Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 Hearing dates: 6 November 2015 Decision date: 18 August 2016 Before: Meagher JA at [1]; Leeming JA at [65]; Simpson JA at [66] Decision: 1. Grant the appellant leave to appeal from the orders of Deputy President O'Grady made on 16 April 2015. 2. Appeal dismissed. 3. In accordance with the agreement of the parties, no order as to costs. Catchwords: ESTOPPEL – issue estoppel by consent orders – where finding also made by consent that respondent had "fully recovered" from effects of any psychological injury – where subsequent claim for compensation for permanent impairment – where existence of asserted issue estoppel inconsistent with statutory scheme as to jurisdiction of Workers Compensation Commission – whether consent orders gave rise to issue estoppel for purposes of determining that there was any "medical dispute" as to permanent impairment and as to how such a dispute should be resolved WORKER'S COMPENSATION – claim to compensation for permanent impairment under s 66 of the Workers Compensation Act 1987 (NSW) – appeal from decision of Presidential member of Workers Compensation Commission remitting claim for medical assessment of degree of permanent impairment as a result of injury – whether findings in same or earlier proceedings between parties binding for purpose of determining claim for permanent impairment – operation of ss 293 and 321 of Workplace Injury Management and Workers Compensation Act 1998 (NSW) Legislation Cited: Accident Compensation Act 1985 (Vic) Courts Suppression and Non-publication Orders Act 2010 (NSW), s 8(1) Motor Accidents Compensation Act 1999 (NSW), Pt 3.4 Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 33, 60, 65, 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 74, 105, 234, 254, 287, 288, 289, 289A, 293, 294, 319, 321, 322, 323, 325, 326, 327, 329, 350, 352, 353, 355, 375 Workers Compensation Commission Rules 2011, r 15.9 Cases Cited: Administration of Papua and New Guinea v Daera Duba [1973] HCA 59; 130 CLR 353 Attorney General for Trinidad and Tobago v Eriché [1893] AC 518 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 Blair v Curran [1939] HCA 23; 62 CLR 464 Cachia v Isaacs (1985) 3 NSWLR 366 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 Egri v DRG Australia Ltd (1988) 19 NSWLR 600 Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 Griffiths v Davies [1943] 1 KB 618 Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19 Hoystead v Commissioner of Taxation [1926] AC 155 Isaacs v Ocean Accident and Guarantee Corporation Limited [1958] SR (NSW) 69 Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 Outram v Morewood (1803) 3 East 346; 102 ER 630 Peric v Lee and Ran t/as Pure and Delicious Healthy and Anor [2009] NSWWCCPD 47; (2009) 7 DDCR 215 Somodaj v Australian Iron and Steel Limited [1963] HCA 50; 109 CLR 285 Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33 WorkCover New South Wales v Evans [2009] NSWWCCPD 95; (2009) 7 DDCR 231 Texts Cited: Spencer Bower and Handley, Res Judicata (4th ed 2009 LexisNexis) Category: Principal judgment Parties: Trustees for the Roman Catholic Church for the Diocese of Bathurst (Applicant) Therese Dayle Hine (Respondent) Representation: Counsel: J Emmett with D G Saul (Applicant) M Daley (Respondent) Solicitors: Astridge & Murray Solicitors (Applicant) Phil Banister Pty Ltd Solicitors (Respondent) File Number(s): 2015/140964 Publication restriction: Nil Decision under appeal Court or tribunal: Workers Compensation Commission of New South Wales Citation: [2015] NSWWCCPD 25 Date of Decision: 16 April 2015 Before: Deputy President Kevin O'Grady File Number(s): A1-3812/14 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. MEAGHER JA: Introduction This is a concurrent hearing of an application for leave to appeal and, if leave is granted, an appeal from an interlocutory decision of Deputy President O'Grady (Deputy President) of the Workers Compensation Commission of New South Wales (the Commission): Q v Z [2015] NSWWCCPD 25. That right of appeal by leave is confined to points of law: Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act), s 353(1). The Deputy President's decision was made in an appeal from a decision of the Commission constituted by an Arbitrator and was brought under s 352(1) of the 1998 Act. The decision of the Arbitrator rejected the respondent's claim for damages for permanent impairment made under ss 66 and 67 of the Workers Compensation Act 1987 (NSW) (the 1987 Act). 1. The respondent had made earlier claims for weekly compensation and medical expenses. These had been resolved and a consent finding and orders made. The finding was that she had "fully recovered" from the effects of any psychological injury. She then made a claim for lump sum compensation in respect of the same injury. Section 65 of the 1987 Act provides that for the purposes of such a claim the degree of permanent impairment as a result of the injury is to be assessed by an approved medical specialist in accordance with Pt 7 of Ch 7 of the 1998 Act. The appellant employer contended that it had the benefit of an issue estoppel precluding the respondent from denying that she had fully recovered and maintaining that there was a dispute as to whether she was permanently impaired. 2. The Commission (Arbitrator Egan) upheld the appellant's contention. The Deputy President allowed the respondent's appeal and remitted her claim to the Registrar for referral to an approved medical specialist. He did so on the basis that the Arbitrator in the first proceedings did not have jurisdiction, even by consent, to make a finding that had the effect of determining between the parties a medical dispute concerning permanent impairment: [66]. 