Industrial Court of New South Wales CITATION: Commissioner of Police v Police Association of New South Wales [2010] NSWIRComm 188 PARTIES: Commissioner of Police (Appellant) Police Association of New South Wales (Respondent) FILE NUMBER(S): IRC 615 of 2010 CORAM: Boland J President; Walton J Vice-President; Kavanagh J CATCHWORDS: APPEAL - Leave to appeal - POLICE - First instance decision making declarations and orders to the effect that the appellant was estopped from denying a former police officer suffered on duty injuries that led to the cessation of her employment and from denying the former officer was entitled to the on duty partial and permanent disability payment under the Crown Employees (Police Officers - Death and Disability) Award - Whether issue estoppel available to respondent - Whether a consent determination by the Workers Compensation Commission constituted a judicial determination for the purpose of issue estoppel - Whether proceedings for a declaration of right could constitute later proceedings for the purpose of issue estoppel - Whether there was the requisite identity of issues in the two proceedings for the purpose of issue estoppel - Held no identity of issues - Appeal upheld - Declarations and orders set aside Industrial Relations Act 1996 s 130 s 154 s 187 s 188 LEGISLATION CITED: Workers Compensation Act 1987 Workers Compensation Commission Rules 2006 r 10.3 r 15.1 r 15.9 Workplace Injury Management and Workers Compensation Act 1998 s 294 s 344 s 350 s 351 s 354 s 355 s 362 s 367 Administration of the Territory of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 Director of Public Prosecutions v Humphrys [1977] AC 1 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385 Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69 CASES CITED: Jackson v Goldsmith (1950) 81 CLR 446 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Makhoul v Barnes (1995) 60 FCR 572 Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 O'Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744 Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648 Ramsay v Pigram (1968) 118 CLR 271 Rinker Group Limited v Mackell [2008] NSWWCCPD 100 Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 South American & Mexican Company, In re; Ex parte Bank of England [1895] 1 Ch 37 Turner v London Transport Executive [1977] ICR 952 Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103 TEXTS CITED: Spencer Bower and Handley, Res Judicata (4th ed, 2009) HEARING DATES: 12 November 2010 DATE OF JUDGMENT: 17 December 2010 Mr P Menzies QC with Mr M C L Seck of counsel (Appellant) Henry Davis York Lawyers LEGAL REPRESENTATIVES: Mr A A Hatcher SC (Respondent) Police Association of New South Wales JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: BOLAND J, President WALTON J, Vice-President KAVANAGH J Friday 17 December 2010 Matter No IRC 615 of 2010 COMMISSIONER OF POLICE v POLICE ASSOCIATION OF NEW SOUTH WALES Application by Commissioner of Police for leave to appeal and appeal from a decision of Justice Staff given on 30 June 2010 in Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 and declarations and orders made on 1 October 2010 JUDGMENT OF THE COURT [2010] NSWIRComm 188 1 This matter concerns an application by the Commissioner of Police for leave to appeal and, if leave is granted, to appeal from a decision of Staff J given on 30 June 2010 in Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 and declarations and orders made on 1 October 2010. The application is brought pursuant to ss 187 and 188 of the Industrial Relations Act 1996 ('the Act'). 2 The decision of Staff J concerned an application by the Police Association of New South Wales ('the Association') to make declarations of right under s 154 of the Act in relation to whether a former police officer and member of the Association, Ms Kristy Rechelle Davies, suffered on duty injuries which led to the cessation of employment and whether Ms Davies was entitled to an on duty partial and permanent disability payment under the Crown Employees (Police Officers' Death and Disability) Award 2005 ('the Award'). 3 The declarations sought were: 1. A declaration that the Respondent is estopped from: (a) denying that the injury/ies that led to the cessation of the employment of the Association's members (described in Schedule A - "the Members") were on-duty injuries as defined in cl 3 of the Crown Employees (Police Officers-Death and Disability) Award 2005 ("the Award"); and (b) denying that the Employees are entitled to the on-duty partial and permanent disability payment under the Award by virtue of such injury/ies not being on-duty injuries as defined in cl 3 of the Award. 2. A declaration that the Respondent is estopped from denying that the Members are entitled to the on-duty partial and permanent disability payment under the Award by virtue of a failure to comply with the mutual obligation requirement in clause 9 of the Award. 3. Leave to apply for orders in the nature of consequential relief in the event the above declarations are made. 4 Staff J subsequently determined that declarations and orders should be made in the applicant's favour and declarations and orders were made on 1 October 2010 in the following terms: 1. The respondent is estopped from denying that the injury that led to the cessation of Ms Davies' employment was an "on-duty" injury as defined in clause 3 of the Crown Employees (Police Officers - Death and Disability) Award 2005. 2. The respondent is estopped from denying that Ms Davies is entitled to an on-duty partial and permanent disability payment pursuant to clause 9 of the Crown Employees (Police Officers - Death and Disability) Award 2005, by virtue of the said injury not being an "on-duty injury" as defined in clause 3 of the Award. 3. The respondent is estopped from denying that Ms Davies is entitled to an on-duty partial and permanent disability payment pursuant to clause 9 of the Crown Employees (Police Officers - Death and Disability) Award 2005 by virtue of a failure to comply with mutual obligation requirements in clause 9 of the Award. 4. Leave to apply for orders in the nature of consequential relief. 5. No order as to costs. DECLARATORY RELIEF 5 Section 154 of the Act gives power to the Court to make binding declarations of right. Section 154 provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. This court has undoubted power to grant declaratory relief whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. THE AWARD 6 The appellant and respondent are parties to the Award, which was made by consent. The relevant provisions of the Award are the definition of 'off duty injury', 'on duty injury' and 'partial and permanent disability' in cl 3 and the provisions applicable to an officer who is medically discharged due to an on duty injury in cl 9. Clause 3 relevantly provides: ... "On duty injury" in relation to a police officer means, injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act. "Off duty injury" means any personal injury or disease which is not an on duty injury. "Partial and permanent disability" means the police officer's cessation of employment was substantially due, directly or indirectly, to the permanent physical or mental disability of the police officer (not caused by any act or default of the police officer intended to produce an injury leading to that disability) and that the police officer is, when the police officer ceases to be employed by NSW Police, permanently unable, by reason of that disability, to perform the duties that the police officer was required to perform before the police officer suffered the disability. ... 7 Clause 9 of the Award is in the following terms: 9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must satisfy the obligations outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this Award and may result in medical discharge. 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, provided they have satisfied their mutual obligations, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 A police officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries 9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.4.2 If placement in a police position is not possible and redeployment to an administrative officer position within the NSW Police is not agreed to by the officer, the employment of the police officer may be terminated and, in such circumstances, the police officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every police officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical. 9.6 An adequate opportunity will be given to the police officer concerned and the Association (unless the police officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge. FACTUAL BACKGROUND 8 The relevant facts are set out in detail in the primary judge's decision. The appellant has also helpfully and accurately summarised those facts. We draw from his Honour's account of the facts and the appellant's summary. The facts are not in contest. 9 Ms Davies commenced employment with the NSW Police Force on 20 December 2002. She claimed to have suffered injuries arising out of, or in the course of, employment with the appellant. On 23 January 2006, Dr N de Bruyn diagnosed Ms Davies as suffering from work related stress, depression, and anxiety, needing rest and time away from work. On or around the same time, Ms Davies consulted Dr G Mah, her general practitioner, who diagnosed that she had post traumatic stress disorder ('PTSD'). Dr Mah provided a WorkCover certificate and referred Ms Davies to a psychiatrist for treatment. On 1 March 2006, Ms Davies had her first consultation with Dr John Roberts, a forensic psychiatrist, and who confirmed the PTSD. Dr Roberts issued a medical report dated 8 November 2006, where he concluded, it would be 'impossible for her to return to work as a police officer'. 