Owen v Finden[2017] QSC 248

SUPREME COURT OF QUEENSLAND

1. The plaintiff, Stephen John Owen, suffered personal injuries as a result of a motor vehicle collision on 6 December 2012.  He was travelling home from work.  His Mitsubishi was rear-ended by a Holden.  AAI Limited (the applicant) was the compulsory third party insurer for the Holden.
2. In mid-December 2012 the plaintiff suffered an episode of atrial fibrillation.  He had another such episode on 3 February 2013.  In the early hours of 4 February 2013 he was taken by ambulance to the Logan Hospital.  Metro South Hospital and Health Service (Metro South) is the employer of persons providing health services at the Logan Hospital. 
3. A blood clot formed as a result of the atrial fibrillation.  Part of the blood clot travelled to the plaintiff’s kidney causing damage to his kidney.  Another part of the blood clot travelled to the plaintiff’s bowel and blocked blood supply.  The plaintiff suffered a complete loss of his small bowel and a one-third loss of his large bowel.
4. The plaintiff commenced an action (12257/2015) in this Court seeking damages from the driver of the Holden for negligence and from the applicant by operation of s 52 of the Motor Accident Insurance Act 1994 (Qld).  In paragraphs 7, 8, 9(d) to 9(g) of the plaintiff’s amended statement of claim he alleges that he suffered the two episodes of atrial fibrillation (and the relevant consequences) as a result of the motor vehicle collision.
5. The plaintiff also commenced an action (11254/2016) against Metro South alleging negligence and breach of an implied contractual term in relation to his medical treatment at the Logan Hospital.
6. Metro South has issued a third party notice against the driver of the Holden and the applicant.  In its third party statement of claim Metro South alleges that if it is found liable to the plaintiff, it is entitled to an indemnity and/or contribution from the applicant as a joint tortfeasor pursuant to s 6 of the Law Reform Act 1995 (Qld).  The basis of this third party claim is that the motor vehicle collision caused and/or contributed to the development of the plaintiff’s atrial fibrillation.
7. The applicant brings two applications.  In 12257/2015 the applicant seeks to have paragraphs 7, 8, 9(d) and 9(g) of the amended statement of claim struck out or alternatively the claims raised by those paragraphs permanently stayed as an abuse of process.  In 11254/2016 the applicant seeks to have Metro South’s third party notice and statement of claim struck out or alternatively stayed also as an abuse of process.
8. The abuse of process is said to arise from a finding, made by the Queensland Industrial Relations Commission (QIRC) in a decision published on 16 January 2015, that the plaintiff’s atrial fibrillation was not attributable to the motor vehicle collision.^[1]  The applicant asserts that this issue, having been determined by the QIRC, cannot be re-litigated by the plaintiff and Metro South in the current proceedings.  The issue for determination, as identified by the applicant, is whether the litigation by the plaintiff and Metro South of the issue that the plaintiff developed atrial fibrillation as a result of the motor vehicle collision on 6 December 2012 is an abuse of process and should be stayed.^[2]
9. Neither Metro South nor the applicant were parties to the QIRC proceedings unlike the plaintiff.  Accordingly, the outcome of the application in respect of Metro South ought not be co-extensive with any successful application concerning the plaintiff in proceedings 12257/2015.^[3]  The issue of whether the plaintiff’s proceedings or Metro South’s third party proceedings constitute an abuse of process should therefore be considered separately.

Abuse of Process

10. By these applications the applicant seeks the summary dismissal of a significant portion of the plaintiff’s claim as well as the summary dismissal of Metro South’s third party proceedings.  In McGlone v Suncorp-Metway Ltd^[4] I considered the relevant principles for an applicant seeking summary dismissal on the basis of abuse of process.  The applicant carries the onus of satisfying the Court that there is an abuse of process.  This onus has been described as “a heavy one”.^[5]  The power to summarily terminate proceedings as an abuse of process must always be attended with caution.^[6]
11. In Batistatos v Roads and  Traffic Authority of New South Wales^[7] the plurality referred to the three categories of abuse of process identified by McHugh J in Rogers v The Queen:^[8]

“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

1.  the court’s procedures are invoked for an illegitimate purpose;

2.  the use of the court’s procedures is unjustifiably oppressive to one of the parties; or

3.  the use of the court’s procedures would bring the administration of justice into disrepute.”

