Federal Court of Australia Act 1976 (Cth), s.24(1A)

Computer Edge Pty Ltd v. Apple Computer Inc. [1984] HCA 47; (1984) 54 ALR 767

Workers' Compensation - Claim for compensation in respect of back injury - Voluntary weekly payments of compensation made for total incapacity - Common law action for damages for negligence based on same incident - Judgment in the action for employer on ground that worker had failed to prove that injury occurred in the manner alleged - Weekly payments of compensation terminated otherwise than by agreement or arbitration under workers' compensation legislation - Application by worker for arbitration - Answer filed by employer - Whether worker estopped from showing that he suffered compensible injury.

Workmen's Compensation Act 1951 (ACT), ss.7, 24, 26, First Schedule cl.12, Fourth Schedule cll.2, 6A

Barbaro v. Leighton Contractors Pty Ltd [1980] FCA 56; (1980) 30 ALR 123

Estoppel - Issue estoppel - Unsuccessful action for negligence followed by application for award under workers' compensation legislation - Whether worker estopped from showing that he suffered compensible injury.

Trepic v. ROH Industries Pty Ltd (Supreme Court of South Australia (Cox J.) - 5 June 1991 - unreported)

Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464

Egri v. DRG Australia Ltd (1988) 19 NSWLR 600

O'Donel v. Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744

Somodaj v. Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285

Malcolm Johns and Co.

Counsel and Solicitors R. Williams QC with

The Court orders that:

1. The appellant have leave to appeal from the judgment of the

Supreme Court of the Australian Capital Territory given on

18 April 1991.

2. The appeal be allowed.

3. The orders made by the Supreme Court of the Australian

Capital Territory be set aside and in lieu thereof it be

ordered that the appeal to that Court be allowed with costs,

that the interim orders and award made by Magistrate

Dingwall on 5 October 1990 be set aside and that the claims

made by the respondent in the arbitration proceedings,

whether interim or final, be dismissed with costs.

4. The respondent pay the appellant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) confirming an interim award of Magistrate Dingwall acting as an arbitrator pursuant to the provisions of the Workmen's Compensation Act 1951 (ACT) ("the Act"). In order to understand the issues which arise on the appeal, it will be necessary to refer, at some length, to the history of the proceedings between the parties.

2. The respondent was employed by the appellant to drive a refrigerated van and to sell the appellant's goods carried in the van. On 18 December 1985, the respondent lodged a claim in writing upon the appellant's insurer for workmen's compensation in respect of a back injury. The respondent claimed that he had suffered the injury in the Australian Capital Territory in approximately June 1985 when he slipped when carrying a box of margarine and hit his back on the bumper bar.

The receipt by the respondent of weekly payments of workmen's compensation

3. Following the lodgment of his claim, the respondent received weekly payments of compensation from the appellant's insurer. The weekly payments were made in the amounts provided by the First Schedule of the Workmen's Compensation Ordinance 1951 (ACT) ("the Ordinance") (subsequently the Workmen's Compensation Act) in the case of a worker totally incapacitated for work by the injury (see cl.1 of that Schedule). It is convenient to note that by s.7(1) of the legislation, where a workman suffers personal injury arising out of or in the course of his employment by his employer, the employer is liable to pay compensation in accordance with the First Schedule. By cl.12 of the First Schedule a weekly payment may be varied or ended by agreement or by arbitration under the legislation. We note that the Act is now to be referred to as the Workers' Compensation Act 1951. In what follows, we refer to the legislation as it stood at the time of the judgment of the Supreme Court the subject of this appeal.

4. In December 1986, the respondent instituted proceedings against the appellant in the Supreme Court of the Australian Capital Territory claiming damages for personal injury, alleging common law negligence. His action was based upon the incident the subject of his claim for workmen's compensation. The action was heard by Gallop J. who, on 16 May 1990, after a trial which lasted for seven days, ordered that there be judgment for the respondent. In his reserved reasons for judgment, Gallop J. said:

"The primary issue at the trial was whether the plaintiff

had discharged the onus of proof on the balance of

probabilities that he sustained the injury, which admittedly

manifested itself on 2 December 1985, on or about 26 June

The plaintiff's version of the accident was that on 26 June

1985 or either the day before or the day after, he was

carrying out his ordinary duties as a van driver/salesman

and was making deliveries at the Monaro Mall in Canberra.

He was carrying a box of butter from the back of the truck

towards the front. He lost his footing on the edge of the

top step and slipped out of the truck with his hands full

with the box. He fell to the ground hitting his upper back

and arm and lower back against the back of the truck and

landing on the ground. He was wearing brown workboots at

the time, provided by himself. When he hit the ground he

landed on his buttocks. He was in shock and felt pain in

the lower part of the righthand of the back. After sitting

down for a few minutes he got up and resumed his duties. He

continued to do deliveries as usual. He maintained that he

told Mrs Gloria Jarman that evening of what happened. She

was at the relevant time the clerical assistant in the

office of the defendant. He also claimed to have told the

Manager of the defendant, Barry Jarman, either that day or

the next morning.

Notwithstanding that he was sore in the lower back the next

day and suffering moderate pains in the legs, mainly the

right leg, he did not seek any medical assistance at that

time and continued with his normal duties until 29 November

1985."