10 In January 2006, Ms Davies went on sick leave. She returned to work in early February and was placed on restricted duties before being referred to the Police Medical Officer for assessment. She remained on sick leave from February 2006 until her medical discharge from the NSW Police Force on 10 October 2007. 11 On 7 March 2006, Ms Davies lodged a claim with the appellant's workers' compensation insurer, Allianz Insurance ('Allianz'). Ms Davies was assessed in early March 2006 by a consultant psychiatrist for a pre-liability stress assessment. On 17 March 2006, the appellant's insurer denied Ms Davies' claim. 12 By letter dated 3 April 2006, Allianz advised Ms Davies that liability had been denied for the following reasons: This decision is pursuant to Section 9A of the WCA 1987. No Diagnosis of a Psychological Injury. Pre Liability Stress Assessment conducted by Jo Clarke on 10/02/06. "I am of the opinion that Ms Davies' symptoms at the time that she ceased work on 23/01/06 and at the time of this assessment on 02/03/06 did not fulfil the criteria for a clinical diagnosis as defined by the Diagnostic and statistical Manual of Mental Disorders-Fourth Edition, Text revision, 2000, American Psychiatric Association (DSM-IV-TR). 13 After exhausting her sick leave and other leave entitlements, Ms Davies remained on special paid sick leave until her medical discharge. 14 In October 2006, the appellant referred Ms Davies to HealthQuest to undertake a psychological assessment. Dr Terry Kohler, a Consultant Clinical Psychologist, conducted the assessment. Dr Kohler's recommendations were: 1. Ms Davies was assessed to be permanently unfit for operational policing duties. 2. Her prognosis was assessed to be poor and it is unlikely that she will be able to return to her substantive duties in the foreseeable future. 3. Any contact with the police services is likely to exacerbate her condition and therefore she was assessed to be unfit for permanently modified or administrative duties. 4. A Fitness to Work Summary is attached. 15 On or around 8 January 2007, an application for Ms Davies' medical discharge was made. 16 On 10 January 2007, the appellant advised Ms Davies that she had been submitted for medical discharge. On 11 September 2007, Ms Davies applied for a partial and permanent disablement ('PPD') benefit pursuant to the Award. On 10 October 2007, the appellant discharged Ms Davies from the NSW Police Force on the medical ground that she was partially and permanently disabled to continue employment with the appellant. Ms Davies received an 'off duty' PPD benefit in accordance with the Award (the quantum of the payment for an on duty PPD benefit is generally higher than for an off duty PPD benefit). Ms Davies requested the appellant to make a payment of an on duty PPD benefit. The appellant declined to do so. 17 On about 8 March 2008, Ms Davies lodged an application to refer a dispute for determination to the Workers Compensation Commission of New South Wales ('WCCNSW') claiming an entitlement to weekly benefits and medical expenses under the Workers Compensation Act 1987 ('the WC Act'). In her workers' compensation application form, Ms Davies claimed weekly compensation benefits from 24 January 2006 onwards. 18 On about 31 July 2008, Ms Davies and the appellant's representatives attended a conciliation conference, to seek to resolve the dispute between the parties regarding these issues. The conciliation conference was conducted by an arbitrator of the WCCNSW under s 344 of the Workplace Injury Management and Workers Compensation Act 1998. 19 Arising out of the conciliation conference, the parties reached an agreed resolution of the matters in dispute embodied in a document titled 'Certificate of Determination - Consent Orders' ('the Certificate'). 20 The respondent subsequently notified an industrial dispute pursuant to s 130 of the Act regarding Ms Davies' claim for the payment of an on duty benefit under the Award, but subsequently discontinued the notification. 21 On 29 September 2009, the respondent filed an application seeking declaratory relief in respect of three members, Ms Kristy Davies, Ms Jodie Kemp and Mr Trent Southworth. The declarations sought concerned alleged entitlements for an on duty PPD benefit under the Award. On 27 January 2010, the respondent filed an Amended Application. 22 The parties compromised the claims of Ms Kemp and Mr Southworth. The respondent consequently only sought declarations in respect of Ms Davies. FIRST INSTANCE DECISION 23 After reviewing the relevant authorities regarding the Court's jurisdiction under s 154 of the Act, Staff J made the following findings at [36]: (a) Ms Davies suffered injuries arising out of or in the course of employment with the respondent. She has suffered, amongst other things, PTSD; (b) some time in February 2006, she reported her injury to the respondent. On 7 March 2006, Ms Davies lodged a claim with the respondent's workers' compensation insurer, Allianz. Shortly thereafter, she attended a pre-liability stress assessment with Ms Jo Clarke, a consultant psychiatrist. On 3 April 2006, the respondent's insurer denied Ms Davies' claim on the basis that she did not fulfil the criteria for a clinical diagnosis of PTSD; (c) in or about October 2006, the respondent referred Ms Davies to HealthQuest to undertake a psychological assessment. Dr Kohler conducted the assessment. On 10 January 2007, the respondent advised Ms Davies that she had been submitted for medical discharge. On 10 October 2007, the respondent discharged Ms Davies from the NSW Police Force on medical grounds that she was partially and permanently disabled to continue employment with the respondent. She received an "off duty" partial and permanent disablement payment in accordance with the Award; (d) on or around 8 March 2008, Ms Davies lodged an application to refer a dispute for determination to the WCC claiming an entitlement to weekly benefits and medical expenses under the Workers Compensation Act 1987 ("the WC Act") (s 40 and s 60). In her workers' compensation application form, Ms Davies claimed weekly benefits compensation from 24 January 2006 onwards; (e) on or about 31 July 2008, Ms Davies and the respondent's representatives attended a conciliation conference to seek to resolve the dispute between the parties regarding these issues; (f) arising out of the conciliation conference, the parties reached an agreed resolution to the matters in dispute. By reason of the agreement and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (the Compensation Commission Rules), the Compensation Commission made a determination set out in a document entitled "Certificate of Determination - Consent Orders" which was issued pursuant to s 294 of the WIM Act and provided, amongst other things: (i) the application be amended in Pt 5.2 to delete claims for weekly compensation from 24 January 2006 to 20 October 2007 (sic 10 October 2007); and (ii) the respondent pay Ms Davies weekly compensation at the rate of $357.14 from 11 October 2007 to 7 May 2008 pursuant to s 40 of the WC Act. (g) Ms Davies acknowledged and agreed that she had no economic incapacity from 7 May 2008. 24 His Honour noted the case for the appellant consisted of the following propositions (at [38]): [T]he Court does not have jurisdiction to make the orders sought and … in the alternative that, assuming jurisdiction, the orders should not, or could not be made, because the award and determination of the WCC cannot give rise to an estoppel for two reasons. Firstly, because the WCC is not the kind of body whose decision can give rise to an estoppel, and secondly, because the determination of the WCC was by consent, no estoppel arises from a consent determination. The respondent also contended that Ms Davies had failed to comply with the mutual obligations requirement in cl 9 of the Award ... 25 Staff J reached the following relevant conclusions: (a) the Court has the jurisdiction to make the declarations sought in the amended application (at [65]-[66]); (b) the Certificate created an estoppel by determining that Ms Davies had suffered an injury arising out of or in the course of employment, for the purposes of compensation under the WC Act, on the basis that: (i) the WCCNSW is a body capable of giving final judgments and deciding issues between the parties (at [67]); (ii) the Certificate estopped the appellant from denying that Ms Davies had suffered an injury for the purposes of the WC Act (at [68]-[71]); (c) Ms Davies' injury in the WCCNSW proceedings was the same injury as the injury that gave rise to her medical discharge from the NSW Police Force (at [72]-[73]); (d) if it had been necessary, similar relief could have also been granted on the basis of estoppel by convention. An estoppel by convention was created ad hoc, expressly, by a course of dealing and conduct with the intention of affecting the legal relationship between Ms Davies and the appellant (at [79]); (e) the Court should not, in the exercise of its discretion, decline relief where merits would otherwise justify the grant of the relief (at [81]); (f) the respondent had standing to make the application for the declarations (at [82]-[84]). APPEAL GROUNDS 26 There were eight grounds of appeal divided into a number of sub-grounds, which were further divided. The main grounds relied upon were: (1) His Honour exceeded the jurisdiction of the Court or erred in deciding that it had