Kuligowski v Metrobus

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Gummow,Kirby,Hayne,Callinan,Heydon JJ
• Judgment Date: 03 August 2004
• Neutral Citation: [2004] HCA 34,2004-0803 HCA A
• Docket Number: P91/2003
• Date: 03 August 2004

[2004] HCA 34

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

P91/2003

Marek Kuligowski

Appellant

and

Metrobus

Respondent

Representation:

B L Nugewela with G E Nairn for the appellant (instructed by D'Angelo & Partners)

G T W Tannin SC with B P King for the respondent (instructed by State Solicitor's Office (Western Australia))

Workers' Compensation and Rehabilitation Act 1981 (WA), Pt IIIA and ss 5(1), 18, 21, 58, 60, 62, 71, 93D.

Kuligowski v Metrobus

Issue estoppel — Whether decision of Review Officer under the Workers' Compensation and Rehabilitation Act 1981 (WA) (‘the Act’) Pt IIIA Div 3 is a final decision for the purposes of issue estoppel — Application by employer under s 60 of the Act disputing liability to pay compensation for injuries incurred at work — Review Officer found that the worker's injury had ‘resolved’ — Leave to institute proceedings under s 93D of the Act for damages at common law refused on the grounds of issue estoppel.

Issue estoppel — Whether the issues arising in District Court proceedings were the same issues decided by the Review Officer — Review Officer's findings were ambiguous.

Words and phrases — ‘issue estoppel’, ‘final decision’.

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the orders of the Full Court of the Supreme Court of Western Australia dated 24 June 2002 and in place thereof order that:

  • (a) the appellant's appeal to the Full Court be allowed with costs;

  • (b) the orders of the District Court of Western Australia dated 18 October 2000 (in WC 93 D 775 of 1997 and CIV 4575 of 1998) be set aside and the matter remitted to the District Court for hearing; and

  • (c) the respondent pay the appellant's costs of the said District Court proceedings both before Deputy Registrar Harman and Commissioner Ley.

1 Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ. On 23 March 1994, the appellant bus driver, Marek Kuligowski (‘the worker’), suffered injuries in an accident at work. These injuries included a twisted left ankle. The worker failed in workers' compensation proceedings against his employer, Metrobus, in the Conciliation and Review Directorate of Western Australia. He then obtained two orders from a Deputy Registrar of the District Court of Western Australia. The first order granted leave to the worker to institute proceedings in the District Court for damages at common law in relation to the injury. The second order dismissed an application by Metrobus that the worker's claim be dismissed. Those orders were then set aside by a Commissioner of the District Court who accepted a contention advanced by Metrobus that an issue estoppel arose from a decision in the workers' compensation proceedings. The Full Court of the Supreme Court of Western Australia, by majority 1, dismissed an appeal from the Commissioner's orders, and the present appeal is brought, by special leave, against the Full Court's orders.

The background

2 After the accident of 23 March 1994, the worker missed a few days of work. On or about 22 December 1994, according to the worker, he suffered another accident at work, exacerbating the symptoms in his left ankle. The worker also claimed that in April 1995, while not at work, his left ankle gave way and he twisted his left knee, again causing an exacerbation of the symptoms in his left ankle and also causing symptoms in his left knee.

3 Section 18 of the Workers' Compensation and Rehabilitation Act 1981 (WA) (‘the Act’) provided:

‘If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.’

Two paragraphs of the definition of ‘disability’ in s 5(1) are relevant:

‘(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions;

…

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree …’.

Section 5(1) also provided that:

‘“disease” includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development’.

Section 21 of the Act provided:

‘An employer is liable to pay compensation under this Act from the date of incapacity resulting from the disability but clause 9 applies in any case.’

Clause 9 of Sched 1 is immaterial, but sub-cll 7(1) and (2) made provision for weekly payments of compensation during total incapacity for work and partial incapacity for work respectively.

