Thompson v George Weston Foods Ltd [1990] NSWCC 18; (1990) 6 NSWCCR 370 (23 November 1990)

[1990] NSWCC 18; (1990) 6 NSWCCR 370, Matter No 4878-89

THOMPSON v. GEORGE WESTON FOODS LTD

Compensation Court of New South Wales: McGrath CJ

23 November 1990

Inferior Courts - Compensation Court - Jurisdiction of Judges - Jurisdiction of Commissioners - Allocation of matters by Chief Judge - Compensation Court Act 1984, section 22, and Schedule 3

Proceedings to obtain compensation - Claim included claim under Workers Compensation Act 1987, section 67 - Claim allocated to a Commissioner - Application for adjournment to move for re-allocation to a Judge - Denial of application for adjournment may vitiate proceedings before Commissioner - Compensation Court Act 1984, section 22

Proceedings to obtain compensation - Claim included claim under Workers Compensation Act 1987, section 67 - No sufficient reason to make such claim - Claim dealt with by Court - Order for costs - Level of costs

Nicholson, for the applicant

C.R. Hoeben, for the respondent

Cur adv vult

McGRATH CJ: The matter comes before me pursuant to a notice of motion seeking to review a decision of Commissioner Butchard, made on 16 February 1990, wherein he made an award for the respondent employer. The effect of the award, having regard to the terms of the Commissioner's decision, would prevent the appellant succeeding in a claim under both sections 66 and 67.

The main ground of the review sought is that the Commissioner had no jurisdiction to hear the claim because, inter alia, it claimed compensation under section 66 with a consequential claim under section 67.

It is necessary to trace briefly the procedural history of the claim.

The claim was commenced by the filing of an application for compensation dated 25 January 1989, on 27 January 1989.

At the date of filing the matter was governed by the provisions of Act No. 70 of 1987. Under this Act all jurisdiction in disputes arising under the Act was vested in Compensation Commissioners.

The claim for compensation, dated 25 January 1989, made a specific claim under section 66 for an amount of $9600 in respect of 20 per cent impairment of the back and also:

"a claim pursuant to section 67 of the Act."

By Act No. 119 of 1989, which was assented to on 24 August 1989, all jurisdiction was handed back to the Compensation Court. The Commissioners became Commissioners of the Court, and work was to be allocated to them under section 22 of the Compensation Court Act 1984 in accordance with the provisions of Schedule 2 of that Act.

The repeal of Part 8 of the Workers Compensation Act 1987 attracted savings provisions in respect of matters pending before the Court under the 1987 Act, and matters pending before Commissioners prior to the repeal.

In respect of Commissioners, any matter pending before Commissioners was to be regarded as pending before the Court.

Between the date of the proclamation of the balance of Act 119 of 1990 and the end of 1990, I decided, for logistical reasons connected with the flood of unprocessed files received from the then State Compensation Board, to leave all matters filed with the Commissioners under the 1987 Act in the hands of the Commissioners for hearing. Consequently upon this decision, when the matter came into the Registrar's list on 20 November 1989, it was given a hearing date before Commissioner Butchard on 16 February 1990.

The file note on that day contains the following notation:

"A" (Applicant) submitted should be referred to Judge under section 67 subsection (4) "Compensation Court" - did not agree and stated "Compensation Court referred to Judge/Commissioner Award for (R).

The transcript of the hearing on 16 February 1990 does not assist to fill out this note. The transcript merely records the following:

"Discussion Re matter having referred to Court Judge"

There is no doubt that an attempt was made before the Commissioner to induce him to desist in hearing the matter on the basis that it was inappropriate for him to hear the matter because it involved a claim under section 66 which, if established, would have been large enough to require an assessment of compensation for pain and suffering under section 67.

It is not clear whether or not an adjournment was sought to enable the applicant to take some action, or whether the application to the Commissioner was solely for him to refer the matter to a judge of the Court, or the Chief Judge.

In an endeavour to elucidate the whole problem arising from claims under section 67, I will deal with the matter on both of these assumptions.

No further action was taken by the applicant, apart from the application to the Commissioner himself. The applicant went on to present his case in all respects, and the Commissioner, at the end of the case, made an award for the respondent.

The essential disability relied on by the applicant was that of pain in the low back. In evidence he said he had never had any sciatica. Dr Thompson had a note that he complained of leg pain, as did Dr Innes Brown. In any case it is clear that the applicant had no residual or continuing sciatica.

The sole medical issue was the cause of the continued complaint of back pain.

Dr Selby Brown supported the connection of the continued back pain with the injury, and was of the opinion that he had a 20 percent loss of use of his back.