3. The names of the parties were anonymised in the title to the proceedings before the Deputy President. At the conclusion of oral argument in this Court the respondent's counsel applied for an order that those names continue to be anonymised. That application was governed by the Courts Suppression and Non-publication Orders Act 2010 (NSW) and such an order could only be made on one of the grounds specified in s 8(1). No argument was developed in support of the application of any particular ground and no evidence was relied upon as providing a basis for the Court being satisfied as to the application of any such ground. In the circumstances the Court is not satisfied that a suppression order should be made. Leave to appeal 1. Leave to appeal is required because the decision appealed from was interlocutory: 1998 Act, s 353(4)(a). That leave should be granted. One of the questions before the Court is the subject of conflicting decisions of Presidential members of the Commission. That question is whether findings and orders in the same or earlier proceedings can give rise to an issue estoppel for the purpose of determining a medical dispute concerning a claim to compensation for permanent impairment: see Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33; Peric v Lee and Ran t/as Pure and Delicious Healthy and Anor [2009] NSWWCCPD 47; (2009) 7 DDCR 215; WorkCover New South Wales v Evans [2009] NSWWCCPD 95; (2009) 7 DDCR 231; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (an appeal to this Court has been allowed but not with respect to this question: Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335) and Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19. The first three of these decisions were before this Court's judgment in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264. That judgment was treated in Jaffarie and Hassan (decisions followed by the Deputy President) as deciding that once liability has been determined, any dispute concerning permanent impairment must be assessed by an approved medical specialist in accordance with Pt 7 of Ch 7 of the 1998 Act and decided by the Commission in accordance with that assessment notwithstanding any earlier and contrary findings of the Commission. Background facts The determination of the respondent's claim for weekly compensation and medical expenses 1. The respondent was employed as a teacher in a school conducted by the appellant in country New South Wales. In October 2010 she completed an injury claim form (as required by s 254 of the 1998 Act) which alleged that she had suffered a psychological injury arising in the course of her employment. That notice claimed the date of the injury to be 18 May 2010. By its notice given under s 74 of the 1998 Act, the appellant's workers' compensation insurer disputed the claim that the psychological injury was work related and that the respondent was incapacitated by reason of that injury. That notice was accompanied by a medical report of a consultant forensic psychiatrist, which provisionally diagnosed the respondent as having a pre-existing psychological condition that could not have arisen or been aggravated by the circumstances and conditions of her employment. 2. On 15 November 2012, the respondent referred those disputed claims for weekly compensation and compensation for medical expenses to the Commission for determination under s 288 of the 1998 Act. That application was accompanied by a psychiatric report which responded to the insurer's earlier report and concluded that the respondent suffered from a work related major depressive disorder. The appellant's reply dated 6 December 2012 confirmed that the matters in dispute were as advised by its notice under s 74; namely whether the respondent had suffered from a work related psychological injury, whether her employment was a substantial contributing factor to that injury and whether she was entitled to weekly payments of compensation and to recover medical and other treatment expenses in respect of that injury. 3. The respondent's claims were the subject of a conciliation conference before Arbitrator Bell as provided by s 355 of the 1998 Act. That conference, held on 20 August 2013, resulted in the resolution of the respondent's claims for weekly benefits and medical expenses. 4. Rule 15.9 of the Workers Compensation Commission Rules 2011 provides that where 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". 5. Section 294 of the 1998 Act requires that if a dispute is determined by the Commission it must issue a certificate as to that determination. On 27 August 2013 the Commission issued such a certificate in accordance with orders agreed between the parties. That certificate provided: In this matter a conciliation conference was held on 20 August 2013 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 2011, the determination of the Commission in this matter is as follows: CONSENT FINDINGS 1. That since 14.08.13 the applicant has fully recovered from the effects of any work related psychological injury or condition. 2. Upon receipt of above compensation the applicant has received all her workers compensation entitlements. ORDERS BY CONSENT 1. Amend name of the respondent on alI documents as per the Reply. 2. That the respondent to pay weekly compensation as follows: a. From 12.09.11 to 31.12.12 at $350 per week pursuant to (previous) s.40 (old Act); b. From 01.01.13 to 14.08.13 at $350 per week pursuant to s.37 (2012 Act), agreed to total $35,000; otherwise and thereafter award in favour of the respondent in respect of all claims for weekly compensation. 3. That the respondent pay the applicant's s.60 of the Workers Compensation Act 1987 expenses to a maximum of $27,879.01 upon production of accounts, receipts or Medicare Notice of Charge. Otherwise and thereafter, award in favour of the respondent in respect of all s.60 claims and expenses. 