Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine

1. [1]

   MEAGHER JA:

Introduction

1. [2]

   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. [3]

   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. [4]

   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. [5]

   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

1. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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:

6. [11]

   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.

7. [12]

   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%.

8. [13]

   The appellant’s insurer disputed that claim, for the reasons set out in its s 74 notice dated 20 March 2014. Those reasons included:

9. [14]

   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.

10. [15]

    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.

11. [16]

    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”.

12. [17]

    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]:

13. [18]

    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]:

14. [19]

    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:

The issues in the appeal

1. [20]

   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. [21]

   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

1. [22]

   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. [23]

   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. [24]

   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:

4. [25]

   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.

5. [26]

   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].

6. [27]

   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:

7. [28]

   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).

8. [29]

   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:

9. [30]

   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).

10. [31]

    A “final” decision was described by the Court in Kuligowski at [25]:

11. [32]

    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.

12. [33]

    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.

13. [34]

    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:

14. [35]

    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.

15. [36]

    Jordan CJ further explained the position at 19-20:

16. [37]

    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).

17. [38]

    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. [39]

   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. [40]

   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. [41]

   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:

4. [42]

   Part 7 of Ch 7 of the 1998 Act provides for the assessment of any “medical dispute”. Section 319 defines a “medical dispute”:

5. [43]

   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).

6. [44]

   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).

7. [45]

   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:

8. [46]

   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.

9. [47]

   That broad construction of “liability” was upheld by Emmett JA (Ward JA agreeing) in Bindah v Carter Holt at [111]:

10. [48]

    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.

11. [49]

    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:

12. [50]

    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.

13. [51]

    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.

14. [52]

    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.

15. [53]

    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.

16. [54]

    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.

17. [55]

    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]:

18. [56]

    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.

19. [57]

    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.

20. [58]

    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.

21. [59]

    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. [60]

   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. [61]

   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. [62]

   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. [63]

   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. [64]

   Accordingly the orders I propose are:

3. [65]

   LEEMING JA: I agree with Meagher JA.

4. [66]

   SIMPSON JA: I agree with Meagher JA.