5. Having analysed the other evidence in the case, Gallop J. said:

"It is not necessary to make a finding which reflects upon

the plaintiff's honesty, although, if he was being

deliberately dishonest in his case, it would be easier to

conclude that he has not discharged the onus. I am not able

to find that he was deliberately dishonest. He may simply

have rationalised that a fall at work on 26 June 1985 caused

his back injury after someone had suggested to him that he

could have a compensable claim.

As the plaintiff has not discharged the onus of proving his

case, there will be judgment for the defendant with costs.

In the circumstances it is unnecessary to determine the

issues of negligence and damages. It is sometimes desirable

to assess damages on a provisional basis, for instance where

findings of primary fact might give rise to contention as to

the ultimate conclusion of negligence or no negligence.

This is not such a case, and in my opinion it is not

necessary to resolve issues which have not arisen because

the plaintiff has failed to establish the cause of his

injury."

6. An appeal by the respondent to the Full Court of this Court was dismissed. Miles, Foster and von Doussa JJ. said:

"His Honour's findings quite clearly amounted to a

determination that, although the plaintiff had a

demonstrable injury ascertained on operation in December

1985, he had failed to prove that it had been incurred in

the manner that he alleged. The establishment of this was

basic to his claim against the respondent. His failure to

establish it necessarily meant that claim failed."

7. On 16 May 1990, the appellant's insurer discontinued the weekly compensation payments.

8. On 24 May 1990, the respondent filed an "application for arbitration" between him and the appellant in these terms:

"An arbitration is requested between the applicant and the

respondent to settle the following questions:-

(a) Whether the (appellant) made payment of compensation

to the (respondent) pursuant to the Act to 16 May

1990;

(b) Whether the (appellant) unlawfully terminated payment

of compensation on that date;

(c) Whether the (respondent) is entitled to continuing

payment of compensation on an interim basis until such

time that any other outstanding matters can be

arbitrated."

9. The respondent gave the following, inter alia, particulars:

"4. Date and place of accident, nature of work in which

applicant was engaged, nature of accident and cause of

injury:

On or about 26 June 1985 whilst making van deliveries,

the applicant was carrying a box of butter in the back

of the van when he slipped and fell thereby injuring

himself.

(It is common ground that this was the incident which was the subject of the common law proceedings tried by Gallop J.)

5. Nature of injury:

The applicant fell from the back of the truck hitting

his upper back and arm and lower back against the back

of the truck and landing on the ground. Prolapsed

lumber intervertebral disc and onset of low back pain.

...

9. Payment allowance or benefit received from employer

during period of incapacity:

The respondent has paid compensation for total

incapacity from the date of the injury alleged to 16

May 1990 when payment of compensation was unlawfully

terminated without order of the Court and without the

agreement of the applicant.

10. Amount claimed as compensation

The applicant claims reinstatement of payment of

compensation on the same basis as it was paid prior to

unlawful termination."

10. On 31 May 1990, the appellant filed in the Magistrates Court an answer to this application raising a number of matters disputing the respondent's claim.

11. In the first place, the appellant, which was incorporated in New South Wales, disputed the jurisdiction of the Magistrates Court to deal with the matter for the reason, inter alia, that the respondent's contract of employment was made in New South Wales. Although the appellant still maintains this objection, it accepts that, in this Court, the argument can be maintained on a formal basis only in the light of earlier High Court authority (see, eg., Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68).

12. In its answer, the appellant also raised the following, inter alia, matters:

"B. ALTERNATIVELY TAKE NOTICE THAT:

1. The (appellant) states that by virtue of the reasons

and decision of Gallop J., handed down on 16 May 1990

in the Supreme Court of the Australian Capital

Territory in the case brought by the (respondent)

against the (appellant)...

(a) the (respondent) is estopped from alleging

and/or proving the facts and matters set out in

paragraphs 4 and 5 of the Particulars herein;

(b) the (respondent) is estopped from other than

admitting that which Gallop J., judicially

declared to be the truth viz that the

(respondent) did not on or about 26 June 1985

sustain the injury which admittedly manifested

itself on 2 December 1985;

(c) it is now not open to the (respondent) to assert

and/or prove that on or about 26 June 1985 he

suffered personal injury arising out of or in

the course of his employment by the (appellant)

as asserted in paragraphs 4 and 5 of the

Application herein.

C. ADDITIONAL AND/OR ALTERNATIVELY TAKE NOTICE THAT:

1. The (appellant) denies any liability to pay

compensation under the Ordinance in respect of the

alleged injury to the (respondent) mentioned in his

particulars herein on the grounds:-

(a) See ... B1(a) and (c) above;

...

(c) The alleged injury of the (respondent) was not

caused by an accident arising out of or in the

course of his employment with the (appellant).

D. ALTERNATIVELY TAKE NOTICE THAT:

1. The (appellant) desired to bring to the notice of the

Court the facts stated in B1 (a), (b) and (c) above.

2. The (appellant) intends at the hearing of the

Arbitration to give evidence of and rely upon:-

(a) the facts stated in B1 (a), (b) and (c) above;

(b) ...

(c) the facts that the total and permanent

incapacity alleged by the (respondent) was not

sustained as a result of any alleged work

related accident on or about 26 June 1985 as set

out in paragraphs 4 and 5 of the (respondent's)

particulars herein.

E. ADDITIONALLY TAKE NOTICE THAT:

1. The (appellant) does not admit the facts and matters

alleged in paragraphs 4, 5, 6, 7 and 8 of the

(respondent's) particulars herein.

