Anderson v Charles Sturt University [2002] NSWCC 63

Compensation Court of New South Wales

CITATION : Anderson v Charles Sturt University [2002] NSWCC 63 Patrick L Anderson PARTIES : v Charles Sturt University MATTER NUMBER(S) : 56486 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 16/12/02 EX TEMPORE JUDGMENT DATE : 12/16/2002

FOR APPLICANT: Mr R G Hanrahan instructed by Steve Masselos & Co appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Kearns SC instructed by PricewaterhouseCoopers Legal appeared for the respondent.

JUDGMENT: 1. The hearing of the current matter commenced at Tumut on 6 November 2000. I re-commenced the hearing at 9.30 on the morning of 7 November 2002 at Tumut. As is clear from p 43 of the addresses which were given on 7 November 2002, which submissions have been transcribed, that I finished with the matter at Tumut at approximately 5.58pm. I had heard the oral evidence of the applicant, received a large number of medical reports, heard addresses and had proceeded to give judgment at the place specified on p 33 of the transcript of submissions. The judgments which I gave at that time has been typed and comprises some 58 paragraphs over 17 pages. The award which I made was for the employer. As those who regularly attend my Court would know, after giving oral reasons for judgment, I invite counsel if any further reasons for judgment are required prior to my announcing any award. It is clear from [55] of my reasons that I made that enquiry and was told that no further reasons for judgment were required. I then added some comments about the claim made in respect of the applicant's right knee condition. I then at [58] made an award in favour of the employer. 2. After I had made that award Mr Hanrahan rose to his feet and then commenced to argue that there was an estoppel . The word 'estoppel' had not earlier been mentioned by him. The word 'estoppel' was first mentioned by him on p 33 of the transcript at line 47. After hearing from him I revoked the award which I had made earlier and set the matter down for hearing today. I ordered the applicant to file and serve written submissions by Thursday 28 November 2002 and made orders about the taking out of the transcript. 3. The application for determination with which I dealt alleged a number of injuries. They are these: (i) On or about 21 May 1992 the applicant suffered injury when loading a ladder. (ii) On or about 8 February 1993 the applicant suffered injury climbing onto a roof. (iii) On or about 10 November 1995 the applicant suffered injury to his back and right leg when alighting from a motor vehicle. (iv) On or about 26 February 1996 the applicant suffered injury whilst on a ladder. (v) On or about 5 November 1997 the applicant sustained injury to his right knee when alighting from a van. (vi) On or about 28 January 2000 the applicant injured his back whilst removing an exhaust for assembly at the CRC Building. (vii) On or about 1 March 2000 the applicant sustained injury to his back whilst on a ladder replacing fluorescent lighting fitting in Stewards "C" Building. (vii) The nature and conditions of the applicant's employment with the respondent from 1998 to 6 July 2000 caused and/or aggravated the injuries referred to in par 2(a). 4. An answer was filed by each of the three insurers of the respondent. An answer was filed by Messrs Pricewaterhouse Coopers Legal on behalf of GIO Workers Compensation which was at risk from 31 December 1987 to 31 December 1995. Par 1(a) denied that the applicant sustained any injury as alleged in par 1 and par 2 of the application. Par 1(b) of the answer denied incapacity. Par 1(d) of the answer denied nexus. Par 1(g) of that answer as initially filed denied that the applicant's employment with the respondent was a substantial contributing factor as required by s 9A of the Workers Compensation Act 1987. That plea was deleted because s 9A had no applicability to an injury occurring before 12 January 1997. 5. An answer was filed by Messrs Bartier Perry on behalf of NRMA Workers Compensation (NSW) (No 2) Pty Limited which was at risk from 31 December 1995 to 31 December 1997. That answer denied injury, denied that the applicant was suffering from any disease, denied causal nexus between any alleged injury and incapacity and pointed out that if the applicant's injury were a disease the applicant worked on after 31 December 1997. 6. An answer was filed by Messrs Vardanega Roberts on behalf of Allianz Australia Workers Compensation (NSW) Limited which was at risk between 1 January 1998 and 6 July 2000. That answer denied injury, denied that the applicant's employment was a substantial contributing factor (as had the answer filed by Messrs Bartier Perry), and denied any nexus between any alleged injury and the incapacity claimed. Those issues are not the only issues raised by the answer but they are the issues germane to the current issue. 7. Exhibit A tendered without objection in the applicant's case is an award issued by the Registrar of the Court on behalf of the Chief Judge, Justice Campbell, bearing date 23 March 1999. That makes an award in accordance with short minutes of order made by and with the consent of the parties. The short minutes of order were in matter no No 5514 of 1997 between the current applicant and the current respondent. The short minutes of order provide for payment of a lump sum for $9,000 in respect of 15 per cent permanent impairment of the applicant's back. They also provide for payment to the applicant of $3,750 for 5 per cent loss of efficient use of the applicant's right leg at or above the knee and for payment of a lump sum under s 67 for $10,000 together with an order that the respondent pay the applicant s 60 expenses up to the sum of $1,200 on the production of accounts and/or receipts. 