Ozkeskin v Sydney Water Corporation [2000] NSWCC 9; (2000) 19 NSWCCR 362 (1 March 2000)

Last Updated: 30 October 2000

[2000] NSWCC 9; (2000) 19 NSWCCR 362

OZKESKIN v SYDNEY WATER CORPORATION

& ANOTHER

[2000] NSWCC 9

Compensation Court of New South Wales: Neilson J

1 March 2000

Workers compensation - Estoppel - Cause of action estoppel - Dependants -Proceedings by wife on behalf of self and two children - Judgment in favour of respondent - Dependent children privy to mother in proceedings - Dependant children each brought later proceedings on behalf of same three dependants - Later proceedings affected by cause of action estoppel - Compensation Court Rules 1990, Pt 6, r 17

B.A. Batchelor, for the applicant

M.L. Snell, for the first respondent

Ex tempore

1 NEILSON J: This is a claim by Janan Ozkeskin for compensation arising from the death of her late father who, it is alleged, committed suicide on 11 January 1985. The applicant is sometimes referred to as Canan but it appears more likely that the correct spelling of her forename is Janan.

2 The applicant claims compensation on her own behalf and also on behalf of her mother, Hatice Ozkeskin, and her brother Murad Ozkeskin who was born on 27 August 1976 and is clearly sui juris. The applicant herself was born two years later on 13 December 1978 and is currently 21 years of age.

3 The substantive claim made by Janan Ozkeskin is not before me today. What is before me is a notice of motion brought by the first respondent seeking that an award be entered on its behalf and that the applicant pay the first respondent's costs.

4 This is the third set of proceedings arising from the death of the late Ercin Ozkeskin. The first proceedings were Matter No. 3293 of 1994. Those proceedings were brought by the applicant's mother, Hatice Ozkeskin, and nominated only the current first respondent as the respondent. Hatice Ozkeskin claimed compensation on her behalf and also on behalf of her two children, Murad and Canan [sic]. That matter came on for hearing before Commissioner Turner on 23 October 1994 when, by consent, an award was entered for the respondent. The short minutes of order were signed by counsel on behalf of each party. It is to be noted that at that time Murad had reached his 18^th anniversary and was accordingly sui juris. Canan, however, was only 15. However, there was no provision in the Workers Compensation Act 1987 requiring that agreements of the nature that came before Commissioner Turner be approved by the Court. The application for determination was filed by Messrs Kell, Heard and McEwan of Wollongong.

5 The second set of proceedings was Matter No. 21859 of 1997. The applicant in those proceedings was Murad Ozkeskin, the current applicant's brother. The current applicant, Janan Ozkeskin, was nominated as second respondent. Murad claimed compensation on behalf of himself, his sister, Janan, and his mother, Hatice. Those proceedings came on for hearing before his Honour Hughes j on 26 July 1999. His Honour held that the matter was res judicata and entered an award in favour of the first respondent.

6 It has been conceded in very proper circumstances today that the solicitors for the applicant in those proceedings were also acting for Janan Ozkeskin, the second respondent in those proceedings and the applicant before me. Those solicitors were indeed Messrs Kell, Heard and McEwan of Wollongong who had commenced the proceedings in 1994. The same firm is acting for the current applicant and the current second respondent, that is for Canan Ozkeskin and again for Murad Ozkeskin although Mr Batchelor, who appears for the applicant today, limited his appearance to that on behalf of the applicant, Janan Ozkeskin.

7 In each set of proceedings three persons were nominated as claiming compensation, the deceased's widow, Hatice, the deceased's son, Murad, and the deceased's daughter, Janan. Each of the three separate proceedings has been brought by a different person but on behalf of the same three persons. The applicant has not sought as to have the Court reconsider the original award made by Commissioner Turner. That appears to have been adverted to before Hughes J and he even gave the then applicant liberty to do that although that was not strictly necessary. Nevertheless it has not been done.