the power to grant declaratory relief under section 154(1) of the Act in that the declarations sought in the amended application: (a) did not amount to binding declarations of rights; (b) sought for the Court to give an advisory opinion; (c) did not comprise matters capable of giving rise to declaratory relief including that his Honour found that it was sufficient that the declaration concerned matters the subject of a discontinued notification of an industrial dispute under section 130 of the Act; and (d) concerned matters in which the Commission (however constituted) did not have jurisdiction. (2) His Honour erred in deciding that the Respondent had standing to seek the declarations sought in the amended application. (3) His Honour erred in deciding that the Court could grant the declarations sought in the amended application that the Appellant is estopped from denying that the injury that lead to the cessation of the employment of Ms Kristy Davies were on-duty injuries as defined in the Award (the issue estoppel claimed ) in that: (a) His Honour erred in deciding that the agreement reached between the Appellant and Ms Davies to resolve her workers' compensation claim in proceedings made in the WCC (the workers compensation proceedings ) by the Arbitrator making a "Certificate of Determination - Consent Orders" constituted a judicial determination for the purposes of establishing the issue estoppel claimed; (b) His Honour erred in finding the issue estoppel claimed in the absence of actual legal proceedings making a claim for an on-duty injury benefit under the Award; (c) His Honour erred in deciding that there was an identity of parties between the workers' compensation proceedings and the alleged hypothetical proceedings for a breach of the Award; and (d) His Honour erred in deciding that there was an identity of issues between the workers' compensation proceedings and the alleged hypothetical proceedings for a claim for breach of the Award. (4) His Honour erred by admitting into evidence paragraph 23 of Ms Davies' affidavit sworn 1 December 2009 that her alleged injury in the workers' compensation proceedings was the same alleged injury that gave rise to Ms Davies' retirement on medical grounds from the Appellant. (5) His Honour erred in deciding that Ms Davies' alleged injury in the workers' compensation proceedings was the same alleged injury that gave rise to Ms Davies' retirement on medical grounds from the Appellant. (6) His Honour erred in deciding that the Court should not withhold the declarations sought once jurisdiction existed to do so. (7) His Honour erred in deciding that he should exercise the Court's discretion to grant the declarations sought in the amended applications in that: (a) the declarations would not be conclusive in resolving the controversy between the Appellant and Ms Davies; (b) the declarations would lack practical utility as they would be only binding between the parties and, therefore, Ms Davies could not rely on the declarations; (c) the declarations would concern hypothetical proceedings that had not occurred and might never occur; and (d) Ms Davies was not joined to the proceedings as an affected party. (8) His Honour erred in making declarations that: (a) the Appellant is estopped from denying that the injury that led to the cessation of Ms Davies' employment was an "on-duty" injury as defined in clause 3 of the Award; (b) the Appellant is estopped from denying that Ms Davies is entitled to an "on duty" partial and permanent disability payment pursuant to clause 9 of the Award by virtue of the said injury not being an "on duty injury" as defined in clause 3 of the Award; (c) the Appellant is estopped from denying that Ms Davies is entitled to an "on duty" partial and permanent disability payment pursuant to clause 9 of the Award by virtue of a failure to comply with the mutual obligation requirement in clause 9 of the Award, in that: (d) the Court did not have the jurisdiction or power to grant the relief sought; and (e) the declarations in sub-paragraphs 8(b) and (c) did not arise out of the Court's findings in making its decision. LEAVE TO APPEAL 27 The appellant submitted leave to appeal should be granted because the appeal: (a) concerns important questions about the nature and scope of the Court's declaratory jurisdiction and powers; (b) raises substantial matters of law and principle including the legal nature and effect of certificates of determination and the circumstances in which an issue estoppel can arise; (c) relates to questions and issues that the Full Bench has not addressed in previous decisions; and (d) has widespread practical implications for the NSW Police Force and its members as there are a number of other similar cases which have yet to be determined. 28 The respondent opposed the grant of leave, contending: (a) The appellant has not, in its submissions, genuinely attempted to demonstrate appealable error in the decision of Staff J, but has merely repeated the various points and arguments it ran unsuccessfully at first instance. (b) None of the grounds of appeal is reasonably arguable. (c) Insofar as the appeal raises the issue of the identity of injury in various ways, it does so in circumstances where there was no evidentiary challenge at first instance to the affidavit and documentary evidence upon which Staff J founded his relevant findings; accordingly there cannot be any basis for the appellant to contend that those findings were not reasonably open. (d) The appellant does not challenge Staff J's conclusion in respect of conventional estoppel, which provide a full alternative basis for the claimed estoppels to arise, including the estoppel in respect of the mutual obligation requirements of the Award which the appeal does not canvas in any way. 29 We are satisfied that the grounds relied upon by the appellant provide a proper basis for the grant of leave and, accordingly, we propose to order that leave be granted pursuant to s 188 of the Act. CONSIDERATION 30 We shall deal with the appeal grounds in the order in which the appellant addressed them. Issue estoppel 31 Relying on Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 per Dixon J at 531-532 and Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at 373, the appellant submitted the elements necessary to establish an issue estoppel were: (a) a prior judicial determination: (i) on an issue of fact or law; (ii) disposing of a legal controversy between the parties once and for all; (b) a later proceedings involving: (i) precisely the same issues of fact or law as the prior judicial determination; (ii) the same parties (or their privies) as the prior determination. It was submitted Staff J did not explicitly address each of the foregoing elements necessary to establish an issue estoppel. 32 The appellant relied on four grounds in contending the primary judge erred in relation to issue estoppel. The first was that his Honour erred in deciding that the agreement reached between the appellant and Ms Davies to resolve her workers' compensation claim constituted a judicial determination for the purposes of establishing the issue estoppel. 33 It was submitted that for the purposes of establishing an issue estoppel, a judicial determination must have three characteristics: (a) there must be a court or tribunal capable of giving final judgment ( Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 19; Cachia v Isaacs (1985) 3 NSWLR 366 at 386 per McHugh JA (dissenting)); (b) the exercise of power of a judicial nature giving final judgment on the merits ( Administration of the Territory of Papua and New Guinea v Daeara Guba (1973) 130 CLR 353 at 453 per Gibbs J); and (c) the final judgment must resolve the issue between the parties once and for all ( Blair v Curran at 531-532; Kuligowski at 373). 34 The appellant accepted that the WCCNSW was a tribunal capable of giving final judgment and deciding an issue between parties. However, the appellant did not accept that it necessarily followed that the Certificate made in settlement of the claim amounted to a judgment that had the effect of establishing an issue estoppel. It was submitted that the Certificate constituted a settlement agreement between the appellant and Ms Davies brought about by conciliation conducted by the WCCNSW and did not constitute a judicial determination. 35 In that respect, the appellant submitted: (a) the WCCNSW exercised conciliation powers under s 355(1) of the Workplace Injury Management and Workers' Compensation Act rather than arbitration powers in making the Certificate; (b) the Certificate was an agreement reached between the appellant and Ms Davies to determine the dispute arising during the conciliation conference before the Arbitrator; and (c) the Certificate did not constitute a decision of the WCCNSW for the purposes of s 350 of the Workplace Injury Management and Workers' Compensation Act. Whether settlement agreement brought about by conciliation constituted a judicial determination 36 The appellant's contention was that the consent orders in the Certificate did not constituted a 'judicial determination' for the purposes of establishing the issue estoppel claimed. 37 The Certificate was said to have been issued pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act. Section 294(1) of that Act provides: (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. 38 The Certificate appears over the name of S Duncombe, Arbitrator, and records the following: In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is as follows: ... Thereafter followed four consent orders concerning the payment of weekly compensation, medical and treatment expenses, and costs. 