Gk Sanford Pty Limited v Paul Jansen Sca [1991] ACTSC 30; (1991) 103 FLR 411 (18 April 1991)

SUPREME COURT OF THE ACT

G.K. SANFORD PTY. LIMITED v. PAUL JANSEN
S.C.A. No. 271 of 1990
Worker's Compensation - Estoppel
[1991] ACTSC 30; (1991) 103 FLR 411

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Worker's Compensation - voluntary weekly payments for total incapacity - unlawful termination of payments - application for interim award to restore weekly payments - nature of application - distinguished from application for award of compensation for incapacity following injury.

Estoppel - issue estoppel - unsuccessful action for negligence followed by application for interim award to restore weekly payments of compensation - identity of issues - matters as to which prior decision is conclusive.

Blair and Others v. Curran and Others [1939] HCA 23; (1939) 62 CLR 464 at p.532

Barbaro v. Leighton Contractors Pty. Limited (1980) 30 ALR 123

Western Australian Coastal Shipping Commission and Another v. Wallner [1980] HCA 22; (1980) 54 ALJR 392; (1980) 144 CLR 110

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

HEARING

CANBERRA
18:4:1991

Counsel for the Appellant: Mr D. Rofe, QC with Mr B. Hull

Solicitors for the Appellant: Wood Fussell

Counsel for the Respondent: Mr K. Crispen, QC with Mr R. Crowe

Solicitors for the Respondent: Minter Ellison

ORDER

1. The Court orders that the appeal be dismissed.

2. The interim award of the Arbitrator of 5 October 1990 be confirmed.

3. The appellant employer pay the costs of the respondent worker.

DECISION

This is an appeal by the appellant (the employer) from an interim award of compensation made in favour of the respondent (the worker) by Magistrate Dingwall sitting as an arbitrator pursuant to the Workmen's (sic) Compensation Act 1951 (the Act).

2. The brief history of the matter is as follows. The worker claims that on or about 26 June 1985 he sustained personal injury arising out of or in the course of his employment with the employer when he slipped and fell from a truck whilst carrying out his duties as a van driver and salesman. The worker further claims that the employer thereafter made voluntary payments of compensation to him pursuant to the Act. That is what he claims. The rest of the history is a matter of record. He sued the employer in this Court seeking damages for negligence in respect of the occurrence in which he claims he sustained his injury. On 16 May 1990 Gallop J. found in favour of the employer and ordered judgment to be entered for the defendant. On 21 December 1990 a Full Court of the Federal Court of Australia dismissed the appeal from Gallop J. In the meantime on 16 May 1990, the day on which Gallop J. ordered judgment to be entered in favour of the employer, the employer ceased to make payments to the worker. On 24 May 1990 the worker filed an application for arbitration under the Act, in which application reference was made to the alleged injury on or about 26 June 1985. On 31 May 1990 the employer filed an answer to the application disputing its liability to pay compensation. I refer to these documents in detail below. On 5 October 1990 Magistrate Dingwall made an interim award of weekly compensation in favour of the worker. The award should be set out in full. It is as follows:
"Having duly considered the matters submitted the

Court finds as follows:
1. Provided the applicant was injured as alleged
the Workmen's Compensation Act 1951 ("the Act") renders the
respondent liable to pay compensation to the applicant.
2. After 18 December 1985 and up to 16 May 1990
the respondent paid the applicant weekly payments under the
Act on the basis that the applicant was totally
incapacitated for work.
3. The respondent acted unlawfully when it ceased
to make the weekly payments to the applicant without the
agreement of the applicant 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 applicant against the
respondent, in which judgment was ordered to be entered
against the applicant on 16 May 1990, and which is claimed
by the respondent to create an issue estoppel is not
identical with the issue which I have to determine, and to
which the respondent 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 respondent 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 respondent make
weekly payments of compensation to the applicant in
accordance with paragraph 1(b) of the First Schedule to the
Act from 16 May 1990.
2. From 22 October 1990, the respondent pay the
applicant's reasonable medical expenses in accordance with
section 11 of the Act."