12. The applicant primarily relies on the third category of abuse recognised by McHugh J submitting that both the plaintiff’s claim in respect of the impugned paragraphs of the amended statement of claim and the whole of the third party proceedings are an abuse of process on the ground that they involve a use of the Court’s procedure that would bring the administration of justice into disrepute.
13. Abuse of process was considered by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd.^[9]  The plurality stated:

“Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel.  Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.  Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, not the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.”

14. The question in Tomlinson was whether the claiming by the Fair Work Ombudsman and the making by a Court of declarations and orders in civil penalty proceedings created an issue estoppel on which a respondent to that proceeding was entitled to rely in a subsequent common law proceeding brought against it by a worker.  French CJ, Bell, Gageler and Keane JJ determined that the resolution of the question was that the claiming and the making of the declarations and orders created no issue estoppel, for want of sufficient connection in interest between the Fair Work Ombudsman and the worker.^[10]
15. In Tomlinson the plurality referred with apparent approval to the decision of the New South Wales Court of Appeal in O'Shane v Harbour Radio Pty Ltd^[11] where Beazley P (with whom McColl JA and Tobias AJA agreed) stated:

“As the discussion of the authorities demonstrates, proceedings, or an aspect of proceedings, may be found to be an abuse of process if the matter complained of will bring the administration of justice into disrepute. There is a suggestion in O'Halloran that, where it is alleged that an issue has been decided in earlier proceedings, then, in order for there to be an abuse of process, at least one party to the earlier proceedings must be a party to the subsequent proceedings that are said to constitute the abuse, and that party must have failed on the issue that is sought to be relitigated. However, the authorities are also clear that the categories of abuse are not closed and the circumstances here are, at the least, unusual, if not unique.

The authorities also recognise that the same issue may be litigated in different proceedings, even though there has been a determination on that issue in earlier proceedings. This will occur, for example, where both civil and criminal proceedings are brought in respect of the same conduct. It will also occur where some regulatory action has been taken against an individual and civil proceedings are also brought. In those proceedings, the prosecuting party will rarely be a party in both sets of litigation. Different standards of proof apply and there may be different onuses. The evidence may not be the same. It could not be said in those circumstances that there would be an affront to the due administration of justice if an issue determined in a civil proceeding also arises for determination in criminal proceedings involving a person who was a party to the civil proceedings.”

16. Abuse of process in the context of re-litigation was also discussed in Habib v Radio 2UE Sydney Pty Ltd.^[12]  One of the issues in that appeal was whether the appellant was seeking, by changing the form of the proceedings, to re-litigate the same case in District Court proceedings on which he had failed in Supreme Court proceedings.  The New South Wales Court of Appeal determined that the primary judge erred in concluding that the appellant was seeking to re-litigate “the same question” or the “same case” on which he had failed in the Supreme Court proceedings in the sense required to establish Anshun or Reichel estoppel.  The issue whether the respondents were liable as publisher of the radio broadcast for either the original or the additional imputations had never been “fully litigated”, “properly argued” or “lost”.  Accordingly, an outcome favourable to the appellant would not lead to the existence of contradictory judgments.^[13] McColl JA (with whom Giles and Campbell JJA agreed) stated:^[14]

“There can be an abuse of process where, even though a plea of res judicata, cause of action or issue estoppel is not available ‘if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again …’ … It may be a form of Anshun estoppel, the underlying premise being that success on the reformulated case would contradict the outcome, or determination of an issue, in earlier proceedings.”

