Antoniak v The Star Entertainment Group Ltd
[2025] NSWPIC 558
•16 October 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Antoniak v The Star Entertainment Group Ltd [2025] NSWPIC 558 |
| APPLICANT: | Kabir Antoniak |
| RESPONDENT: | The Star Entertainment Group Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 16 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments; respondent sought dismissal of proceedings on the basis of Port of Melbourne Authority v Anshun Pty Ltd (Anshun) estoppel; Habib v Radio 2UE Sydney Pty Limited, and Clayton v Bant considered and applied; Held – respondent failed to establish that the rights subject to the estoppel claim correspond with the rights that should have been the subject of the first proceeding; respondent further failed to establish it was unreasonable for the applicant not have to have claimed weekly compensation in the earlier proceedings; applicant not estopped from bringing a claim for weekly benefits; respondent liable to pay weekly benefits pursuant to sections 36, 37(1), and 37(2). |
| DETERMINATIONS MADE: | The Personal Injury Commission (Commission) determines: 1. The applicant is not estopped from bringing a claim for weekly compensation benefits. The Commission orders: 2. The respondent is to pay the applicant weekly compensation as follows: (a) $1,668.42 per week from 12 February 2019 to 13 May 2019 under s 36(1) of the Workers Compensation Act 1987; (b) $1,404.98 per week from 14 May 2019 to 26 May 2019 under s 37(1) of the Workers Compensation Act 1987; (c) $859.71 per week from 27 May 2019 to 2 June 2019 under s 37(2)(a) of the Workers Compensation Act 1987; (d) $325.87 per week from 10 June 2019 to 16 August 2021 under s 37(2)(a) of the Workers Compensation Act 1987, and (e) the respondent is to be given credit for any payments made. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
In these proceedings, the Star Entertainment Group Ltd (the respondent) seeks an order that the proceedings commenced by Kabir Antoniak (the applicant) be dismissed on the basis of Anshun estoppel.[1] Whilst the parties were able to agree on quantum and extent of incapacity, the issue of estoppel required determination. Given this, the matter proceeded to arbitration. Mr Tanner of counsel instructed by Mr Chow represented the applicant. Mr Robinson of counsel instructed by Ms Walsh represented the respondent. Ms Barham was the insurer representative.
[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
MATTERS NOT IN DISPUTE
The matter has had an extraordinarily protracted litigation history over six years commencing in 2019 in the Workers Compensation Commission and ultimately the subject of further arbitration and written submissions in September 2025 in the Personal Injury Commission (Commission). As Anshun is the only component of the dispute that remains “live”, I will in the interests of brevity only refer to key points in the history:
(a) the applicant claimed a compensable psychological injury deemed to have been received on 7 January 2019 and sought weekly compensation and s 60 expenses pursuant to the Workers Compensation Act 1987 (the 1987 Act). Proceedings were commenced in the former Workers Compensation Commission where it was determined at arbitration the applicant had suffered injury in the course of his employment. On 9 October 2019, the applicant was awarded s 60 expenses in respect of reasonably necessary treatment. A direction for written submissions as regards the claim of weekly entitlements was issued by the Arbitrator. Both parties complied but shortly thereafter the applicant elected to discontinue his weekly compensation claim as he considered further expert evidence was necessary to establish the extent of continuing incapacity;
(b) being unaware of the election to discontinue, the Arbitrator issued a determination awarding weekly compensation. A subsequent request for reconsideration was declared invalid as the decision was “null and void” as a result of the earlier discontinuance;
(c) the applicant then filed a claim for weekly benefits in the Commission which was defended by the respondent on the basis of Anshun estoppel on the basis the applicant had an opportunity to prosecute his claim for weekly benefits in earlier proceedings and had unreasonably not done so. On 17 July 2023, the Commission (differently constituted) made an award in regard to incapacity with reference to s36 and 37 of the 1987 Act and determined that “this was not the sort of matter an Anshun estoppel was meant to catch”;[2]
(d) The respondent filed an appeal against the decision of the Commission agitating three grounds on the basis the Member had made errors of law and/or fact; because of a:
(i)failure to apply the test in Anshun;
(ii)the decision was made without a proper evidentiary basis, and
(iii)failed to give adequate reasons,
(e) the appeal was determined by President Judge Phillips who found ground 1 and 2 above were not established but remitted the matter after being satisfied ground 3 had been established.