2. As to paragraph 9 thereof, the (appellant) says that

the facts alleged are inaccurate and incomplete in

that the (appellant) made certain payments to the

(respondent) computed from 2 December 1985 up to 16

May 1990 when those payments ceased following upon the

decision of Gallop J. The (appellant) denies that

such cessation was unlawful.

...

G. THE (APPELLANT) SEEKS THE FOLLOWING ORDERS:

1. The Application be dismissed..."

13. As has been said, the arbitration was requested under the provisions of the legislation which deal with procedure for payment of compensation. By s.24 of the Act all matters and questions arising under the Act, with certain presently immaterial exceptions, shall, where no other provision is made in the Act, in the absence of agreement, be settled by arbitration in accordance with the Fourth Schedule of the Act. By cl.2 of the Fourth Schedule, the matter shall be settled by the "Court" by arbitration. ("Court" is defined by s.6(1) of the Act to mean the Magistrates Court). By cl.6A of the Fourth Schedule, subject to the Act, the Regulations and the Rules of Court, the procedure of the Court is within its discretion; the Court is not bound to act in a formal manner and is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks fit; and the Court shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.

14. By r.12 of the Workmen's Compensation Rules ("the Rules"), an application for the settlement of any matter by arbitration shall not be made unless and until some question has arisen between the parties and the question has not been settled by agreement. Where any question has arisen and has not been settled by agreement, an application for the settlement of the matter by arbitration shall be made by the applicant filing with the clerk of the Court a request for arbitration, which request shall state concisely the question which has arisen. Particulars shall be appended or annexed to the request containing a concise statement of the circumstances under which the application is made, and the relief or order which the applicant claims (r.12(2)(a)). The request and particulars shall be in accordance with such one of the Forms numbered 1 to 7 as is applicable to the case, with such modifications as the nature of the case requires (r.13(1)). In Form 1, entitled "Application for arbitration by injured workman with respect to the compensation payable to her or him", examples of questions which might arise are given, including a question as to the liability of an employer to pay compensation; and a question as to the amount (or duration) of the compensation payable. In Form 5, entitled "Application for arbitration with respect to the review, termination, diminution, increase or redemption of a weekly payment" reference is made to the agreement, decision or award fixing a weekly payment and to the grounds on which termination, diminution or increase is claimed. By r.14(1), where an employer on whom a claim for compensation has been made, desires to make an application for the settlement of any matter by arbitration, she or he shall file a request for arbitration in accordance with r.12. Particulars shall be appended or annexed to the request containing, inter alia, a statement whether the applicant admits or denies liability and the grounds on which liability is denied (r.14(2)(b)); and a statement of the matters which the applicant desires to have settled by arbitration (r.14(2)(c)). Rule 20 provides for the filing of an answer by a respondent, which is to state, inter alia, whether she or he (a) disclaims any interest in the subject-matter of the arbitration or (b) brings any fact or document to the Court's attention or (c) denies liability on any ground.

15. Procedure on arbitration is dealt with by r.31. Subject to the special provisions of the Rules and any special direction of the Court, the procedure in an arbitration shall conform as nearly as may be to the hearing of a claim under the Magistrates Court (Civil Jurisdiction) Act 1982 (r.31(1)). The burden of proof of any fact which is not admitted shall be the same whoever the party may be by whom the request for arbitration is filed (r.31(2)).

16. At the commencement of the hearing before the arbitrator, senior counsel for the respondent said that he relied on the decision of the Full Federal Court in Barbaro v Leighton Contractors Pty. Ltd., [1980] FCA 56; (1980) 30 ALR 123 for the proposition that weekly payments could not be validly terminated by the unilateral action of an employer and submitted that the onus lay upon the appellant to establish the existence of a reason which entitled it to cease to make the weekly payments. He indicated that he proposed to call the respondent for the limited purpose of proving some formal matters only. Senior counsel for both parties then agreed that the jurisdictional point and the issue estoppel point be dealt with before the substantive merits of the matter. The arbitrator indicated his approval of this course.

17. In the reasons for decision, given on 5 September 1990, the learned Magistrate said:

"As the pleadings stand, the primary issue to be determined

is whether or not the (appellant) was lawfully entitled, as

it did, to terminate the weekly payment of compensation

which it had been making to the (respondent) up to 16 June

1990 (sic). In deciding the primary issue there are,

broadly speaking, three sub-issues which are raised for

determination -

1. The applicability of the Act to the circumstances of

this case (the jurisdiction question).

2. The applicability of the doctrine of issue estoppel in

workmen's compensation proceedings before this Court;

if applicable, whether the (appellant) is entitled to

rely upon the alleged issue estoppel in these

particular proceedings; and, if it can, whether an

issue estoppel in fact arises (the issue estoppel

question).

3. The liability of the (appellant) under the Act to pay

compensation to the (respondent) even if the two

preceding sub-issues are determined in favour of the

(respondent) (the liability question)."

