--- Magistrate B. Wright MELBOURNE REASONS FOR DECISION ---

Transcription

1 IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE Revised Case No. B MILAN STANKOVIC Plaintiff v STEELFIELD VICTORIA PTY LTD Defendant --- MAGISTRATE Magistrate B. Wright WHERE HELD: MELBOURNE DATE OF HEARING: 28 February 2013 DATE OF DECISION: 21 March 2013 CASE MAY BE CITED AS: Stankovic v. Steelfield MEDIUM NEUTRAL CITATION: Catchwords: REASONS FOR DECISION --- Workers Compensation Rejection of Claim Application to Dismiss Complaint Alleged Anshun Estoppel Application Dismissed Accident Compensation Act s.104b --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr M Fleming SC Zaparas Lawyers For the Defendant Ms A Sheehan Hall and Wilcox

2 HIS HONOUR: 1 In the Amended Defence in these proceedings Steelfield has pleaded, inter alia, a special defence that Mr Stankovic is estopped from bringing the present action on the basis of an Anshun estoppel (see, Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). Effectively, this is an application to dismiss the complaint pursuant to Order of the Magistrates' Court General Civil Procedure Rules In those circumstances, I heard argument on this preliminary point on 28 February 2013 and received oral and written submissions from counsel for both parties. 3 The Anshun estoppel arises out of earlier proceedings between the parties in this court, in which then Magistrate Lauritsen had delivered a decision on 7 June 2010 ( the earlier proceedings ). 4 I will briefly summarise the background of the disputes between the parties as outlined in submissions and the transcript of the earlier proceedings. 5 Steelfield employed Mr Stankovic as a welder. On 27 March 2009 he lodged a claim form for low back, deafness in ears, both knees. He said injuries occurred throughout the course of the employment knees starting late 2005 early 2006, noticed hearing loss and pain in ears in 2001, 2002, and back started about 2003, 2004 and "has been getting worse". 6 At that stage the claim form stated he had "not yet" stopped work. As to witnesses he stated "Michael, a co-worker, on 17 October 2006 whilst I was bent over working hit with a hammer on steel bench on which I was working". On 19 March 2009 a medical certificate was obtained for "low back pain and deafness". Further, on 23 March 2009 a medical certificate was obtained for "low back pain, deafness and sore knees". 7 He apparently ceased work that day. The claim was rejected by Notice on 1 DECISION

3 about 20 April 2009, denying injury and incapacity. 8 On about 3 July 2009 the earlier proceedings were issued seeking workers' compensation benefits for "neck, back, knees, bilateral hearing loss, left ear deafness, anxiety, pain and distress". 9 The basis of the claim was set out on what could be called a constellation basis in the Statement of Claim. It pleaded, (a) gradual process under s.82(6), (b) nature of the employment including squatting and bending, (c) during the course of employment continual exposure to noise and (d) throughout the course of employment including a similar basis for the ears, back and knees set out in the claim form as well as the incident in "early to mid 2006" when the co-worker struck the bench leading to "experience shock and pain to his back, noise in ears". 10 The Prayer for Relief sought weekly payments from 13 March 2009 onwards together with reasonable medical and like expenses. Thus, the basis of the claim and parts of the body included in the Statement of Claim were much wider than set out in the initiating claim form. 11 The earlier proceedings were fixed for hearing on 19 April 2010 and started before then Magistrate Lauritsen. Ms MacTiernan appeared for Mr Stankovic and Mr Batten appeared for Steelfield. At the outset Ms MacTiernan applied to amend the Statement of Claim as per a draft dated 16 April This purported to add a further claim that the "manner in which the redundancy was handled was unreasonable" as a further basis for the injury being work related. 12 Thus, an attempt was being made to add a new basis for a new primary psychiatric injury, presumably the "anxiety" already set out in the particulars of injury in the original Statement of Claim, which apart from reference to "shock caused by the hammer on the steel bench episode" had no other basis. 2 DECISION