4 On 20 June 1995, Metrobus began paying workers' compensation to the worker. However, Metrobus later lodged a standard form entitled ‘Application Referring Dispute for Conciliation’ (‘the Application’) in the Conciliation and Review Directorate. It was dated 19 June 1996 and filed on 21 June 1996. The Application stated, under the heading ‘Details of Dispute’:

‘The employer disputes that the worker is entitled to compensation payments and seeks an order suspending payments under s 60 until such time as the worker proves he sustained an injury on 23.3.94.’

In substance Metrobus thus sought two things: a finding that the worker was not entitled to compensation payments, and an interim order suspending payments until the worker proved that he was entitled. Section 60 of the Act appeared in Div 5 (ss 56–72) of Pt III. The Division was headed ‘Commencement, Review, Suspension, and Cessation of Payments’ and the heading to s 60 read ‘Application for discontinuance or reduction of weekly payments’. Section 60 provided:

‘(1) Where weekly payments are made to a worker pursuant to this Division, the employer may apply to the Directorate at any time for an order that such payments be discontinued or reduced.

(2) If the employer satisfies the Directorate that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the Directorate may order that the payments be suspended for such time as the Directorate directs or be discontinued or be reduced to such amount as it thinks proper or it may dismiss the application.’

The reference to the ‘Directorate’ was to the Conciliation and Review Directorate, a body established by s 104A and comprising the Director, conciliation officers, review officers and other staff. The s 60 application by Metrobus sought an order for suspension of payments under sub-s (2).

5 Part IIIA (ss 84A-84ZZB) was headed ‘Dispute Resolution’, Div 2 (ss 84N-84Y) ‘Conciliation’, and Div 3 (ss 84Z-84ZN) ‘Review’. The term ‘dispute’ was defined in s 84A as meaning in Pt IIIA ‘a dispute in connection with a claim for compensation under this Act’, and as including, among other things, ‘a dispute as to liability to make or continue to make weekly payments of compensation’. Section 84N, the first section in Div 2, provided:

‘Any party to a dispute may, by application, refer the dispute to the Director for conciliation.’

As well as being an application under s 60, the Application document was also an application under s 84N. So much is clear from r 6 of the Workers' Compensation (Conciliation and Review) Rules 1994 (WA) (‘the Rules’). Rule 6 provided that an application referring a dispute to the Director for conciliation (ie, s 84N) was to be made in the form of Form 1 (found in Sched 1 to the Rules). The document lodged by Metrobus was in that form and under the heading ‘Details of Dispute’ Metrobus referred both to the substantive issue to be resolved under Pt IIIA (‘[t]he employer disputes that the worker is entitled to compensation payments’) and the s 60 application. Thus, Metrobus lodged both a s 60 application and an application for conciliation under s 84N. This is also clear from the way the proceedings were dealt with by the Directorate, namely as two distinct applications each decided by a different review officer.

6 A conciliation officer of the Directorate conducted a conciliation conference under s 84P of the Act, which was held on 26 June 1996. However, it did not result in any agreement. The conciliation officer referred the dispute for review under s 84Y of the Act. Section 84Y provided that a conciliation officer was to refer a dispute for review if any of the parties so requested, and that officer could vary or revoke an order previously made by the officer under Div 2 of Pt IIIA.

7 On 15 July 1996, a ‘preliminary review’ took place 2. On that occasion, the parties agreed that the matter be adjourned to 21 August 1996, but Metrobus sought to have the application for an order suspending payments (the s 60 application) dealt with in advance, and independently, of the substantive issues (the s 84Y referral). After a hearing on 19 July 1996, the s 60 application was rejected: a review officer within the Directorate (the first review officer) ordered that Metrobus continue to make weekly compensation payments to the worker until further order. On 23 July 1996, he stated his reasons thus:

‘1. Given the conflict in the evidence provided during the course of the review I am satisfied the applicant has, pursuant to the provisions of section 60, established it has a proper basis to genuinely dispute its liability to pay compensation to the [worker].

2. However, whilst I find a genuine dispute exists the substantive issues in dispute between the parties are to be the subject of a review hearing to be conducted on 21 August 1996 where full and detailed evidence will be obtained so as to allow a final determination to be made. In those circumstances I do not believe it is appropriate that the weekly payments currently being made to the respondent worker should be suspended or reduced given the relatively...