Antoniak v The Star Entertainment Group Ltd

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 Resolve a Dispute at pages 34-41.
On 22 May 2019, The Star, being a licensed self-insurer, issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) accepting injury within the meaning of ss 4 and 9A of the 1987 Act but relying on s 11A to allege that Mr Antoniak’s psychological/psychiatric injury was wholly or predominantly caused by the reasonable actions of The Star with respect to performance appraisal and/or discipline and thus denying him an entitlement to weekly benefits compensation and reasonably necessary medical and related treatment expenses.[2]
[2] Application to Resolve a Dispute at pages 132-142.
Mr Antoniak, through his lawyers, lodged an Application to Resolve a Dispute (ARD) dated 12 August 2019 in the then Workers Compensation Commission claiming weekly benefits and medical expenses.[3]
[3] Reply at pages 2-11.
The Star, through their lawyers, lodged a Reply to the ARD dated 3 September 2019 denying psychological injury under s 4(b) of the 1987 Act, despite having accepted injury in its dispute notice dated 22 May 2019 and in the alternative, pleaded a defence under s 11A of the 1987 Act.[4]
[4] Reply at pages 12-17.
The matter was listed for a conciliation and arbitration hearing on 3 October 2019 before Arbitrator Wynyard, as he then was. The matter did not resolve during conciliation and it proceeded to an arbitration hearing in respect of which, there is a transcript in evidence.[5]
[5] Reply at pages 18-68.
On 9 October 2019, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination – Oral Decision.[6] The determination was as follows:
“1.     I direct the parties to lodge and serve submissions as to weekly payments by 11 October 2019.
2.     I grant leave to the parties to approach on telephone notice to each other in that regard.
3.     The respondent will pay the applicant's s 60 expenses upon production of accounts, receipts and/or HIC Notice of Charge.
4.     I will deliver a decision regarding the weekly payments in accordance with direction 1 above.
5.     I decline to exercise my discretion pursuant to s 289A(4) to permit the respondent to raise issues of injury pursuant to s 4, substantial contributing factor pursuant to s 9A and main contributing factor pursuant to s 4(b) in accordance with the reasons given in my extempore orders.
6.     I grant leave to the respondent to rely upon the part of its Part 3 statement in its Reply that allege ‘the respondent disputes the rate of weekly compensation claimed by the applicant’.
7. I reject the issues raised in Nos. 1, 5 and 6 of Part 3 of the Reply noting that item 7 has already been raised in the respondent's s 78 notice of 7 January 2019.”
[6] Reply at page 69.
On or about 11 October 2019, The Star lodged its submissions in accordance with Arbitrator Wynyard’s direction.[7]
[7] Reply at pages 70-74.
On or about 11 October 2019, Mr Antoniak lodged a wage schedule and submissions in accordance with Arbitrator Wynyard’s direction.[8]
[8] Reply at pages 75-77.
On 14 October 2019, Mr Antoniak, through his lawyers, emailed the Workers Compensation Commission and The Star advising that his instructions were to withdraw the claim for weekly benefits of workers compensation and requested that an award be entered in accordance with the Certificate of Determination – Oral Decision dated 9 October 2019.[9]
[9] Reply at page 78.
The Star lodged an Appeal Against a Decision of an Arbitrator dated 4 November 2019, being Arbitrator Wynyard’s Certificate of Determination – Oral Decision dated 9 October 2019.[10] The Star relied on the following grounds of appeal:
(a)    Ground 1 – the arbitrator failed to determine which of the five categories of causation alleged by the worker were made out prior to making findings as to whether section 11A of the 1987 Act applied;
(b)    Ground 2 – the arbitrator failed to determine whether the performance review was reasonable;
(c)    Ground 3 – the arbitrator failed to determine whether weekly compensation, if so awarded, ought to be awarded on a limited basis, and
(d)    Ground 4 – the arbitrator failed to give adequate reasons.
[10] Reply at pages 79-84.
On 5 December 2019, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination and Statement of Reasons in respect of the claim for weekly benefits, which Mr Antoniak had already withdrawn/discontinued on 14 October 2019.[11] It is apparent that Arbitrator Wynyard was not advised that the claim for weekly payments had been discontinued. The determination was as follows:
“1.     Pursuant to s 36 (1), the respondent will pay the sum of $1668.42 per week from 12 February 2019 to 13 May 2019.
2. Pursuant to s 37(1), the respondent will pay the sum of $1404.98 per week from 14 May 2019 to 26 May 2019.
3. Pursuant to s 37(2)(a) the respondent will pay the sum of $859.71 from 27 May 2019 to 2 June 2019.
4.     Pursuant to s 37(2) the applicant is not entitled to weekly compensation from 3 June 2019 to 9 June 2019.
5. Pursuant to s 37(2)(a) the respondent will pay the sum of $325.87 per week from 10 June 2019 to date and continuing.
6.     The respondent is to have credit for payments made.”
[11] Reply at pages 101-107.
Mr Antoniak, through his lawyers, lodged a Notice of Opposition to The Star’s appeal dated 10 December 2019.[12]
[12] Reply pages 108-126.
On 23 July 2020, Wood DP of the Workers Compensation Commission determined The Star’s appeal.[13]
[13] Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46 and Reply at pages 140-149.
