which the High Court referred - was the subject of consideration in Carl Zeiss Stiflung v Rayner & Keeler Ltd (No 2) ('Carl Zeiss'), in which Lord Reid stated that:

It is clear that there can be no estoppel of this character unless the former judgment was a final judgment on the merits. But what does this mean in connection with estoppel? When we are dealing with cause of action estoppel it means that the merits of the cause of action must be finally disposed of so that the matter cannot be raised again in the foreign country. In this connection the case of Nouvion v. Freeman is important. There had been in Spain a final judgment in a summary form of procedure. But that was not necessarily the end of the matter, because it was possible to reopen the whole question by commencing a different kind of action: so the summary judgment was not res judicata in Spain. I do not find it surprising that the House unanimously refused to give effect in England to that summary judgment.

When we come to issue estoppel I think that, by parity of reasoning, we should have to be satisfied that the issues in question cannot be relitigated in the foreign country. In other words, it would have to be proved in this case that the courts of the German Federal Republic would not allow the re-opening in any new case between the same parties of the issues decided by the Supreme Court in 1960, which are now said to found an estoppel here.[35]

40 In Carl Zeiss, it was found that a proceeding as to capacity to sue did not give rise to issue estoppel on the basis that the cause of action was not extinguished by the decision said to give rise to the issue estoppel. The employer contends that the decision of Bourke J, being leave to bring a proceeding, was of a similar nature to a decision on capacity to sue, and therefore is a decision that did not give rise to an issue estoppel.[36]

41 The employer submits, relying on Kuligowski and Carl Zeiss, that an issue estoppel will not arise unless the decision in question can be clearly shown to be a final and conclusive judgment on the merits. The employer seeks to show that the decision of Bourke J did not involve any final determination, other than in relation to the issue of whether the worker's injury was a serious injury. The serious injury application served to grant leave to the worker under s 134AB(16)(b) of the ACA to bring proceedings for common law damages.

42 The employer submits that an application under s 134AB(16)(b) of the ACA for leave to bring a common law damages proceeding is no more than a preliminary step, with any orders made being procedural. The employer states that it is similar to an application under s 93 of the Transport Accident Act 1986, which was held by the Victorian Court of Appeal in Dodoro v Knighting ('Dodoro') to be of an interlocutory nature.[37] Liability - including the question of causation - are determined in a common law damages proceeding. The worker bears the onus of proving these issues, and would be unable to rely upon anything that had previously been decided by Bourke J.[38]

43 The employer submits that the very nature of a serious injury application is the reason for which the decision of Bourke J cannot be treated as final. Serious injury applications 'unlock the gate' for the worker to pursue common law damages. All issues are open to be re-litigated in any subsequent common law application for damages. As such, the decision of Bourke J was a gateway to a potential future claim for common law damages and the decision in relation to the question of causation of the cervical spine injury was not final.[39]

44 The employer also argues that the County Court did not have jurisdiction to make a final decision as to the question of causation. In reading ss 134AB(16)(b) and 134AB(19A) of the ACA together, the employer contends that the County Court only had authority to decide on the question of whether the worker's injuries were serious. All other collateral issues that arose could only be determined provisionally for the purposes of the application.[40]

45 In support of the above contention, the employer refers to Administration of the Territory of Papua and New Guinea v Daera Guba ('Daera Guba') in which Gibbs J stated that 'the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties'.[41] The employer also relies on the following observations on issue estoppel by Jordan CJ in Ex parte Amalgamated Engineering Union (Aust Section); Re Jackson ('Re Jackson'):

In order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose.

...

But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes, e.g. Wakefield Corporation v Cooke, a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction.[42]

46 The employer sought to compare the present matter with the decision in Torrisi v Oliver ('Torrisi'),[43] in which it was held that a decision of the Fair Rents Board as to whether a lessor/lessee relationship existed did not give rise to an issue estoppel, on the basis that the Board only had the jurisdiction to determine the fair rent of the prescribed premises.[44] Torrisi relied on Re Jackson, and the employer argues that a similar scenario arises here, in that Bourke J had jurisdiction only to determine whether a serious injury had arisen. All other incidental decisions, including the decision as to causation, were collateral. However, Torrisi goes on to state that the determination as to whether or not the collateral decisions are binding is dependent upon construction of the relevant legislation conferring jurisdiction.[45]

47 As to the issue of s 134AB(19A) of the ACA being limited to common law proceedings for damages, the employer's position is that this serves to demonstrate that any finding made for the purposes of a serious injury application would necessarily not be final, as the findings could be re-litigated in future common law proceedings.[46] There was, therefore, no jurisdiction for the County Court to make a binding determination as to any collateral issues such as causation.

