Cook v Q-COMP [2009] QIRC 89 (2009) 190 QGIG 227

[Extract from Queensland Government Industrial Gazette, dated 20 March, 2009, Vol. 190, No. 11, pages 227-231] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Collin Charles Cook AND Q-COMP (WC/2008/77) COMMISSIONER FISHER 9 March 2009 Appeal against decision of Q-COMP - Preliminary matter for determination - Whether appellant suffered work-related injury - Estoppel issue - Findings of fact - Necessary to consider what was decided and effect in binding parties - No findings of fact made that appellant sustained a work-related injury - No issue estoppel - Appeal should proceed for hearing and determination. DECISION Collin Cook (the Appellant) has appealed against the decision of the Review Unit, Q-COMP confirming the decision of WorkCover Queensland (WorkCover) to reject his application for workers' compensation. Q-COMP found that Mr Cook had not suffered an injury that had arisen out of, or in the course of, his employment with Gehrke Grains and Transport Pty Ltd (Gehrke). Background Mr Cook made an application for compensation dated 8 November 2006 which was not received by WorkCover until 12 February 2007. In the application Mr Cook claimed that while employed by Gehrke on 18 July 2005 he had tripped backwards on a railway sleeper while washing a prime mover and sustained injuries to his left and right shoulders. By decision dated 19 April 2007 WorkCover notified Mr Cook that it had decided not to accept his application as it was lodged outside the period prescribed by s. 131 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). WorkCover also decided that Mr Cook had not sustained an injury within the meaning of s. 32(1) of the Act. Mr Cook lodged an application for review of WorkCover's decision with Q-COMP. By decision dated 19 September 2007 Q-COMP confirmed the decision of WorkCover to not accept the application insofar as the time period was concerned. Q-COMP did not, in that decision, also go on to determine the issue of whether Mr Cook had suffered an injury within the meaning of s. 32(1) of the Act. Mr Cook appealed the decision of Q-COMP to the Queensland Industrial Relations Commission (the Commission). By decision dated 10 April 2008 Linnane VP decided "to set aside the decision of Q-COMP dated 19 September 2007 and determine that the Appellant's application for compensation is made in accordance with s. 131 of the Act" (2008) 187 QGIG 220. The application for compensation was considered by WorkCover and by decision dated 4 June 2008 it decided not to accept Mr Cook's application on the basis that he did not sustain an injury within the meaning of s. 32(1) of the Act. Mr Cook sought a review of that decision with Q-COMP. By decision dated 15 August 2008 Q-COMP decided to confirm the decision of WorkCover, namely that Mr Cook's application for compensation is one for rejection. Q-COMP found there was insufficient evidence to prove that Mr Cook injured himself at work. It is against that decision of Q-COMP that Mr Cook has now appealed. Nature of present proceedings When the appeal came before the Commission for hearing, Ms Brook, who appeared for Mr Cook, raised a preliminary matter for determination. Ms Brook argued that in the decision of 10 April 2008 Linnane VP had found that Mr Cook had suffered a work-related injury and accordingly the decision should be regarded as a final decision binding on the parties in relation to the facts and issues. Mr McLeod appearing for Q-COMP rejected the submissions made on behalf of Mr Cook. As the preliminary issue had only been raised with him the day before the hearing he was unable to put complete submissions. Nonetheless he argued that the matter before Linnane VP could not be determinative of whether Mr Cook suffered a work-related injury as that was not the matter before the Commission at that time. After hearing from both Counsel the Commission advised the parties that it was not in a position to make an immediate decision about the matter given the issues that had been raised and that consideration would need to given to the Vice President's decision. Counsel agreed the best course of action was to make written submissions on the matter with 16 February 2008 being reserved for the purpose of addressing the written submissions if required. After reviewing the written submissions that had been filed neither party required the hearing date. In reaching my decision I have taken into account the oral submissions made on 21 November 2008, the written submissions made by the parties and have had regard to the decision of Linnane VP. -- 1 of 5 -- 2 Conclusions The Appellant submitted that the findings of Linnane VP created an issue estoppel because: "The decision of the Vice President involved a determination of certain facts and, in the Appellant's submission, the decision involved a finding that the Appellant had sustained a work-related injury on 18 July 2005, in the circumstances described by him.". The Appellant contended that the decision of the Linnane VP was final and conclusive of the merits and had the necessary quality of finality to prevent any attempt by the same parties to litigate any matters determined on the merits. Q-COMP argued that it follows from this submission of the Appellant that the decision of Linnane VP was a final decision, which is binding on the parties in the present appeal proceedings not only in so far as the decision itself is concerned but also in relation to the findings of fact made by Linnane VP. Q-COMP rejected that position arguing firstly that Linnane VP was aware of the issue she had to determine and secondly, in making that determination she did not make any binding findings of fact. In Castillon v P&O Ports Ltd [2007] QCA 364 (the Castillon Case) Homes JA, with whom White JA agreed, said that the seminal statement of the law relating to issue estoppel is that made by Dixon J in Blair v Curran (1939) 62 CLR 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 conmmanded 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." at 531-532. Q-COMP referred to a decision of Gleeson CJ, with whom Kirby P and Rolfe AJA agreed, where it was said that: "Only a decision about a matter which it was necessary to decide can create an issue estoppel. It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide." Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. Whether issue estoppel is available in interlocutory proceedings was also a matter considered by Holmes JA in the Castillon Case. She said that: "The fact that a determination is made in the course of interlocutory proceedings is not conclusive of whether it may give rise to an issue estoppel." at 18. Holmes JA reviewed decisions dealing with this question starting with Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 and referred to the speech by Lord Guest where the following requirements of issue estoppel were identified: "(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final, and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." at 935. Holmes JA went on to note that the above formulation was adopted by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at 373. After reviewing the evolution of case law on the subject Holmes JA said that in considering whether issue estoppel applies "it is necessary to consider precisely what was decided and its actual effect in binding the parties" at 21. I have approached my decision as to whether the same question has been decided and the judicial decision which is said to create the estoppel was final by distilling the principles from the above cited cases as follows:  What was Linnane VP required to decide?;  What precisely was decided?; and  The actual effect of the decision in binding the parties. -- 2 of 5 -- 3 In relation to the third issue identified by Lord Guest there is no issue that the parties to the judicial decision are the same parties in which the estoppel is raised. I now turn to a consideration of each of these matters. What was Linnane VP required to decide? Q-COMP contended that Linnane VP was cognisant of the nature of the matter before her as she said in paragraph [4] of her decision: "The issue for determination then is whether the Appellant's failure to lodge his application within six months after the entitlement for compensation arose was due to mistake or a reasonable cause.". In my view this statement makes clear that Linnane VP was aware of the nature of the appeal that was before her and the nature of the determination that was required to be made. Paragraph [44] concludes that the Appellant had reasonable cause not to lodge his application within the legislative timeframe and paragraph [45] sets out the determination ultimately made, i.e., to set aside the decision of Q-COMP and determine that the "Appellant's application for compensation is made in accordance with s. 131 of the Act.". Further, as pointed out by Q-COMP in its written submissions an exchange between Linnane VP and Counsel for the Appellant on transcript highlights that they were in agreement that the issue to be determined on appeal was whether there were grounds to waive the statutory time period for filing. Counsel for the Appellant made it clear that the issue of whether Mr Cook had sustained an injury had not been resolved and was not a matter about which she intended to call evidence that day. What precisely was decided? In considering precisely what was decided it is necessary to have regard to some of the paragraphs in the decision of Linnane VP which, the Appellant contended, show that findings of fact were made that he had suffered an injury at work. Paragraph [42] sets out the matters Linnane VP determined the Appellant had established. What is set out below is a summary provided by the Appellant which I accept:  the Appellant informed Mr Gehrke on the morning of the incident that he had injured himself falling over a sleeper at work;  Mrs Tetzlaff did, within the 6 month period, tell the Appellant to claim reimbursement of his medical expenses from Medicare as his name was not on the computer. This the Appellant understood to mean that he was not an employee of the employer;  that the advice given by Mrs Tetzlaff was misleading; and  when the Appellant returned to work in December 2005 (which was within the relevant 6 month period) that he was told by Mr Tetzlaff, a Director of the employer company, not to make a claim and that the Appellant felt threatened and intimidated by him as a result of an earlier conversation he had with Mr Tetzlaff wherein he was told that Mr Tetzlaff had a shot gun. The Appellant then referred to paragraph [13] of the decision where the following is said: "It is doubtful, when Mrs Tetzlaff was unaware of the Appellant suffering a work-related injury, that she would recall the events of 18 July 2005 to the same extent that the Appellant would recall given that he had suffered an injury on that day.". It was then submitted that Linnane VP found the Appellant had sustained the injury of which he had complained. Q-COMP said that in making the decision to set aside the decision of Q-COMP and determining that the application was made in accordance with the Act, Linnane VP did not make any other decision. For issue estoppel to apply the issue that arises in the present appeal must be the same as that which arose before Linnane VP. Q-COMP submitted that the issues were different. There is some overlap between the first two principles referred to above. It has already been established that Linnane VP was cognisant that the issue she was required to decide was whether the failure to lodge the application within the statutory time limit was due to mistake or reasonable cause. Having found that reasonable cause had been established Linnane VP exercised the discretion available under s. 131(5) of the Act to decide that the application was made in accordance with s. 131 of the Act. In saying that Linnane VP exercised her discretion the Commission notes the contention of the Appellant that the decision did not involve an exercise of discretion to determine whether the Appellant should be permitted to commence proceedings out of time. Q-COMP said that such a submission is misconceived because s. 131(5) of the Act uses the term "may" in relation to waiving statutory requirements. The position of Q-COMP is correct as Hall P in ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125 found that subsection (5) provides a discretionary power to waive the time -- 3 of 5 -- 4 limit provided in the earlier subsection. [The Commission notes that while the decision of Hall P was given in relation to an earlier version of the Act which had different section numbers, the provisions of the relevant subsections have not altered]. In determining whether the application was valid and enforceable in accordance with s. 131 of the Act it was necessary for Linnane VP to examine the circumstances leading up to the claim. This required consideration of the events of the day when Mr Cook said he sustained the injury at work and who said what to whom both that day and subsequently. In the circumstances of this case