18. He then referred to the course suggested by counsel already mentioned and said:

"Senior counsel for the (appellant), Mr Rofe QC, urged that

I first determine the jurisdiction and issue estoppel

questions, and that, after deciding those questions move to

a determination of the liability question. Mr Curlewis

(senior counsel for the respondent) agreed with this

suggested course. As I considered that Mr Rofe's suggestion

was the most practical and convenient way to proceed, and

presented a possibility of saving time and expense for all

concerned, including the Court, I agreed to proceed in the

way suggested. Accordingly, evidence was taken and argument

presented in relation to the jurisdiction and issue estoppel

questions only, with leave reserved to both parties to lead

further evidence and present further argument on the

liability question at a later time, should that become

necessary."

19. His Worship went on to hold that the Court had jurisdiction to entertain the matter; and that the doctrine of issue estoppel was capable of application in proceedings of the kind before him; but that, given the existence of a different onus of proof in the action heard by Gallop J., there was not the same question in both matters and thus no issue estoppel in the present circumstances. He then dealt with the question of an interim award as follows:

"INTERIM AWARD

Having found that the (appellant) fails on the jurisdiction

and issue estoppel questions, it is now necessary that I

determine the liability question. This will require the

taking of further evidence and hearing further submissions,

a task that cannot be undertaken immediately. In these

circumstances the issue arises as to whether or not an

interim award should be made which has the effect of

reinstating weekly payment of compensation to the

(respondent) from 16 May 1990 until at least the date of the

final determination of this arbitration.

Mr Curlewis (for the respondent) urged me to make an

interim award. Mr Rofe, (for the appellant) on the other

hand, submitted that I have no power to do so.

I am satisfied, in light of the judgment of Kelly J. in

Ferguson v. University of New South Wales (1983) 49 ACTR 15,

that the (appellant) acted unlawfully when it ceased to pay

compensation to the (respondent) on 16 May 1990 and that it

is open to me to make an interim award that the (appellant)

continue to make such payments until, and if, relieved of

its obligation by agreement or award. I propose to make

such an interim award after having heard from counsel as to

how it should be framed.

I propose also to hear counsel further in relation to the

future conduct of this arbitration."

20. On 5 October 1990, his Worship made a formal order and award in these terms

"1. Provided the (respondent) was injured as alleged the

Workmen's Compensation Act 1951 ('the Act') renders

the (appellant) liable to pay compensation to the

(respondent).

2. After 18 December 1985 and up to 16 May 1990 the

(appellant) paid the (respondent) weekly payments

under the Act on the basis that the (respondent) was

totally incapacitated for work.

3. The (appellant) acted unlawfully when it ceased to

make the weekly payments to the (respondent) without

the agreement of the (respondent) or an award of this

Court.

4. The issue decided by His Honour Mr Justice Gallop in

the Supreme Court of the Australian Capital Territory

in an action brought by the (respondent) against the

(appellant), in which judgment was ordered to be

entered against the (respondent) on 16 May 1990, and

which is claimed by the (appellant) to create an issue

estoppel is not identical with the issue which I have

to determine, and to which the (appellant) claims the

issue estoppel relates.

5. In the circumstances of this arbitration an issue

estoppel did not arise.

6. It is open to the Court to make an interim award that

the (appellant) continue to make such payments until

and if relieved of its obligation by agreement or

award.

WHEREBY THE COURT ORDERS AND AWARDS ON AN INTERIM BASIS

PENDING THE FINAL DETERMINATION OF THIS ARBITRATION THAT

1. From 22 October 1990, the (appellant) make weekly

payments of compensation to the (respondent) in

accordance with paragraph 1(b) of the First Schedule

to the Act from 16 May 1990.

2. From 22 October 1990, the (appellant) pay the

(respondent's) reasonable medical expenses in

accordance with section 11 of the Act."

21. By s.26(1) of the Act, where the Court gives a decision or makes an order or award with respect to any matter which may be or is required to be settled by arbitration under the Act, any party to the arbitration may appeal from the decision, order or award to the Supreme Court of the Australian Capital Territory. By s.26(2) of the Act, Part X1XA of the Magistrates Court (Civil Jurisdiction) Act 1982 applies in relation to an appeal under s.26(1) as if it were an appeal from a judgment or order of a kind specified in s.282C(2) of that Act. Under that provision, an appeal may be brought as of right in certain cases. By s.282G of that Act, in an appeal, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact, and, in its discretion, to receive further evidence. By s.282J(1), on an appeal, the Supreme Court may, inter alia, (a) affirm, reverse or vary the judgment or order appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment or order appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to such directions as the Supreme Court thinks fit.

22. The appellant appealed to the Supreme Court from the decision of the learned Magistrate given on 5 September 1990 whereby his Worship decided, inter alia, that (1) the relevant issues were not identical so that no issue estoppel arose; (2) the appellant acted unlawfully in ceasing to make weekly payments; (3) it was open to him to make an interim award that the appellant continue to pay weekly compensation until, and if, relieved of its obligation by agreement or award. The appellant sought the following in lieu of the Magistrate's decision:

"1. DECLARE that in the events which have happened the

Respondent is precluded from pleading and proving that

he sustained his incapacitating injuries as a result

of the work related accident claimed by him to have

occurred on or about the 26 June, 1985.

2. DECLARE that in the circumstances of this case the

Magistrate has no jurisdiction to make an award.

3. ORDER that the Arbitration claim brought by the

Respondent be dismissed with costs.

4. Alternatively, ORDER that the matter be referred back

to the Magistrate to make an award dismissing the

Arbitration claim with costs..."

