Antoniak v The Star Entertainment Group Ltd - [2023] NSWPIC 351

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Antoniak v The Star Entertainment Group Ltd [2023] NSWPIC 351
APPLICANT:	Kabir Antoniak
RESPONDENT:	The Star Entertainment Group Limited
Member:	Anthony Scarcella
DATE OF DECISION:	17 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; entitlement to weekly benefits compensation; applicant discontinues claim for weekly benefits compensation soon after arbitration hearing determined that a defence under section 11A is not made out and a determination to an entitlement to such benefits but before their quantification by the decision maker; respondent appeals the determination; decision maker issues a decision quantifying the applicant’s entitlement to weekly benefits compensation not knowing that the weekly benefits claim had been discontinued; the respondent’s appeal is dismissed for not satisfying the monetary threshold provision in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; applicant subsequently brings the same claim for weekly benefits compensation after unsuccessfully seeking a reconsideration; Anshun estoppel; Port of Melbourne Authority v Anshun Pty Limited; Fourmeninapub Pty Ltd v Booth; Geary v UPS Pty Ltd; Woolstar Pty Ltd v Wood and Secretary, Department of Communities and Justice v Miller & Anor (No 5) considered and applied; Held – the applicant is not estopped from bringing a claim for weekly compensation benefits; the respondent pay the applicant weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 7 January 2019 at the rates and for the periods agreed by the parties.
determinations made:	The 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.

STATEMENT OF REASONS

BACKGROUND

Due to the nature of the issue in dispute, it is necessary to set out in some detail the lengthy background to this matter.
The applicant, Mr Kabir Antoniak, is a 36-year-old man who was employed by the respondent, The Star Entertainment Group Limited (The Star), as a restaurant manager.
Mr Antoniak alleges that he sustained a psychological/psychiatric injury of gradual onset in the course of his employment with The Star with the deemed date of injury being 7 January 2019.
On 30 April 2019, Mr Antoniak lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] Application to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 351
Decision Date: 17 July 2023

CaseChat Overview and Summary

In the case of Antoniak v The Star Entertainment Group Ltd, the applicant, Mr. Antoniak, brought a claim for weekly benefits compensation against his employer, The Star Entertainment Group Ltd, following an injury sustained in the course of his employment. The matter was heard in the Dust Disease Board of NSW, where the respondent argued that the claim should be dismissed based on a defence under section 11A of the Workers Compensation Act 1987. The Board determined that the defence was not made out, and Mr. Antoniak was entitled to weekly benefits compensation. However, the Board's determination did not quantify the amount of the compensation. Before the Board could quantify the compensation, Mr. Antoniak discontinued his claim, but later sought to recommence it. The respondent appealed the entitlement determination, but the appeal was dismissed as it did not satisfy the monetary threshold in section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998. Subsequently, Mr. Antoniak brought the same claim for weekly benefits compensation after unsuccessfully seeking a reconsideration of the decision. The court had to determine whether Mr. Antoniak was estopped from bringing a claim for weekly compensation benefits.

The legal issue before the court was whether Mr. Antoniak was estopped from bringing a claim for weekly compensation benefits after discontinuing his initial claim. The court considered whether the Anshun estoppel applied, which prevents a party from pursuing a claim that is inconsistent with a previous determination made in a prior proceeding. The court applied the principles from cases such as Port of Melbourne Authority v Anshun Pty Limited, Fourmeninapub Pty Ltd v Booth, Geary v UPS Pty Ltd, Woolstar Pty Ltd v Wood, and Secretary, Department of Communities and Justice v Miller & Anor (No 5). The court found that the Anshun estoppel did not apply because Mr. Antoniak had not obtained a determination in the prior proceeding that was inconsistent with the claim he sought to bring.

The court found that Mr. Antoniak was not estopped from bringing a claim for weekly compensation benefits. The court held that the Anshun estoppel did not apply as there had been no determination in the prior proceeding that was inconsistent with the claim he sought to bring. The court further held that the respondent was to pay Mr. Antoniak weekly compensation in respect of the injuries arising out of or in the course of his employment with the respondent deemed to have occurred on 7 January 2019 at the rates and for the periods agreed by the parties. The court found that the respondent was liable to pay the weekly compensation benefits to Mr. Antoniak.

Orders