all of that was necessary for Linnane VP to arrive at a conclusion about whether reasonable cause existed and whether the statutory time limit should be waived. Having read the decision of Linnane VP I am not satisfied that she made the findings of fact as contended for by the Appellant, that is, that she determined that Mr Cook sustained a work-related injury. Although paragraph [42] states that the Appellant established he had informed Mr Gehrke that he had injured himself by falling over a sleeper at work there is nothing in that statement which shows a conclusion by the Vice President that she accepted that the injury was sustained as claimed. All the statement does is show that she accepted that Mr Cook had told Mr Gehrke something. The Appellant also claimed that at paragraph [13] Linnane VP expressly makes reference to the Appellant having sustained the injury. At first blush the implication that a specific finding was made is apparent. However, after looking at this statement in context I believe its intent is to distinguish between the level of recall about a particular day between a person who said they had suffered an injury and a person to whom that information was related. It does not make a positive finding that Mr Cook suffered an injury. Further, when the statement is considered in the context of the whole decision it is clear that Linnane VP was at pains to distinguish between evidence that had been given and that which she accepted. For example, in a number of paragraphs Linnane VP writes that "the Appellant says" or "the Appellant's evidence is". Even though Linnane VP also said that she accepted particular parts of the Appellant's evidence no positive finding of fact is found anywhere in the decision that the Appellant suffered a work-related injury. In fact no such finding could be made as it was not a matter before her. It had not been determined in the review decision of Q-COMP. The actual effect of the decision in binding the parties The Appellant contended that the finding that the Appellant had reasonable cause to justify the late lodgement of the claim for compensation had the necessary final and binding quality which, by its very nature, was final. Although acknowledging the practical effect of the decision was to enable the Appellant to proceed further with his application, in the submission of the Appellant, this does not detract from the fact that it was the legal effect of the decision to determine finally the rights as between the parties in the relation to the Appellant's application for compensation. This submission was rejected by Q-COMP. The submission could not be correct as Linnane VP could not make a final decision as the matter was not before her. The effect of the decision made by Linnane VP was that the application for compensation made by Mr Cook was valid and enforceable under s. 131 of the Act. It was this decision that was binding on the parties. The effect of the decision caused WorkCover to re-examine Mr Cook's application. Subsequently, on application, Q-COMP reviewed WorkCover's decision to reject the application. Q-COMP had not previously determined the issue of whether Mr Cook had suffered an injury within the meaning of s. 32(1) of the Act. It decided to reject the application on the grounds there was insufficient evidence to prove that Mr Cook injured himself at work. It is against this decision that the present appeal has been made. Clearly, when the decision of Linnane VP had the effect of causing a determination on Mr Cook's application for compensation to be made her decision could not be a final decision on the matter. Linnane VP made no findings of fact about whether Mr Cook sustained a work-related injury and could not do so because it was not the subject of the appeal she was determining. Moreover, Q-COMP did not lead certain evidence before the Vice President, eg, medical evidence or provide certain other material because that was not required having regard to the nature of the matter she had to determine. However, such evidence would be necessary in the present appeal. Because Linnane VP did not have before her medical evidence about the injury and other seemingly relevant documentary evidence she was clearly not in a position to make a final decision about whether Mr Cook has suffered an injury within the meaning of s. 32(1) of the Act. All Linnane VP did and was required to do was to consider whether Mr Cook's failure to lodge an application for workers' compensation within the legislative timeframe was due to mistake or reasonable cause and whether to exercise a discretion available under the Act. I accept the submissions of Q-COMP that this matter can be distinguished from the Castillon Case which the Appellant relied on to support its contention that the decision was final and determinative of all rights between himself and the respondent. In the Castillon Case the applicant failed the threshold test set out in s. 31(2) of the Limitations of Actions -- 4 of 5 -- 5 Act 1974 because the Court found that the applicant had all the material facts of a decisive character related to his right of action within his knowledge by the critical date. I now return to the questions posed earlier in this decision as to whether the same question has been decided and the judicial decision which is said to create the estoppel was final. From the above reasons I am satisfied that the issue before Linnane VP is quite different to the issue agitated in this appeal. The first appeal dealt with the time for applying (s. 131 of the Act) whereas this appeal deals with whether Mr Cook has suffered an injury within the meaning of s. 32(1) of the Act. The matters are not inter-related and the determination of the first could not, for reasons already given, be determinative of the second. In addition, the decision made by Linnane VP was not final as to all of the issues between the parties. They are separate and distinct. Linnane VP did not make any findings of fact that Mr Cook sustained an injury within the meaning of s. 32(1) of the Act. Accordingly, no issue estoppel arises and the appeal should proceed for hearing and determination. My Associate will contact the parties. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2008 21 November 2008 31 December - Appellant's submissions 2009 6 February - Respondent's submissions Released: 9 March 2009 Appearances: Ms A.L. Brook, Counsel instructed by Jon Kent Lawyers for the Appellant. Mr S. McLeod, Counsel instructed by Q-COMP for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 5 of 5 --