[2] Paragraph 154 Certificate of Determination dated 17 July 2023.
At arbitration before me, the parties confirmed agreement if the Anshun estoppel argument is unsuccessful, the applicant’s entitlements to weekly compensation were to reflect that awarded and recorded in the Certificate of Determination dated 17 July 2023.
Evidence
Extensive records were considered. Much of the documentation was superfluous given that there is no dispute in regard to loss, incapacity or injury. Documents included the initial Application to Resolve a Dispute (ARD) and Reply, the previous Certificates of Determination, the subsequent ARD and Reply, documents associated with the appeals process including submissions and Determination of Appeal by President Judge Philips and further submissions arising on remittal. No oral evidence was called.
Relevant principles
Counsel for both parties slavishly referred to previous cases which have applied Anshun, the rules of the Commission, accepted practices within this specialist jurisdiction and various statistics derived from annual reports regarding discontinuances. The respondent especially sought to emphasise that a “brave decision” in this matter could perhaps set the standard for a new and “legally correct mode of conducting litigation within the Commission” claiming that current practices at times are inconsistent with Anshun principles. I disagree. Like most Anshun cases, this case turns on its own facts. The facts here are unusual and I cannot fathom how this decision could set a precedent to disrupt how litigation is conducted in the Commission, especially given the nuances generally found under the surface of each matter filed within it.
I have carefully reviewed the multiple cases referred to by counsel in this matter and have found it unhelpful to examine how the Anshun principles have been applied in other cases. I found none of the cases gave an answer as to what should happen here.
To make the complex simple and in the interests of brevity, I have summarised the basic principles relevant to a litigated claim and Anshun estoppel and which I have applied in the assessment of this matter, relevantly:
(a) in litigated proceedings before a court or tribunal of competent jurisdiction, parties are required to bring forward their entire case[3] (Henderson);
[3] Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 319, [115].
(b) a party will not be permitted to raise, in a subsequent proceeding, a claim or an issue of fact or law that is so connected or relevant to the subject matter of the first proceeding that it was unreasonable for that party to have not made the claim or raised the issue in the first proceeding, regardless whether the failure was deliberate, the result of negligence, inadvertence or accident[4] (Tomlinson);
[4] Tomlinson v Ramsay Food Processing Pty Ltd [2015] HCA 28 at [22].
(c) the question is not whether it would have been reasonable to have made the subject claim in the first proceeding. The question is whether the failure to do so was unreasonable in the context of the first proceeding[5](Sarb);
[5] Vehicle Monitoring Systems Pty Ltd v Sarb Management Group Pty Ltd (t/as Database Consultants Australia) [2020] FCA 6; (2020) 149 IPR 370 at [40] citing Gibbs v Kinna [1998] VSCA 52; [1999] 2 VR 19 at [1].
(d) assessing unreasonableness requires a forward-looking evaluation taken at the time of the first proceeding, not a determination made subsequently with the benefit of hindsight[6] (Sarb);
(e) the likelihood of inconsistent judgments would, generally speaking, satisfy the criterion of unreasonableness[7](Boles);
(f) Anshun estoppel, being concerned with matters which could have been, should have been, but were not determined in the prior proceeding, (in an attempt to avoid fragmented litigation and inconsistent outcomes) is distinct from the other two species of estoppel namely res judicata or cause of action estoppel and issue estoppel, both of which concern matters that were determined in the prior proceeding;
(g) a distinct feature of Anshun estoppel is there is a judicial discretion to not regard a pleading as subject to the estoppel where there exists “special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding”[8] (Wang);
(h) the term “special circumstances” is not defined but given the principles described above, must be exceptional (Macquarie) [9] and must involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principles;[10]
(i) shutting out a claim that a party wishes to pursue without determination of its intrinsic merit on the ground that it ought to have been raised in earlier litigation is a serious step; it is a power that is not to be exercised except “after a scrupulous examination of all of the circumstances” (Habib), [11] and
(j) In asserting estoppel the respondent bears the onus and must establish:
(i)the rights subject of the estoppel claim corresponded with rights that should reasonably have been the subject of the first proceeding [12] (Clayton), and
(ii)demonstrate any subsequent claim could have been made in the first proceeding and, also, that it should have been made, in the sense that it was unreasonable for the claim to not have been made[13] (Clayton).