39 Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (now repealed) ('2006 Rules') provided: (1) Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order. 40 Separate from the consent orders, the Certificate recorded an agreement between the parties concerning economic incapacity since 7 May 2008. This was expressly stated to be 'not a determination of the Commission'. 41 As the respondent submitted: It is apparent on the face of the Certificate therefore that: (a) the parties in the WCC dispute reached an agreement as to the determination of the dispute concerning Ms Davies' entitlements under the WC Act; (b) the WCC made an order determining the dispute in accordance with the agreement of the parties under rule 15.9(1); (c) in doing so, the WCC was required to satisfy itself that the order was one it had power to make; and (d) the order was certified as an order of the WCC pursuant to s 294(1) of the Workplace Injury Management and Workers Compensation Act . 42 The respondent referred to the decision of Merkel J in Somanader v Minister for Immigration and Multicultural Affairs [2000] FCA 1192; (2000) 178 ALR 677 at [35], where his Honour said: [35] It is now well established that judgments or orders by consent of the parties are as efficacious and binding as those pronounced after a contest. Thus, such judgments and orders can give rise to a plea of res judicata and issue estoppel as a bar to the litigation of the same issues between the same parties in subsequent litigation: see Spencer Bower, Res Judicata (3rd ed, 1996) at [38]-[40]. 43 In support of that conclusion Merkel J referred to Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 508, per Deane, Toohey and Gaudron JJ; In re South American & Mexican Company; Ex parte Bank of England [1895] 1 Ch 37 at 45 per Vaughan Williams J; Isaacs v Ocean Accident & Guarantee Corp Ltd (1958) SR (NSW) 69 at 75 per Street CJ and Roper CJ in Eq; and Makhoul v Barnes (1995) 60 FCR 572 at 582 (Hill, Cooper and Branson JJ). See also Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 90. 44 As the respondent also submitted, the same principle has been applied to a consent award of the Compensation Court (Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648 at [9]-[10]) and to consent orders of the WCCNSW (Rinker Group Limited v Mackell [2008] NSWWCCPD 100 at [107]-[130]). The appellant, however, referred to Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103 as authority for the proposition that consent orders made by the WCCNSW in respect of Ms Davies' claim did not give rise to an issue estoppel. 45 In Zeaiter, Acting Deputy President Candy held that consent orders involving the payment of a small amount of compensation and medical expenses with respect to a claimed compensable injury did not give rise to an issue estoppel in later proceedings concerning whether the same injury was in fact compensable under the WC Act. His Honour stated at [78]: [78] Having regard to these provisions regarding the procedure to be followed in the Commission, there is a clear legislative intention that the settlement of disputes is to be encouraged and employers would undoubtedly be less willing to enter into consent awards, if as a consequence, they were estopped from denying matters which they wished to deny in later and possibly more substantial proceedings for compensation. 46 His Honour then found at [79]: · No authority to which I was referred or which I have discovered has as its ratio decidendi that a consent award, in all circumstances, estops parties from disputing in later proceedings those matters which must be taken to have been conceded as the basis for that award. · In this case, given the worker's failure to notify his injury or make a claim for compensation for almost a year after his resignation, the greatest effect that the consent award can be given, apart from the resolution of the particular dispute to which it relates, is as an admission of those matters entitling the worker to compensation. Such admission like the payment of compensation must be considered in the light of all available evidence as to the occurrence of injury and in my opinion is of very little weight in this case. · The only matter relied on in the earlier proceedings was the failure to report an injury. Unless excused on one of the grounds provided in sections 61 and 254 of the 1998 Act this would have been sufficient to defeat the claim for compensation. Instead the claim was settled for a substantial compromise being a small fraction of the compensation which the worker would have received if successful. This is, in my view, an example of what was referred to in Anshun where a party may justifiably refrain from litigating an issue in one proceeding yet wish to later litigate it. · The emphasis in the workers compensation legislation on the resolution of disputes by agreement rather than the determination of the Commission requires that an issue estoppel should only be held to result from a consent award in those cases where the interests of justice clearly require this. 47 With respect to his Honour, we think he was wrong as to the first and last dot points. The correct position is as it was described in Somanader. Moreover, in the last dot point the Deputy President appears to have treated issue estoppel as a matter of weight having regard to other evidence before him. If issue estoppel is found to apply, it acts as an absolute bar to the matter being re-litigated: Blair v Curran at 531 per Dixon J. 48 The decision in Zeaiter is at odds with Rinker in which it was held at [126]: Applying the principles in O'Donel and Dimovski to the present matter, and assuming that the estoppel can be properly proved, the consent award of 3 August 2006 does create issue estoppels as to the issues "the parties recognised was the subject of the litigation and was fundamental to the judgment or order" ( Spencer Bower , at [39]), but there is no estoppel in situations capable of change. Rinker will be estopped from denying that Ms Mackell suffered an injury that resulted in her need for surgery and in her incapacity from 17 January 2006 until 6 June 2006. It may also be estopped on other issues, such as notice of injury and worker. However, consistent with O'Donel and Spencer Bower (at p102), Rinker will not be estopped from arguing that it has no liability in respect of a later claim for lump sum compensation. In such a claim, the Consent Orders will be of some weight (especially in circumstances where Rinker had a solicitor acting on its behalf at the time the Consent Orders were made), but their probative value must be assessed in the light of all the evidence. See also Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 per McColl JA (Giles and Campbell JJA agreeing) at [186]: Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so "only as to those matters which are necessarily decided", to ascertain which "the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to": Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63]-[65]); Abigroup Contractors Pty Ltd (at [146]). 49 As to whether the WCCNSW is a tribunal the determinations of which can give rise to an estoppel, we consider the question was settled in Administration of the Territory of Papua New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 at 453 (quoted with approval in Kuligowski at [22]), where Gibbs J said: The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc. Whether the settlement reached was merely a record of the conciliated agreement rather than a judicial determination 50 It was submitted for the appellant that the settlement reached arose out of the WCCNSW's conciliation powers rather than an arbitration powers. Therefore, the true nature of the Certificate was a record of the conciliated agreement rather than a judicial determination. 51 None of the authorities to which we have referred make any distinction in relation to the way in which the consent was obtained, whether through conciliation or otherwise and the appellant did not cite any authority that suggested that there was any distinction made in this regard. If it is accepted, as it must be on the authorities, that consent orders may give rise to issue estoppel, the fact that the consent may have resulted from a process of conciliation is really irrelevant. The appellant seemed to contend that it was only if the orders had been made by arbitration that issue estoppel could apply. But this overlooks the authorities, which confirm consent orders may give rise to an issue estoppel. 52 Under r 15.9(1) of the 2006 Rules the WCCNSW was empowered to, and did, make orders giving effect to the position agreed between the parties. Those orders were expressly stated as having effect as a determination of the WCCNSW under s 294(1) of the Workplace Injury Management and Workers Compensation Act. Under s 350(1) of that Act, any decision of the WCCNSW 'is final and binding on the parties and is not subject to appeal or review'. Further, under s 362 of the Workplace Injury Management and Workers Compensation Act, any amount ordered to be paid by the WCCNSW may be enforced as a judgment debt. Thus, the consent orders have effect as a final judicial determination of the WCCNSW. Whether the Certificate constituted a decision of the WCCNSW for the purposes of s 350 of the Workplace Injury Management and Workers Compensation Act 53 It was submitted for the appellant that the use of the term 'consent orders' rather than the terms 'consent award' or 'consent judgment' suggested that the Certificate was not intended to comprise a judicial determination on the merits of the case. The appellant contended that where a dispute has been determined after an arbitrated hearing, the WCCNSW makes an 'award' (for example, see the Workplace Injury Management and Workers Compensation Act, s 351(5) and s 351(6)). By contrast, in dealing with procedural matters, the WCCNSW may make 'orders' (see r 15.1). Senior counsel submitted this underscored that a consent order was intended to be 'procedural' in nature signalling the end to the application rather than a substantive judicial determination. 