4. That the respondent pay the applicant's costs as agreed or assessed. 5. I certify this matter as complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010; there is to be a 30 per cent increase to the costs applicable to both parties. 1. The appellant relies on consent orders 2 and 3 and the first of the consent findings as giving rise to an issue estoppel in its favour as to the fact that the respondent had fully recovered. That finding is said to make clear the basis on which the consent orders were made. It follows from that finding that after 14 August 2013 the respondent did not suffer from any permanent impairment as a result of any work related psychological injury. The respondent's permanent impairment claim 1. On 12 February 2014, the respondent made her claim for compensation for permanent impairment resulting from the same injury as had been the subject of those earlier claims. That claim was accompanied by a further report of a forensic psychiatrist which concluded that she suffered from a major depressive disorder; that her employment was a substantial contributing factor to the development of that illness; and that the degree of permanent impairment resulting from that injury was 24%. 2. The appellant's insurer disputed that claim, for the reasons set out in its s 74 notice dated 20 March 2014. Those reasons included: * You have no entitlement to compensation in respect of your injury, including compensation under section 66 and 67 of the Act, as you had fully recovered from the effects of the psychological injury sustained with the employer by 14 August 2013. * In previous Workers Compensation Commission proceedings in matter number 14403/12 instituted in respect of this injury, a Consent Finding was made that you had recovered from the effects of this injury by 14 August 2013, and you are now estopped (precluded) from denying that fact. 1. On 25 July 2014, the respondent referred that dispute for determination by the Commission. The injury from which the permanent impairment was said to have resulted was described as "Psychological injury – depressive disorder. Severe Adjustment Disorder sustained on 18 May 2010". The appellant's reply dated 25 August 2014 confirmed that the matter in dispute was as described in its s 74 notice referred to above. 2. At a hearing of that claim before Arbitrator Egan on 13 November 2014, the parties agreed that he should address and determine the issue whether "the [respondent] is estopped from bringing the claim for lump sum compensation by virtue of the consent findings in the earlier proceedings". That issue was then argued. In the course of argument the respondent's counsel raised the possibility that in the event the issue was answered adversely to her, an application might be made to the Commission under s 350(3) of the 1998 Act for re-consideration of its earlier determination (see [29] below). No such application was made. The decision of Arbitrator Egan 1. In his determination of 26 November 2014, Arbitrator Egan concluded that the appellant had the benefit of an issue estoppel and made an award for the employer. In doing so he addressed and rejected two further arguments of the respondent. As to her reliance on s 234 of the 1998 Act (which prevents interested parties from contracting out of the application of the Acts), he held that the issue estoppel was not founded on any agreement between the parties, but arose from the Commission's consent orders and findings. The Arbitrator also rejected the respondent's argument that the finding that she had "fully recovered" did not preclude her from contending that she had become permanently impaired as a result of the psychological injury at some point after August 2013 when the consent finding and orders were made. He did so because there was "no suggestion that the circumstances fundamental to the claim for lump sum compensation have changed". The decision of the Deputy President 1. The Deputy President concluded that applying s 65 of the 1987 Act (see [41] below) it was "not open for an Arbitrator, even by consent, to make a finding which by inference determines that no whole person impairment resulted from the injury suffered by the worker": [66]. He referred to Emmett JA's consideration of the application of that section in Bindah v Carter Holt at [112]: … It follows that the determination of the degree of permanent impairment that results from an injury is a matter wholly within the jurisdiction of the approved medical specialist or, on appeal, the Appeal Panel. It is not a matter for determination by an arbitrator. Thus, it would not have been open for the arbitrator who made the consent Determination to determine, even by consent, that any degree of permanent impairment resulted from an exacerbation of the pre-existing cataract condition. That is a matter wholly within the jurisdiction of an approved medical specialist or an Appeal Panel. 