48 In this regard, the employer cited the High Court authority of Maurice Blackburn Cashman v Brown ('Cashman').[47] However, Cashman involved a consideration of s 134AB(19)(c) - a precursor to s 134AB(19A) - which read, '[f]or the purposes of subsection (16)(b) ... no finding (other than a finding that the injury is a serious one) made on an application for leave to bring proceedings shall give rise to an issue estoppel.' In considering this provision, the High Court made the following observations:

It is important to notice, however, that if s 134AB(19)(c) were to be construed as speaking to proceedings other than leave proceedings brought under s 134AB(16)(b), the only estoppel that could arise from the determination of an application for leave would preclude debate about whether there was a finding that the injury in question was a serious injury. That is, the preclusion provided by s 134AB(19)(c) would prevent a defendant in the common law proceeding from disputing that a plaintiff had met the first of the two conditions prescribed by s 134AB(2). That preclusion would not prevent the defendant from disputing whatever may have been the factual bases upon which a conclusion had been reached that the plaintiff had suffered a serious injury.[48]

49 The employer highlights that this passage demonstrates that all findings outside the question of whether the relevant injury is a serious injury do not give rise to an issue estoppel, and that the issue of causation is an issue that must be established by the plaintiff in any common law proceeding for damages.[49]

50 The employer also referred to the High Court authority of Wingfoot v Kocak ('Wingfoot').[50] That case involved the issue of the legal effect of the opinion of a Medical Panel obtained for the purposes of a compensation proceeding heard in the Magistrates' Court. Specifically, the question arose as to whether the Medical Panel's opinion would be binding on a court hearing a serious injury application.

51 The High Court held, relying on Cashman, that the relevant statutory provisions provided an exhaustive measure of the extent to which the Medical Panel's opinion on referred medical questions were to be accepted as final and conclusive. The Court stated that 'the adoption and application of a medical opinion as required by s 68(4) [of the ACA] cannot create an estoppel giving a greater measure of finality to a medical opinion than that provided by s 68(4) itself.'[51] Therefore, no issue estoppel was found to arise so as to bind the parties in any subsequent serious injury application.

52 The employer draws attention to Wingfoot to demonstrate the limited circumstances in which issue estoppels may arise in proceedings under the ACA. Combining the principle of Wingfoot with the operation of s 134AB(19A), the employer argues that it is not such a leap to then find that an issue estoppel cannot arise out of a serious injury application to bind a subsequent compensation proceeding in the Magistrates' Court.[52]

53 In illustrating its argument that an issue estoppel should not arise, the employer points to the impact an issue estoppel would have for a claimant who failed in a serious injury application. The employer argues that, if the decision of Magistrate Ginnane is upheld, a claimant in any subsequent proceedings for statutory compensation would then be bound by all findings made by the County Court in their failed serious injury application.[53]

54 The employer further submits that an issue estoppel will necessarily arise from the decision in any common law damages proceeding. Thus, if it is held that an issue estoppel arises on all findings made in a serious injury application, there is then a prospect of inconsistent estoppels arising. For example, in a later statutory compensation proceeding in the Magistrates' Court, the parties may find themselves bound by inconsistent findings made in the serious injury application and the common law damages proceeding. The employer argues that it is for this very reason that a serious injury application cannot be characterised as a final decision.[54]

55 The worker contends that Bourke J received comprehensive submissions from the parties on the issue of whether the injuries were caused by the worker's work with the employer, and that her ruling is binding except insofar as s 134AB(19A) applies. The worker argues that the question of whether there was a compensable injury was put squarely before Bourke J as an issue for determination,[55] and cites authorities for the principle that, in granting a serious injury certificate, a compensable injury must be established.[56]

56 The worker submits that the limitation to the applicability of issue estoppel under statute is confined by the clear language of s 134AB(19A) to common law proceedings for the recovery of damages only. It is argued that the provision should be construed as having no broader scope than its words naturally bear. The wording of s 134AB(19A) was amended from the former s 134AB(19)(c); thus, had Parliament intended that no issue estoppel whatsoever arise from a serious injury application, it could have worded s 134AB(19A) accordingly.[57]