8. Amongst Exhibit A is a document headed "Applicant's Admissions" which is separately exhibited as Exhibit 6. That is a form that was obviously prepared by one firm of solicitors prior to the matter being heard by the Chief Judge at Wagga Wagga on 23 March 1999. What remains of the document after deletions is this: I Patrick Leonard Anderson the applicant herein make the following admissions to enable my claim to be finalised on the basis of a compromise settlement; 1. I have been paid all wages and all weekly compensation due to me up to [space left for date left blank] 4. I have suffered no loss of, no loss of efficient use of, and no impairment to any part of my body, other than as provided for in the Award. 5. I have not suffered any injury in the course of my employment other than those in this application. 8. I agree to sign a common law release if required to do so. 9. I acknowledge that the respondent disputes my claim in these proceedings and consents to the Awards herein by way of compromise and in reliance upon the admissions I have made. 10. I acknowledge that before agreeing to this settlement the respondent informed me that I may be liable to pay out of the settlement amounts under the Health and Other Services (Compensation) Act 1995 and/or the Health and Other Services (Compensation) Care Charges Act 1995. 11. These admissions have been explained to me by my counsel and solicitor and I have understood them. 12. Applicant admits he suffers no loss of use of his left leg and neck. Exhibit A also contains a document headed "Agreed Facts". Those agreed facts are these: 1. The applicant has no economic incapacity after 1 January 1999 causally related to any injury sustained during or aggravated by the applicant's employment by the respondent. 2. S 60 expenses relating to any employment injury do not exceed the sum in the award. 3. The applicant is not entitled to any further weekly payment or compensation. 4. Other than as set out in the award herein the applicant has no entitlement to compensation against the respondent. That document has been signed by counsel for the applicant and for the three counsel then appearing for the respondent. 9. Since it is germane if an estoppel arises to consider what exactly the estoppel is, it is necessary to consider the application for determination in those proceedings. The allegations of injuries in Matter No 5514 of 1997 are given in an amended application for determination filed on 6 November 1998 which is part of Exhibit A as modified by the short minutes of order in the same matter. The allegations of injury are these: 21 May 1992 The applicant suffered injury when loading a ladder. 16 February 1993 The applicant suffered injury when climbing on a roof. 10 November 1995 The applicant suffered injury when alighting from a motor vehicle. 26 February 1996 The applicant suffered injury when he was on a ladder. 5 November 1997 The applicant aggravated his right knee injury when alighting from a work van. Nature and conditions of the applicant's employment with the first respondent from 1 January 1998 to 31 December 1997 caused, aggravated or exacerbated the injuries set out in par 2. 10. One can see in the first five allegations in the earlier proceedings injuries almost corresponding to the first five alleged in the present matter with the exception that the date of the event in February 1993 has been changed from the original 16 February to 8 February 1993. 11. As Mr Kearns of counsel who appears for the respondent today has pointed out, what exactly the alleged estoppel is has never been precisely stated nor in any way formulated in writing. If an estoppel were created it could only be this: that the employer was estopped from alleging that the injuries pleaded in matter 5514 of 1997 occurred and caused a 15 per cent impairment of the back and a 5 per cent loss of efficient use of the applicant's right leg at or above the knee. I find it somewhat difficult to see any other estoppel. 12. It is well settled law, one might think, that an estoppel ought be pleaded. Pt 15 r 13 (2) of the Rules of the Supreme Court provides this: In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, extension under Division 1 of Part 4 of the Limitation Act, 1969, of a right or title, voluntary assumption of the risk, causation of accident by mechanical defect not known to, or discoverable by, the defendant, fraud or any other fact showing illegality - (a) which he alleges makes any claim, defence or other cause of the opposite party not maintained or; (b) which, if not pleaded specifically, may take the opposite party by surprise; or (c) which raises matters of fact not arising out of the preceding pleading. 13. In the notes to that provision in Ritchie's Supreme Court Procedure (NSW) are collected in par [15.13.4] authorities showing that estoppel, whether issue estoppel, cause of action estoppel or res judicata must be pleaded. At common law, where a defendant pleads an estoppel, or might traverse matter for which a plaintiff has the benefit of an estoppel, the benefit of the estoppel relied upon by the plaintiff can be raised in a reply. It is not unknown, if fact it happens from time to time that parties seek leave and are granted leave to file a reply in this Court in answer to allegations made in a respondent's answer. However, the fact remains that an estoppel can be pleaded in another fashion. 14. Here it is alleged, I think, by the applicant that the respondent is estopped from denying that the applicant sustained any of the injuries which were pleaded in matter no 5514 of 1997. If that were the allegation the applicant could have moved the Court to strike out such parts of the answers filed on behalf of the respondent as were inconsistent with the alleged estoppel. No such application was ever made. The matter proceeded to judgment on the issues raised in the application for determination in this matter and on the pleadings as they were amended prior to the commencement of the oral evidence of the applicant. 