1. The Deputy President noted this statement was consistent with what was said by Handley AJA in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 at [19]: The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise. 1. The Deputy President also addressed, albeit shortly, the respondent's argument relying on s 234. When doing so at [68], he did not consider how the fact of any agreement between the parties affected the operation of the consent finding and orders and whether an issue estoppel arose: Having regard to my conclusion stated immediately above, it is not necessary to consider the further ground relied upon by the worker concerning s 234 of the 1998 Act. However it is appropriate to record my view that the worker's submission that there was no evidence before the original Arbitrator of "recovery" by the worker from the effects of the injury should be accepted. Contrary to the submissions put by the respondent's counsel recorded at T31, the evidence of Dr Roberts relied upon by the respondent did not support a conclusion that the worker had "recovered from the effects of any injury". Dr Roberts was of the view that the worker was suffering from a serious mental illness, but that such was not work related. In the circumstances it is the case that an attempt to reach an agreement which purported to provide for the worker's relinquishment of her rights is, in my opinion, defeated by operation of s 234 as argued by the worker: Ashenden v Stewarts and Lloyds (Australia) Limited [1972] 2 NSWLR 484 per Jacobs JA at 489 and Taylor AJA at 492 (where s 45 of the former Workers Compensation Act 1926 was considered by the Court). The issues in the appeal 1. There are two issues raised by the notice of appeal. The first is whether the appellant has the benefit of the claimed issue estoppel, by reason of the Commission's finding, so as to require the respondent's second claim be dismissed (grounds 1 and 3). That question turns on the Commission's jurisdiction to make a finding that was binding between the parties for the purpose of determining whether there was any medical dispute as to permanent impairment, and if so, as to how that dispute should be resolved. The second is whether the Deputy President's conclusion as to the application of s 234 was correct and, more relevantly, provided any basis for denying the efficacy of an issue estoppel that otherwise arose (ground 2). 2. There are two further arguments made by the respondent in support of the Deputy President's conclusion. Neither was dealt with by the Deputy President and neither is the subject of any notice of contention filed by the respondent. The first is that the finding on which the asserted estoppel was based was not legally indispensable to the making of the consent orders. The second is that because that finding relates to the respondent's medical condition, which is capable of changing over time, it did not give rise to an issue estoppel as to her condition after the date of the finding, and should not have led to the dismissal of the respondent's claim. Discussion Issue estoppel 1. The respondent relies on an issue estoppel with respect to a matter of fact. The difference between res judicata and issue estoppel was explained by Dixon J in Blair v Curran [1939] HCA 23; 62 CLR 464 at 532. 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." In Outram v Morewood (1803) 3 East 346 at 355; 102 ER 630 at 633, in a statement cited by Fullagar J in Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 at 466, Lord Ellenborough explained that an issue estoppel precludes the parties and their privies "from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them ... has been, on such issue joined, solemnly found against them". 2. These principles apply to judgments and orders made by consent: Isaacs v Ocean Accident and Guarantee Corporation Limited [1958] SR (NSW) 69 at 75 (Street CJ and Roper CJ in Eq); Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508. For the purpose of resolving any difficulty in identifying the questions or issues necessarily decided by a consent judgment or order, reference may be made to the terms of the judgment or order as well as to the pleadings or other material showing the issues that were raised and decided by the Court or Tribunal: Isaacs v Ocean Accident at 75; Jackson v Goldsmith at 467 (as to the position where there is a decision); and Spencer Bower and Handley, Res Judicata (4th ed 2009 LexisNexis) at para 2.17. 3. With respect to factual questions, the issue estoppel applies only to what are described as "ultimate" facts and does not extend to "mere evidentiary facts": per Fullagar J in Jackson v Goldsmith at 467. The distinction was also explained by Dixon J in Blair v Curran at 532: In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. … the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided on the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. ... But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. 1. An ultimate fact may be found by the Court or tribunal, or admitted or agreed between the parties for the purpose of determining the matter directly in issue: Hoystead v Commissioner of Taxation [1926] AC 155 at 165, 170. A tribunal having jurisdiction to decide finally 1. One necessary requirement for the application of the doctrine of issue estoppel is that "the judicial decision which is said to create the estoppel was final": per Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 cited with approval in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [21]. 2. It was not in contest that a final determination of the Commission constituted by an Arbitrator was capable of giving rise to an issue estoppel. In Kuligowski at [22] the Court described as "uncontroversial" the statement of Gibbs J in Administration of Papua and New Guinea v Daera Duba [1973] HCA 59; 130 CLR 353 at 453: The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: … 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. 1. Section 105 of the 1998 Act provides that subject to that Act, the Commission has "exclusive jurisdiction to examine, hear and determine all matters arising under" the 1998 Act and the 1987 Act. Those matters include disputes "in connection with" claims for compensation referred to the Commission for determination (ss 287, 288, 289, 289A of the 1998 Act), being claims for compensation payable on death, weekly compensation by way of income support, compensation for medical expenses, compensation for permanent impairment and compensation for property damage (Pt 3, Divs 1 to 5 of the 1987 Act). 