[6] Ibid [73].
[7] Boles v Esanda Finance Corp Ltd (1989) 18 NSWLR 666 at 673 (Samuels JA, Priestley and Meagher JJA agreeing); Gibbs v Kinna at [25]-[28].
[8] Wong v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 242 at [38]).
[9] Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543at 558.
[10] see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VicRp 9; [1981] VR 81; see also Bryant v Commonwealth Bank [1995] FCA 1299; (1995) 57 FCR 287at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
[11] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [85] (McColl JA, Giles and Campbell JJA agreeing) citing Ling v Commonwealth (1996) 68 FCR 180 at 182 (Wilcox J).
[12] Clayton v Bant [2020] HCA 44; (2020) 385 ALR 41 at [31].
[13] Ibid.
It follows there are three questions that I must address, relevantly:
(a) could the applicant have claimed or prosecuted his claim for weekly compensation in the earlier proceedings?
(b) was it unreasonable for the applicant not to have claimed or prosecuted his claim for weekly compensation in the earlier proceedings? and
(c) in the event that it was unreasonable for the applicant not to have claimed/prosecuted his claim for weekly payments in the earlier proceedings, do ‘special circumstances’ exist to prevent him being restrained from pursuing them in these proceedings?
In answering these questions, analysis of what the applicant could have reasonably been expected to do in earlier proceedings is required.[14] In particular, unreasonableness of actions must be considered with reference to the legislative structure and scheme, the conventions, practice and procedure of the Commission (as such conventions inform a judgment as to whether it is unreasonable in the circumstances of the case not to have brought a particular claim earlier) and the conduct of the applicant.[15]
[14] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.
[15] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 (Miller no 10).
Submissions
On behalf of the respondent it was submitted:
(a) the case history fits squarely within the Anshun principles. It must be emphasized that the applicant ran his weekly compensation case and persuaded an arbitrator that he should be compensated for that claim. On that basis it was reasonably open for the applicant to bring his claim. He did so and was successful. That is, he agitated his case to finality and therefore no question arises as to whether he could have done it, because he did do so. It was part and parcel of the original application;
(b) these proceedings agitate the same claim for incapacity and weekly compensation as the earlier proceedings;
(c) the withdrawal of the claim for weekly compensation had the effect of precluding an appeal by the respondent because of threshold limits. This action prejudiced the respondent who “hotly” disputed liability in the previous proceedings;
(d) there is no statement by the applicant or his solicitor as to why he split his case and in any event deficiency of evidence is no answer to Anshun as it is accepted generally that all cases can be improved;
(e) there is no issue about the existence of the Commission’s Rules at the point of time the original decision was made, that is an applicant may discontinue a claim or part thereof. However, such actions are not free of consequence and contradict the authority of Miller which confirms that Anshun does apply (with certain modifications) in proceedings of the Commission;
(f) a practice has developed in the Commission where litigants continue to treat cases as if Anshun was nonexistent or does not apply, which demonstrates a serious misunderstanding of fundamental common law principles, with such misunderstandings now becoming mainstream[16] (Kirk);
(g) accepted practices of the Commission which have evolved given its specialist nature, do not and cannot displace Anshun or any other fundamental general law and rules of practice. Such practices clearly depart from general law principles and to ignore them is an endorsement of error, entrenched or otherwise;
(h) even if established practices allow for a multiplicity of litigation for the same injury, such an established practice does not extend to partial discontinuance of cases after they have been litigated, even if permitted by the rules;
(i) the applicant’s reliance on annual reports and published statistics regarding discontinuance is of no value. There is no data available that delineates between total discontinuance (which cannot trigger Anshun) and partial discontinuance (which may trigger Anshun depending on the reasonableness of the strategic decision on the part of an applicant). The respondent accepts total and partial discontinuances are routine but annual reports upon which the applicant seeks to rely are of no probative value, and
(j) it is accepted that a worker does not need to seek leave to discontinue proceedings in the Commission. However, evidence should be adduced and is required to displace what would otherwise be the application of Anshun.
[16] Kirk v Industrial Relations Commission [2010] HCA 1 Heydon J.