Dr Thompson classified the injury as a musculo-ligamentous low back strain, superimposed on lumbar spondylosis. Dr Skapinker agreed that he suffered a muscle leg strain at time of injury, but considered that continued pain was due solely to the degenerative changes. A similar view was expressed by Dr Court and Dr Johnston, and to some extent by Dr Innes Brown.

In his reasons, the Commissioner followed the views of those doctors who agreed that any continuing disability was due to degenerative changes. Accordingly, he found that any incapacity, resulting from the disabilities claimed, did not result from the injury because the disabilities resulted from the degenerative changes and not the injury, by way of aggravation, or otherwise.

Consequently, he found that the applicant had no claim under section 66, section 67 or section 60.

The appellant/applicant argues that no part of the case should have been left to the Commissioner, because an integral part of the case involved a claim under section 67. Mr Nicholson submitted that once any claim was made under section 67 a commissioner was barred from hearing it. He submitted that a case could not be split up with a commissioner hearing one part, and a Judge hearing another part. He relied on the reasoning in Boles v. Esanda Finance Corp Ltd, (1989) 18 NSWLR at 666 which adopted the rule originally formulated in Henderson v. Henderson (1843) 3 Hare 100; 67 ER 313, and more recently interpreted by the High Court of Australia in Port of Melbourne Authority v. Anshun (1981) 147 CLR 149. A variety of situations were dealt with in these cases; cases where a plaintiff was estopped from bringing a new action by reason of the dismissal of an earlier action; as well as cases where a party may justifiably refrain from litigating an issue in one proceeding, and yet wish to litigate it in other proceedings.

The overall impact of this decision seems to be to test any set of circumstances on the basis of the reasonability of the decision.

In the area of workers compensation, the basic framework is the statute itself. Under the Act disputes of various kinds can occur. They may relate to the whole question of liability for all and every benefit provided by the Act. They may relate only to some of them. In certain cases, a tribunal different from the Court, namely, a medical panel, can be invoked to resolve issues, such as the condition of an injured worker, or the worker's fitness for employment.

It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication. In doing this he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not.

At the time of hearing a claim on original liability a claim under the Table of Maims may not have crystallised into one of the scheduled losses. The fact that it had not been claimed in the original proceedings could not prevent it being claimed subsequently, if the applicant succeeded on the issue of basic liability. Even if it were crystallised, and not included, there would be no bar to its subsequent determination by the Court, or a medical panel, although its non-inclusion in the original claim might be relevant on the question of costs.

It is now necessary to analyse the provisions of the 1989 legislative changes, in relation to the disposition of work between Judges and commissioners of the Court.

Section 22 of the Compensation Court Act as amended provides:

" 22 (1) The Chief Judge is responsible for making arrangements as to whether the Court's functions are to be exercised by a Judge, commissioner or registrar, including arrangements as to the particular Judge, commissioner or registrar who is to exercise those functions.

(2) In making those arrangements, the Chief Judge should ensure that, as far as practicable:

(a) matters specified in Schedule 3 are allocated to commissioners unless the particular matter is not appropriate for determination by a commissioner; and

(b) other matters are allocated to commissioners if they are appropriate for determination by a commissioner.

(3) In deciding whether a matter is or is not appropriate for determination by a commissioner, the Chief Judge is to have regard to:

(a) the complex, unusual or important nature of any legal or factual issue involved; and

(b) multiplicity of parties; and

(c) the amount of compensation claimed; and

(d) any other special circumstances."

Schedule 3, sets out in detail what matters the Chief Judge should, as far as practicable, allocate to commissioners.

Many of these matters do not arise in practice as, what might be termed, originating matters. They are frequently part of wider matters, and may be ancillary to such matters.

The concept of "matter" envisaged by Parliament is not solely an all embracing concept involving the determination of all matters, or issues, that could arise between the parties consequent upon an alleged employment injury.

The provisions recognise the fact that not all commissioners have legal qualifications, and not all qualified commissioners have had experience in practice, but that Parliament expects the Chief Judge to provide them with as much work as possible commensurate with what qualifications and experience they have.

Coupled with section 16 of the Court Act, the provisions contemplate the possibility that there are circumstances where parts of claims can be dealt with by Judges, and part by commissioners.

Under section 16 an individual Judge, in a complex case, could refer some of the matters in issue to a commissioner. For example, he might refer the assessment of the section 66 aspect of the case to a commissioner, or the ascertainment of the current weekly rates for certain types of employment.

