Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25
The incursion of alcohol fuelled violence remains an unfortunate fixture of modern society despite reform in legislation and social protest. This case tells the story of one of many collateral victims of such violence whom, in the course of their everyday employment, often remain unseen. From this landscape of misfortune springs lessons in estoppel for decision makers.
In short, falling from this judgment are two principles of guidance for decision makers. First, that where issues of estoppel are sought to be raised, pleadings and submissions should be made clearly and separately. Second, decision makers should, even in the absence of clear pleadings and submissions, seek to address those issues with distinction and totality.
In Fourmeninapub Pty Ltd v Booth (2019) NSWWCCPD 25, a worker employed as a bar attendant in a pub witnessed two violent fights between patrons, one in which she tried to intervene. In doing so, she had the misfortune of receiving a splattering of blood and became troubled at the possibility of contracting a blood borne disease. She was diagnosed with Post Traumatic Stress Disorder and, later, Bipolar Disorder. Subsequently, a series of claims were made and determined by the Workers Compensation Commission.
Judge Phillips, sitting on appeal as President of the Workers Compensation Commission, considered the principles of issue estoppel, the doctrine of res judicata and Anshun estoppel in determining whether a claim for compensation under section 4(b)(ii) of the Workers Compensation Act 1987 (NSW) (the “1987 Act”) was barred by virtue of the determination of an earlier claim brought by the worker pursuant to section 4(a) of the 1987 Act. His Honour also addressed the question of whether there can be a disease injury pursuant to section 4(b)(ii) in the absence of there being a disease to be aggravated. Additionally, the matter raised the jurisdictional question of whether the Commission can enter an award for costs pursuant to section 341 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).
In allowing the appeal, his Honour overturned the decision of the Arbitrator on the disease injury ground (without issue of principle) and found that the worker was not estopped from bringing her claim on the basis of issue or Anshun estoppel. His Honour also determined that the Commission had no jurisdiction in the proceedings to make a costs order. In coming to this decision, his Honour noted that the appellant conflated the principles of issue estoppel and the doctrine of res judicata and, importantly, that the Arbitrator did not properly address issue estoppel.
In relation to the first principle of guidance, Judge Phillips helpfully summarised the principles of issue estoppel as well as distinguishing those from the doctrine of res judicata at [90]-[92]:
“Issue estoppel may arise as a consequence of a state or fact of law being determined, which would prevent a party from bringing, or defending, a claim in relation to a different benefit…The doctrine of res judicata provides that a cause of action which has been determined by a court of competent jurisdiction or by a tribunal may not be re-litigated.”
In making this distinction, His Honour observed the remarks of the High Court in Blair v Curran [1939] HCA 23 at [532]:
“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 of law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
His Honour also set out a simple summary of the rationale for the use of Anshun estoppel which is helpful guidance for the determination of matters that bring this into issue:
“It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so.” [at 130]
In relation to the second ground of guidance, the importance for decision makers of dealing with claims in estoppel separately and in sufficient detail, his Honour’s finding of error at [97] below are instructive. It ought be noted that his Honour observed that this error was born out of confusion stemming from the pleadings in which issue estoppel, the doctrine of res judicata and Anshun estoppel were pleaded together in a general sense.
“Arbitrator Edwards makes several references to the terms “issue estoppel”, “res judicata” and “Anshun estoppel” during the arbitration proceeding, suggesting that he intended to deal with those principles separately. Arbitrator Edwards determined the application of the doctrine of res judicata and Anshun estoppel separately in his decision, but failed to determine the application of issue estoppel. Having said that, the submissions before Arbitrator Edwards on the principle of issue estoppel were not fully articulated or developed. While it is not an error for an Arbitrator not to deal with an argument never properly articulated, to the extent that Arbitrator Edwards failed to determine the application of the principle of issue estoppel on the basis of the submissions before him it was a constructive failure to give reasons.”
By way of summary, particularity and detail are characteristics of the law, its application and practice often attracting criticism when used to excess. This case confirms that sometimes, such particularity is necessary in both pleadings and decisions.
