Pond v Workcover/Allianz Australia

4 In proceedings presently before the Tribunal the worker asserts that since January 1993 he has been partially or totally incapacitated for work on account of the neck injury he sustained in January 1993, the back injury he sustained in 1995, or both. The Corporation denies this to be so.

5 The worker contends that in these proceedings he is able to invoke the principle of issue estoppel and rely upon the findings of the Review Officer made in the proceedings concerning his s 43 claim.

6 The Corporation contends in reliance upon Price (supra) that this is not open and that the issue of incapacity for work must be decided upon the evidence presented to the Tribunal without regard to the findings made in the earlier proceedings.

An earlier decision of the Full Bench (Price) supports the Corporation's contention

7 The majority judgment in Price contained at par 26 the following statement:-

"The issue in relation to the Arbitration Officer's decision was whether the worker had a permanent disability. That required proof that the worker had sustained a compensable disability which was permanent. The issue in relation to the judicial determination was whether the worker had an incapacity for work from about March 1995 and continuing. That required proof that the worker suffered a compensable disability resulting in incapacity for work at the relevant time. Incapacity can be present whether there is a permanent disability or not. As the issue in the subsequent proceedings at judicial determination involved a separate and independent issue requiring proof by evidence of matters not determined by the earlier Arbitration Officer's determination, it is not permissible for the worker to proceed by relying on that determination or alternatively by relying on that determination and then proving additional facts."

8 This passage seems to reflect the view that because a s 43 dispute is focused towards the issue of permanent disability, and because a finding of disability does not necessarily translate to a finding of incapacity for work, one cannot invoke the principle of issue estoppel so as to rely upon findings made in a s 43 dispute in a dispute concerning incapacity for work.

9 In coming to that conclusion, the Full Bench relied upon the decision of the High Court of Australia in O'Donel v The Commission for Road Transport and Tramways (New South Wales) [1938] HCA 15; (1938) 59 CLR 744.

10 It is plain that if the statement contained in the passage from Price that we have just cited is correct so too is the Corporation's contention in this matter.

The worker contends that Price was wrongly decided

11 The worker contends that Price was wrongly decided. His counsel, Mr Kourakis QC, submits that O'Donel (supra) does not stand for the proposition just expressed. He argues that O'Donel was decided on its own facts.

12 Mr Kourakis says that the Full Bench in Price did not have the benefit of argument about the meaning and application of O'Donel and that as we have had the benefit of that argument, we should conclude that the approach taken in Price was erroneous and we should depart from it and decline to follow it. In the alternative, he submits that we should state a case for the consideration of the Full Supreme Court of South Australia pursuant to s 86A of the Act, to seek its guidance as to whether we should follow or depart from Price. It was submitted that if indeed O'Donel stands for the proposition as espoused by the Full Bench in Price, O'Donel itself was wrongly decided, and that by stating a case to the Supreme Court we would provide the worker with a window of opportunity to get before the High Court to argue that that is so.

The principle of stare decisis applies to the Tribunal

13 At this point it is necessary for us to say something about the principle of stare decisis. In our view, that principle applies to decisions of the Tribunal. It does so for the reasons explained by Senior Judge Jennings P in Collins v Commissioner for Public Employment [2001] SAIRC 16:-

"A relevant and insightful discussion and analysis of the doctrine of precedent and the policy considerations in relation thereto is set out in the joint judgments of Wright J, Walton J and Hungerford J in the case of Reich v Client Server Professionals of Australia Pty Ltd [2000] NSWIRComm 143; (2000) 49 NSWLR 551 at 580 - 582 which is set out hereunder: -

"The policy reasons for that situation are so obvious one hesitates to state them. However, they are helpfully set out, both in terms of principle and of policy, in a decision of the former Industrial Commission in Court Session in Re Hospital Employees Pharmacists (State) Award [1979] AR (NSW) 348 at 350-351 where the Full Bench (Beattie P, Cahill J and McClelland J) said:

`It was the duty of the chairman to follow a decision of the Commission which was directly in point. The scheme of the Act provides for the Commission to exercise a supervisory appellate jurisdiction concerning decisions of the conciliation committees. A failure at committee level to follow decisions of the Commission is conducive to the bringing of appeals and the inevitable delay in finalising industrial claims which an appeal causes. The present case provides an example. The principle involved is aptly stated by Stephen J in Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at 129 in these terms:

"The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as the precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine."