4 13 The magistrate raised an issue that this amendment really required an adjournment to at least allow the Defendant to look at the new claim and file an amended Notice of Defence. Mr Batten pointed out to the magistrate the obvious point that the new primary psychiatric injury had not been the subject of any formal claim form. Ms MacTiernan then stated the amendment would not be "handed up" as it "hadn't been properly pleaded". She agreed with the magistrate's statement that what she really wanted was to adjourn the proceedings, lodge a new claim and "go through the whole process". 14 The magistrate after hearing further argument refused the application for the adjournment, referring to the High Court decision in AON Risk v ANU 293 CLR 175. After the ruling Ms MacTiernan raised the further problems caused by Anshun v PMA in relation to the magistrate's early ruling and sought the magistrate "reconsider your decision", as to the adjournment. There was considerable further discussion then as to AON Risk v ANU. Reference was also made to the psychiatric reports in the case. 15 The magistrate pointed out to Ms MacTiernan, "You can withdraw the claim if I gave you leave and start again". Ms MacTiernan did not take up the invitation, if it indeed was such. His Honour then ruled on the "fresh application for adjournment". He pointed out that an Anshun estoppel "may very well be the case" in respect of any new claim. However, he said that on the medical material he had been referred to "there doesn't seem to be anything much there". Then later he stated, "it's the most tenuous of references" (see, p.36 of the transcript of that Decision) referring to the proposed new claim. 16 The magistrate again refused the adjournment. Ms MacTiernan stood the matter down to get instructions, and then after a short break said the case was proceeding. It then ran to a decision by the magistrate over the next few days. 17 On 7 June 2010, the magistrate handed down his decision in the earlier 3 DECISION

5 proceedings. In short, he dismissed the claim to weekly payments and for all reasonable medical and like expenses, except for those expenses relating to, "bilateral knee injuries". He made Orders in that regard. 18 Subsequently, Mr Stankovic then lodged a new claim form on 7 February 2011 for "psychiatric condition", due to a "number of incidents over a period of time" during employment by Steelfield. Those incidents were namely (1) three incidents when a co-worker banged the bench when he was cutting metal, (2) when someone banged on toilet door while he was there frightening him and as to which the employer failed to heed and investigate and or advise complaints had been investigated and (3) "Unreasonable method to make me redundant". The new claim was rejected by Steelfield and these proceedings were issued on 2 August The Statement of Claim in the present proceedings pleaded mental injury arising throughout the course of the employment over a period of time due to a number of incidents, including a co-worker banging the work bench as the plaintiff was welding metal causing the plaintiff great stress and anxiety, a coworker banging the work bench as plaintiff was cutting metal causing plaintiff great stress and anxiety, a co-worker banging on the toilet door while plaintiff was inside frightening the plaintiff, the employer failing to heed and or investigate plaintiff's complaints and finally unreasonable method to make him redundant. 20 In his opening before me, plaintiff's senior counsel stated Mr Stankovic would not be seeking, at least at this stage, further amendments to the Statement of Claim. In its Amended Defence Stanfield denies injury and incapacity and further raises ss.102 and 103 defences as to notice of injury and claim. It also pleads s.82(2a) and specifically raises the Anshun estoppel point in relation to the earlier proceedings. 21 Plaintiff's senior counsel summarised the present Statement of Claim as 4 DECISION

6 raising a primary psychiatric injury, distinguishable from the secondary psychiatric injury in the earlier proceedings, save possibly for the reference to shock in relation to one bench banging incident. In addition, he pointed out the different employment circumstances pleaded in each proceeding. Although there may have been some discussion of the employment circumstances raised in the earlier proceedings he submitted, and I agree, they did not form part of His Honour's stated reasons on the pleadings before him in the decision in the earlier proceedings. 22 Before I consider both counsels' submissions in this case there are three points I would like to make. Firstly, as this is effectively an application to dismiss the proceedings Steelfield has the burden of proof. To that extent Steelfield submits that the Anshun principle makes the present proceedings "an abuse of process". It is clear such a finding should be exercised with caution, and only in the most exceptional case. The onus is a heavy one (see, Habib v Radio 2UE Sydney Pty Ltd & Anor [2009] NSWCA.231 at para. 79). 23 Secondly, apart from s.104b(5a) and (5AA) relating to ss.98c/98e claims, there is no legislative provision in the Accident Compensation Act ( the Act ) enshrining Anshun estoppel in claims involving weekly payments and/or reasonable medical and like expenses. Thirdly, as plaintiff's senior counsel submitted, this may be an explanation for the real lack of decided workers' compensation cases in Australia invoking an Anshun estoppel. 24 Apart from O'Flaherty v HIH Winterthur Workers' Compensation (Vic.) Ltd [1999] VCC 19, a decision of His Honour Judge Anderson of the County Court, the only workers compensation other case involving Anshun estoppel referred to by either counsel was Salmon Street v Jorgensen [1991] 56 SASR 158, which was apparently an impairment claim. 25 In that case King CJ who delivered the main judgment stated:- 5 DECISION