54 The distinction sought to be drawn by the appellant has no support in the authorities. Somanader refers expressly to 'consent orders', as does Spencer Bower and Handley, Res Judicata (4th ed, 2009) ('Handley') at [2.16], whilst Rinker refers both to 'consent orders' and a 'consent award' and Dimovski refers to a 'consent award'. 55 Further, we agree with the respondent that the notion that, under the Workplace Injury Management and Workers Compensation Act, the consent orders were merely 'procedural' is to be rejected. Orders requiring the payment of money that are enforceable as a judgment debt could not be characterised as merely 'procedural'. 56 We do not think there is anything in the Workplace Injury Management and Workers Compensation Act to suggest that it was the legislature's intention to preclude issue estoppel in circumstances where consent orders have been made. Section 367 of that Act provides that the WCCNSW has the following objectives: (a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts, (b) to reduce administrative costs across the workers compensation system, … (e) to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts, … 57 Section 354 provides, inter alia, that: (1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means. … 58 Section 355(1) provides that an Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using the Arbitrator's best endeavours to bring the parties to the dispute to a settlement acceptable to all of them. There is a clear emphasis in the WC Act on resolving disputes by conciliation; conciliation must first be attempted before arbitration. The objective is to settle matters in the form of 'durable agreements'. 59 In Kuligowski at [32] the High Court referred to the goal of Western Australian workers' compensation legislation of: [H]aving workers' compensation disputes heard and determined in an informal, quick and cheap manner would not be assisted by a construction of the legislation which prevented the doctrine of issue estoppel from ever applying. That would increase the chance of double litigation of issues and vexation of parties. 60 We think these observations apply with equal force to the New South Wales legislation. Later proceeding 61 It was submitted his Honour erred in finding the issue estoppel claimed in the absence of actual legal proceedings making a claim for an on duty injury benefit under the Award. The appellant argued that the respondent had failed to take into account the essential nature of an issue estoppel. By definition, it was submitted, issue estoppel only arose in the context of proceedings subsequent to those wherein the findings of fact or determinations of law which were said to give rise to an issue estoppel took place, and where the same issues of fact or law arose for determination. 62 The appellant submitted that in the absence of some second set of proceedings, where the same issues arose for determination, an issue estoppel, by definition, could not arise. It was submitted that an application seeking declaratory orders could not be those second set of proceedings; an application for a Declaration of Right seeks a declaration with respect to existing facts, rights or obligations. What the respondent sought in its application was the application of a common law doctrine relating to a hypothetical set of circumstances and not to existing facts, rights or obligations. 63 The appellant referred to what Dixon J said in Blair v Curran at 464: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. 64 The appellant also made reference to what Barwick CJ said in Ramsay v Pigram (1968) 118 CLR 271 at 276: Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual. 65 Neither of these authorities suggests that an application for declaratory relief could not constitute the 'second proceedings' referred to by the appellant. Further, it is notable that the appellant was not able to identify any authority to the effect that in proceedings for declaratory relief an applicant was not entitled to rely on issue estoppel. 66 The appellant submitted that: A binding declaration of right must consider legal rights, privileges or power and what in fact has happened here is seeking something akin to an advisory opinion. There is nothing other than a hypothetical circumstance which may crystallise into a matter and some proceedings at some point, but it has not done so. Until that has occurred then what is being sought is merely hypothetical. Importantly it does not seek to attach to any particular right. That is the difficulty with it. There may be circumstances where a hypothetical proposition can be the subject of a declaration but this is not it. 67 The first thing to be said is that the Court's jurisdiction to make a declaration is a very wide one under s 154 of the Act. The only statutory restriction is that declarations of right may only be made in relation to a matter in which the Court has jurisdiction. 68 If the respondent had sought a bare declaration in relation to a hypothetical issue the court would not grant it under the relevant tests as outlined by Lockhart J (with whom Spender and Cooper JJ agreed) in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 at 670-671: For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows: · The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary Act 1903 and Navigation Act 1912 [1921] HCA 20; (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties. · The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 10; 6 ALR 193 per Gibbs J; or if the court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority New South Wales (1977) 18 ALR 55; 52 ALJR 180 per Mason J at 180 and per Aickin J at 189. · The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J at 437 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448. … 69 In Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-438 Gibbs J stated: It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. (1921) 2 AC 438, at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR, at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." 70 In the present case, the respondent sought declarations to the effect the appellant was estopped from denying that the injury suffered by Ms Davies was an on duty injury and from denying she was entitled to the consequential benefits under the Award. The estoppel contention relied on the Certificate issued by the WCCNSW. That the appellant has denied these matters is apparent from its reply to a letter from the respondent on 12 August 2008 in which the respondent referred to the determination by the WCCNSW and sought payment of a benefit based on hurt on duty. In the reply dated 17 November 2008, the appellant stated: After a comprehensive review of Former Constable Kristy Davies' file and additional information it was found that the Certificate of Determination issued by the Workers Compensation Commission on 31 July 2008 is a consent agreement of all parties following the arbitrated hearing and not a determination. In addition, in order to receive entitlements under the partial and permanent disability (PPI) under the D & D Award, there is a requirement to satisfy the Award definition and unfortunately Former Constable Kristy Davies' case does not meet the definition due to the fact that the determination was made based on cessation of your employment due to an off-duty injury. Therefore based on these findings Former Constable Kristy Davies' medical discharge payment will remain as an off duty benefit (please refer to the Crown Employees (Police Officer Death & Disability) Award 2005). 71 The appellant's point we think is that if in later proceedings, say for recovery of the Award benefit applicable to an on duty injury, the plea of issue estoppel was raised as a bar to the appellant denying Ms Davies' injuries were on duty injuries, that would be a legitimate use of the plea. But in an application for declaratory relief and in the absence of a later legal claim against which the plea is able to be assessed, the plea is not available. 72 The difficulty we have with the appellant's position is that there can be no doubt in the context of the application for declaratory relief there was a real justiciable controversy: the respondent claimed Ms Davies had an on duty injury and was entitled to the consequential Award benefits and the appellant denied this was so. The making of the declaratory orders of the kind sought by the respondent (provided they are upheld on appeal), would resolve these disputed questions. We agree with Staff J the fact that the respondent did not claim any consequential relief is not a reason to decline the making of declaratory orders (especially when the amended application sought liberty to apply for consequential relief in the event that declaratory orders were made). Section 154 of the Act is quite clear: Staff J had the power to grant declaratory relief whether or not any consequential relief was or could be claimed. The proceedings before his Honour, therefore, are not open to objection on the ground that a declaration of right only was sought. Identity of issues 73 It was submitted Staff J erred in deciding that there was an identity of issues between the workers' compensation proceedings and the alleged hypothetical proceedings for a claim for breach of the Award. The appellant submitted that: [T]he issue estoppel applied in relation to the fundamental issues decided in the Certificate. It is confined to the ultimate facts that comprise the essential ingredients to the claim and legally indispensable to the determination of the dispute: Blair v Curran . It cannot arise in relation to evidentiary facts found in the course of affirming or negativing an issue: Brewer v Brewer (1953) 88 CLR 1 at 15; Kuligowski at [62]. 