57 The High Court authority of Blair v Curry ('Blair') is relied upon by the worker for the principle that '[a] judicial determination directly involving an issue of fact or of law disposes once and for all the issue, so that it cannot afterwards be raised between the same parties or their privies.'[58]

58 Additionally, Ramsay v Pigram ('Ramsay') is cited, in which Barwick CJ referred to longstanding authority for the statement that an estoppel may arise to:

Prevent the assertion in those proceedings of a matter of fact or 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 ...[59]

59 Thoday v Thoday ('Thoday') was also referred to, in which Lord Diplock stated:

If in litigation upon one such cause of action any as such separate issues as to whether a particular condition has been fulfilled is determined by a Court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the Court has in the first litigation determined that it was not, or deny that it was fulfilled if the Court in the first litigation determined that it was. [60]

60 Section 45 of the ACA, as it stood on 1 January 2014, related to the referral of medical questions to a Medical Panel and stated as follows:

(1) If the court exercises jurisdiction under this Part, the court -

...

(b) subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if -

(i) a party to the proceeding requests that a medical question or medical questions be referred; and

(ii) that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.

...

(1B) The court may refuse to refer a medical question to a Medical Panel on an application under subsection (1)(b) if the Court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

61 Section 134AB(16)(b) of the ACA confers jurisdiction on the County Court to give leave to a worker to bring proceedings for damages, stating:

If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

...

(b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the authority under subsection (20), after that period, gives leave to bring the proceedings.

Any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of damages brought in accordance with this section which is heard and determined on and from the commencement of section 57(3) of the Accident Compensation Amendment Act 2010.

63 Where an issue estoppel has arisen, the parties are precluded from re-litigating that issue in subsequent proceedings against any other party to the original proceeding.[61] Here, in spite of the fact that the present proceedings involve an application for the reinstatement of weekly compensation payments, the worker's claim nevertheless arises out of the same subject-matter as the serious injury application. In this sense, the proceeding before Magistrate Ginnane concerned the 'precise matter' that had been decided by the County Court, to adopt the language of Barwick CJ in Ramsay.[62]

64 While it is clear that the question of causation was an issue that was determined by Bourke J, an issue estoppel will only arise in circumstances where the finding on that specific issue was legally indispensable to the ultimate decision, as stated in Blair. In that case, it was held that any judicial determination involving an issue of fact or law serves to finally dispose of the said issue, but that collateral issues concerning evidentiary facts will not necessarily be binding. Although Blair did not involve an interlocutory decision or a leave application, the Court's comments are highly relevant here:

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. ... in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order.

...

But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to the rights give rise to no preclusion.[63]

65 The authorities of Kuligowski, Daera Guba and Re Jackson, referred to by the employer, establish that no estoppel will arise where the tribunal or court did not have the jurisdiction to finally decide the issue in question.[64] In addition, in Kuligowski, the High Court referred to the speech by Lord Guest in Carl Zeiss, outlining the following requirements to be satisfied for an issue estoppel to arise in a proceeding:

(1) that the same question has been decided; (2) that the judicial decision which is set to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised or their privies.[65]

66 Magistrate Ginnane observed below that the concessions of the employer before his Honour meant that only the second of the above requirements was in contest between the parties.[66] As a result, it is necessary to determine here whether Bourke J had the jurisdiction to determine the question of causation, and whether her Honour's decision was a final determination of that issue as between the worker and the employer. However, the scope and effect of s 134AB(19A) of the ACA must first be examined in order to determine whether it is to apply to this case.

67 If these proceedings were to be decided under the old s 134AB(19)(c) of the ACA, there would be no question that the provision would apply in the present circumstances to preclude any issue estoppel from arising as a result of the decision of Bourke J, other than in relation to the finding that the injury was a serious injury. The worker has argued that, by replacing that provision with s 134AB(19A), the intention of the legislature was for an issue estoppel to arise in relation to all findings made on a serious injury application, except in subsequent proceedings for common law damages. This argument cannot be accepted.