15. The provisions of Supreme Court Rules, Pt 15 r 13, are mirrored by Pt 9 r 2 of the Rules of this Court. That rule is as follows: (1) A party filing a relevant document shall include in the document such particulars of an claim, defence or other matter alleged as are necessary to enable the opposite party to identify the case is required by the document to meet. (2) Rule 3 does not affect the generality of subrule 3(1). 16. Rule 3 relates to the giving of particulars of out of pocket expenses. The raising of estoppel is a matter which can take a party by surprise. It must be pleaded either directly or indirectly so that the other party is entitled to know what exactly the estoppel is. What the estoppel exactly is, as I have already mentioned, has never really been expressed by counsel for the applicant. Furthermore this has led to another difficulty. What exactly is the type of estoppel relied upon? Here there is clearly no cause of action estoppel. Clearly there is no issue estoppel because no tribunal which has a right to finally determine issues between parties has determined any issue. 17. The applicant has mentioned three different types of estoppel. They are: promissory estoppel, estoppel by conduct and estoppel by convention. Which of the three I am allegedly dealing with, I do not know because the matter has never been pleaded. Equally which of the three the respondent is dealing with, Mr Kearns does not know because he has not been given any written notice of what the allegation is. Of the need to plead and prove estoppel, one need go no further than the judgment of Dean CJ (as he then was) in the Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 444 in the par (1). Learned counsel for the respondent has put this in a written submission which I take liberty of incorporating in these reasons: Estoppel needed to be pleaded so that the respondent could attend to the following, at least: (a) Ascertain by particulars precise terms of the estoppel relied on and how it is alleged to have arisen. (b) Carry out investigations into the alleged estoppel including interviewing potential witnesses. The opportunity to attend to the matters above is lost and so is the opportunity of calling witnesses who, in this case, may include solicitors and/or barristers and possibly others involved in negotiating the agreement the applicant seeks to rely on .... The matter now cannot be determined on the existing materials. If the case is to be determined on the basis of an alleged estoppel the matter would need to be re-litigated for the purposes of determining whether there was an estoppel and, if so, what the estoppel was. In the respondent's submission the exercise of the Court's discretion should not permit the applicant to have the matter re-litigated. 18. It must be stated however that the applicant does not seek to re-litigate the matter, merely to re-argue it. 19. For an estoppel to arise a number of things must occur. Firstly, there must be a representation. Secondly, there must be inducement to rely upon that representation which some of the authorities refer to as unconscionable or unconscientious conduct. Thirdly, there must be reliance upon the representation which some of the authorities alternatively describe as an assumption of a position, which the person to whom the representation is made might not otherwise adopt. The final matter here is that there must be some detriment flowing to the person who alleges that he now has the benefit of an estoppel. All of those positions can be gleaned on the various judgments in Verwayen's case to which I have already referred and also can be gleaned from the decision of the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. 20. Here, if I understand the case argued by Mr Hanrahan correctly, the representation that was made is that the employer accepted that the applicant sustained the injuries pleaded in matter 5514 of 1997 and that as a result thereof he had impairment of the back and loss of efficient use of his left leg at or above the knee. The problem with relying upon that as a representation is that it was a representation which was in effect made by the applicant himself in his claim for compensation against the respondent, that is a claim for lump sum compensation pursuant to s 66 and s 67. The employer acquiesced, one might say, in that representation - but in a very guarded fashion. One need only consider the preamble to the applicant's submissions where there is reference to "a compromise settlement". One need have regard to par 9 of those admissions where the worker acknowledges that the employer disputed his claim in those proceedings, that is in matter 5514 of 1997, and consented to the award made "by way of compromise". It was the applicant who was making representation. The respondent acquiesced. It is very difficult in those circumstances to see how the applicant could himself rely on the representation. 21. The next item is that there must be some inducement or unconscionable conduct on the behalf of the employer. What unconscionable conduct can there be, I ask? It appears to me to be unconscionable to permit an applicant who obtains a compromise settlement to rely on that compromise settlement in order to prevent the employer arguing another claim on its real merits and justice. 