17. Her Honour continued:

“Because both Anshun estoppel, and its ‘relative’, Reichel estoppel turn, in part, upon determining whether the issues in subsequent proceedings are the same as, identical to, or substantially so to those determined in earlier proceedings, it is useful to consider Kuligowski.  That case illustrates the necessity to approach with precision the identification of the ‘same question’, albeit in that case for the purposes of a plea of issue estoppel.  However it could not be the case that a lesser standard would apply when comparing the issues raised and/or decided in earlier proceedings with those raised for determination in subsequent proceedings for the purpose of considering either an Anshun estoppel or Reichel abuse case.”^[15]

18. In Rippon v Chilcotin Pty Ltd,^[16] the New South Wales Court of Appeal quoted with approval the following passage in the judgment of Giles CJ Comm D in State Bank of New South Wales Ltd v Stenhouse Ltd.^[17]  This was a case involving an abuse of process in seeking to re-litigate an issue:

“… The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are ––

1. the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;

2. the opportunity available and taken to fully litigate the issue;

3. the terms and finality of the finding as to the issue;

4. the identity between the relevant issues in the two proceedings;

5. any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …

6. the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

7. an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”

19. In Rogers v Roche & Ors^[18] Fraser JA (with whom Gotterson JA and Burns J agreed) observed:

“Blue J (with whose reasons Kourakis CJ and Sulan J agreed) held in Morgan v WorkCover Corporation^[19] that the mere fact that a person against whom a re-litigation abuse of process is alleged was a party in two sets of proceedings and seeks to litigate an issue decided in the earlier proceedings is not sufficient to give rise to abuse of process. I agree. The decisions discussed in [29]–[31] of these reasons make it clear that it may but not necessarily will be an abuse of process for a litigant to rely upon a claim which was determined adversely to that litigant in previous litigation; it is necessary to examine the circumstances of each case and to decide whether or not litigation of the second claim would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. There is no inconsistency between that analysis and the reasons given by the majority in Attwells for rejecting arguments that a consent judgment ‘quelled the controversy’ and was the subject of an impermissible collateral attack in that case (see [25] of these reasons).”

20. His Honour continued:

“It is an aspect of all parts of the appellant’s claim that he was deprived of a full opportunity of obtaining the entire amount of his economic loss by the wrongful conduct of the first and second respondents. To shut out litigation of this part of the appellant’s claim would be more likely to bring the administration of justice into disrepute than would conflicting judicial decisions about the appellant’s economic loss reached upon different evidence.”^[20]

21. Blue J in Morgan v WorkCover Corporation stated:

“Normally, in order to establish abuse of process by re-litigation, it is necessary to establish that:

1. the purpose of the subsequent proceedings is to mount a collateral attack on the decision in the earlier proceedings;

2. it would [be] manifestly unfair to the opponent in the later proceedings that the issues decided in the earlier proceedings be re-litigated; or

3. permitting re-litigation would bring the administration of justice into disrepute.”^[21]

22. The primary basis upon which the applicant seeks to establish abuse of process is that if the Court permits re-litigation of the causation finding it would bring the administration of justice into disrepute, presumably because conflicting findings concerning the same issue, albeit based on different evidence, may result.
23. The starting point in determining whether the present proceedings constitute an abuse of process is a precise identification of the issue determined by the QIRC and whether it is the same issue now sought to be litigated.

The QIRC proceedings

24. Prior to commencing any Supreme Court proceedings the plaintiff was advised to bring a Workers’ Compensation claim against his employer.^[22]  On 4 February 2013 the plaintiff made a Workers’ Compensation Application pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld). 
25. By a decision dated 7 February 2013 WorkCover denied the application because the plaintiff at the time of the accident was not driving directly home from his place of work.  On 12 June 2013 the Workers’ Compensation Regulator (formerly Q-Comp) set aside this decision and the plaintiff’s application was accepted for “whiplash injury neck”.^[23]  The plaintiff’s entitlement to Workers’ Compensation for his whiplash injury ceased from 22 December 2012.  The plaintiff then took steps to have his atrial fibrillation accepted by WorkCover as being caused by the motor vehicle accident.  On 11 July 2013 he gave a statement to WorkCover that he had suffered an episode of atrial fibrillation and a blood clot and that he believed that these conditions were the result of the motor vehicle accident.  The plaintiff was interviewed on 12 July 2013 by a representative of WorkCover in relation to this issue.  He was requested by WorkCover to attend an independent medical examination with Dr Kenneth Hossack, cardiologist.  Dr Hossack in his report dated 28 November 2013 opined that the atrial fibrillation and subsequent blood clot was not caused by the motor vehicle accident.
26. By letter dated 10 December 2013 WorkCover rejected the secondary injury of atrial fibrillation on the following basis:

“In consideration to all the medical evidence and opinions provided by various Doctors I am unable to establish any causal connection or relationship between the motor vehicle accident 6 December 2012 and the musculoskeletal injury with the medical condition occurring 4 February 2013 involving atrial fibrillation and a blood clot.  I have given greater weight to the opinion of Dr Hossack, Cardiologist who has reviewed a detailed medical history of factors prior to the accident and subsequent events and undertook an examination of you.  He is also appropriately qualified and experienced for the medical condition being examined.  Therefore as it is his opinion that your need for treatment on 06 February 2013 and ongoing need for medical treatment is not related to the Motor Vehicle accident on 06 December 2013 your application to have your blood clots and subsequent atrial fibrillation is not one for acceptance.”^[24]

27. On 11 March 2014 the plaintiff’s solicitors caused an appeal to be lodged with the Workers’ Compensation Regulator to set aside the decision dated 10 December 2013.  On 17 April 2014 the plaintiff’s solicitors obtained a report from Dr Hardman, consultant vascular surgeon, dated 8 April 2014.  Dr Hardman considered that the atrial fibrillation and subsequent blood clot could be caused by blunt thoracic trauma such as a deceleration injury caused by a seatbelt.^[25]
28. In reasons for decision dated 13 May 2014 the Workers’ Compensation Regulator confirmed the decision of WorkCover to reject the plaintiff’s application for Workers’ Compensation, in accordance with s 32 of the Workers’ Compensation and Rehabilitation Act.  The Regulator identified the issues for determination as follows:

“Section 108 of the Act states that compensation is payable for an ‘injury’ sustained by a ‘worker’. 

It is not disputed that Mr Owen is a ‘worker’ within the meaning of the Act.  This is not an issue for review.

In this instance, the issue to be decided at review is whether Mr Owen sustained an ‘injury’ within the meaning of section 32 of the Act.  This means that I must determine whether it is more probable than not that:

● Mr Owen sustained a personal injury

● the personal injury arose out of or in the course of Mr Owen’s employment

● the employment was a significant contributing factor to the injury.”

29. The Regulator noted the inconsistency between the opinions of Dr Hossack and Dr Hardman.  Dr Hossack’s opinion was preferred primarily on the basis that he was a specialist cardiologist and his specialty was “best placed to determine the issue of causation”.^[26]
30. By reference to the evidence that was before the Regulator, the Regulator determined the following:

“● Mr Owen sustained a personal injury diagnosed as ‘atrial fibrillation’.

  ● On the balance of probabilities, the personal injury did not arise out of Mr Owen’s employment.

  ● On the balance of probabilities, Mr Owen’s employment was not a significant contributing factor to the injury.

Therefore, I have determined that Mr Owen did not sustain an ‘injury’ in accordance with section 32 of the Act and he does not have an entitlement to compensation.”