74 It was further submitted for the appellant: However, the consent orders do not make clear the precise issues decided: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508. Ordinarily, in determining the "issues" estopped, the tribunal can have regard to the record of the proceedings including the pleadings, the evidence, the record of judgment and the reasons for judgment: Jackson v Goldsmith (1950) 81 CLR 446 at 467; Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 299. In the absence of such material, neither party will be estopped from disputing anything other than the actual judgment or order: Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 at 90 - 91; Muriti v Prendergast [2005] NSWSC 281 at [152] - [155] citing Spencer Bower, Turner and Handley Res Judicata (Third Edition) (at [39]). In this case, there were no formal pleadings before the WCC. No evidence had been adduced. No reasons had been given for the making of the Certificate other than it arose by agreement during conciliation. The Certificate merely determines that an injury is compensable. It does not determine that the injury that caused Ms Davies' medical discharge is compensable. Even assuming that the consent orders are capable of sustaining an issue estoppel, it only arises where the precise issue decided in the first proceedings is identical with what is sought to be litigated in the second proceedings: Brewer v Brewer (1953) 88 CLR 1 at 14; Blair v Curran (1939) 62 CLR 464 at 510 per Starke J, at 532 per Dixon J, at 541 per McTiernan J. Staff J erred on the basis that there is an absence of any identity: (a) between Ms Davies' injury determined in the WCC proceedings and any hypothetical claim for an on-duty PPD benefit under the Award; and (b) between the relevant period of Ms Davies' incapacity determined in the WCC proceedings and the relevant period of incapacity that gave rise to her medical retirement to sustain her hypothetical claim for an on-duty PPD benefit under the Award. 75 There must be an identity of the precise issues determined. An issue estoppel only arises where the precise issue decided in the first proceedings is identical with that sought to be litigated in the second proceedings. In Turner v London Transport Executive [1977] ICR 952, Browne LJ said at 964: The essential foundation of a plea of issue estoppel must be that the issue or issues raised in the first proceedings, and the issue or issues raised in the second proceedings are identical. It is for the party who seeks to rely on the estoppel to establish this identity. 76 In Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519, Walsh J said at 522: In order that the principle of issue estoppel may apply it ... must be possible to assert without doubt that the issues are identical. See also Hamersley Iron Pty Ltd v National Competition Council [2008] FCA 598; (2008) 247 ALR 385 at [117]. 77 The 'issue' determined by the Certificate was that Ms Davies was entitled to weekly compensation benefits and medical expenses in relation to an injury suffered in the course of her employment with the NSW Police Force. That injury, on the evidence, was post traumatic stress disorder with anxiety and depression caused by 'multiple work related stressors'. 78 The Application to Resolve a Dispute filed by Ms Davies with WCCNSW indicated that the date of injury was stated as 23 January 2006. The date of notice of injury was the same date. The place of injury was described as 'various locations during course of employment as a Police Officer in Sydney Metropolitan area.' The date of the compensation claim was 1 February 2006. 79 There was no formal pleading associated with Ms Davies' Application to Resolve a Dispute. Rule 10.3 of the 2006 Rules laid down the requirements regarding material to be lodged with the Application. The rule provided, inter alia: (1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with: (a) the application to resolve the dispute, if the party is the applicant, or (b) the reply required by rule 10.4 (1), if the party is a respondent, or (c) the reply required by rule 11.1 (7), if the party is a party joined under rule 11.1 (4), all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings. 80 The material lodged by Ms Davies with her Application was set out by Staff J at [21] of his Honour's decision: [21] ... (a) a report from Dr Peter Klug, Forensic Psychiatrist, dated 26 March 2008. Relevantly, Dr Klug's opinion was: Ms. Davies clearly suffered from significant psychiatric symptoms. These began from the time of the assault on her by "D". She described being raped by "D" and the details of this are in the body of my report and also in her statement. ["D" was a police officer and the alleged offence occurred whilst both were off duty]. Her symptoms from that time were in the form of both anxiety-based and depressive ones. From the time of the assault on her - and it is of note that this is in the context of sexual harassment by another police officer prior to the assault - she developed a condition along the spectrum towards a post-traumatic stress disorder. Whether she developed the full syndrome is difficult to state with certainty. However, I note the comments by Dr. John Roberts, her treating psychiatrist, stating clearly that she suffered from a post-traumatic stress disorder. A PTSD commonly gives rise to co-morbid depressive symptoms. I believe that she had secondary depressive symptoms but that after incidental contact with ["D"] while doing a brief stint in general duties she became overtly depressed and suffered from a major depressive episode. It is clear that there were significant other stresses in her life including the following: · mismanagement and neglect by the police bureaucracy · violation of her basic rights with respect to confidentiality about the assault · the assault by "D", another police officer, on her fourteen year old cousin leading to a court case on the basis of her complaint · subsequent harassment by "D" after the break-down of their relationship necessitating her taking out an AVO · the termination of a pregnancy in 2007 · the potentially malignant condition with respect to the lump on her daughter's jaw for which she had very little support from the bureaucracy while she was required, as a single parent, to take her daughter to various medical appointments · frequent transfers from one station to another · overt ostracism at Hornsby which, she says, was because of the complaint she made against "D" · a gross lack of support by the police service in various ways It is my view that her anxiety-based disorder - a chronic post-traumatic stress disorder (or a post-traumatic stress disorder-like syndrome which would necessitate the diagnosis of an anxiety disorder NOS [not otherwise specified]), and her major depressive disorder have been substantially caused by multiple work-related stresses. The former condition is in partial or substantial remission and the later condition is in remission. She improved with appropriate psychiatric treatment and under the care of Dr. John Roberts, her psychiatrist. Her capacity for work in the future is probably good although she clearly should avoid work that would bring her into any overt confrontation with members of the public or where she is likely to be sexually harassed or exposed to the threat of sexual assault. I understand she plans to study and retrain with the aim of gaining a law degree. It is clear that she now has a predisposition to psychiatric illness that she did not have prior to the various stresses to which she has been exposed. There is no indication that she suffered from any pre-existing psychiatric condition. It is my view that her psychiatric conditions were not caused by reasonable action on behalf of her employer, the New South Wales Police Service. (b) statement of Ms Davies dated 29 October 2007; (c) a notification of injury or illness by Ms Davies where injury details are described as post traumatic stress disorder. The notification appears to be dated 7 February 2006; (d) a workers compensation claim form dated 7 March 2006. Under the injury details, Ms Davies described how the injury occurred as: "numerous stress fall incidents over a three year period" and the injury being "psychological"; (e) letter from Allianz to Ms Davies dated 17 March 2006 stating that Allianz has evidence that her injury was not work related. This decision was based upon information given in the pre-liability psychological assessment report of Jo Clarke, consultant psychologist dated 10 March 2006. It was noted in the report that Ms Davies did not fulfil the criteria for a clinical diagnosis as per s 11A(3) of the Workers Compensation Act 1987. 81 In addition, the materials included two reports of Dr John Roberts, a Consultant Forensic Psychiatrist dated 22 March 2006 and 8 November 2006. The March 2006 report stated: Ms Kristy Davies is permanently unfit to return to work as a police officer. This is based on her current psychiatric status of Post-traumatic stress disorder compounded with an Adjustment disorder with anxiety and depression. I have instructed her to commence an application for retirement on medical grounds. 