23. The appeal was heard by Miles C.J. His Honour first rejected a submission made on behalf of the respondent that Gallop J. made "no relevant finding one way or the other to answer affirmatively or negatively the question whether the worker had injured himself on the day in question as he had alleged." The learned Chief Justice said:

"Once there is a determination of a relevant issue by a

competent tribunal, it matters not for the purpose of

subsequent consideration of the effect of that determination

whether the determination goes to affirm or to negate a set

of circumstances which one of the parties contends for or

denies. Nor does it matter which party carries an onus to

establish the existence or absence of that set of

circumstances."

"In the action brought by the worker against the employer

for negligence, one of the ultimate facts he had to prove

was that he received injury in the manner claimed on the

date alleged. That fact was found not proved by the trial

judge. The worker failed to prove it. The issue was

determined adversely to the worker. The worker cannot be

heard on subsequent proceedings to prove that fact. The

issue estoppel prevents him from raising that issue.

However, that is not an end of the matter as far as this

appeal is concerned. Given that the findings of Gallop J.

are such that the worker may not be heard to assert before

the Magistrate that he received injury as he alleged in the

Supreme Court proceedings (because that issue has already

been decided adversely to the worker), those findings create

an issue estoppel only to the extent that it is the same

issue which arises, or is sought to be raised, in the

proceedings subsequent to the prior determination of the

issue. It is necessary, therefore, to look at exactly what

it was that the Magistrate was required to decide in the

proceedings before him."

25. After analysing the pleadings before the Magistrates Court, Miles C.J. said:

"What the worker did in the present case following his lack

of success in the Supreme Court and the Federal Court was to

seek an interim award that the employer continue the

compensation payments which the employer had unilaterally

terminated at the conclusion of the Supreme Court

proceedings but without having taken the required steps to

that end pursuant to the Act. No question therefore arose

before the Magistrate when the application for the interim

award was before him whether the worker had or had not been

injured as he had claimed in the proceedings in the Supreme

Court. No issue estoppel arose out of the findings of

Gallop J. for the purpose of the arbitration because the

findings of Gallop J. did not relate to the issue that was

to be decided by the Magistrate in the arbitration. The

Magistrate was quite correct in deciding that no issue

estoppel stood in the way of the worker applying for the

interim award for continuation of compensation payments."

"It was not disputed that the Magistrate was entitled to

find that the employer had made weekly payments to the

worker under the Act and that there was no award or

agreement that such payment be terminated. The worker was

therefore entitled to the interim award. That of course may

not be the end of the matter between the parties but it is

not for me to give advice as to what ought to be done."

27. Miles C.J. ordered that the appeal be dismissed and that the interim award be confirmed.

28. The appellant has now appealed to this Court from the judgment of Miles C.J. It is convenient to deal with the several questions which arise on the appeal in turn.

29. By the provisions of s.24(1A) of the Federal Court of Australia Act 1976, an appeal shall not be brought from an interlocutory judgment unless leave to appeal is given. The question arises whether the judgment of Miles C.J. is interlocutory.

30. In Computer Edge Pty. Ltd. v. Apple Computer Inc. [1984] HCA 47; (1984) 54 ALR 767, Gibbs C.J., with the agreement of Murphy and Wilson JJ., said (at 767-8):

"What is plain is that the judgment of that court comprised

two orders which, viewed by themselves and apart from the

rest of the judgment, were final orders, and one order which

was plainly interlocutory. The result of the judgment as a

whole was that some of the questions in issue in the case

were determined and others were not. The question then is

whether a judgment of that kind is a final judgment within

the meaning of s 33(4) of the Federal Court of Australia

Act, and s 35(3) of the Judiciary Act as they stood at the

material time.

The test for determining whether a judgment is final, which

has been laid down in a number of cases including Carr v

Finance Corporation of Australia Ltd (No 1) ... is whether

the judgment finally determines the rights of the parties,

and the authorities have held that the court in applying the

test must have regard to the legal rather than the practical

effect of the judgment. So that the question in the present

case is whether the whole judgment finally determined, in a

legal sense, all the rights of the parties that were at

issue in these proceedings. And the answer is, plainly,

that it did not, because it left undetermined the question

whether any, and what, damages were payable. The conclusion

that the judgment is not a final judgment is supported by a

short passage from the judgment of Dixon C.J. in John Grant and

Sons Ltd v Trocadero Building and Investment Co Ltd ...

where his Honour said:-

'The judgment of the Supreme Court did not

determine the action, for the demurrers did not

affect pleas to or replications in relation to

all counts of the declaration. The judgment

was, therefore, interlocutory, and this appeal

did not lie without leave.'"

31. In our opinion, this reasoning is applicable here. Even if it be accepted, for present purposes, that the Magistrates Court (and thus the Supreme Court in dismissing the appeal) finally decided the issue estoppel point, the award, which was expressed to be "interim", was plainly interlocutory insofar as it ordered the appellant to continue to make weekly payments pending the final disposition of the matter. Taken as a whole, the judgment of the Magistrates Court, which was confirmed by the Supreme Court, did not finally determine, in a legal sense, all of the rights of the parties that were in issue in the proceedings.

32. It follows, in our opinion, that the judgment of the Magistrates Court and, in turn, that of the Supreme Court, was, taken as a whole, interlocutory. In our view, leave to appeal is required.