In the context it would appear to me that there would be no reason why the Chief Judge could not allocate a matter which, in some respects would be suitable to a commissioner, and exclude from his consideration matters such as a section 67 claim.

The view has been taken by other Judges that commissioners have no jurisdiction to hear disputed claims under section 67.

It may be that whatever restriction has been placed on commissioners by Parliament is not strictly a restriction of jurisdiction.

In so far as it was within my powers as Chief Judge to restrict a commissioner from hearing a disputed claim under section 67, the commissioner would have no jurisdiction to hear it whilst I so restricted the commissioner.

The real question is whether or not, my powers under section 22 are circumscribed by Parliament to the extent of enjoining me from allocating disputed claims under section 67 to commissioners at all.

A further question is whether, or not, in the exercise of my powers under section 22, I could allocate to a commissioner the determination of so much of a claim as related to section 66, and reserve for allocation to the Judges any claim under section 67, which may arise after the section 66 entitlement has been so determined.

Mr Nicholson submitted that I could not exercise my powers under section 22 in this way.

He repeated his assertion that a case could not be divided and, once a claim was raised under section 67, a commissioner was deprived of jurisdiction in respect of all matters raised in the case. When faced with the detailed list of matters, which Parliament considered were suitable to commissioners, he contended that none of the specific matters could be allocated to commissioners, despite Parliament's expressed view that they should, the moment section 67 was raised in the same application.

It should be noted that the only reasons I could have for refusing to allocate a specified matter in the Schedule to commissioners would be that the allocation of such a matter was not "practicable", or that the particular matter is not appropriate to a commissioner.

Parliament has expressed a view that the specified matters are appropriate, unless, in a particular case, I am of the view that it is inappropriate having regard to the matters specified in section 22(3).

The Schedule indicates that, unless I take a contrary view in a particular case, all applications for compensation under Division 4 of Part 3 of the Principal Act are appropriate, excluding compensation for pain and suffering under section 67. Further, that all applications for formal award for compensation for non-economic loss under Division 4 Part 3 are appropriate, including compensation under section 67 where the parties agree on the amount of compensation.

Division 4 of Part 3 covers both claims under section 66 and section 67.

The effect, then, of section 22(2) is to say that, unless I decide to the contrary in accordance with section 22(3), all claims under Division 4, excluding claims under section 67, are appropriate to commissioners.

Section 22(2)(b) then provides that I should also allocate other matters, if they are appropriate.

The expression "other matters" is capable of two interpretations.

It could mean, "matters other than those dealt with by clause (g) of Schedule 3".

In such case section 22(3) would have no application to matters under section 67, because those had been dealt with by exclusion by clause (g) of Schedule 3.

It could also mean, matters other than those specifically directed by Parliament to be allocated to commissioners, that is, matters other than claims under section 67. Such other matters, on this view, could include a claim under section 67, because such a claim was not specifically directed to be allocated to commissioners.

On this broader view I would be free to allocate a claim under section 67 to a commissioner, if I was of the view that it was appropriate having regard to the matters specified in section 22(3).

However, if this was the intention one would expect the section to specify merely that claims under section 66 should be allocated to commissioners, without the words of exclusion.

One problem in relation to this section is whether the exclusion of section 67 matters is subject to the gloss of, "as far as practicable". All section 66 claims which exceed the limit prescribed by section 67(2) involve rights under section 67.

Section 22 seems to make it clear that Parliament intends that I should allocate all claims under section 66, which do not involve section 67, to commissioners.

The gloss of practicability only applies to those cases which do not involve section 67. It does not mean that I should only exclude section 67 claims so far as it is practicable that I can do so. The provision is directed to the section 66 claims which do not involve section 67.

It seems to me, therefore, that the provisions do prevent me from allocating section 67 claims to commissioners. However, I do not consider that the moment a section 67 claim is raised in any case, I am compelled to withdraw the whole matter, including all other matters, which might be appropriate to commissioners, from the commissioners.

It may create practical difficulties in carrying out my functions, but such difficulties are not insuperable.

The only problem arises when allocation is being made before the level of section 66 entitlement is calculated. Frequently, claims are made under section 67 when the level of section 66 claims are not specified in the application for determination, and when the applicant has not, at the time, evidence which would support a sufficient percentage of loss to raise a claim under section 67.

If the proper construction of section 22 is that the exclusion of section 67 claims, by the operation of paragraph (g) of Schedule 3, is to operate only if it is practicable, it is clear that the overall intent of all the provisions is to reserve the more complex, and monetarily valuable, claims to the Judges of the Court.