68 There was little parliamentary debate in relation to the Accident Compensation Amendment Bill 2009 ('the ACA Bill') through parliament, which repealed s 134AB(19)(c) and replaced it with s 134AB(19A). In the second reading speech, Minister Holding stated as follows:

In 2010, the Labor government reintroduced the right to access common-law damages for seriously injured workers in Victoria, marking the restoration of a fundamental right removed by the Kennett government. In doing so, key controls were also introduced to ensure only those workers who were seriously injured could access common-law damages.

Today I take this opportunity to restate the clear intention of the Parliament when common-law was reintroduced; that the government sees the deeming test to be the main gateway for access to common-law damages.[67]

69 The language used in s 134AB(19A) of the ACA is clear and unambiguous. It limits the extent to which issue estoppel arising out of a serious injury application will arise in subsequent proceedings for damages. That is its scope; it is silent in relation to any other proceedings. If Parliament had intended that all findings in a serious injury application were to give rise to issue estoppel in subsequent proceedings other than those for common law damages, this could easily have been explicitly stated. The failure to do so suggests that Parliament did not intend to legislate on the issue one way or the other.

70 I also take note of the statement of the High Court in Wingfoot, where it was held that:

Section 68(4) provides an exhaustive statutory measure of the extent to which the opinion of a Medical Panel on a medical question referred to it is to be adopted and applied and is to be accepted as final and conclusive. The adoption and application of a medical opinion as required by s 68(4) cannot create an estoppel giving a greater measure of finality to a medical opinion than that provided by s 68(4) itself.[68]

71 These comments cannot be repeated with respect to s 134AB(19A). It does not provide an 'exhaustive statutory measure' of the extent to which findings in a serious injury application will give rise to issue estoppel. As a result, it is appropriate to rely on the common law principles in order to determine the issue in this case.

Did the County Court have jurisdiction to determine the question of causation?

72 Section 134AB(16)(b) of the ACA gives a court, other than the Magistrates' Court, jurisdiction to grant leave to commence proceedings for damages, notwithstanding that the worker's degree of impairment has been assessed at less than 30 per cent. In deciding to grant leave under this provision, the County Court will necessarily be required to make factual findings with respect to the alleged injury, including on the issue of causation. However, case law suggests that such findings are merely collateral, rather than being indispensible to the final conclusion.

73 In Grech v Orica Australia P/L,[69] Ashley JA stated that the question to be answered before a Court grants leave under s 1345AB(16)(b) is 'whether any injury sustained on or after 20 October 1999 was, in its consequences, serious injury.'[70] As such, a factual finding that the injury sustained was a serious injury would certainly be legally indispensible to the conclusion to grant leave.

74 By contrast, in the case of Barwon Spinners P/L v Podolak[71] Phillips JA stated that the question of causation was relevant only to establish the exact injury that the court was required to be satisfied was a serious injury. In that case, his Honour stated that the plaintiff was required to identify a:

... compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies ... which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description 'serious injury' if leave is to be given.[72]

75 On this basis, it seems clear that causation is merely a collateral issue that must be established in order for the Court to narrow its consideration before asking whether particular injuries are 'serious injuries'. To paraphrase the comments of Jordan CJ in Re Jackson, causation is determined 'merely incidentally and for a limited purpose'. As a result, the County Court had no jurisdiction to finally determine this issue under s 134AB(16)(b).

Was the decision of the County Court final and conclusive on the merits?

76 In the issue estoppel decision, Magistrate Ginnane found that the serious injury decision was a final decision on the basis that it could not be characterised as interlocutory, it was not the subject of an appeal, nor was it likely to be the subject of rescission, alteration or an amendment.[73] With respect, I consider that this reasoning constitutes an error of law by his Honour. The test for whether a decision is final and conclusive on the merits is not whether it is subject to appeal, rescission or amendment. Indeed, a decision may be characterised as final in spite of the fact that it is capable of being appealed.[74]

77 Rather, the question to be asked is whether the decision is 'completely effective' in relation to the relevant issue, unless and until rescinded or amended.[75] In particular, the Court must be satisfied that the issues in question cannot be re-opened or re-litigated in a subsequent action.[76] In this case, s 134AB(19A) of the ACA operates expressly to allow all findings on a serious injury application (apart from the finding that the injury is a serious injury) to be re-litigated in a subsequent proceeding for the recovery of damages. As a result, the decision cannot be considered to be either 'completely effective' unless rescinded or amended or 'final and conclusive on the merits'