33. In our opinion, there are several factors present here which suggest that leave to appeal should be granted. The issue estoppel question raises matters of general importance and considerable complexity which do not appear to have been dealt with by any previous authority squarely on the point. Moreover, this issue was finally dealt with both in the Magistrates Court and in the Supreme Court, so that if leave were now to be refused, the appellant would have no further opportunity to agitate the point in the Magistrates Court.

What was the subject matter of the proceedings in the Magistrates Court?

35. Since this is an appeal against the judgment of the Supreme Court confirming the interim award of the Magistrates Court, it will be necessary to analyse the legal effect of that award. In order to place the award in its context, it is necessary, in turn, to analyse the subject matter of the proceedings in the Magistrates Court. This should be done by reference to the pleadings filed in that court.

36. In order to place the pleadings in their proper context, it is necessary to refer, by way of background, to what was decided in Barbaro's case. There, the appellant, who was injured in 1975 in the course of his employment by the respondent, received weekly payments equal to those payable under the First Schedule of the Ordinance in the case of total incapacity. In 1977, the respondent ceased all payments. The appellant then requested an arbitration with respect to the compensation payable to him. He claimed total and permanent incapacity. The arbitrator made an award for the respondent on the ground that he was not satisfied that the appellant was then totally or partially incapacitated. It was held by the Full Court of this Court (Smithers, Connor and Franki JJ.) that, although there was no award or recorded agreement, the payments made to the appellant were in respect of the respondent's liability under the Ordinance, and by reason of cl.12 of the First Schedule, could not be unilaterally ended. It was also held by Smithers and Franki JJ. that the respondent should be treated as seeking to end payments made under cl.1(b) of the First Schedule, and therefore had the onus of proving that the appellant was not totally incapacitated for work. However, the evidence was sufficient to establish that the appellant was not totally incapacitated. Smithers and Franki JJ. (Connor J. dissenting) further held that, once total incapacity was disproved, the appellant had the onus of establishing partial incapacity and that the appellant had failed to do this.

"Notwithstanding the absence of a separate initiatory

proceeding on the part of the respondent seeking to have the

weekly payments which had been paid varied or ended in

accordance with para 12 of the First Schedule, the terms of

the applicant's application were comprehensive enough to

permit, and indeed require, an adjudication on the issue as

to whether such weekly payments should be varied or ended.

But although that is so, it was necessary that it be

recognized that the appellant should have full advantage of

the situation arising from the payment of the weekly

payments, namely that until it appeared that the weekly

payments ought to be varied or ended the respondent's

liability to continue to pay the same persisted.

Unfortunately para 12 of the First Schedule appears to have

been overlooked by all parties and not brought to the notice

of the learned magistrate.

It is apparent that as a matter of evidence the appellant's

case rested in the first instance on the fact that weekly

payments had been made. Had the matter stopped there the

case for an award on the basis of total incapacity would

have been complete. Whether or not this would have been so

in the absence of para 12 of the First Schedule it is clear

that in the presence of para 12, and in the absence of

evidence that the appellant was no longer totally

incapacitated for work, the appellant would have been

entitled to an award."

38. Shortly after this decision in Barbaro, the High Court gave judgment in the somewhat similar case of The Western Australian Coastal Shipping Commission v Wallner [1980] HCA 22; (1980) 144 CLR 110. There also, an employer made, but later ceased to make, voluntary payments to an injured worker calculated in accordance with the rates specified in the Workmen's Compensation legislation. The worker then applied to the Workmen's Compensation Tribunal for an award of compensation and also sought an interim award of weekly payments. The Tribunal made the interim award, believing it had power to do so by virtue of the following provision in the legislation:

"7A. (1) An employer shall not, except in accordance with

this Ordinance, an Act or determination of the

Tribunal, discontinue, withhold or diminish a weekly

or other payment due under this Ordinance to a person.

Penalty: 100 dollars.

(2) The onus of proving that a weekly or other payment

was discontinued, withheld or diminished in accordance

with this Ordinance, an Act or a determination of the

Tribunal shall be on the employer."

39. It was held that a voluntary payment of compensation was a payment "due under" the Ordinance because it was paid by reason of and by reference to the Ordinance, and that once such a payment was made, the worker had a right to its continuance until the issue of liability was determined in the employer's favour.

"...gave to a workman who had been receiving from his

employer weekly payments of compensation the right to

continue to receive those payments until the question of his

entitlement was determined; he would however receive them

provisionally only, and was liable to return them if it was

ultimately held that he was not entitled."

"...if the employer disputes any of the conditions

precedent, then the payment is not 'due' until his liability

is determined pursuant to the legislation. The voluntary

payment of compensation is not a binding admission of

liability by the employer, but it is nevertheless proper to

describe such a payment as 'due under the Ordinance' because

it is paid by reason of and by reference to the Ordinance.

Once a payment is made, it represents the entitlement of the

worker and hence he has a right to its continuance until the

issue of the employer's liability is determined in the

latter's favour. The weekly payments may cease to be 'due

under the Ordinance' upon a finding that the worker is no

longer incapacitated. It may even transpire that none of

the payments that were made could properly be described as

made under the Ordinance at all, much less 'due' under the

Ordinance as for example if the Tribunal finds that the

accident never happened at all: Ley v. Old Lodge Tinplate

Co... But none of these possibilities alters the fact that

if and when an employer makes weekly payments to a worker

voluntarily he is doing so because he believes that the

worker is entitled to such payments by virtue of the

Ordinance. The fact of payment is sufficient to sustain a

new right in the worker, the right to their continuance

pending a determination in favour of the employer. In our

opinion, it is not an abuse of language to describe the

payments that are made as "due under the Ordinance'."