Apart from such consideration, any failure at committee level to follow decisions of the Commission can only impair the consistency and uniformity in decisions of the various tribunals constituted by the Act which has always been seen as desirable.

The decision of Dey J was not only binding on the committee but in our view was also correct.' "

"... the considerations referred to over seventy years ago by the eminent American jurist Benjamin N Cardozo, an Associate Justice of the United States Supreme Court from 1932 to 1938 and earlier from 1914 a judge of the New York Court of Appeals and Chief Judge of that court from 1926. In his Honour's classic work entitled B N Cardozo, The Nature of the Judicial Process (1921) New Haven, Yale University Press, albeit writing extra-judicially, Cardozo J referred to that part of his Lordship's judgment in Quinn v Leathem cited by Maidment J in the present matter. Cardozo J then said (at 32 - 34):

`... All this may be true, but we must not press the truth too far. Logical consistency does not cease to be a good because it is not the supreme good. Holmes has told us in a sentence which is now classic that "the life of the law has not been logic; it has been experience" [The Common Law, at 1]. But Holmes did not tell us that logic is to be ignored when experience is silent. I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical, just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights" [W G Miller, "The Data of Jurisprudence" (at 335); cf Gray, "Nature and Sources of the Law", sec 420; Salmond, "Jurisprudence" (at 170)]. Everyone feels the force of this sentiment when two cases are the same. Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.'

The reference to `Holmes' is, of course, a reference to Oliver Wendell Holmes, also an eminent American jurist and United States Supreme Court Justice, whom Cardozo J succeeded in 1932. The approach of Cardozo J not only illustrates the limitations upon the approach in Quinn v Leathem but also serves to emphasise the important policy considerations involved in following precedent, particularly in precedent being followed by single judges sitting at trial or first instance, considerations which go to the very legitimacy of the legal system itself. The need to maintain consistency in the law, even when a Full Bench or Full Court is considering or reconsidering earlier decisions has been stated many times. A useful synthesis of authority, the utility of which is emphasised when it is recognised as having been stated in an industrial context, is to be found in the judgment of Kennedy P, Franklyn J and Anderson J in Federated Miscellaneous Workers Union of Australia, WA Branch v Nappy Happy Hire Pty Ltd t/as Nappy Happy Service (1994) 56 IR 62 at 63 - 64, 67 - 68. Their Honours are, of course, highly respected members of the Supreme Court of Western Australia although, in that case, they were sitting as the Western Australian Industrial Appeal Court. Their Honours deferred to the principle that `the power to overrule is to be used sparingly and will rarely be used to reconsider the construction of a statute' (at 63). That statement as applied to considerations by subsequent appellate benches is sufficient demonstration of the inappropriateness of a single judge attempting to depart from Full Bench authority. Significantly, in coming to that conclusion, their Honours relied upon important statements by Gibbs J and Stephen J in Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585 at 599 and 603 respectively, a case in which their Honours thought it appropriate to apply and follow an authority decided only two years before, even though they had disagreed with the decision in the earlier case by being in the minority. Their Honours also relied upon the following passage in the judgment of Dawson J, Toohey J and McHugh J in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 269:

`Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional.'

Further, the importance of this approach is even clearer in the context of a specialist jurisdiction or where the jurisdiction is relatively small (for example, smaller than the major superior court in the particular jurisdiction). This consideration was discussed in some detail by Kirby P, as President of the Court of Appeal, in Cepus v Industrial Court of New South Wales (1995) 60 IR 113 at 117-118 and where his Honour relevantly said (at 118) that `persisting with fundamentally different approaches to the construction of statutes or industrial Determinations, is not conducive to the maintenance of respect for judicial tribunals."

14 In our view, these observations are entirely apposite here and properly reflect the application of and policy reasons underpinning the principle of stare decisis and the doctrine of precedent in respect of the decisions of Presidential Members of the Tribunal.