7 "The application of these Anshun principles to claims under Workers' Compensation legislation presents difficulties. The rights to compensation under the Workers' Compensation legislation however, differ markedly in nature from the rights to damages for a wrongful act conferred by the common law and the means provided for enforcing claims for Workers' Compensation are also very different from the common law remedies". Nevertheless, that South Australian court still considered Anshun principles in allowing the later claim. 26 After argument finished, and while I was writing this decision, I found a decision that I had handed down as well on an alleged Anshun estoppel. In Ruacan v Nylex (delivered 2 February 2011), the main argument advanced by the defendant in that case was an issue estoppel/res judicata defence based on earlier settlements of impairment claims. However, a further argument advanced by the defendant was an Anshun estoppel in default of the other arguments succeeding (see, pp.8 and 9 of my published decision). 27 In that case, there was little argument advanced by either counsel on this point. The case involved earlier common law proceedings and later workers' compensation proceedings between the same parties. That decision is of limited assistance to either party in the present case. 28 Because of the negligence issue in the earlier common law proceedings, it was reasonable to surmise that not all the worker's injuries in his employment could be raised in the common law proceedings, as opposed to the later workers' compensation proceedings. 29 Counsel for the defendant in the present proceedings was heavily reliant on the O'Flaherty decision in her submissions in this case. Although I am not bound to follow His Honour's decision, I should have regard to that decision noting that this is the only Australian weekly payments and/or reasonable medical and like expenses workers' compensation claim known to have been 6 DECISION

8 decided on Anshun principles. 30 In the present proceedings Counsel for the defendant submitted that the particulars as to how the injury occurred had all been "considered" in the earlier proceedings save for the "unreasonable redundant" issue. However, Senior counsel for the plaintiff submitted that the only possible overlap related to one of the incidents in which a co-worker hit the bench with a hammer. I agree with him. 31 The magistrate in the earlier proceedings specifically did not deal with any primary psychiatric injury after the failed applications for adjournment. Although it was discussed in the adjournment applications and referred to in Dr Kornan's report, there was no formal consideration of that aspect in the eventual decision. There was some reference to it in passing in the magistrate's decision on p.21 of the decision.. 32 If those facts had been formally considered then arguably there would probably be issue estoppel/res judicata defence raised in the present proceedings as well. However, this is not alleged by the defendant for the obvious reason that there is no issue estoppel or res judicata. 33 Counsel for the defendant applied the four questions asked by Judge Anderson in the O'Flaherty decision. Firstly, she said the plaintiff could have raised the later cause of action in the earlier proceedings by withdrawing the earlier proceeding and starting again, or alternatively, have given much earlier notice of any proposed amendment including a new claim. 34 Secondly, the same or substantially the same facts arise for consideration in the present proceedings. She submitted it was the "same" claim for incapacity arising from the cessation of employment. The same, or very similar, medical evidence would be used in the present proceedings. 35 Third, she submitted that any order made in the present proceedings would 7 DECISION

9 conflict with the decision in the earlier proceedings. 36 Fourthly, in addition to the previous points I have referred to, she submitted that both proceedings dealt, or would deal substantially, with the plaintiff's credit. 37 Finally, she said the present proceedings amount to an abuse of process referring to dicta in AON Risk v. ANU at paras in that it is desirable there be finality of legal proceedings between parties. 38 Senior counsel for the plaintiff's main submission as to the O'Flaherty decision is that it is distinguishable from the present proceeding. In the O'Flaherty decision, the case concerned not a separate injury or manifestation of injury but an alternative basis for work relationship. However, the present proceedings concern a different injury attributable to different causes. 39 In his written submission, senior counsel set out a detailed history of the Anshun principles after the High Court s judgment, especially in Victoria. As he points out, a court should not take a superficial approach and simply look at whether the parties are the same and the cause of action similar. There may be a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding but may wish to litigate in a subsequent proceeding (see Bill Gibbs v Kinna [1998] VSCA 52 at para. 28). Further, a finding of an Anshun estoppel should not be made lightly. In the Bill Gibbs v. Kinna decision, Warren CJ stated: "The invocation of the Anshun principle is a serious step and a power which should not be exercised without a scrupulous examination of all the circumstances. It is to be applied only in the clearest of cases as it ends a litigant's right to have the merits of a claim adjudicated and may result in a serious injustice if it applied too readily (Solak v. Registrar of Titles [2011] VSCA279 (citing Primus Telecommunications [2008] FCA1027 at para. 5)" 40 Such an approach to the application of the Anshun principles by the Victorian Supreme Court can also be seen as recently as 2012 in Whelan Kartaway v. 8 DECISION