On behalf of the applicant it was submitted:
(a) the loss, incapacity and injury are undisputed. The respondent is raising this issue (as it has in other matters) to unjustly deny entitlements of compensation to the applicant;
(b) the respondent has an erroneous understanding of the principles of Anshun; the legislative scheme for compensation, the established conventions of practice and procedure in the Commission;
(c) the applicant discontinued his claim for weekly benefits in order to secure additional evidence in support of that claim, a decision considered appropriate at the time it was made. No formal decision had been issued by the Commission at the time of the election to discontinue and the discontinuance was done in accordance with the Rules of the Commission;
(d) the respondent contends that all forms of compensation must be sought, and determined in a single application and a worker is not entitled to pursue claims for different forms of compensation in separate proceedings which is fallacious and contrary to the reasoning of the plurality in Anshun;
(e) a claim for estoppel will only succeed if the respondent can show that the dispute pertaining to the incapacity of the worker (being the subject of the current proceedings) was so relevant to the subject matter of the earlier proceedings, that it was unreasonable to have discontinued that claim and not persisted with it at that time and in those proceedings;
(f) the preliminary issue of s 11A of the 1987 Act was determined at hearing on
9 April 2019. Whether the applicant suffered incapacity arising out of any injury was subject to separate consideration, findings of fact and determination, which could only be done following the determination of injury;(g) a material consideration in Anshun is whether any subsequent proceedings would result in an outcome which would conflict with an earlier decision. No such conflict can be demonstrated from the decision to discontinue the claim for weekly payments and subsequently seek a determination of those entitlements after securing additional evidence. The agreed consent orders ratified in the Certificate of Determination dated 17 July 2023 and identical to the orders currently sought on remit, do not conflict with the rejection of the s 11A defence or previous findings that the injury is compensable;
(h) the respondent has failed to address how the applicant’s incapacity and entitlement to weekly payments was relevant to the earlier determination of the
s 11A defence and how an award of weekly compensation in the current proceedings would be “in conflict” with the previous determination of liability;(i) it is accepted that unreasonableness by a litigant is a factor relevant to the evaluation of whether Anshun estoppel applies[17] but there is no legitimate argument that the applicant acted unreasonably when electing to discontinue his claim for weekly benefits to secure further evidence, which was served on the respondent and ultimately led to an agreement as to the extent of incapacity. Given the agreement following receipt of that evidence, the Anshun estoppel argument is unfounded;
(j) in assessing Anshun regard must be had to the legislative structure and scheme and conventions of practice and procedure, as such matters will inform a judgment as to whether it was unreasonable in the circumstances not to have brought a particular claim earlier;
(k) the expert opinion of Mr G Young, experienced counsel of the NSW Workers Compensation Bar in regard to conventions of practice and procedure of the Commission confirm it is commonplace for applicants to discontinue proceedings where the evidence is deficient and or further investigations are required. Counsel for the respondent did not challenge this evidence but maintains the conventions and practices of the Commission are unacceptable and contrary to “basic common law principles”. This argument has been rejected by the President in this appeal and other matters, and
(l) the rules of the Commission, conventions and accepted practice allow for discontinuance at any stage of the proceedings and do not prevent subsequent applications, such being supported by an average of 20% of matters being discontinued annually as evidenced by the Annual Reports of the Commission.
CONSIDERATION, FINDINGS AND REASONS
Issue 1
[17] Racing NSW v Goode NSWPICPD 43.
Could the applicant have claimed weekly compensation in the earlier proceedings?
There is no dispute that the applicant did claim weekly compensation in the earlier proceedings and discontinued those proceedings prior to their determination.
Issue 2
Was it unreasonable for the applicant not to have claimed/prosecuted the weekly compensation claim in the earlier proceedings?
To succeed, the respondent must establish that the failure to press the claim for weekly payments was unreasonable. The term ‘unreasonable’ is not defined however the plurality observed in Anshun was that no estoppel will be established unless it can be shown that the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Authorities establish estoppel will succeed if it can be demonstrated that the result in a judgment will conflict with an earlier judgment.
In this case scenario, which I will admit is unusual, the respondent needs to demonstrate that the claim for weekly compensation as pressed in the current proceedings, was so relevant to the dispute of the earlier proceedings in 2019 (which were proceedings to determine injury/liability given the respondent’s s 11A defence and s 60 entitlements of the 1987 Act), that it was unreasonable not to have pressed that claim in the 2019 proceedings.