42. In Ley's case (1939) 32 BWCC 58, liability was admitted and compensation paid for some time when, certain facts having come to the knowledge of the employers, it was stopped. The worker commenced arbitration proceedings but it was found as a fact that no accident as alleged by the worker occurred. The application was dismissed. In dismissing an appeal, the Court of Appeal held that payment of compensation did not estop the employer from proving that the alleged accident had never occurred. Clauson L.J. said (at 62):

"Then it is said that something results from sect. 12 of the

Workmen's Compensation Act. According to the side-note,

sect. 12 gives power to diminish the weekly payment. That

throughout deals with a weekly payment, and the weekly

payment it deals with is a weekly payment which is made in

respect of personal injury by accident arising out of and in

the course of the employment. The payment was being made in

respect of a personal injury by an accident which now turns

out, and the learned county court judge has so found, not to

have occurred. How, in those circumstances, sect. 12 can

have any bearing on the matter, I cannot conceive, because

the payment was not a weekly payment under the Act at all.

They were all under the impression, no doubt, that it was a

weekly payment under the Act; but it was not. It was a

purely voluntary payment in the circumstances. So how it

can be said that sect. 12 can have any bearing on the

matter, I entirely fail to appreciate."

43. In the present case, various questions were referred to arbitration by the parties. Some of the questions were referred on an interim basis, some by way of a preliminary point, and others on a final basis. Without at this stage attempting to determine which of the parties had the onus on any particular issue, in our view, the following questions were referred by the parties for arbitration:

(1) Whether an order should be made

that the appellant continue to make

the weekly payments. Implicit in this

was the question whether leave be

granted to the appellant to discontinue

these payments. (This was an

interim or interlocutory question.)

(2) Whether there was an issue

estoppel as alleged by the appellant.

(A preliminary, but final, point.)

(The other preliminary point was the

jurisdiction question.)

(3) Whether the respondent suffered

a personal injury arising out of

his employment. (A question for

final determination.)

(4) The degree of the respondent's

alleged incapacity. (A question for

final determination.)

44. As has been said, questions (3) and (4) were matters reserved for a final hearing and thus were not dealt with by Magistrate Dingwall at the interlocutory stage. His Worship dealt with question (1) on an interim basis and with question (2) on a final basis but by way of a preliminary point.

45. The learned Magistrate dealt with question (2) in this way at the invitation of the parties and, in our opinion, it was an appropriate course. In Trepic v ROH Industries Pty. Ltd., Supreme Court of South Australia, 5 June 1991, unreported, Cox J. said (at 8):

"It is the application of the issue estoppel principles to a

particular pleading or evidence objection that is likely to

cause difficulty. Here, the defendant has raised the point

on the plaintiff's application to amend his reply. As I

have said, I am really being asked to determine the

soundness of the plaintiff's proposed plea. While there is

debate whether issue estoppel is a rule of evidence or a

rule of law (see, for example, Queensland v. Commonwealth of

Australia [1977] HCA 60; (1979) 139 CLR 585, at 615-5, and Commonwealth of

Australia v. Sciacca (1988) 78 ALR 279, at 283), it would

certainly be open to the plaintiff by his reply simply to

join issue with the defendant on the facts alleged in the

defence and to raise issue estoppel as the ground for an

evidence objection at the appropriate stage of the trial:

Meskenas v. British Paints (Australia) Pty. Ltd. (1964-5)

NSWR 1640. However, it will be convenient in many cases to

resolve any issue estoppel point before the parties go into

evidence (Tringowlie v. Stewardson, Stubbs and Collett,

Azzopardi v. Bois [1968] VicRp 18; (1968) VR 183; cf. Hood v. Commonwealth

of Australia [1968] VicRp 81; (1968) VR 619, at 620 Somedaj v. Australian

Iron and Steel (No. 2) at 295) and I see no objection in

principle to the procedure that was followed in this case."

46. In our opinion, these observations were pertinent in the present case. There was nothing in the rules governing the arbitral procedures to the contrary.

Was Mr Dingwall in error in ordering the weekly payments on any interim basis?

47. The question of issue estoppel apart, it is clear from the reasoning in Barbaro and in Wallner that, in the absence of evidence as to the circumstances of the accident (and there was none then), it was open to Mr Dingwall to make an interim award that the weekly payments continue until the final hearing. The question then is whether the issue estoppel alleged by the appellant was an answer to the respondent's claim for interim relief. As has been said, the issue estoppel argument was dealt with, and, we think, appropriately dealt with, as a preliminary point but on a final, not merely interlocutory basis. If it were the case that there had been a final determination that there was an issue estoppel of the kind alleged by the appellant, this would constitute an answer to the respondent's claim for interim relief as well as an answer to any claim for final relief that the respondent might make.

48. It follows, in our opinion, that Mr Dingwall's award could only be successfully challenged by demonstrating that there was a relevant issue estoppel.

49. A final decision, once given by a competent tribunal, binds the parties in respect of any issue of fact which was "legally indispensable" to that decision (see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 per Dixon J. at 531-2; Egri v DRG Australia Ltd. (1988) 19 NSWLR 600 per McHugh J.A. at 603). As Dixon J. pointed out in Blair's case (at 532), in matters of fact, the issue estoppel is confined to "those ultimate facts which form the ingredients in the cause of action".