78 As noted by Magistrate Ginnane, there is no case law that is directly on point in that it considers the matter of issue estoppel arising out of a serious injury application under the current legislative regime. However, in Cancarevic v Cancarevic, a case that also involved an application for leave under the ACA, it was noted that '[t]he granting of leave in no sense finally determines the rights of the parties. It is but a preliminary step along the way towards establishing those rights.'[77]

79 Similarly, the decision of the Victorian Court of Appeal in Dodoro is highly persuasive, concerning circumstances and legislation very similar to those in the present matter. In that case, s 93(4)(d) of the Transport Accident Act 1986 ('the TAA') stated that a person injured as a result of a transport accident could not commence proceedings for damages without leave. Under s 93(6) of the TAA, a court was not to give leave unless it was satisfied that the injury in question was a serious injury. Having been refused leave to commence proceedings under s 93(4)(d) of the TAA, the applicant in that case sought leave to appeal to the Court of Appeal.

80 In discussing whether the refusal of leave was an interlocutory order, Callaway JA stated that 'an order, pursuant to s 93(4)(d) of the [TAA], granting leave to bring common law proceedings is plainly an interlocutory order'.[78] Citing Windeyer J in Hall v Nominal Defendant,[79] his Honour stated that an order is of an interlocutory nature unless it 'finally determine[s] the rights of the parties in a principal cause pending between them'.[80] Callaway JA found that, on a natural reading of s 93(4)(d) of the TAA, an application for leave to bring proceedings for damages was not a principal cause, but rather a preliminary step.[81] Therefore, the application was interlocutory in that it did not determine the rights of the parties in a principal cause.

81 Similarly, in the present matter, the serious injury application before Bourke J was a preliminary step to be taken by the worker prior to commencing proceedings seeking damages for her injuries. Having obtained leave, the subsequent proceeding for damages itself is the principal cause. The issue of causation, although determined by Bourke J in the serious injury decision, is open to be re-litigated in the proceeding for damages in accordance with s 134AB(19A) of the ACA. As such, her Honour's decision cannot be considered final and conclusive on the merits.

82 For the reasons set out above, I find that it was appropriate for the employer to commence these proceedings as an application for judicial review under O 56 of the Rules, as opposed to an appeal under s 109 of the MCA. There is no right to appeal at the present time, and it would not be in the interests of justice or expediency for the employer to wait for a final decision to be reached in the Magistrates' Court proceedings before bringing an appeal.

83 On a natural reading of the words in s 134AB(19A), I am unable to infer a legislative intention for issue estoppel to arise from all findings made in a serious injury application in relation to all subsequent proceedings other than those for common law damages. Rather, I consider that the provision is clear and unambiguous in its scope, and does not apply to the present circumstances.

84 In accordance with the common law principles outlined and discussed above, I consider that the finding of Bourke J as to the causation of the worker's injuries does not give rise to any issue estoppel for two reasons. First, I do not consider that her Honour had jurisdiction to determine this matter other than incidentally and for a limited purpose under the relevant legislative provisions. Secondly, as a result of s 134AB(19A), this finding is able to be re-litigated in a subsequent proceeding for damages and, as a result, is not a final and conclusive determination on the merits.

85 I will grant the employer's application for orders in the nature of certiorari and remit the matter to the Magistrates' Court for the referral of all the medical questions to the Medical Panel under the ACA.

86 I will hear the parties on the precise form of the order and costs.

[1] Kassandra Laratae v Deans Pty Ltd (t/a Bellbird Kid-Z Educational Resources) [2014] VCC 103 [1]-[4].

[5] Amended Complaint, Magistrates' Court Proceeding CI-10-04979 dated 3 March 2014.

[6] Laratae v Dean's P/L (t/as Bellbird Kid-z Educational Resources) (WorkCover) [2014] VMC 22 [5].

[7] First Defendant, 'Submission of the First Defendant', Submission in Dean's Pty Ltd (trading as Bellbird Kid-Z Educational Resources) v Kassandra Laratae & Anor, S CI 2014 06216, 30 April 2015, ('Submission of the First Defendant'), [1]-[2].

[8] [2001] VSCA 80; (2001) 3 VR 289, 293-4 [17].

[9] Submission of the First Defendant, [2].