Section 11A of the 1987 Act states that no compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
The onus of establishing a defence pursuant to s 11A is on the respondent. It is only if that defence fails and psychological injury is established that an applicant assumes the burden to establish entitlement to weekly benefits which requires evidence of pre-injury average weekly earnings (PIAWE), work capacity, ability to earn in suitable employment etc. As for treatment expenses, the applicant has to demonstrate treatment claimed is reasonably necessary. In short, entitlements do not follow automatically on determination of
s 11A. Specifically the determination of any earning capacity and therefore entitlement to weekly compensation is unrelated to a s 11A defence or whether treatment is reasonably necessary.I therefore find for these reasons the respondent has not established that a claim for weekly compensation was so relevant to the subject matter of the 2019 proceedings that it would have been unreasonable to not have pressed that claim in 2019. I understand the argument, that such a claim would flow on from any s 11A determination, however, it cannot be said to be so relevant to the primary issue in dispute at that time (which was the issue of liability for injury and treatment expenses.) It follows Anshun is not enlivened in these circumstances.
Further, I find the respondent has not demonstrated (as is required by Anshun) as to how the current proceedings with respect to weekly benefits would or could result in a decision which would conflict (or be inconsistent) with the earlier decision as regards the s 11A defence and the entitlement to s 60 expenses. Indeed on reflection, despite the experience of respondent’s counsel, it would be near impossible to obtain such an inconsistent outcome given the updated medical evidence provided by Dr Canaris supporting ongoing periods of total and partial incapacity as a result of the established workplace injury.
I find there is no prospect that a subsequent determination of earning capacity and entitlement to weekly compensation would be in conflict with any earlier determination of a
s 11A defence or order in respect of medical treatment being reasonably necessary. Again, in these circumstances, Anshun is not enlivened.Counsel for the applicant submitted the applicant discontinued his claim for weekly compensation in mid-October 2019 because evidence regarding ongoing incapacity was required to explain his circumstances in early June 2019.
I find that the election to discontinue the claim for weekly compensation was consistent with the then rule 15.7 and further find the respondent has not established such action was in conflict or inconsistent with the orders made by the Commission in respect of the s 11A defence and claim for s 60 benefits. I also find that the respondent has not advanced any cogent argument as to why the applicant’s action to verify his incapacity (as so delay proceedings) with further qualified medical opinion was unreasonable.
I further find that the discontinuance of a claim does not in these circumstances constitute an irrevocable forfeiture of rights, rather was a procedural step in the overall case management strategy to secure sufficient evidence to establish and verify the claim for weekly payments during the period claimed. Such evidence is necessary in my view to successfully prosecute entitlement and quantum with reference to ss 36 and 37 of the 1987 Act. In this case, I find on assessment of the overall circumstances that the additional evidence sought and obtained from Dr Canaris verified incapacity. It is not in dispute that his initial assessment supported weekly benefits for a closed period but that the applicant had sought to claim benefits on an ongoing basis which required updated medical support. Given this, I cannot find that the actions of the applicant were unreasonable.
However, the respondent’s argument goes further, suggesting the established practices of the Commission are so unique and entrenched so as to take the Commission outside of mainstream common law concepts such as Anshun estoppel. In this regard, the respondent referred me to obiter comments of Hayden J in the matter of Kirk which cautioned about the possibility of specialist jurisdictions likely developing distorted positions overtime in an attempt to meet their objectives and that in doing so general and fundamental legal principles may become misaligned with mainstream legal thought. The respondent submitted the Commission’s rules regarding discontinuances and laxity in case management approach effectively displaces the operation of Anshun principles thereby constituting an error of law.
The application of Anshun in the workers compensation jurisdiction is well established by authority (Miller). The key and essential principle of Anshun is unreasonableness of the action not to collectively prosecute a case. A discontinuance of itself does not oust or invoke Anshun. It also cannot be ignored that the jurisdiction is such that at times not all cases can be collectively brought. For example, there may be times when incapacity does not arise immediately and may arise only after reasonably necessary treatment, such in the case of surgery. At other times, a claim for lump sum compensation cannot be lodged until many years after the injury and only when medical evidence certifies maximal medical improvement has been achieved. This aspect of the submissions was raised in the Presidential appeal. I note President Judge Phillips on appeal[18] (Star) eloquently reasoned the “Commission Rule and Anshun exist side by side”,[19] and nothing in the submissions post the remittal establish the contrary. To invoke estoppel there must be established unreasonableness by virtue of conduct, which can only be made on a “scrupulous examination of the circumstances” which has due regard to the customs, practices and rules applicable to the matter at hand and is not confined to a discontinuance in isolation.