82 The November 2006 report of Dr Roberts stated: At the time of my initial presentation I considered that Ms Kristy Davies had given an account of a series of inappropriate behaviours towards her during the course of her working as a police officer. I refer you to the Ombudsman's letter as a summary. Her current psychiatric diagnoses were at the time of her initial presentation and remain:- i. Post-traumatic stress disorder and ii. A compounding Adjustment disorder with anxiety and depression. Ms Davies is currently receiving appropriate treatment for her condition. I consider that in spite of other stressors being operative her circumstances and conditions of employment are the substantial, though not the only contributing factor to her current presentation. I do consider having regard to her experiences within the Police Force as a police officer that having regard to her current psychiatric condition, she would be ill advised to continue as a police officer. In giving my opinion on her being ill advised to return to work as a police officer, my support of her medical retirement I note that having regard to her experiences within the police force, the manner in which she has been treated, the breaches of confidentiality that have occurred, the fact that her most personal concerns are common knowledge and spoken about in the corridor, render it on health grounds, impossible for her to return to work as a police officer. I note that Ms Davies is concerned in regard to the extent to which her physical safety is compromised by the fact that her assailants have not in any manner been penalised for their actions - this is a matter for consideration. 83 As we stated earlier, the dispute in relation to Ms Davies' workers' compensation entitlements was resolved by way of consent orders for a closed period from 11 October 2007 to 7 May 2008 in the WCCNSW on 31 July 2008. The Certificate setting out the consent orders was in the following terms: 1. That the Application be amended in Part 5.2 to delete any claim for weekly compensation from 24 January 2006 to 20 October 2007 [sic - should read 10 October 2007]. 2. That the Respondent pay the Applicant weekly compensation at the rate of $357.14 from 11 October 2007 to 7 May 2008 agreed to total $10,000 pursuant to s.40 of the Workers Compensation Act 1987. 3. That the Respondent pay the Applicant's medical and treatment expenses pursuant to s.60 of the Workers Compensation Act 1987 up to $1000 on production of accounts or receipts. Award for the Respondent otherwise in respect of any claim pursuant to s.60 of the Act. 4. That the Respondent pay the Applicant's costs as agreed or assessed. The matter is certified as complex and each party is entitled to a 15% uplift on costs. 84 What may be gleaned from Ms Davies' Application to Resolve a Dispute, the accompanying materials and the Certificate are the following relevant matters: (a) Ms Davies claimed weekly compensation benefits and medical, hospital and rehabilitation expenses for the period 24 January 2006, which was the claimed onset of her injury to the date of the Application 'and continuing'; (b) the claim was in respect of an injury suffered in the course of her employment with the NSW Police Force, namely, post traumatic stress disorder with anxiety and depression caused by 'multiple work-related stressors'; (c) the claim relied on a report of Dr Peter Klug, Forensic Psychiatrist, dated 26 March 2008. The report indicated Ms Davies had suffered from an 'anxiety-based disorder - a chronic post-traumatic stress disorder (or a post-traumatic stress disorder-like syndrome which would necessitate the diagnosis of an anxiety disorder NOS [not otherwise specified]), and her major depressive disorder have been substantially caused by multiple work-related stresses'; (d) additionally, the claim was supported by two reports of Dr Roberts, Consultant Forensic Psychiatrist, indicating Ms Davies suffered from post traumatic stress disorder compounded with an Adjustment disorder with anxiety and depression; (e) the appellant's insurer declined to accept Ms Davies' claim for compensation benefits. The insurer indicated in a letter dated 17 March 2006 that it did not consider the injury was work related and in that respect relied upon a pre-liability psychological assessment by a Consultant Psychologist that Ms Davies did not fulfil the criteria for a clinical diagnosis 'as per Section 11A(3) of the Workers Compensation Act 1987'. That provision defines a psychological injury; (f) on 31 July 2008 the parties, assisted by Mr Duncombe, Arbitrator, and following a conciliation conference, came to an agreed resolution of 'the issues in dispute' which was recorded in a consent order pursuant to r 15.9(1) of the 2006 Rules. In what appears a compromise settlement pursuant to s 40, Ms Davies agreed to a lump sum payment of $10,000 (for a partial incapacity for a period post her medical discharge between 11 October 2007 and 7 May 2008) plus up to $1,000 for medical and treatment expenses plus costs in her favour. This was in lieu of the original claim for weekly compensation from the onset of her injury from 24 January 2006 'to date and continuing'. 85 Before Staff J the respondent, on behalf of Ms Davies, sought declaratory relief to the effect that the appellant was estopped from denying that the injuries that led to the cessation of Ms Davies' employment on 10 October 2007 were 'on-duty' injuries as defined in the Award. Consequently, the appellant was also estopped from denying that Ms Davies was entitled to the on duty partial and permanent disability payment under the Award. 'On duty injury' in the Award is defined as meaning an 'injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act.' 86 The estoppel plea of the respondent relies upon the fact that the appellant consented to a determination by the WCCNSW settling a claim by Ms Davies that she was entitled, under the WC Act, to compensation benefits for an injury suffered in the course of her employment with the appellant. On the face of it, there is an identity of issues: the appellant consented to a determination that Ms Davies be paid compensation and benefits in relation to an 'on-duty' injury that was claimed to be post traumatic stress disorder and now seeks to deny there was such an 'on-duty' injury. The authorities require that the issues in the two proceedings are identical. 87 In this respect, the appellant submitted nothing in the Certificate linked the injury in the WCCNSW proceedings and the injury causing Ms Davies' medical discharge. It was further submitted that to overcome this difficulty, Staff J took the additional step of examining the evidence and concluding that the psychological injuries that led to Ms Davies' medical discharge were the same psychological injuries that were the subject of a dispute in the WCCNSW. Senior counsel submitted his Honour erred in making this finding because the amended application sought declarations based on the Certificate in the WCCNSW proceedings. It did not require or permit Staff J to making his own findings based on his examination of the medical evidence, it was submitted. 88 Senior counsel for the appellant also contended that Staff J wrongly concluded that Ms Davies' period of incapacity determined in the Certificate coincided with the period of the incapacity giving rise to her medical discharge. The Certificate determined that Ms Davies' claim for weekly compensation for a period post her medical discharge between 11 October 2007 and 7 May 2008. However, Ms Davies' claim for an on duty PPD benefit concerned her incapacity at the time of her medical discharge, that is, immediately before 10 October 2007. 89 The Certificate, does not identify the nature of the injury in respect of which compensation was ordered. That raises the question whether Staff J was entitled to have regard to the material filed with Ms Davies' Application in the WCCNSW proceedings and thereby draw an inference in Ms Davies' favour that the compensable injury was post traumatic stress disorder. This material was filed in accordance with the requirements of the 2006 Rules of the WCCNSW and constituted 'all information and documents' on which Ms Davies proposed to rely. 90 The court may consider any relevant material that shows what issues were raised and decided including the court's reasons in determining whether there is an issue estoppel: Jackson v Goldsmith (1950) 81 CLR 446 at 467 per Fullagar J; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 946, 965. As Lord Hailsham said in Director of Public Prosecutions v Humphrys [1977] AC 1 at 41 (cited in Handley at 8.29): 'The court will enquire into realities and not mere technicalities'. There was no bar to Staff J considering the material lodged with the Application to Resolve a Dispute and the Application itself. However, there was no material filed in the WCCNSW proceedings to indicate what was the position of the appellant in those proceedings. 91 It would not have been open to the Arbitrator to make consent orders he otherwise did not have the power to make: r 15.9(1) of the 2006 Rules. It follows that the Arbitrator must have accepted that Ms Davies had incurred a compensable injury, that is, a personal injury arising out of or in the course of her employment. We accept such an inference is available. 