2. Disputes in relation to these claims are dealt with by the Commission constituted by an Arbitrator (the 1998 Act, s 375(1)). With respect to the finality of the Commission's determination of such disputes, s 350 provides: 350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. 1. The 1998 Act provides for rights of appeal for error from a decision of an Arbitrator to the Commission constituted by a Presidential Member and from a decision of the Commission so constituted to this Court, on any point of law (ss 352, 353). 2. A "final" decision was described by the Court in Kuligowski at [25]: … [as] one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel". 1. In Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; 109 CLR 285 at 297-298, the majority (Kitto, Taylor and Menzies JJ) rejected an argument that a power to reconsider, in similar terms to that conferred by s 350(3) of the 1998 Act, made any less final a decision expressed to be final and binding, although subject to appeal or such reconsideration. A tribunal having jurisdiction to decide a matter conclusively and for all purposes 1. The finding which the appellant says the respondent is precluded from contesting in later proceedings in the Commission concerning her claim for permanent impairment is that she had fully recovered. The appellant contends that finding was as to an ultimate fact and made in the exercise of the Commission's jurisdiction to determine the respondent's disputed claims for weekly compensation and medical expenses. 2. However, as McHugh JA observed in Cachia v Isaacs (1985) 3 NSWLR 366 at 387 (in relation to an issue which was referred to in Kuligowski at [57] but not necessary to decide), not all final decisions of ultimate issues by subordinate tribunals are binding as issue estoppels. He continued: … When a subordinate tribunal is given jurisdiction to decide a particular class of matter, it has jurisdiction to decide not only that matter but all other matters necessary for the exercise of its jurisdiction. But the tribunal has no jurisdiction to determine conclusively, as between the parties, the correctness of the appendant matters. The appendant jurisdiction is collateral or incidental and raises no estoppel. 1. That is because, as Jordan CJ explained in Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 17, the issue estoppel extends to such matters as are necessarily determined only if the court or tribunal "has jurisdiction to determine these matters for all purposes between the parties, ie, jurisdiction to determine them directly and immediately as well as merely incidentally". Whereas that will ordinarily be the position in relation to a superior court, it is not necessarily so in relation to inferior courts or tribunals with limited jurisdiction. 2. Jordan CJ further explained the position at 19-20: … But in order that a judicial decision may involve an estoppel as to the matter decided, it is necessary that the tribunal should possess jurisdiction to decide the matter conclusively and for all purposes between the parties, and not merely incidentally and for a limited purpose. In the case of a superior Court, difficulties can seldom arise as to whether estoppel attaches to matters which have been expressly or impliedly decided for the purpose of the direct and immediate decision. This is by reason of the rule that "nothing shall be intended to be out of the jurisdiction of a superior Court, but that which specifically appears to be so"… . But difficulties do occur in the case of subordinate tribunals. Where these have been invested with a general, though limited jurisdiction, matters incidentally decided are res judicatae if they are comprised within the limits of the general jurisdiction of the tribunal: … Where, however, a special jurisdiction is conferred upon a subordinate tribunal to decide some one particular class of matter, the conferring of jurisdiction, although it authorises the tribunal to decide any other matters so far as may be necessary for the exercise of the jurisdiction so conferred, is not regarded as investing it with jurisdiction to decide those matters between the parties conclusively and for all purposes. Such matters are collateral to the matter as to which jurisdiction is conferred. … But unless an intention appears to confer jurisdiction to determine the collateral matters inter partes conclusively and for all purposes … a decision of the tribunal upon a collateral matter lying outside its special jurisdiction creates no estoppel, notwithstanding that the matter was raised and that it was necessary to form an opinion upon it for the purpose of deciding the matter in which the tribunal is invested with special jurisdiction. The reason is that no estoppel can arise from a decision by a tribunal of limited jurisdiction of a matter lying outside its jurisdiction. [Citations omitted] 1. The decision of the Privy Council in Attorney General for Trinidad and Tobago v Eriché [1893] AC 518 (which is cited by Jordan CJ and McHugh JA) provides an example. A stipendiary magistrate had jurisdiction to hear and determine a criminal prosecution for digging asphalt on Crown lands without a licence. However no estoppel could arise from the magistrate's determination that the land was or was not Crown land. Although that question was necessary to decide in order to convict or acquit, the magistrate was not a court having "concurrent or exclusive jurisdiction directly upon the point" (at 523). 