[18] The Star Entertainment Group Ltd v Antoniak [2024] NSWPICPD 37.
[19] In paragraph 98 of his reasons.
As regards the customs, practices and rules, at the introduction of these reasons I explained that few of the cases referred to by either party were helpful in the issue to be decided. I summarised the key principles and am conversant with the practices of discontinuance and the operation of s 354 of 1998 Act all presumably prescribed to provide a flexible yet regulated approach to litigation of workers compensation matters, which in essence acknowledges the interplay of the rules of law, the dynamic and unpredictable nature and duration of injuries, their impact on capacity and treatment and the time sensitive nature of the culmination of these factors, which all too frequently relies on the provision of information from third parties in which neither an applicant nor respondent can enforce a timetable.
I have considered the evidence of Mr Young, Barrister and note the respondent also sought to rely on this report which confirmed that consistent with the conventions of practice and procedure within the Commission, it is commonplace for applicants to instruct counsel to discontinue proceedings in whole or in part particularly when the evidence is deficient or further investigations are warranted which is what has happened in this case scenario.
To succeed, the respondent has to establish the applicant’s conduct in not prosecuting his weekly claim in the 2019 action was unreasonable in the circumstances of the case. Undertaking a scrupulous assessment which has considered the history, the established motive of the discontinuance, the Rules and procedure of the Commission and the expert evidence, I find the respondent has not established unreasonableness because:
(a) the respondent has not established nor persuaded me the weekly payments claim was so connected or relevant to the subject dispute of the first proceeding that it was unreasonable for him to continue to prosecute his claim; (Tomlinson);
(b) the respondent has not persuaded me that the applicant’s discontinuance to further obtain better evidence on the issue of incapacity was unreasonable in the context of the first proceeding;
(c) the respondent has not established that there could potentially be inconsistent judgments/determinations as a result of the decision to litigate the claim for weekly benefits separately; (Boles)
(d) the respondent has not established or persuaded me that the accepted practices of the Commission are inconsistent with the Anshun estoppel principles especially in circumstances where the President has determined that they work hand in hand (Star). I further find that such a blanket assertion fails to take into account the requirement on me to undertake a scrupulous assessment of the circumstances of this case;
(e) unreasonableness requires a forward-looking evaluation taken at the time of the first proceeding, not a determination made subsequently with the benefit of hindsight. The respondent has raised a number of issues in this regard but I find that at the time the election to discontinue was made, the applicant genuinely required additional evidence to support his claim for continued incapacity. With the benefit of hindsight, all parties would no doubt approach this matter differently, however that is not the test, (Sarb) further
(f) the respondent argues that the same or substantially same facts are relevant to the claims in both proceedings. This argument is limited. The claim of incapacity required other considerations which were not explored in the original proceedings (and became the subject of submission via direction of then then Arbitrator) such assessment distinct from the analysis of ss 11A and 60.
Having regard to these matters, I find that the respondent has not met the onus of establishing that the conduct of the applicant was unreasonable and for the reasons above, find the applicant is not estopped from bringing his claim for weekly benefits.
Issue 3
In the event that it was unreasonable for the applicant not to have claimed weekly payments in the earlier proceedings, do “special circumstances” exist to prevent him being restrained from pursuing them in these proceedings?
As I have found that the applicant’s conduct was not unreasonable, exploration of this issue is redundant.
I do acknowledge the litigation history of this matter is exceptional and the delays extraordinary especially in circumstances where the respondent has been found liable for injury and where no true dispute exists about the level of incapacity and quantum. Finally the respondent suggests that the entire notion of discontinuances in the Commission is contrary to the Anshun principle and that the practices currently adopted by the jurisdiction are flawed suggesting that perhaps the Commission has gone down the path of Kirk. President Judge Phillips in his Determination of the Appeal in this matter dismissed this general proposition confirming clearly the procedures of discontinuance in the Commission and the Anshun estoppel work side by side. The respondent has not advanced any argument that would displace the President’s finding with which I agree. In short, had I been required to turn my mind to the issue of ‘special circumstances’, these matters would have been relevant and persuasive.
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of this Certificate of Determination.
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