The application of the principle of stare decisis to the decisions of the Tribunal

15 Drawing upon these observations it follows that a single Presidential Member of the Tribunal is bound to follow an indistinguishable decision of the Full Bench of the Tribunal. A single Presidential Member of the Tribunal is generally bound to follow an earlier decision of a single Presidential Member of the Tribunal unless that single Member in the later case is convinced that the earlier decision is plainly wrong. If, however, a single Presidential Member was of that view, it might be considered appropriate to make an application to the President pursuant to s 94A(2) of the Act for the issue regarding the correctness of that earlier decision to be determined by the Full Bench.

16 For the same reasons, a Full Bench of the Tribunal should as a general proposition follow an earlier and indistinguishable decision of the Full Bench of the Tribunal. The Full Bench should not depart from the previous decision unless the decision is shown to be plainly wrong: R v Doe (1990 54 SASR 543 at 545 per King CJ.

An earlier Full Bench decision is challenged - Should a case be stated to the Supreme Court?

17 No doubt a Full Bench that has serious reservations about the correctness of an earlier decision of the Full Bench will give consideration to whether it should state a case on a question of law for the opinion of the Supreme Court in accordance with s 86A(1). This is not however a path that must be taken in every case in such circumstances. The Act clearly envisages that the Full Bench is generally to be regarded as the apex of the dispute resolution process that the Act provides. It also reflects Parliament's view that the Tribunal is a specialist tribunal with particular expertise on matters concerning workers compensation. These matters must be taken into account in deciding whether or not to take this path. In this case we have had the benefit of submissions that apparently were not put to the Full Bench in Price. Those submissions have convinced us that the approach taken in Price was wrong. The matters under consideration in this case only concern the application of the principle of issue estoppel in very limited circumstances that only relate to workers compensation disputes. Whatever we decide will not put us into conflict with approaches taken in respect of the application of the principle in other courts and tribunals in this State. In all the circumstances we have resolved not state a case for the opinion of the Supreme Court. We have come to the view that we should deal with this matter and that we should correct the error that in our respectful opinion was made in Price.

18 We will now explain why we consider that this Full Bench should depart from the approach taken in its earlier decision.

19 The principles of res judicata and issue estoppel are both based on the premise that a party cannot re-litigate that which has already been decided. In the case of res judicata, one need go no further than the formal judgment or order of the relevant adjudicating authority. It speaks for itself. In the case of issue estoppel, one can go further to the sub-stratum of findings upon which the formal judgment or order is based, although there are limitations. These are sometimes described as "facts fundamental to the decision arrived at": Hoystead v Commission of Taxation [1926] AC 155; Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 - 533 per Dixon J (as he then was).

20 The policies underpinning these premises are these. First, it is desirable that there be an end to litigation. Secondly, it is not desirable for different adjudicating authorities to come to different conclusions on essentially the same issues. Thirdly, a party to litigation should be bound by its conduct and should "put all of his or her cards on the table". Without principles such as issue estoppel, a party who perceived an unfavourable result from the adjudicating authority within which it was conducting litigation could withhold arguments or evidence and then use them in subsequent litigation concerning essentially the same issue in the hope that a differently constituted adjudicating authority might take a more favourable view of the argument or evidence. Whilst that might be seen as a legitimate tactic in the adversarial process it is not a practice that is conducive to the proper and efficient administration of justice.

21 The application of the principle of issue estoppel involves the balancing of these considerations with the expectation that an adjudicating authority will endeavour to base its decision on the truth and on the best evidence then available.

22 Workers compensation disputes arising under the Act present a particular challenge to the application of this principle because, unlike conventional disputes, there is a contemplation of multiple hearings focused towards particular issues relevant at particular points in time. Whereas in an action for damages at common law a judgment necessarily embraces and discharges all injuries resulting from the wrongful act, each and every permanent disability arising out of a compensable disability, subject to the caveat that there cannot be double compensation, can give rise to an independent entitlement pursuant to s 43. See, for example: Salmon Street v Jorgensen [1991] SASC 2963; (1991) 56 SASR 158. A finding of ongoing incapacity for work does not foreclose the capacity of a compensating authority to subsequently determine that incapacity has ceased. A finding that incapacity has ceased does not foreclose the capacity of a worker to subsequently assert that incapacity has recommenced.