2. Thus it is necessary to consider the purposes for which any quality of "finality" is ascribed to decisions of a statutory body such as the Commission; as was observed in Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at [40], "no greater ambit of finality should be attributed" to the decisions of such a body than the legislation marks out. In that case no issue estoppel arose because the relevant decisions were only final "for the purposes of determining any question or matter arising under or for the purposes" of the Accident Compensation Act 1985 (Vic): at [34] (emphasis omitted). Did the appellant have the benefit of an estoppel that entitled it to have the respondent's permanent impairment claim dismissed? 1. The respondent's position with respect to the question of the Commission's jurisdiction, although not closely argued by reference to the statements of principle referred to above, is that whilst its exclusive jurisdiction to determine her disputed claims to weekly compensation and medical expenses extended to making any findings necessary for it to do so, those findings could not bind the parties (or any medical assessor) with respect to the existence or resolution of a medical dispute as to permanent impairment. 2. Under s 66(1) of the 1987 Act a worker "who receives an injury that results in permanent impairment" is entitled to receive compensation calculated by reference to the degree of permanent impairment. 3. The jurisdiction of the Commission to determine a dispute in respect of such a claim is qualified by s 65 of that Act which provides: 65 Determination of degree of permanent impairment (1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division. (3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. 1. Part 7 of Ch 7 of the 1998 Act provides for the assessment of any "medical dispute". Section 319 defines a "medical dispute": medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable. 1. Paragraphs (c) to (g) describe matters, some overlapping, that have to be addressed in an assessment of the degree of permanent impairment resulting from a work related injury. Where there is a dispute about any of those matters (in the context of a claim for lump sum compensation) that dispute must be referred to an approved medical specialist (1987 Act, s 65). That specialist's assessment as certified in a medical certificate (1998 Act, s 325) is conclusively presumed to be correct as to those matters in any proceedings before the Commission "with which the certificate is concerned" (1998 Act, s 326). There is a right of appeal on limited grounds to an Appeal Panel against a medical assessment of those matters (s 327). In addition such a matter may be referred by the Registrar or the Commission for further assessment or reconsideration by an approved medical specialist (s 329). 2. Sections 293 and 321 of the 1998 Act provide for the referral of medical disputes for assessment under Pt 7. Where the dispute referred to the Commission under s 288 "concerns" the degree of permanent impairment, the Registrar "must refer that aspect of the dispute for assessment under Pt 7 and defer determination of the dispute by the Commission pending the outcome of that medical assessment" (s 293(2)). If there is a dispute concerning permanent impairment in a proceeding already before the Commission, it may not refer that dispute for assessment (s 321(3)). It would seem to follow, if the Commission is to act in accordance with s 65(1) of the 1987 Act, that such a matter must be remitted to the Registrar for referral of that medical dispute in the exercise of the power conferred by s 321(1). 3. However the Registrar's exercise of that power, and compliance with the direction in s 293(2), are subject to the limitation, expressed in the same terms, in ss 293(3)(a) and 321(4)(a) that the Registrar may not refer for assessment under Pt 7: (a) a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, … 1. A question arises as to what the expression "where liability is in issue" means. The respondent contends that the reference to "liability" is to a general liability to pay whatever form of compensation the worker is entitled to for a work related injury. That liability is determined in accordance with Pt 2 of the 1987 Act. For that liability to arise the worker must have suffered an "injury" to which the employment concerned was a substantial contributing factor (1987 Act, ss 4, 9, 9A). It is not, in the respondent's submission, a reference to a liability to pay compensation of a particular kind (within one or more of Pt 3, Divs 1 to 5 of the 1987 Act) or to pay such compensation in a particular amount. 2. That broad construction of "liability" was upheld by Emmett JA (Ward JA agreeing) in Bindah v Carter Holt at [111]: It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7. [emphasis in original] 1. Neither of the alternative constructions would be consistent with the scheme of the Acts insofar as it requires that any dispute concerning the degree of permanent impairment "that results from an injury" be assessed under Pt 7 of Ch 7. As Emmett JA observes that is a matter which must be established to found an entitlement to compensation under s 66(1). That "liability" is here used in this more general sense is confirmed by other matters to be assessed under Pt 7 which include whether any impairment is permanent and whether any permanent impairment is due to a previous injury or pre-existing condition, each a matter relevant to establishing an entitlement to compensation under ss 66 and 67 of the 1987 Act. 2. At this point it is necessary to consider the basis on which the appellant maintains that the asserted estoppel is an answer to the respondent's claim, so as to lead to its being dismissed. Ground 1 of its notice of appeal is that the Deputy President erred in failing to hold that such an estoppel arose by reason of the first consent finding with the result that: … the respondent is estopped from denying that she has fully recovered from the injury the subject of the claim or, in the alternative, from asserting that the injury has any ongoing effect. 