31. Section 32(1) of the Workers’ Compensation and Rehabilitation Act provides that an injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.  Section 35(1) provides that an injury to a worker is also taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker is on a journey between the worker’s home and place of employment.
32. In the proceedings before the Regulator and subsequently before the QIRC the plaintiff was seeking statutory benefits.  The plaintiff’s entitlement to compensation arose under s 108 of the Workers’ Compensation and Rehabilitation Act which entitles a worker to seek compensation (statutory benefits) if the worker sustained an injury.  There is a distinction under the Workers’ Compensation and Rehabilitation Act between a worker seeking compensation (statutory benefits) as opposed to a worker seeking common law damages.  The Workers’ Compensation and Rehabilitation Act separately defines “compensation” and “damages”.^[27]  Compensation is compensation under the Act which is amounts for a worker’s injury payable under Chapter 3, 4 and 4A by an insurer to a worker.  Damages is defined as being damages for injuries sustained by a worker in circumstances creating, independently of the Act, a legal liability in the worker’s employer to pay damages to the worker.  Chapter 5 of the Act is entitled “Access to damages”.  Chapter 5 contains various provisions that are in effect “gateways” to a worker’s substantive right to seek damages from his or her employer.  The proceedings before the Regulator and the subsequent appeal to the QIRC only involved the plaintiff’s rights to seek statutory benefits.  Neither the proceedings before the Regulator nor the QIRC had anything to do with the plaintiff claiming damages from his employer, let alone from the applicant or the driver of the Holden.
33. On 4 June 2014 the plaintiff lodged an appeal in the QIRC.  The QIRC is a court of record.^[28] It is not bound by technicalities, legal forms or rules of evidence.^[29]  It may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.^[30]  The QIRC is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of both the persons immediately concerned and the community as a whole.^[31]  The QIRC has the power to reopen proceedings on the application of a party to the proceedings.^[32]  If the QIRC reopens proceedings it may revoke or amend a decision made by it and make the decision it considers appropriate.^[33]
34. The hearing before the QIRC took two days.  There were no pleadings.  The plaintiff led evidence from Dr Hardman and Associate Professor John Raftos, an emergency physician.  The Regulator led evidence from the plaintiff’s treating general practitioner, Dr Barry Turner, Dr Kenneth Hossack and Dr Chris Cunneen, an occupational and environmental physician.  The proceedings before the QIRC were by way of a hearing de novo.  Deputy President Swan identified the issue in contention as follows:

“[2] It is agreed between the parties that the only issue for consideration by the Commission is whether or not the episode of AF which occurred on 4 February 2013 to Mr Owen is causally related to a motor vehicle accident in which he was involved on 6 December 2012.”

35. The Deputy President noted that the onus was on the plaintiff as appellant to satisfy the QIRC, on the balance of probabilities, that the causal connection the plaintiff alleged was more likely than not.^[34]  The Deputy President noted that in relation to the issue of causation there was conflict between the medical practitioners on some critical issues.^[35]  This conflict was resolved by the Deputy President by the following finding:

“The medical and lay person evidence shows that there was no blunt force trauma involved in terms of Mr Owen’s accident.  The medical practitioners agree that in the absence of such trauma, it is not probable that Mr Owen’s AF was caused by the motor vehicle accident.”^[36]

36. The plaintiff failed in the appeal primarily because he was unable to satisfy the relevant onus of proof:

“I have taken into account the Appellant’s submissions, but am unable on the general evidence, and also on the specific medical evidence to accept that Mr Owen’s AF was attributable to the car accident which had occurred on 6 December 2012.  The weight of medical evidence is against it and there is little in the lay evidence which supports the adoption of a different perspective.”^[37]

Subsequent steps in the present proceedings

37. After the QIRC hearing the parties in 12257/2015 proceeded to comply with and cooperate with pre-Court proceedings.  Both the plaintiff and the applicant have obtained further medical evidence in relation to the issue of the cause of the atrial fibrillation and subsequent blood clot.  In addition the parties have obtained expert medical evidence in relation to quantum. 
38. Proceedings 12257/2015 and 11254/2016 were initially conducted as separate claims, however, on account of common issues as to causation the compulsory conferences respectively mandated by the Personal Injuries Proceedings Act 2002 and the Motor Accident Insurance Act 1994 were undertaken jointly by way of mediation.  On 9 December 2016 orders were made for the two proceedings to be heard together and that evidence in each proceeding be evidence in the other proceeding.
39. To date both claims have been conducted upon the basis that the cause of the plaintiff’s atrial fibrillation is controversial as between the parties in each claim.  This is reflected in the joint cardiologist report dated 8 March 2017.^[38]
40. At no time has the applicant pleaded by way of defence in either proceeding, that the proceeding constitutes an abuse of process.  The present applications were not filed until 6 and 29 September 2017.  The claim and statement of claim in 12257/2015 were filed 3 December 2015.  Numerous steps have been taken in both actions.  There has therefore been a substantial and unexplained delay on the part of the applicant in seeking to have the proceedings struck out or permanently stayed as an abuse of process.
41. If I was of the view that the proceedings should be struck out or permanently stayed as an abuse of process, this delay would not, of itself, alter this conclusion.  I am not however satisfied that the applicant has discharged the heavy onus of establishing that the proceedings should be struck out or permanently stayed as an abuse of process.