8 In effect the current applicant really seeks to appeal from the decision of Hughes J but brings it not to the Court of Appeal but to the Court constituted by another judge, which, of course, is inadmissible. For a cause of action estoppel to arise the parties must be the same or the party must be privy to another party. I would have been kindly referred to the decision of the Court of Appeal in Stewart v GIO (NSW) (1996) 39 NSWLR 531, particularly what fell from Mahoney P. After discussing the case of Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 his Honour said this at 535:

Barwick CJ (at 279 - 280) saw the relevant claim to privity as privity in interest. He held that, for such to exist, "the privy must claim under or through the person of whom he is said to be a privy".

9 Mahoney P also quoted from the decision of McTiernan J in the same case and at 536 quotes a dictum of McTiernan J in Ramsay's case where his Honour identified "the well-established principle that no one can take advantage of a judgment unless he would also have been concluded by the judgment had it gone against him".

10 Here, of course, if compensation had been awarded to Hatice in 1994 by Commissioner Turner and the current applicant brought this claim the respondent would be entitled to submit that the compensation had been recovered on behalf of the current applicant and therefore there was no further liability in the respondent employer to meet this current applicant's further claim. It appears to me that the children of the marriage of Ercin and Hatice Ozkeskin were privies of Hatice Ozkeskin in the first set of proceedings and therefore issue estoppel does arise.

11 Furthermore, in the second set of proceedings the current applicant was nominated as a second respondent, had been joined by her own solicitors and is equally bound by the award entered by Hughes J on 26 July 1999. It should be remembered that Pt 6, r 17 of the Compensation Court Rules 1990 is in the following form:

(1) In proceedings brought by any dependants of a deceased worker on behalf of some or all of the dependants, the personal representative (if any) of the worker shall be joined as a respondent if he is not already an applicant.

(2) In proceedings brought by some only of the dependants of the deceased worker on behalf of some or all of the dependants, the other dependants, and any other person claiming to be a dependant, of the worker shall be claimed as respondents.

(3) [irrelevant].

(4) [irrelevant].

12 Clearly in the three sets of proceedings the same three persons are claiming compensation. The identity of the moving party has been changed in order to circumvent the original award which was entered by Commissioner Turner. As learned counsel for the respondent employer has correctly stated it is merely a question of shuffling the cards in the deck again in order to overcome the effect of the award entered by Commissioner Turner on 23 October 1994.

13 In any event as a matter of comity I would follow the decision of Hughes J given in the 1998 proceedings on 26 July 1999. It is furthermore to be recalled that when that award was entered Janan was sui juris as was Murad.

14 Accordingly I hold that the applicant is estopped from making the claim which she does in these proceedings.

15 I enter an award for the first respondent.

Further submissions

16 The respondent seeks costs on the basis that the applicant's application is either vexatious or brought without proper justification. The respondent can rightly say it has been vexed thrice on the same cause of action and, of course, the principle is nemo debet bis vexari pro eadem causa, no one ought be vexed twice on the same cause of action. However, the gravamen of the current applicant's case is to submit that Hughes J was wrong in the earlier proceedings, yet no appeal was taken from that claim.

17 The gravamen of Mr Batchelor's submission to me was that, as Janan was not an applicant in either of the earlier proceedings, cause of action estoppel did not arise. However, the same submission was put to Hughes J in the 1998 proceedings on the basis that Murad was not estopped because he was not nominated as the applicant in the 1994 proceedings. Nevertheless his Honour held that Murad was estopped. That finding was made in circumstances where Janan was joined by her own solicitors, who were also the solicitors for Murad and theoretically must have been present in Court to hear his Honour give the reasons which he did.

18 I am satisfied that the claim was brought without proper justification and also that it is vexatious.

19 I order the applicant to pay the first respondent's costs.

20 Although the matter comes before me by way of motion the motion effectively has dealt with the whole of the claim. In those circumstances counsel is to recover a fee for a brief on hearing.

Orders accordingly

Solicitors for the applicant: Kells The Lawyers

Solicitors for the first respondent: Bartier Perry