22. The next point is that the applicant must prove some reliance on his part or an assumption of a position which he might otherwise not be in. That can only be in taking the risk of commencing the current proceedings in the hope of obtaining an award of weekly payments of compensation. The detriment can only be, to use 'sporting' language, that it was safe to 'take a punt'. 23. The next item that the applicant must prove, is that he must have suffered some detriment. He has not suffered any detriment. It is not as if he incurred some expense or the like in the expectation that his claim for weekly payments of compensation would be successful. He took the risk of losing these proceedings and he lost them on their merits before me at Tumut. It is not to one's detriment merely to fail to achieve a boon. 24. There are even further problems in the case that has been put to me today. It is clear when one reads my earlier reasons for judgment that I accepted that each of the "frank injuries" pleaded in the current matter occurred. I was not dealing in the current matter with a claim for lump sum compensation. I was dealing with a claim for incapacity commencing on 7 July 2000. As Mr Kearns has very correctly argued, that the applicant's claim failed at Tumut because he had failed to prove that his undoubted incapacity resulted from employment injuries. He did not fail on the question of the occurrence of injury, but on the question of nexus between the injuries and the incapacity for work. Mr Kearns rightly pointed out that it was not inconsistent that a worker have entitlements under s 66 without being entitled to any weekly payments of compensation. The two are not inconsistent at all. Therefore I cannot see how even if the result by way of compromise of the earlier proceedings created an estoppel, it creates any estoppel in connection with the current matter. 25. Mr Hanrahan has not been able to point out to me, because it obviously never occurred to him, that there is a difference between the injury pleaded in the current matter as being on 8 February 1993 and which was earlier pleaded as being 16 February 1993. If estoppel arises, it arises on a technical basis, that is one cannot do anything inconsistent with the estoppel. Here there is nothing in my view inconsistent with the earlier award by consent and the award which I made after a contested hearing. 26. The matter is even more complex than that. If what happened in the earlier proceeding constitutes an estoppel then why also is the worker not himself estopped? He admitted by his counsel that he had no economic incapacity after 1 January 1999 causally related to any injury pleaded in those proceedings. He also admitted that he had no entitlement to "any further weekly payment" for compensation. If that were then the applicant's position, then something happened after that time to cause the incapacity. There is nothing in that inconsistent with my determination that the cause of the applicant's incapacity was the inexorable progression of an underlying constitutional degenerative condition affecting his spine. 27. I have earlier mentioned that my view that it is unconscionable for a moving party who in earlier proceedings obtains a compromise settlement to maintain that the opposite party is now estopped from alleging that there is any true dispute. That position can be evidenced by any number of analogies. Last week I conducted a call-over for a country circuit. One matter was adjourned from Monday to Friday because the extent of the claim had not been adequately particularised. The claim was particularised on Friday as being a claim for the princely sum of $70. The employer said it would pay the claim and the application for determination was struck out, obviating a contested hearing on circuit. However, there are often minor claims which is as easier to pay than to contest or litigate. If employers were prevented from setting up subsequently a real defence to more substantial claim resulting from the same factual matrix as the small early claim then injustice would be done and all cases would be contested if there was any real issue for contest. That is not, in my view, in accordance with the spirit of the Act. 28. Furthermore, I still have difficulty in seeing how when a party has reached a compromise settlement, an estoppel arises which prevents the Court from determining a case on its true merits and justice as the Court is required to determine. There are some dicta in that regard. I refer to the decision of Ferrari J in Ashendon v Stewarts and Lloyds (Australia) Pty Limited 1970 WCR 285, and particularly his Honour's dictum at p 306 which I will not quote. However, the matter was taken on appeal. The issue in Ashendon v Stuarts and Lloyds was whether the parties could ask the Court to enter a consent award without the Court having to establish the facts and in effect approve the proposed settlement. 29. In the judgment of Jacobs JA in the Court of Appeal [1972] 2NSWLR 484 at 490 his Honour said this: Judge Ferrari reached the conclusion, with which I respectfully agree, that the making of an agreement between the parties does not take away or diminish the jurisdiction of the Court. 30. Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but, at most, if anything, an admission. Such was the decision of Court of Appeal in APD Snack Foods Pty Limited v Vuic [1984] WCR62, a decision of Hutley AP, Glass and Mahoney JJA. 31. Earlier in these reasons I mentioned that estoppel was not specifically pleaded by the applicant nor did the applicant object to any of the respondent's answers on the basis that an estoppel existed. Furthermore, the way the case was presented was quite inconsistent with their being any estoppel. For example, no questions asked of the applicant relating to injury were objected to, no medical evidence or reports were objected to on the basis that they were inconsistent with the estoppel. Estoppel was not even mentioned by counsel for the applicant in the course of addresses. He has now drawn to my attention in the transcripts certain passages which might indicate that he was trying to raise the question of estoppel but those passages are also consistent with the applicant merely relying upon the earlier agreement as some form of an admission. Indeed, even today counsel for the applicant referred to the earlier payment not as an estoppel but as an admission and referred to my being guided by the earlier award when of course if it created an estoppel I would be bound by it. 32. Mr Kearns SC submitted today that if the applicant's case were that there were an estoppel before me at Tumut, that the matter would have been raised and that it beggared belief now that it was raised. I accept what Mr Kearns said in that regard. The fact that estoppel was not being relied upon should be clear from the fact that it was not mentioned at any time prior to my giving judgment. It was not mentioned when I enquired of counsel whether any further reasons for judgment were required. I then proceeded to give some further reasons on a minor issue and entered an award for the respondent. It was only then that Mr Hanrahan stood to his feet and alleged that there were an estoppel. One can only assume that there had been some rather major cogitation going on in learned counsel's mind immediately prior to his standing up to make that point. 33. In my view, no estoppel arises, nor was any estoppel pleaded when it ought to have been pleaded, and the conduct of the applicant is quite inconsistent with any such estoppel being relied upon at any time prior to my giving judgment on 7 November 2002. 34. I have asked the parties if there are any further reasons for judgment required and they have told me there is not. For reasons given by me on 7 November 2002 and for these reasons I make an award for the respondent. FURTHER SUBMISSIONS 35. This is an application by the respondent for costs. The respondent seeks not costs of the proceedings but costs of the argument that I dealt with today. Mr Kearns SC for the respondent alleges that the application was frivolous and vexatious. Under s 112(4) of the Workplace Injury Management & Workers Compensation Act 1998 the Court may, if it is satisfied that part only of an application for compensation was frivolous or vexatious, order that the claimant pay the costs relating to that part of the application. The application for compensation is defined in s 112(8) as including any proceedings in connection with an application for compensation. 36. Accordingly, I can construe s 112(4) as indicating that if I am satisfied that part only of the proceedings was frivolous or vexatious, order the unsuccessful party to pay that part of the costs. Essentially, I have not dealt with any aspect of the claim for compensation today but one aspect of the proceedings. That is an aspect raised by counsel for the applicant after I had given what I then thought to be final judgment in Tumut on 7 November 2002. As already pointed out, the question of estoppel had not previously been raised at any time until after I gave final judgment. The principle of the law is that interest reipublicae ut sit finis litium, it is in the interest of the State that there be an end to litigation. Once a case is determined it should be determined finally subject to any right of appeal. 37. Here, because of the way the case was presented and argued, essentially the case was argued on two separate occasions on different bases. A party to the litigation is required to present all his case and all his argument at the one time subject of course to the convenience of the Court prior to the Court being called upon to give judgment. Here I proceeded to give judgment at Tumut on 7 November 2002 and after judgment was first apprised of a new ground after I suspect counsel for the applicant had a rush of blood to the head, not realising that he might be unsuccessful with his client's claim. Even today the case has been marred by a failure to specify exactly what the estoppel was, a failure to say exactly what the nature of the estoppel was, a failure to state how the estoppel would affect the outcome of the current proceedings, and was marred by emotive language which not ought properly be used in addressing the Court. 38. The question, however, is not whether I ought order costs against a legal practitioner, but whether I ought order costs against the applicant. Unfortunately, this Court has no power to order costs against a legal practitioner, but within about 54 weeks I probably shall be able to do so. The question really is whether the applicant should be held to the failure of his solicitor and barrister to properly plead and argue the case at Tumut on 7 November last. I, for one, am not usually prepared to overlook the principle of agency, that is that he who acts by another is acting himself, that legal practitioners are after all only agents for their client. However, if the case had been properly presented and properly argued it would not have finished at Tumut on 7 November, it probably would have needed to go on to the following day when the pressing business at Tumut was great and when the time limited to me on that Friday was not great. Bearing in mind that if the case had been properly presented and argued another day would have been necessary, bearing in mind that the actual 'default', if I may use that word, is that of a legal practitioner rather than of the applicant himself, I decline in the exercise of discretion to make any order for costs against the applicant. Mr R G Hanrahan instructed by Steve Masselos & Co appeared for the applicant. Mr J Kearns SC instructed by PricewaterhouseCoopers Legal appeared for the respondent.