3. The sole ground argued on the appeal to this Court was that the Magistrate was in error in holding that an issue estoppel in favour of the employer did not arise so as to preclude the worker from asserting and proving in the arbitration that his incapacitating injury was sustained in the work-related accident claimed by the worker to have occurred on or about 26 June 1985. The Magistrate delivered a long and reasoned judgment on this matter, and the submissions on the appeal to this Court covered a wide range of principle and judicial authority. Ultimately, however, so it appears to me, there are essentially two questions only to be decided on the appeal. The first relates to the effect of the findings of Gallop J. Those findings were expressed in the following terms:

"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 1985."

4. Gallop J. concluded:

"As the plaintiff has not discharged the onus of
proving his case, there will be judgment for the defendant
with costs."

5. These findings were confirmed by the Federal Court and reformulated as follows:

"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."

6. It was submitted on the appeal to this Court on behalf of the employer that the findings of Gallop J. and confirmed by the Federal Court amounted to a determination against the worker of the issue whether the worker had received injury on or about 26 June 1985 in the manner alleged by him. It was submitted to the contrary on behalf of the worker that the express statements by his Honour that the plaintiff had not discharged the onus of proof indicated that his Honour did not make a positive determination in favour of the employer, or, in other words, that there was simply 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.

7. This first question may be disposed of relatively briefly. 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. As Dixon J., as he then was, said in Blair and Others v. Curran and Others [1939] HCA 23; (1939) 62 CLR 464 at p 532:

"Where the conclusion is against the existence of a
right or claim which in point of law depends upon a number
of ingredients or ultimate facts the absence of any one of
which would be enough to defeat the claim, the estoppel
covers only the ground upon which the existence of the right
was negatived."

8. 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.

9. 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.

10. Rules 12 and 13 of the Workmen's Compensation Rules made under the Act provide for applications for the settlement of any matter by arbitration to be made by written request in accordance with one of the prescribed forms numbered 1 to 7 (inclusive) as is applicable to the case with such modifications as the nature of the case requires.

11. The written application for arbitration dated 24 May 1990 appears to be substantially in accordance with a prescribed form, Form 5, which appears in the First Schedule to the Act. The application filed commences as follows:

"An arbitration is requested between the applicant
and the respondent to settle the following questions:
(a) Whether the respondent made payment of
compensation to the applicant pursuant to the Act to 16 May 1990;
(b) Whether the respondent unlawfully terminated
payment of compensation on that date;
(c) Whether the applicant is entitled to
continuing payment of compensation on an interim basis until
such time that any other outstanding matters can be arbitrated."

12. This commencing paragraph is to be contrasted with the commencing paragraph in the prescribed form, Form 1, which is appropriate for a worker seeking compensation for injury.

13. The written application for arbitration of 24 May 1990 proceeds to set out particulars of the claim, or perhaps more precisely particulars of the dispute, as set out in the prescribed form. Such particulars include name and address of the applicant, name and address and place of business of the respondent and so forth. Also included amongst the particulars were the following:

"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.
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."

14. The relevant parts of the answer filed by the employer on 31 May 1990 allege inter alia that by reason of the decision of Gallop J. the plaintiff was estopped from alleging or proving the facts and matters set out in paragraphs 4 and 5 of the particulars of the application for arbitration. The answer further alleges:

"(E) ADDITIONALLY TAKE NOTICE THAT:
1. The Respondent does not admit the facts
and matters alleged in paragraphs 4, 5, 6, 7 and 8 of the
Applicant's particulars herein.
2. As to paragraph 9 thereof, the
Respondent says that the facts alleged are inaccurate and
incomplete in that the Respondent made certain payments to
the Applicant computed from 2 December 1985 up to 16 May
1990 when those payments ceased following upon the decision
of Gallop J. The Respondent denies that such cessation was
unlawful."