In respect of Arbitrator Wynyard’s Certificate of Determination – Oral Decision, Wood DP observed:
“It is apparent from the above document that the Arbitrator had yet to determine the issue in relation to the claim for weekly payments when he issued his ex tempore orders on 3 October 2019, which were confirmed in the COD dated 9 October 2019. I note that the appellant [The Star] did not dispute receiving the notification from the respondent [Mr Antoniak] on 14 October 2019 that the claim for weekly payments was withdrawn. The respondent merely disputed that the claim was discontinued prior to 3 October 2019, when the Arbitrator made his initial findings in relation to the claim for treatment expenses pursuant to s 60 of the 1987 Act and the various interlocutory decision and directions.”[14]
[14] Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46 at [40].
Wood DP further observed:
“It is not disputed before me that the respondent provided notice to the Commission and the appellant on 14 October 2019 that he discontinued his claim for weekly payments. In accordance with Rule 15.7(3), the discontinuance took effect from that date, which was before the appellant lodged this appeal and before the Arbitrator delivered his decision in respect of the weekly payments. In those circumstances it cannot be said, therefore, that the amount of weekly payments claimed but not on foot when this appeal was lodged is part of the amount in issue on this appeal in accordance with section 352(3)(a) of the 1998 Act. …”[15]
[15] Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46 at [41].
Wood DP found that, as the weekly payments claim was clearly discontinued before the appeal was lodged and what remained was an amount of compensation in respect of treatment expenses which were below the threshold in s 352(3)(a) of the 1998 Act, there could be no appeal from the decision of Arbitrator Wynyard dated 9 October 2019.
On 4 August 2020, Mr Antoniak, through his lawyers, maintained in an email to the Workers Compensation Commission that Arbitrator Wynyard’s Certificate of Determination dated 5 December 2019 was incompetent and should be revoked.[16]
[16] Reply at page 150.
On a date sometime in early to mid-September 2020, Mr Antoniak, through his lawyers, lodged an application for a reconsideration of Arbitrator Wynyard’s determination in respect of weekly payments dated 5 December 2019. Mr Antoniak sought to have those orders rescinded. On 16 September 2020, Arbitrator Wynyard issued directions for written submissions.[17]
[17] Reply at page 151.
In his written submissions dated 20 September 2020, Mr Antoniak, through his counsel, Mr Craig Tanner, explained:
“The applicant discontinued the claim for weekly compensation in mid-October 2019 because his legal advisers considered that it was necessary to lodge further evidence to explain his circumstances in early June 2019, and thereafter. It was (and remains) the intention of the applicant (and his legal representatives) to lodge a further Application to Resolve a Dispute in respect of the claim for weekly compensation.”[18]
[18] Reply at pages 152-153 at [9].
Mr Tanner went on to submit that Mr Antoniak was confronted with a formal obstacle in now proceeding with the claim for weekly compensation because there were orders purporting to dispose of the claim for weekly compensation issued by the Workers Compensation Commission on 5 December 2019. Accordingly, Mr Antoniak sought to have those orders rescinded.
On 20 October 2020, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination and Statement of Reasons in respect of the application for reconsideration.[19] Arbitrator Wynyard dismissed the application for reconsideration and found:
“Once the Notice of Discontinuance had been lodged, any further determination of the issues raised therein was null and void. The effect of the discontinuance was that there was no longer any dispute for the Commission to decide. If by the Notice of Discontinuance my subsequent determination had become null and void, then it ceased to exist, a nullity. The powers conferred on the Commission by virtue of s 350(3) have no effect, as the section presupposes that the Commission had jurisdiction to entertain an application for reconsideration in the first place. In the present case, there was nothing to reconsider.”[20]
[19] Reply at pages 161-165.
[20] Reply at page 165 at [29].
The former Workers Compensation Commission was abolished.[21] By operation of the Personal Injury Commission Act 2020, the Workers Compensation Division of the Personal Injury Commission (Commission) came into being on and from 1 March 2021.[22] Mr Antoniak, through his lawyers, lodged an ARD dated 16 March 2023 in the Commission claiming weekly benefits compensation from 12 February 2019 and ongoing under ss 36 and 37 of the 1987 Act as a result of the injury sustained in the course of his employment with The Star deemed to have occurred on 7 January 2019.
[21] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020.
[22] s 6(3) of the Personal Injury Commission Act 2020.
The Star, through its lawyers, lodged a Reply to the ARD dated 6 April 2023 which, amongst other things, relevantly alleged that Mr Antoniak is estopped from bringing a claim for weekly compensation benefits. The Star raised res judicata estoppel and the estoppel principles espoused in Port of Melbourne Authority v Anshun Pty Limited[23] (Anshun) in respect of the entirety of the proceedings.
[23] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589.