50. In our opinion, the allegation by the respondent in the trial before Gallop J. that he had suffered a back injury in the course of his employment with the appellant was an allegation of an "ultimate" fact in the sense described by Dixon J. It was not merely a "subsidiary" or "collateral" or "evidentiary" fact of the kind described by Dixon J. (at 532). It was the central question in the proceedings before Gallop J.

51. The allegation that the respondent had suffered a back injury in the course of his employment with the appellant was also central to his claim under the Act. It was an allegation of an "ultimate" fact in the above sense. To this extent, the same question was sought to be raised by the respondent in making this claim as had been the subject of adverse judicial determination by Gallop J. For the purposes of proceedings in another tribunal, there is a binding issue estoppel (see O'Donel v. Commissioner for Road Transport and Tramways (New South Wales) [1938] HCA 15; (1938) 59 CLR 744; Somodaj v Australian Iron and Steel Ltd. ((1963) [1963] HCA 50; 109 CLR 285; Egri's case, above). Nothing turns on the circumstance that the Magistrates Court was not bound by the rules of evidence. It is clear, on the authorities, that an issue estoppel, if it exists, will bind any competent tribunal, including a workers' compensation tribunal.

52. Mr Dingwall was of the opinion that there was no issue estoppel here because there was a different onus of proof in the two proceedings. With respect, we cannot accept this analysis. What his Worship did, as a matter of substance as well as form, was to reserve for separate consideration, on a final basis, the preliminary question, on which the appellant had the onus, whether the decision of Gallop J. constituted an issue estoppel. As has been said, this was a usual procedure to adopt in the circumstances and was quite in accordance with the rules which governed the arbitral procedure. It is true that, in one of its aspects, the arbitration proceedings did involve the point, decided in Barbaro and Wallner, that leave to terminate the weekly payments was required. But this was not the aspect of the matter to be dealt with in the preliminary question. Under the preliminary point, the question to be resolved was whether, by reason of the decision of Gallop J., there was an issue estoppel in the arbitration proceedings, taken as a whole, in respect of the allegation that the respondent had suffered a back injury in the course of his employment with the appellant. For the reasons already given, we are of the opinion that this finding of ultimate fact did give rise to an issue estoppel which is fatal to the pursuit of the respondent's claim for compensation at both interim and final levels.

53. As has been noted, Miles C.J. was of the view that there was no issue estoppel because the questions in the two proceedings were not the same. With respect, we cannot accept this conclusion. It may be accepted that not all the questions in both proceedings, taken as a whole, were identical. But the preliminary point raised for consideration the separate question whether Gallop J. had decided that the respondent had not suffered a back injury in the course of his employment. The same question arose in the claim for workmen's compensation, both at the interlocutory and final stages of the proceedings. To this extent, an identical issue arose in both proceedings.

54. It follows, in our view, that the appeal must be allowed.

55. We desire to add a further comment on one submission made by counsel for the respondent. He contended that had the appellant followed the procedure required by cl.12 of the First Schedule, the appellant would have been required to apply to the Magistrates Court for weekly payments of compensation to be ended by arbitration. Counsel argued that in those proceedings the appellant would bear the onus of establishing that the respondent did not suffer personal injury arising in the course of his employment with the appellant. From this premise it was argued that the issue which would fall for decision in the Magistrates Court would be different from the issue before Gallop J. where the respondent carried the onus of establishing that he suffered personal injury in the course of his employment. In our opinion this argument overlooks the provisions of r.31(2) of the Rules. The purpose of that rule is to ensure that no tactical advantage can arise from the fact that it was one party rather than the other which applied for arbitration. It is an important principle in the scheme for resolving disputes between an employer and a worker that both are encouraged to seek arbitration whenever they are unable to reach agreement on matters concerning the payment of compensation. Rule 31(2) is a rule in aid of this principle. Under the rule the onus, or "burden", of proof in an arbitration will depend not upon the chance of which party initiates the arbitration, but on the nature of the substantive issue in dispute between the parties. Where an employer voluntarily commences weekly payments, but later receives information which puts in question whether the worker in truth suffered injury in the course of her or his employment, upon an arbitration on that issue, the worker will bear the onus of establishing that she or he suffered the injury alleged in the same way as if voluntary payments had not been made. If the position were otherwise, procedural technicality could discourage employers from making voluntary payments, pending a full investigation of a claim, where the worker provides prima facie evidence of an entitlement to compensation.

56. In the circumstances, it is appropriate that orders now be made to reflect the conclusion that the issue estoppel is an answer to all of the claims made by the respondent in the arbitration proceedings, whether interim or final. It is true that, on its face, the respondent's original request for arbitration was a limited one. But implicit in it was a request to have arbitrated, if and when appropriate, a claim for final relief. It was this claim which Mr Dingwall had adjourned. The result is that orders are now made dismissing all of the respondent's claims, interim and final, in the arbitration proceedings.

3. Order that the orders made by the Supreme Court are set aside; in lieu thereof order that the appeal to the Supreme Court is allowed with costs, and that the interim orders made by Mr Dingwall are set aside and that it be ordered that the claims made by the respondent in the arbitration proceedings, whether interim or final, are dismissed, with costs.