Section 67 imports principles of assessment familiar to those who have legal knowledge, and experience of common law actions. There is every reason to consider that such claims should be handled by Judges to ensure some degree of principled consistency.

On either construction, I consider that, if a claim under section 66, coupled with a claim under section 67, is allocated to a commissioner, and it becomes clear that there is evidence to support the required percentage limit to raise a claim under section 67, it is up to the party affected to file a motion requesting me to re-allocate the matter to a Judge of the Court.

It also appears to me that there would be no bar to the Commissioner determining the initial issue as to the level of the section 66 claim, because such a matter is considered by the Legislature to be a matter which should be allocated to commissioners, unless it is contended that any of the matters referred to in section 22(3) are involved. If this is alleged, the party alleging these matters should move before me for re-allocation as soon as the party is reasonably aware of facts which would support a re-allocation.

Since 1 January 1990, all applications are processed by the Court, and matters which clearly disclose a level of claim to invoke section 67 are allocated to Judges. However, where no specific information is provided to the Court to establish this matter, at least on a prima facie basis, such matters are allocated to commissioners.

Where a matter is dealt with by the Court, and it becomes clear, that an applicant had no sufficient reason to suggest that the claim under section 66 did involve a real claim under section 67, and no compensation is allowed under section 67, such matters would be relevant on the question of whether, or not, the level of costs should be restricted to the scale applicable to proceedings before commissioners.

In the present case, the level of claim made under section 66 would invoke section 67, and it would have been open to the applicant to apply to me to re-allocate the matter to a Judge of the Court.

If the applicant had applied for an adjournment to make the application to me under section 22, and the adjournment had not been granted, an immediate review of this very decision could have been sought, coupled with the section 22 application. If the merits were established, the refusal to grant the adjournment could vitiate the continued proceeding, if the applicant had withdrawn, on the basis of a denial of natural justice. At the time, whatever was the nature of the application made to the Commissioner, no action was taken upon it. The hearing proceeded, and resulted in a finding that any disability, or incapacity, currently suffered by the applicant resulted from degenerative changes, not the employment injury. Consequently, no claim under section 66, or section 67 arose. The applicant now seeks to avoid this decision, and seeks a total rehearing before a Judge.

The grounds raised in the motion are as follows:

1. That the Commissioner erred in holding that he had jurisdiction to hear the matter.

This ground is based upon the proposition that once a claim is raised under section 67, this affects all other matters in the claim, and thereby prevents a commissioner dealing with all, or any, of the other matters involved, in which he clearly has jurisdiction, if allocated to him.

I do not agree with this proposition. The matter which he did decide was clearly within his jurisdiction, and the fact that, undisturbed, it has consequences for claims under section 66, and section 67, would not deprive him of the right to hear this issue.

2. The Commissioner erred in not referring the matter to the Court pursuant to section 67(4) of the Act.

This section provides :

"The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Compensation Court."

Section 7 of the Compensation Court Act provides:

"The Court shall be composed of -

(a) a Chief Judge appointed by the Governor; and

(b) such other Judges as the Governor may from time to time appoint under section 8(1)."

However, it is my function under section 22 to determine whether the functions of the Court should be exercised by a Judge, a commissioner or a registrar. The whole matter then depends on the proper interpretation of section 22 of the Court Act.

3. The award of the Commissioner was against the weight and nature of the evidence.

The issue in the case was a familiar one, namely, whether the disability, and incapacity, currently suffered by the applicant, still resulted from the employment injury, or whether it resulted from degenerative changes, which pre-dated the injury, the aggravating effects of the injury upon which had ceased to be operative. Without traversing the whole of the factual material, it is sufficient to say that the case depended upon two particular matters. Firstly, an acceptance, or otherwise, of the lay evidence of the applicant himself. Secondly, a decision as to which of two opposing expert medical interpretations of the whole of the facts the Commissioner accepted.

It is clear the Commissioner was not overconfident in the full acceptance of the applicant's evidence.

The balance between the expert evidence was not, on the face of it, particularly biased in favour of the applicant's case. There certainly was evidence which would justify an acceptance of the applicant's medical case. However, there was ample evidence, equally weighty in quality and numbers, the acceptance of which led the Commissioner to find against the applicant.

After reviewing that evidence, and the terms of the Commissioner's decision, I do not consider that I should disturb his finding, or order a rehearing.

I refuse the relief sought on the motion, and dismiss the appeal.

Having regard to the importance of the issues raised, I do not make any order for costs against the applicant.

Original award confirmed

Solicitors for applicant: W.G. McNally & Co

Solicitors for respondent: Hickson Lakeman & Holcombe