© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
[1992] FCA 236
Federal Court of Australia
1992-05-26
Doussa JJ, Cox J
Original judgment source is linked above.
Practice and Procedure - Workers' Compensation - Estoppel
Practice and Procedure - Judgment of Supreme Court of the Australian Capital Territory on appeal from decision of Magistrates Court upon arbitration under workers' compensation legislation - Appeal dismissed and interim award by Magistrates Court confirmed - Further appeal - Whether judgment of Supreme Court interlocutory.
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.
# Re GK Sanford Pty Limited
Paul Jansen \[1992\] FCA 236;
(1992) 36 FCR 83
(1984) 54 ALR 767
(1980) 30 ALR 123
(1939) 62 CLR 464
(1988) 19 NSWLR 600
(1938) 59 CLR 744
(1963) 109 CLR 285
(1939) 62 CLR 68
(1980) 144 CLR 110
(1979) 139 CLR 585
(1988) 78 ALR 279