ISSUES FOR DETERMINATION

The parties agreed that the issue in dispute is whether Mr Antoniak is estopped from bringing a claim for weekly compensation benefits.

Matters previously notified as disputed

The issues in the dispute notice referred to above are no longer relevant following then Arbitrator Wynyard’s Certificate of Determination – Oral Decision dated 9 October 2019.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference and arbitration hearing in person in the Commission’s Darlinghurst premises on 23 May 2023. Ms Lyn Goodman of counsel appeared for Mr Antoniak, instructed by Mr Ben Loveridge, solicitor and Mr Lachlan Robison of counsel appeared for The Star, instructed by Ms Belinda Walsh, solicitor.
The parties were unable to resolve the dispute during the conciliation phase.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to an arbitration hearing.
The Star sought to rely on its Application to Admit Late Documents dated 22 May 2023. Mr Antoniak objected and The Star withdrew the application.
At the commencement of the arbitration hearing, the parties confirmed the issue in dispute.
By consent, Mr Antoniak was granted leave to amend the ARD to claim weekly benefits compensation from 12 February 2019 to 16 August 2021, the latter date being the end of the second entitlement period.
After further discussion, the parties agreed that if The Star’s estoppel argument failed, then I should enter an award in favour of Mr Antoniak in the following terms:
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 1987 Act;
(b)$1,404.98 per week from 14 May 2019 to 26 May 2019 under s 37(1) of the 1987 Act;
(c)$859.71 per week from 27 May 2019 to 2 June 2019 under s 37(2)(a) of the 1987 Act;
(d)$325.87 per week from 10 June 2019 to 16 August 2021 under s 37(2)(a) of the 1987 Act, and
(e)the respondent is to be given credit for any payments made.
I note the agreement that Mr Antoniak was not entitled to any weekly compensation from 3 June 2019 to 9 June 2019.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 16 March 2023 and attached documents, and
(b) Reply to ARD (Reply) dated 6 April 2023 and attached documents.

Oral evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

The medical and other documentary evidence

Due to the nature of the dispute, there is no need for the medical and other documentary evidence to be reviewed.
The relevant documentary evidence has been referred to in the background set out above.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will now outline the parties’ submissions.