[10] T 26, LL 14-17; Plaintiff, 'Plaintiff's outline of submissions', Submission in Dean's Pty Ltd (trading as Bellbird Kid-Z Educational Resources) v Kassandra Laratae & Anor, S CI 2014 06216, 30 March 2015, ('Plaintiff's outline of submissions'), [20].

[11] Nettleton [2008] VSC 554.

[14] [2014] VSCA 244.

[16] Kuek v Victoria Legal Aid [1999] VSC 447.

[17] Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 292-3 [15].

[19] Nettleton [2008] VSC 554 [22].

[20] King [2006] VSC 261, [19].

[21] The serious injury decision [2014] VCC 103 [196]-[212].

[27] The issue estoppel decision [2014] VMC 22 [35]-[36].

[28] Ibid [13]-[17]; citing Blair v Curry [1939] HCA 23; (1939) 62 CLR 464, 532; Rogers v R (1994) 181 CLR 261; Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 276; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 373 [21]; Carl Zeiss Stiflung v Rayner & Keeler Ltd (No 2) [1967] AC 853, 935.

[29] The issue estoppel decision [2014] VMC 22 [20].

[32] Plaintiff's outline of submissions, [3].

[34] Kuligowski [2004] HCA 34; (2004) 220 CLR 363, 375 [25] (citations omitted).

[35] Carl Zeiss [1967] AC 853, 918-919 (citations omitted).

[37] Plaintiff's outline of submissions, [14]; citing Dodoro [2004] VSCA 217; (2004) 10 VR 277, 281-4 [16]-[17], [19], [21]-[24].

[40] Plaintiff's outline of submissions, [16]; T 12, LL 4-16, T 19, LL 1-4.

[41] Daera Guba (1973) 130 CLR 353, 453.

[42] Re Jackson [1937] NSWStRp 53; (1937) 38 SR (NSW) 13, 19-20 (citations omitted).

[43] [1951] VicLawRp 54; [1951] VLR 380.

[46] Plaintiff's outline of submissions, [16]; T 9, LL 1-7.

[47] [2011] HCA 22; (2011) 242 CLR 647.

[48] Ibid 657 [26] (citations omitted).

[50] [2013] HCA 43; (2013) 252 CLR 480.

[54] Plaintiff's outline of submissions, [17]; T 38, LL 8-18.

[55] Submission of the First Defendant, [4]-[5]; T 31, LL 2-6, T 32 LL 16-19 and LL 26-28.

[56] Dalton v Dandenong Scaffold & Hire Pty Ltd [2003] VSCA 183; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.

[57] Submission of the First Defendant, [12]; T 32 LL 26-30.

[58] [1939] HCA 23; (1939) 62 CLR 464, 531.

[59] Ramsay [1968] HCA 34; (1968) 118 CLR 271, 276.

[60] Thoday [1964] P 181, 198.

[61] Ramsay [1968] HCA 34; (1968) 118 CLR 271, 276.

[63] Blair v Curry [1939] HCA 23; (1939) 62 CLR 464, 532.

[64] Re Jackson [1937] NSWStRp 53; (1937) 38 SR (NSW) 13, 19-20; Daera Guba (1973) 130 CLR 353, 453; Kuligowski [2004] HCA 34; (2004) 220 CLR 363, 373 [21].

[65] Kuligowski [2004] HCA 34; (2004) 220 CLR 363, 373 [21]; citing Carl Zeiss [1967] AC 853, 935.

[66] The issue estoppel decision [2014] VMC 22 [18].

[67] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, 4625 (T J Holding).

[68] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 497 [39].

[71] [2005] VSCA 33; (2005) 14 VR 622.

[73] The issue estoppel decision [2014] VMC 22 [20].

[74] See, eg, Kuligowski [2004] HCA 34; (2004) 220 CLR 363, 375 [25], in which it was stated that '[t]he fact that an appeal lies from a decision does not make it any less final.'

[75] Kuligowski [2004] HCA 34; (2004) 220 CLR 363, 375 [25].

[76] Carl Zeiss [1967] AC 853, 918-9.

[77] (Unreported, County Court of Victoria, Smith J, No 02234 of 2000, 20 April 2001).

[78] Dodoro [2004] VSCA 217; (2004) 10 VR 277, 281 [16].

[79] [1966] HCA 36; (1966) 117 CLR 423, 443.

[80] Dodoro [2004] VSCA 217; (2004) 10 VR 277, 282 [17].