1. By ground 3 it is said that in those circumstances the Deputy President erred in holding that the respondent's claim for lump sum compensation should be remitted to the Registrar for referral to an approved medical specialist. Underlying this ground is the proposition that the estoppel had the consequence, addressing the language of s 293 of the 1998 Act, that there was no "medical dispute" concerning "the degree of permanent impairment". If the position was otherwise the Registrar was required to refer the dispute for assessment under Pt 7. Accordingly, the appellant contended that the finding as to full recovery "effectively prevents any relevant dispute arising about the degree of permanent impairment". Once that finding was made the respondent "was estopped from asserting that there was a medical dispute in later proceedings" so that the issue estoppel "prevented" any medical dispute from arising. 2. This argument directs attention to whether within s 293 the "dispute" referred by the respondent for determination by the Commission under s 288 concerned or included a "medical dispute". Little attention was given to this question in the submissions of the parties. The appellant's case accepts that there was a dispute about the respondent's claim for compensation so as to engage the Commission's jurisdiction. However it necessarily maintains that by reason of the consent finding, that dispute did not include or concern whether the respondent was permanently impaired as a result of any work related injury. If, as the appellant contends, it has the benefit of an issue estoppel, but a medical dispute in relation to the claim for permanent impairment arose nonetheless, there is then a question as to whether the direction to the Registrar in s 293(2) (which is in accordance with s 65 of the 1987 Act) can be "overridden or defeated" by the estoppel. The answer to that question must be "no". The private law right constituted by the estoppel cannot prevent the operation of a statutory provision in such imperative terms: Chamberlain at 510; and Griffiths v Davies [1943] 1 KB 618 at 621. See also Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 at [46] (per Leeming JA, McColl and Gleeson JJA agreeing) which recognises the operation of similar medical assessment provisions in Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) as abrogating a common law issue estoppel "to the extent that it would otherwise preclude a medical assessor from performing the tasks imposed on him or her" by that Act. Accordingly, it is critical to the appellant's success in the appeal that the issue estoppel prevented a medical dispute from arising. Whether any issue estoppel arose? 1. The appellant's argument that the Commission had jurisdiction to make the finding as to full recovery "conclusively and for all purposes" is put in two ways. First, it is submitted that at the time the finding and orders were made there was no medical dispute relating to permanent impairment. That being so, the Commission's jurisdiction to make the finding was not then subject to any qualification because it was only required to refer such a question if there was a medical dispute. Secondly, the appellant submits that the Commission's jurisdiction to determine the weekly compensation and medical expense claims extended to deciding any ancillary or incidental matter which it was necessary to decide in the course of exercising that jurisdiction. Whether the respondent had fully recovered from the effects of her injury was such a matter and was within its "general though limited jurisdiction": cf Ex parte The Amalgamated Engineering Union at 19-20. 2. The jurisdiction conferred on the Commission by s 105 of the 1998 Act, subject to the exceptions in s 105(2) and (3), is to determine a limited class of matters. Those matters include disputed claims for compensation for permanent impairment. However where an aspect of any such dispute concerns the degree of permanent impairment resulting from an injury for which the employer is liable, the Commission is required to refer that medical dispute for assessment and must determine the disputed claim in accordance with that assessment. Its jurisdiction to determine that claim does not extend to making or acting on its own assessment or finding in relation to such a medical dispute. Nor does that jurisdiction permit it to rely on such an assessment or finding as determining whether there is a medical dispute to which Ch 7, Pt 7 of the 1998 Act applies. 3. The relevant finding was made in proceedings for the determination of disputed claims to weekly compensation and medical expenses. No claim for lump sum compensation was made. Had such a claim been made and had it involved a dispute as to the degree of permanent impairment, the Commission's jurisdiction did not permit it to determine that medical dispute by reference to its own findings; or that by reason of those findings there was no real or bona fide medical dispute. That was so irrespective of whether those findings were made in the course of determining the other claims, or in relation to the claim for lump sum compensation. In either case, if there was a medical dispute, it had to be referred for assessment, and decided by the Commission in accordance with that assessment. 