The Star’s submissions

There is a risk that, in specialist courts or tribunals, there is a departure from case management practices and the long common law tradition of estoppel. This matter is such a case where estoppel, in fact, precludes the litigation from proceeding. The Star referred to Kirk v Industrial Relations Commission[24] (Kirk).
[24] Kirk v Industrial Relations Commission [2010] HCA 1, Heydon, J at [122].
Many practitioners labour under the false legal understanding that a worker can bring a claim for weekly compensation one day, a claim for medical expenses the next day and a lump sum claim the day after that. Of course, there are cases where a worker can legitimately bring one part of their claim in one case and another part in another case and that is because there is one modification to Anshun estoppel.
The modification applies in an ongoing regime of compensation under a statute as opposed to common law because not all rights necessarily accrue simultaneously. An example is where a worker may be incapacitated, bring a claim for weekly compensation and later, after surgery and recovery therefrom, bring a claim for permanent impairment compensation. In such a case, the two sets of proceedings are properly being agitated. Similarly, where a worker may be on weekly benefits for several years and then require surgery which is declined by the insurer, a separate case may be brought even a decade after the weekly dispute had been agitated.
Excluding those examples where rights accrue at different points in time and when they are all extant and justiciable, Anshun estoppel does apply and a worker must agitate all aspects of the case at once.
The present case might be described as Anshun on steroids because it is not just a problem of the worker splitting his case, it is a problem of a worker, in fact, actually running his weekly compensation case. He persuaded an Arbitrator that he should be compensated for that claim. It was reasonably open for Mr Antoniak to bring the claim and the fact is that he did so and won.
Fourmeninapub Pty Ltd v Booth[25] (Fourmeninapub) confirmed that all forms of estoppel at common law apply in workers compensation matters with the necessary modification outlined above, that is, where rights might not exist simultaneously.
[25] Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25.

In Geary v UPS Pty Ltd[26] (Geary), the ultimate question was whether or not it was reasonable for a worker to have failed to plead a part of his claim. In the present case, the worker, in fact, agitated his case to finality and therefore, no question arises as to whether he could have done it because he did do it.
[26] Geary v UPS Pty Ltd [2021] NSWPICPD 47.
The ARD in this case is in respect of a claim for weekly benefits and that was the aspect of the claim that was withdrawn in the previous proceedings.
The ARD in the previous proceedings involved the same claim for weekly benefits and a claim for medical expenses.
The withdrawal of the claim for weekly benefits in the previous proceedings resulted in an award for medical and related expenses under s 60 of the 1987 Act, which fell below the threshold for the purposes of an appeal.
There is an element of discretion in applying Anshun estoppel. Liability was hotly in issue in the previous proceedings. The Reply in the previous proceedings set out the matters in dispute under Part 3 of the document. The transcript of the previous proceedings demonstrates that The Star put injury in issue and in the alternative, relied on s 11A of the 1987 Act to defeat the claim. The withdrawal of the claim for weekly benefits demonstrably prejudiced The Star in being able to appeal and seek to set aside Arbitrator Wynyard’s liability findings.
The letter dated 14 October 2019 notifying the Workers Compensation Commission, The Star’s lawyer and Mr Antoniak’s counsel of the withdrawal of the claim for weekly benefits, evidently did not come to the attention of Arbitrator Wynyard and perhaps, not even to The Star, given that it lodged an appeal. The merits of that appeal were never the subject of any determination because it was dismissed on jurisdictional grounds.
On 5 December 2019, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination wherein various orders were made in respect of the claim for weekly benefits in ignorance of that claim having been withdrawn and reasons were provided for doing so.
The Star’s appeal was opposed on the merits of the appeal by Mr Antoniak. However, that ultimately merged in the course adopted by Wood DP. There was no consideration of the merits of The Star’s defence at first instance or in the grounds of appeal but rather, the matter was dismissed because of the jurisdictional threshold issue.
Mr Antoniak made an application for reconsideration before Arbitrator Wynyard. Dismissing the application, Arbitrator Wynyard determined that his Certificate of Determination dated 5 December 2019 was trumped by the appeal.
Following the dismissal of the application for reconsideration, Mr Antoniak, through his lawyers, sought to reinvigorate the claim for weekly benefits compensation in a letter dated 27 November 2020.[27]
[27] Reply at page 166.
One would really struggle to find a case where it is more obvious that it was open to an initiating party to bring both parts of his case and in fact did so.
Prima facie, it has been established that estoppel has been made out and to the extent that there is a discretionary element, The Star was clearly prejudiced because it could not run its appeal. Although The Star carries the onus of making out its defence, one must also pause to reflect that there is nothing before the Commission by way of explanation as to why the weekly benefits compensation claim was withdrawn. There was no statement by Mr Antoniak or his lawyer explaining the reason for splitting his case. There is a severance of the case, which had already been run, without any explanation and resulting in actual prejudice to The Star.
In such circumstances, the Anshun estoppel defence is made out and operates as a complete bar to the proceedings. In terms of the relief that should follow, as the merits of the workers compensation claim are not before the Commission, an award is not required. The correct relief ought to be the dismissal of the proceedings.