23 For these reasons, one needs to approach the application of the principle of issue estoppel in the context of workers compensation disputes with much caution. The policy considerations upon there being a need for there to be an end to litigation might not be so relevant or important in respect of such disputes. But that is not to say that the principle does not have a role to play.

24 The Full Bench of the Tribunal in Price was mindful of the caution with which the principle of issue estoppel ought to be applied to worker compensation disputes. It appears to have approached the application of the principle from the premise that it could only operate within the same species of dispute. Thus, in apparent reliance upon the decision of the High Court in O'Donel, it concluded that a determination on a s 43 dispute could never create an issue estoppel in respect of a dispute concerning incapacity for work. Having had the benefit of receiving submissions on the ratio of the decision in O'Donel, it is plain to us that O'Donel does not stand for that proposition. It was, as Mr Kourakis suggests, a case that was decided on its own facts.

25 In O'Donel, the worker had earlier issued proceedings in the Supreme Court of New South Wales asserting an entitlement to compensation pursuant to the Transport Act (NSW) for the period from 14 June 1934 to 15 February 1935 on account of his blindness. The employer conceded liability in respect thereof. On 5 February 1936 the worker issued proceedings in the Workers' Compensation Commission claiming weekly payments from 15 February 1935 pursuant to the Workers' Compensation Act (NSW). The employer denied liability and asserted that the worker's blindness for the period beyond 15 February 1935 did not result from the original injury but resulted from some pre-existing disease. The worker contended that in view of the earlier order the employer was estopped from making this assertion. The High Court rejected the worker's contention. As Evatt J explained:-

"What the appellant [ie the worker] is trying to do is to eke out a conclusive determination that incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness at a later point of time. But this method, though logically sound, is not permitted by law. Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorize the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be".

26 O'Donel is authority for the proposition that an earlier finding of permanent disability including a disability that one would associate with an incapacity for work does not enable a worker in subsequent proceedings concerning the issue of incapacity for work for a later period to simply rely upon that earlier finding and evidence that he or she continues to be disabled. It does not stand for the proposition that findings made in a case concerning the determination of a worker's s 43 entitlements can never create an issue estoppel in respect of a case concerning the worker's capacity for work. Indeed, to classify workers compensation disputes into particular species, that is, a s 36 case, a s 43 matter or some other as the case may be, can be quite misleading. The main issue in dispute in such a case might not necessarily be focused towards the worker's capacity for work or the nature or permanency of his or her loss of function of a particular faculty. The issue might be the nature of the compensable disability itself. Is it a ligamentous strain, the effects of which has been spent, or is it the aggravation of an underlying condition of osteo-arthritis.

27 In the case of s 36 dispute, there might be no argument about the worker's lack of capacity for work. In the case of a s 43 dispute, there might be no argument about the extent of the worker's permanent loss of function. In both cases the only issue might be, what is the nature of the compensable disability? All of the policy considerations underpinning the rationale behind the principle of issue estoppel would suggest that in such cases a finding as to the nature of the compensable disability in one dispute ought to be binding in respect of the other.

28 Accordingly, we conclude that to determine the application of the principle of issue estoppel by a broad identification and classification of the nature of the particular dispute is wrong and to the extent that Price suggests otherwise, we are of the view that it was wrongly decided and that we should depart from it.

29 What is required is the identification of the specific issues that were determined and a consideration as to whether the same issues are the subject of dispute in the subsequent dispute. If they are, issue estoppel may arise.

30 That exercise requires not just a consideration of the disputed determination or of the documents that followed it. The hearing of workers compensation disputes can be an evolving process. Sometimes the identification of the real issue in dispute between the parties may not emerge until after the hearing has commenced and it might be quite different to that which the notice of dispute, the outcome of the reconsideration or even the opening addresses of counsel, might identify.

31 To identify whether, and if so how, the principle of issue estoppel is to apply requires a careful consideration of all that occurred within the earlier hearing, the identification of the issues determined in that hearing and a judgment as to whether it would or would not be appropriate for a particular issue in subsequent proceedings to be agitated.

32 The parties have not addressed us on whether issue estoppel should apply to the determination of the Review Officer. We have received submissions solely on the issue as to whether it can apply.

33 For the reasons discussed herein, we conclude that it may. Whether it in fact does is another issue.

34 We would like to hear from the parties regarding the future conduct of this matter.