15. In the light of exactly what it was that was sought in the application for arbitration and what it was that was contended in the answer to resist what was sought, the issue that the Magistrate had to determine became clearly defined. It was not to determine whether or not the worker had sustained injury arising out of or in the course of his employment with the employer which resulted in an incapacity for work and entitlement to compensation. It was to determine whether or not an interim award of continuing compensation should be made on the grounds that the employer had made continuing payments in respect of the worker's total incapacity from the date of injury until 16 May 1990 and that there had been a termination of such payments without an award and without the agreement of the worker.

16. What was claimed in the arbitration by the worker was not an award of compensation for injury and incapacity but an interim award to compel the employer to continue the payments of compensation that it had previously made until it terminated such payments without an award made pursuant to the Act authorizing such termination and without the agreement of the worker. Insofar as the interim award was sought to continue until "such time that any other outstanding matters can be arbitrated" it acknowledged that the employer had an opportunity to establish, on application made under the Act by it, that the factual circumstances were such that it was under no obligation to continue such voluntary payments of compensation. The terms of the interim award itself which have been set out above go no further than to decide the restricted issue of whether the employer had unlawfully ceased payments of compensation and to compel the employer to "continue to make such payments until and if relieved of its obligation by agreement or award".

17. These principles are well established in worker's compensation law and were summarized by Smithers J. in Barbaro v. Leighton Contractors Pty. Limited (1980) 30 ALR 123. That was a decision of the Full Court of the Federal Court of Australia, Connor J. and Frankie J. agreeing with Smithers J. on the particular point. His Honour said at p 125:

"However, it is provided by para 12 of the First
Schedule, so far as material, that "a weekly payment ....
payable under this Ordinance may be varied or ended by
agreement or by arbitration under this Ordinance". It would
appear that the effect of para 12 of the Schedule is that
once weekly payments "payable under" the Ordinance have been
made not only may such payments be varied or ended by
agreement or by arbitration but the same may not be ended or
varied otherwise. The consequence of this is, in my view,
for reasons disclosed below, that where the weekly payments
have been made on the basis of total incapacity the
relationship between the employer and the workman is in
substance the same as would exist if there were an award on
the basis of total incapacity in favour of the workman. As
was pointed out by Northrop J. in Thiess Bros Pty Ltd v.
Carbone (1976) 15 ACTR 15, the appropriate procedure to
be adopted by an employer desiring relief from payment of
weekly payments which he has paid, even voluntarily, is to
apply for such relief by an applicant pursuant to r.7 of the
Workman's Compensation Rules using Form No. 5 provided in
such Rules."

18. In Western Australian Coastal Shipping Commission and Another v. Wallner [1980] HCA 22; (1980) 54 ALJR 392; (1980) 144 CLR 110, the majority judgment surveyed the legislation and the effect of the decided cases in the United Kingdom and Australia and concluded:

"An employer who had commenced, albeit voluntarily,
to make weekly payments could not terminate or
diminish those payments at will. If he wished to do so he
was required to take formal steps to that end prescribed by
the relevant statutory provision. In the event that an
employer offended the rule, then the worker might seek an
interim award pending a determination on liability."

19. The principles and the practice to be followed were laid down by Kelly J. in Ferguson v. University of New South Wales (1983) 49 ACTR 15 where his Honour held that where an employer made payments of compensation under the Act to a worker for a period and then ceased making payments without the worker's agreement and without an award under the Act, then the cessation of payments of compensation to the worker without the worker's consent or without an arbitration was unlawful and it was open to the worker to make an application under the Act for an interim award that the employer continue to make payments of compensation until relieved of its obligation by agreement or award. Instead of ceasing to pay the compensation that had been made voluntarily, the course which the employer in the present case should have adopted was to apply for relief from its obligation to continue weekly payments by application pursuant to the Workmen's Compensation Rules using Form No. 5 provided in those Rules.

20. 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.

21. The appeal is dismissed. The interim award of the arbitrator of 5 October 1990 is confirmed. The appellant employer is to pay the costs of the respondent worker.