Mr Antoniak’s submissions

Mr Antoniak did bring both the claim for weekly benefits compensation and the claim for medical expenses at the same time. At some point, a decision was made to discontinue the claim for weekly benefits compensation. There was a very good reason for doing so and it was referred to in Mr Antoniak’s written submissions in his application for reconsideration. It was to get some further evidence in respect of Mr Antoniak’s incapacity for work. A view was taken that there was a deficiency as far as that was concerned.
It is all very well for The Star to say the lawyers in this jurisdiction, like other jurisdictions, should take care to bring all their claims at the one time, however, the practice of the Commission has always been that cases can be discontinued without penalty and that is said to workers time and time again by Members of the Commission. They are always told that further evidence can be brought and that there is no prejudice to the worker’s rights.
The worker has statutory rights and it is for the worker to enforce those rights at the appropriate time. By way of example, a worker might only have a claim for surgery and then bring a claim for general medical expenses or a closed period of weekly compensation benefits because the worker has returned to work and then brings a further claim. It must always be remembered that the timetable the Commission sets is conducive to the procedures in the Commission to get matters dealt with for workers as quickly and speedily as possible, without too much recourse to formality. The matters are brought on quickly so that the worker has something to live on without being thrown onto the Centrelink heap.
Claims are made for weekly compensation benefits and/or for medical expenses and from time to time, workers have to discontinue the proceedings or one part of the proceedings. That is what occurred in Mr Antoniak’s case. At some point, the decision was made to discontinue the weekly compensation benefits part of his case because there was insufficient evidence for Mr Antoniak to obtain continuing weekly compensation benefits.
At the time of the arbitration on 3 October 2019, there were reports from Dr Christopher Canaris, consultant psychiatrist, commissioned by Mr Antoniak’s lawyers and Dr Graham George, psychiatrist, commissioned by The Star’s lawyers which supported the claim for weekly compensation benefits at that time but not on an ongoing basis. Mr Antoniak was claiming weekly compensation benefits way beyond that time. Accordingly, it was thought appropriate to bring the claim for weekly compensation as a whole. That is, not for a short, closed period and then return later with further medical evidence to deal with the balance of the ongoing entitlement to weekly compensation benefits. There is a further report in these proceedings from Dr Canaris dated 10 August 2021.[28]
[28] ARD at pages 165-168.
There is absolutely no evidence to support any suggestion that the timing of the discontinuance was done purposely to take advantage of the fact that there was a decision made that was helpful to Mr Antoniak.
The Star submitted that it was prejudiced because the determination was made by Arbitrator Wynyard and then Mr Antoniak discontinued the claim so that the appeal threshold could not be achieved and it would be denied the opportunity of having the merits of the case dealt with.
Mr Antoniak withdrew the claim for weekly benefits compensation on 14 October 2019. The Star lodged its appeal after Mr Antoniak had already withdrawn the claim for weekly benefits compensation. Mr Antoniak did not hold off discontinuing the claim until such time he knew that the respondent was going to lodge an appeal. In a sense, it is not Mr Antoniak who was the author of the prejudice caused to The Star. It was, in fact, the rules of the Commission that if one does not reach the threshold for appeal, one cannot appeal. Mr Antoniak was entitled to take the step he took in withdrawing the claim for weekly benefits compensation prior to any appeal being filed.
Thus far, it has always been held that workers can bring their statutory entitlements at any time. There is no decision thus far that, in situations like this one, the worker is estopped from pursuing a claim for weekly benefits compensation at another time.
The cases that involved estoppel mainly dealt with the question of whether or not the worker should have brought a different claim at the same time in respect of how he/she had sustained an injury. Unlike in this case, where procedurally, the worker has always been able to bring different claims at different times. For example, Fourmeninapub was in respect of whether the worker, having lost in respect of a claim for injury under section 4(b)(i) of the 1987 Act, could now turn around and bring a further claim pursuant to s 4(b)(ii) of the 1987 Act. Mr Antoniak also referred to Woolstar Pty Ltd v Wood[29] (Woolstar) and Geary.
[29] Woolstar Pty Ltd v Wood [2022] NSWPICPD 25.
The factual circumstances in Fourmeninapub, Geary and Woolstar are different from this case. They were certainly not situations where a worker had to discontinue during or at the beginning of proceedings. They were not claims for a statutory benefit in which the worker was estopped from bringing that claim again because of an estoppel.