4. Haroun v Rail Corporation involved a worker's claim for lump sum compensation. Before referring that claim for medical assessment, the Arbitrator made a number of findings by consent. They included that the effects of two work related injuries "continued to contribute to any impairment suffered" by the worker. The medical assessor considered, and the Appeal Panel agreed, that a degree of the permanent impairment suffered by the worker was the result of a previous injury or pre-existing condition, and not either of the work related injuries. The worker argued that the medical assessor was bound by the Arbitrator's earlier finding and that the Appeal Panel had erred in concluding otherwise. Handley AJA (McColl JA and McDougall J agreeing) rejected that argument, noting at [21]: Since the Arbitrator had no jurisdiction to decide the medical dispute he, referred [sic] had no jurisdiction to make findings which were binding on the AMS or the Appeal Panel. The finding of a person without jurisdiction cannot bind the person or persons with jurisdiction, and cannot even be persuasive. 1. The appellant's first argument does not address whether the Commission's jurisdiction extended to making the finding relied on for the purpose of determining whether there was a medical dispute and, if there was, how that dispute was to be resolved. Any finding of the Commission made in the earlier proceedings, or in the proceedings in which the lump sum compensation claim was made, could not bind the parties (or an assessor) in either of those respects. Whether a medical dispute existed was a jurisdictional fact depending on the true character of any dispute between the parties. If there was such a dispute concerning permanent impairment it was required to be resolved in accordance with a medical assessment under Pt 7. The appellant's second argument does not take the matter any further. Whilst the Commission has jurisdiction to decide collateral or incidental matters, that jurisdiction does not extend to deciding those matters for all purposes within that limited jurisdiction. For these reasons I agree with the Deputy President's conclusion that the issue estoppel contended for did not arise. Ground 1 should be rejected. Whether in the face of the asserted estoppel there could be no medical dispute 1. The 1998 Act provides by s 74(1) that if an insurer disputes liability in respect of a claim for compensation, or any aspect of such a claim, it must give notice of the dispute to the claimant. The appellant's response to the respondent's claim for lump sum compensation is set out in [13] above. It maintained that the respondent had fully recovered from the effects of any injury and that she was precluded from contending otherwise. 2. The issue estoppel relied on by the appellant could not deprive the dispute between the parties of its character as a medical dispute. The first of the reasons referred to in the insurer's s 74 notice describes the relevant issue as being whether the respondent had fully recovered from the effects of the psychological injury. That is plainly a medical question about which there was a dispute. The second reason given asserts that the estoppel is determinative of that dispute. The estoppel is not in substance or in terms directed to denying the existence of any underlying dispute, and does not prevent the medical dispute from arising. 3. For these reasons I also reject the appellant's argument that the asserted estoppel would have prevented there being a "medical dispute", which in accordance with s 293(2) was to be referred for assessment under Pt 7. Ground 3 also should be rejected. Remaining issues and arguments in the appeal 1. The Deputy President's reliance upon s 234 of the 1998 Act as providing a basis for setting aside the Arbitrator's award proceeded on a wrong premise and was misconceived. It was no part of the appellant's case that any agreement between the parties operated to prevent the respondent from contesting the consent findings or pressing her claim for lump sum compensation. The appellant's argument that there was an issue estoppel was founded on the consent orders and the consent finding as recording a matter necessarily decided by those orders. Ground 2 is made out but does not affect the outcome of the appeal. 2. The remaining arguments of the respondent are referred to in [21] above. In my view, neither would have provided a basis for supporting the Deputy President's decision if the appellant had been successful on grounds 1 and 3. The first is that the finding relied upon was not legally indispensable to the consent orders made by the Court. It is sufficient to address this argument by reference to order 2. A finding that the respondent had fully recovered from the effects of any psychological injury was capable of supporting the conclusion that she was no longer incapacitated so as to justify that order. Accordingly, the present case is not one in which the finding relied on could have formed no part of any reasoning process as to whether the worker was incapacitated as a result of the injury: cf Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 605 per McHugh JA. 3. The respondent's second argument was of no practical significance because it was not her case that there had been any relevant change in the circumstances applying at the time of the Arbitrator's award. Her argument was that the consent finding was not in accordance with the true facts, and not that the circumstances as to her impairment had changed between the date on which that finding was made and the time of the Arbitrator's determination of her second claim. Conclusion 1. For these reasons the appeal should be dismissed. The agreement between the parties, notified at the commencement of the hearing, is that there should be no order as to costs irrespective of the outcome of the appeal. 2. Accordingly the orders I propose are: 1. Grant the appellant leave to appeal from the orders of Deputy President O'Grady made on 16 April 2015. 2. Appeal dismissed. 3. In accordance with the agreement of the parties, no order as to costs. 1. LEEMING JA: I agree with Meagher JA. 2. SIMPSON JA: I agree with Meagher JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2016