92 The next question, however, is in the absence of any indication of the appellant's position in the WCCNSW proceedings, whether there was any proper basis upon which Staff J could find the compensable injury to which the consent orders were directed was the injury claimed by Ms Davies. It is to be kept steadily in mind that the essential foundation of a plea of an issue estoppel must be that the issue raised in the first proceedings and the issue raised in the second proceedings are identical (Turner at 964) and this test is applied strictly. Therefore, the injury that established the claim for compensation in the WCCNSW proceedings has to be the same injury in respect of which the declarations are sought. 93 At [71]-[73] of his judgment, Staff J found the following: [71] The payments awarded by the WCC are only explicable on the basis that if Ms Davies was not hurt on duty, then she would have been denied any weekly compensation payments. It must follow, as was submitted by Mr Hatcher , that the respondent cannot deny the factual circumstances that may give rise to a right under the Award. [72] It is clear that the material relied upon, resulting in Ms Davies' medical discharge, was the same material that supported Ms Davies' application for workers' compensation payments. Each relied on the same psychological injury which occurred in January 2006 and which continued until Ms Davies was medically discharged. In respect of each application, reliance was placed on the reports of Dr Kohler and Dr Roberts. [73] Ms Davies' evidence, which was not the subject of cross-examination, was that the psychological injuries that led to her medical discharge from NSW Police, were the same psychological injuries that were the subject of a dispute in the WCC. 94 Dr T Kohler, Consultant Clinical Psychologist at HealthQuest, examined Ms Davies on 25 October 2006. Dr Kohler concluded that: Ms Davies was assessed to be suffering from symptoms consistent with a diagnosis of a Major Depressive Disorder. She was also assessed to be suffering from an Adjustment Disorder. At the HealthQuest assessment there was no substantial evidence of symptoms consistent with a Post Traumatic Stress Disorder although is noted that Dr Roberts has diagnosed this condition. It is also evident that due to temperament and a low level of psychological resilience that Ms Davies gradually became withdrawn and isolated over time during her employment in the Police Service. She is receiving ongoing treatment for her condition but it is unlikely that she will recover sufficiently to be able to return operational policing duties. 95 Dr Kohler recommended as follows: 1. Ms Davies was assessed to be permanently unfit for operational policing duties. 2. Her prognosis was assessed to be poor and it is unlikely that she will be able to return to her substantive duties in the foreseeable future. 3. Any contact with the Police Service is likely to exacerbate her condition and therefore she was assessed to be unfit for permanently modified or administrative duties. 4. A Fitness to Work Summary is attached. 96 It may be seen that Dr Kohler disagreed with Dr Roberts' diagnosis of post traumatic stress disorder, but agreed that Ms Davies suffered a Major Depressive Disorder and Adjustment Disorder. This may be contrasted with the injury claimed by Ms Davies in her Application to the WCCNSW: 'Post Traumatic Stress Disorder with Anxiety and Depression'. 97 It may be conceded that there is an overlap in the injury relied upon by Ms Davies in the WCCNSW proceedings and the injury diagnosed by Dr Kohler. Both refer to a depressive disorder. However, Dr Kohler did not accept a diagnosis of post traumatic stress disorder. The difficulty, therefore, is that we do not know what position the appellant took in relation to the nature of the compensable injury in the WCCNSW proceedings. 98 In Turner the Court of Appeal, in dismissing the appeal, held that the tribunal's reasons for finding that the plaintiff was unfairly dismissed were too obscure for it to be said that an identical issue was able to be determined. A similar position may be said to apply here where there is no evidence as to the view adopted by the appellant at the WCCNSW proceedings. 99 Staff J, however, relied on the evidence of Ms Davies to the effect that the psychological injuries that led to her medical discharge were the same psychological injuries that were the subject of the dispute in the WCCNSW. The psychological injuries that led to Ms Davies' medical discharge (as diagnosed by Dr Kohler) were 'Major Depressive Disorder' and 'Adjustment Disorder': see first instance decision at [25]. 100 His Honour was entitled to have regard to Ms Davies' evidence: see Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 563 per Higgins J; O'Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744 at 757-758 per Latham CJ. However, there is the discrepancy we described earlier between the claimed injury in the WCCNSW proceedings and the accepted injury that led to the appellant medically discharging Ms Davies, which contradicts Ms Davies' evidence. There is no evidence upon which we are able to reconcile the discrepancy. Whilst the claimed injury in the WCCNSW proceedings was 'Post Traumatic Stress Disorder with Anxiety and Depression' there is no expert evidence certifying that injury is synonymous with 'Major Depressive Disorder' and 'Adjustment Disorder'. Moreover, it is not open to assume that the depressive disorder common to the claimed injury and Dr Kohler's diagnosis caused the cessation of Ms Davies' employment, as opposed to post traumatic stress disorder. It was the latter injury upon which Ms Davies substantially relied. 101 We consider his Honour erred in relying on Ms Davies' evidence that the psychological injuries that led to her medical discharge were the same psychological injuries that were the subject of the dispute in the WCCNSW. The objective evidence does not support Ms Davies' position. 102 Furthermore, even if we were to accept that the injury in respect of which compensation was ordered in the WCCNSW proceedings was post traumatic stress disorder, an issue estoppel is only established as to the proposition that Ms Davies suffered a compensable injury and that injury was post traumatic stress disorder. The estoppel would not extend to the proposition that the injury led to the cessation of Ms Davies' employment. It was not determined by the consent order that Ms Davies' injury caused the cessation of her employment; it was not an issue 'legally indispensable' to the determination, that is, it was not a matter necessary to decide, that the injury caused the cessation of Ms Davies' employment. 103 Nor does the estoppel extend to the proposition that Ms Davies is entitled to an on duty partial and permanent disability payment pursuant to cl 9 of the Award. A determination that compensation is payable for an injury arising out of and in the course of employment, even though it is to be regarded as an on-duty injury for the purposes of the Award, says nothing about whether the injury gave rise to a partial and permanent disability as defined in the Award. Nor does the issue estoppel extend to the proposition that Ms Davies is entitled to an on duty partial and permanent disability payment pursuant to cl 9 of the Award by virtue of a failure to comply with mutual obligation requirements in cl 9. 104 It follows from what we have said there was not the requisite precise identity of issues. On the one hand, there was a determination under the Workers Compensation Act for a work related injury the nature of which is not known which gave foundation for a closed period claim for partial incapacity after the termination of Ms Davies' employment and on the other hand, a broader issue is for determination, namely: a claim there was an on duty injury in the nature of post traumatic stress disorder causing partial and permanent incapacity, which led to termination such as to establish an award entitlement for a lump sum payment. Staff J, therefore, erred in finding that an issue estoppel had been established which could support the declaratory relief sought by the respondent. Given this finding it is unnecessary to deal with the remaining grounds of appeal. Estoppel by convention 105 There was no ground of appeal in relation to Staff J's findings regarding estoppel by convention this is because his Honour said in that respect at [79]: [79] I therefore reject the respondent's submission on conventional estoppel and conclude that if it had been necessary, similar relief could have also been granted on this basis. In my view, an estoppel by convention was created ad hoc, expressly, by a course of dealing and conduct with the intention of affecting the legal relationship between Ms Davies and the respondent. 106 Moreover, the appellant made no submissions regarding this issue and the respondent only faintly so. Accordingly, we do not find it necessary to deal with the issue except to say that we do not consider there was an 'adoption by the parties of an assumption as the conventional basis of their relationship.' There was no proof of an assumption on the part of the appellant that the injury that was the subject of the WCCNSW proceedings was the same injury in respect of which the respondent contended should attract the benefits under the Award. ORDERS 107 The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision of Staff J given on 30 June 2010 in Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 and his Honour's declarations and orders made on 1 October 2010 are set aside save and except order (5) regarding costs. (4) No order as to the costs of the appeal. ___________________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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