The application in 12257/15

42. The applicant submits that the claims raised by paragraphs 7, 8, 9(d) and 9(g) of the amended statement of claim are an abuse of process because they involve an attempt by the plaintiff to litigate a new case which has already been disposed against him by earlier proceedings.  The applicant describes the common issue between the QIRC proceedings and the present proceedings as “the ultimate issue”, which has been fully litigated and made the subject of a finding which was “in final terms”.^[39]
43. The applicant further submits that the plaintiff, in seeking to agitate the issue again, “will work an oppression upon the applicant in exposing it to a long and expensive court proceeding to oppose it and, more significantly, it will undermine public confidence in the administration of justice by the collateral attack upon the finding made in the QIRC.”^[40]
44. I do not accept these submissions.  The plaintiff’s proceedings do not constitute a collateral attack on the finding made by the QIRC.  No part of the present proceedings seeks to undermine or challenge the decision of the QIRC that the plaintiff was not entitled to statutory benefits under the Workers’ Compensation and Rehabilitation Act in respect of his atrial fibrillation and subsequent blood clot.
45. As to the allegation of oppression, as observed by Fraser JA in Rogers v Roche^[41] it will not necessarily be an abuse of process for a litigant to rely upon a claim which was determined adversely to that litigant in previous litigation.  It is necessary to examine the circumstances of each case and to decide whether or not litigation of the second claim would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.  Here the only time that the applicant has been required to address the question of whether the motor vehicle collision caused the plaintiff’s atrial fibrillation is in the present proceedings.  The applicant was not and could not be a party to the plaintiff’s attempts to obtain statutory benefits.
46. The first four considerations identified by Giles CJ in Stenhouse require the precise identification of the relevant issue.  It may be accepted that the reference in Tomlinson to making a claim or raising an issue which was made or raised and determined “in any earlier proceeding” may, in the present case, encompass the earlier proceedings in the QIRC.^[42]  Whether the present proceedings constitute an abuse however, requires a proper identification of what is said to be the same claim or issue.  At a very basic level of enquiry the factual question is identical in both the QIRC proceedings and the present proceedings, namely did the motor vehicle collision cause the plaintiff’s atrial fibrillation and subsequent blood clot?  This factual question however, addresses two distinct issues.  In the QIRC proceedings the factual question related to the issue whether the atrial fibrillation arose out of the plaintiff’s employment.  That is, did the plaintiff sustain an “injury” in accordance with s 32 of the Workers’ Compensation and Rehabilitation Act so as to entitle him to compensation (statutory benefits) under that Act?  In the present proceedings the factual question relates to the issue whether the plaintiff is entitled to common law damages as against the driver of the Holden and the applicant arising from the motor vehicle collision.  The QIRC proceedings did not determine this issue.
47. In Maurice Blackburn Cashman v Brown^[43] the High Court had to consider a provision of the Accident Compensation Act 1985 (Vic) which arguably required any court to treat the opinion of a Medical Panel as final and conclusive.  The decision is of assistance in identifying what constitutes an “issue” in a proceeding.  The appeal concerned whether an employer was estopped in defending a personal injuries claim brought by an employee from disputing the opinion of the Medical Panel as to the degree of the employee’s impairment.  Section 68(4) of the Accident Compensation Act provided:

“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”

48. The Court stated:

“At first sight, s 68(4) of the Act is cast in terms of very general application.  Reference is twice made to ‘any court, body or person’.  But the sub-section is introduced by the expression ‘[f]or the purposes of determining any question or matter’.  Those words should not be given a literal meaning.  The meaning of the phrase that best accords with its context, and which should be adopted, is ‘for the purposes of determining any question or matter arising under or for the purposes of the Act’.  Those are the purposes for which the opinion of a Medical Panel on a medical question is to adopted and applied and accepted as final and conclusive. 