10 Donnely and Anor [2011] VSC 45 per Davies J. at par The risk of inconsistent judgments (as opposed to the possibility of inconsistent factual findings) is the most important factor going to the existence of the Anshun principle. (see, Bill Gibbs v Kinna at para. 25 and Solak at para. 74). 42 As noted by senior counsel, in Anshun the High Court (at p.604) referred to "conflicting judgments" as being enough if all judgments appear to declare rights which are inconsistent (in respect of the same transaction). Senior counsel submits in the present case that the present proceedings claim a different mental injury (that is primary injury as opposed to secondary injury) and occurring in mostly distinguishable factual circumstances from the earlier proceedings. The only possible overlap relates to the previous allegation of "shock" in relation to one of the alleged incidents involving a co-worker banging the workbench. 43 Further, on a similar basis it cannot be said that the same facts will arise for consideration in the second, as in the first, proceeding (see, Bill Gibbs v Kinna per Kenny AJ at para. 23). 44 Finally, he made submissions as to what he refers to as the "special sense of reasonableness" looking beyond the issue of whether there would likely to be conflicting judgments. Kenny AJ in Bill Gibbs v. Kinna at para. 28 and Davies J in Whelan Kartaway v. Donnely at para. 23 refer to such issues as including "The character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier and any other explanation for the failure to raise the claim previously". 45 In this regard, senior counsel makes three submissions. Firstly, the defendant carries the burden of proof of showing the "failure" to advance the cause of action in the present proceedings as being unreasonable. Secondly, the 9 DECISION

11 plaintiff sought to amend the earlier proceedings to add "unreasonable redundancy", which he said was refused on AON Risk v ANU principles. Thirdly, any unreasonableness goes to the timing of the proposed amendment rather than a failure to raise the issue at all. Fourthly, the decision to amend the proceedings was based upon a consideration, albeit a late one, how to best advance the plaintiff's decision to seek workers'' compensation "... in the context of multiple complaints by the plaintiff about the workplace, difficult medical evidence, and challenging issues of proof. 46 Overall, I agree with senior counsel's submission in this matter for the reasons he has outlined. I am not satisfied it was "unreasonable" for the plaintiff to have not included the matters in the present proceedings as part of the earlier proceedings. 47 I have already referred to some issues I have with the defendant's submissions. I note Counsel emphasises that some of the matters raised in the present proceedings were set out (to a limited extent) in Dr Kornan's medical report. This was the subject of much discussion in the applications for adjournment of the earlier proceedings. 48 However, that report is dated 26 March 2010, which is less than three weeks prior to the date of hearing of the earlier proceedings. In any event, plaintiff's then counsel applied to adjourn the matter twice on the date of hearing to allow the matters relating to a primary psychiatric injury to be included. This aspect is very important in this case. The plaintiff's advisors took active steps to include matters in the earlier proceedings now referred to present proceedings, unlike the facts in the O'Flaherty decision. 49 The defendant objected to that adjournment which was then refused on AON Risk v ANU principles. The defendant now submits that the present proceedings should be dismissed on an Anshun estoppel basis. Whether or not the magistrate in the earlier proceedings considered that there was any 10 DECISION

12 basis for the proposed new claim in the material put to him on the day is not to the point. Such primary psychiatric injury as pleaded in the present proceedings was not properly before the court at that stage. I agree with the plaintiff's senior counsel as to the defendant's other submissions in this application and need not take these matters any further. 50 Although I can understand Counsel s reliance upon the questions raised by Judge Anderson in the O'Flaherty decision, that case was different on the facts. Each case should be examined on its merits. 51 That is not to say that I do not see that the Anshun principle is irrelevant in workers' compensation cases. However, because of their very nature I believe courts should be more careful in workers' compensation matters in considering the dismissal of proceedings using Anshun principles. Workers' compensation cases are different to other civil cases and even common law personal injury cases. This may partly explain the lack of Anshun estoppel findings in workers' compensation cases in Australia. This was pointed out by King CJ in the Salmon Street v. Jorgensen decision (supra). 52 The Accident Compensation Act has detailed and relatively complex preliminary provisions as to notice of injury, claims for compensation, the requirement for "decisions" and the need for conciliation certificates before proceedings can be commenced. In addition, in workers' compensation cases there are often later and continuing developments such as changes in diagnosis, the development of consequential psychiatric and physical injuries and symptoms, further claims by workers and later further notices of decision by the Authority, authorised agents or self insurers. 53 The above factors may well be a reason why there no statutory Anshun type provision relating to weekly payments and reasonable medical and like expenses has ever been included in the Workers' Compensation Act or the Accident Compensation Act as opposed to s.104b dealing with s.98c and 11 DECISION

13 98E applications. 54 Of their very nature, s.98c/98e claims cannot be made until at least 12 months after the relevant injury or earlier if there is stabilisation (see s.104b(1) and (2)). Thus, the basis of any s98c/98e claims should be appreciated and understood by that time. 55 As I have already stated, the lack of any legislative Anshun type provision in the Act does not preclude its possible relevance to the present case. However, for the reasons I have set out, I do not accede to the defendant's arguments in this case. The application by the defendant to dismiss these proceedings is itself dismissed. 12 DECISION