Once that step is taken, it is then clear that s 68(4) does not speak at all to the litigation of questions or matters that are not questions or matters arising under or for the purposes of the Act.  More particularly, s 68(4) does not speak at all to an action for damages brought by a worker against an employer.

An action of that kind presents no question or matter to which the opinion of a Medical Panel could be said to relate that is a question or matter arising under or for the purposes of the Act.  The action that a worker brings against an employer (commonly for the tort of negligence, but sometimes for other causes of action such as breach of contract or breach of statutory duty) is an action for a cause of action which is not one created by the Act.  Each cause of action either is a common law cause of action or has its origin in a statute other than the Act. … And because the relevant causes of action are not created by the Act, no question or matter arises in the action, to which the opinion of a Medical Panel could be said to relate, that can be described as a question or matter arising under or for the purposes of the Act.”^[44]

49. The Court concluded that no issue estoppel arose:

“The conclusions reached with respect to the construction and application of s 68(4) entail the further conclusion that no issue estoppel arises out of the opinions expressed by a Medical Panel under s 104B(9) in an action later brought by a worker against the worker’s employer.

It is a necessary condition for an issue estoppel to exist between parties that the decision from which the estoppel arises was a final decision.  Where, as here, the statute establishing the body in question prescribes that its decisions are final for the purposes of that Act, no greater ambit of finality should be attributed to its decisions than the Act itself marks out.  Thus no estoppel arises because the quality of ‘finality’ which the Act gives to an opinion expressed by a Medical Panel (in this case under s 104B(9) is finality for the purposes of determining any question or matter arising under or for the purposes of the Act.  No wider finality should then be ascribed to a Panel’s opinion.”^[45]

50. Although Maurice Blackburn Cashman concerned issue estoppel rather than abuse of process, the terms and finality of the finding as to the issue is a relevant consideration for abuse of process.  The Workers’ Compensation and Rehabilitation Act does not contain a provision similar to s 68(4) of the Accident Compensation Act.  I do not however accept, as submitted by the applicant,^[46] that the QIRC’s finding on the causation issue “was in final terms”.  It was a finding that was based on evidence that was before the QIRC.  The QIRC proceedings were subject, pursuant to s 280 of the Industrial Relations Act, to an application to be reopened.  To the extent the QIRC’s finding may be viewed as final, it was only final for the purposes of determining the plaintiff’s entitlement to compensation (and any consequential rights to bring a common law claim against his employer) under the Workers’ Compensation and Rehabilitation Act.  Further, the issues in the proceedings before the QIRC were not defined by pleadings.  Nor did the QIRC have to apply the rules of evidence.  The issue in the present proceedings is informed by the pleadings. The rules of evidence will apply to any determination of this issue based on the evidence before the Court.  This evidence will include further medical evidence which was not considered by the QIRC.  In those circumstances I do not accept the applicant’s submission that if the Court permits the plaintiff’s claim to proceed it will undermine public confidence in the administration of justice.

The application in 11254/16

51. It follows from the above reasoning that the application in respect of Metro South should also be dismissed.  There are however, additional considerations that support this conclusion.  The applicant’s abuse of process contention in respect of the plaintiff arises in circumstances where the plaintiff was a party to the QIRC proceedings.  This is to be contrasted with the position of Metro South which was not and could not be a party to those proceedings.  The application in relation to Metro South is to strike out its third party notice and statement of claim.  The third party claim is independent of the plaintiff’s cause of action.^[47]  Metro South’s third party proceeding is a proceeding discrete from the primary proceeding.
52. Metro South’s third party proceedings should not be summarily dismissed as an abuse of process in circumstances where it was not a party to the QIRC proceedings and did not have the benefit of either canvassing or adducing relevant evidence on the causation issue.

Disposition

1.  AAI Limited’s application filed 6 September 2017 in 12257/15 is dismissed.

2.  AAI Limited’s application filed 29 September 2017 in 11254/16 is dismissed.

3.  I will hear the parties as to costs.