It is acknowledged that in other jurisdictions estoppel occurs on a relatively regular basis. If there is an opportunity to bring all your claims at the one time, of course, that is a better way of doing it.
Injured workers’ statutory rights all arise at different times. They do not all accrue simultaneously. This matter is one of those unfortunate cases where something has occurred during the running of the case that has alerted the legal practitioners to perhaps needing some further medical evidence. Mr Antoniak, within a few days of the matter having run before Arbitrator Wynyard, discontinued the weekly benefits compensation claim and is now bringing the claim again.
The Commission would not find that there is a res judicata estoppel. The Star made no submissions on res judicata estoppel.
An Anshun estoppel applies in cases where the person or entity against whom the estoppel is seeking to be enforced has acted unreasonably in refraining from including a particular claim in earlier proceedings.[30] In this matter, there was absolutely nothing unreasonable about what was done by Mr Antoniak in the earlier proceedings.
[30] Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 at [127].
In Fourmeninapub, Phillips P found that the Arbitrator had not erred in finding that Ms Booth did not act unreasonably by not claiming that she suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act and by not pursuing that cause of action in the earlier proceedings. Phillips P also found that the Arbitrator had not erred in finding that Ms Booth was not estopped by the principal in Anshun from maintaining her cause of action that she suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act.[31]
[31] Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 at [137].
The present case, was not one where proceedings had not been brought in respect of injury itself. In this case, injury had not been raised and Arbitrator Wynyard found that injury could not be raised at a later stage. In Fourmeninapub, what was missing was a medical report dealing with the disease provisions and for that reason, Ms Booth’s lawyers were not alert to the fact that Ms Booth could have brought a claim for injury under s 4(b)(ii) of the 1987 Act.
In the present case, Mr Antoniak brought his claim but soon after the proceedings, his lawyers realised that the medical evidence did not allow for a continuing award of weekly benefits compensation and therefore, discontinued the claim so that a further medical report could be obtained from Dr Canaris.
In his report dated 10 August 2021, Dr Canaris, in respect of work capacity, opined that Mr Antoniak was able to work full-time but should avoid jobs involving high pressure and long hours with a high workload.[32] Dr Canaris’ opinion was provided at about the time that Mr Antoniak’s 130 week second entitlement period closed.
[32] ARD at page 168 at [7].
The Commission would not find that there is an Anshun estoppel in this case. In Anshun, the issue was whether the insurer could have brought a different claim for indemnity but failed to do so in the actual proceedings and then was estopped from bringing that claim because it should have been brought at the same time. This matter is not such a case because of the rules of the Commission and because Mr Antoniak has statutory rights that he is able to enforce as and when appropriate.
Unlike Anshun, Mr Antoniak’s case has been brought and run in accordance with guidelines of the Commission and he is entitled to bring that claim again. It is not the sort of matter that an Anshun estoppel was meant to catch, for example, a finding on injury. Even where there is a finding on injury, cases like Fourmeninapub and Woolstar have, in fact, specifically said that there is no estoppel that applies because in both those cases, the worker brought claims pursuant to s 4(b)(i) of the 1987 Act and then brought a claim pursuant to s 4(b)(ii) of the 1987 Act.
There should be an award in favour of the applicant in accordance with [22] above.

Star’s submissions in reply

Deficiency of evidence is no answer to a defence of Anshun estoppel because all cases are capable of being strapped up and improved. Counsel have all had cases where, on the walk back to chambers from court, they thought of things they could have done better and of evidence that, perhaps, should have been obtained beforehand. There is nothing unusual about that.
If there be a practice of the Commission being permissive of discontinuance, then it is a practice based on an error of how Anshun estoppel operates. Kirk is an example of where a fundamental error becomes mainstream in a specialist court or tribunal.
The need to bring matters on quickly is not unique to the workers compensation jurisdiction. The Local Court, District Court of NSW and the Supreme Court of NSW are governed by the Civil Procedure Act 2005 and s 56 of that Act imposes an obligation on the court, the parties and lawyers to act in a manner which is, inter alia, fast. Anshun estoppel will always be a question of the facts in any given case.
There was no evidence of Mr Antoniak’s pressing financial need. The way in which the proceedings were conducted would strongly imply the contrary and it is now a few years since the original proceedings were commenced.
What is known from cases like Fourmeninapub is that estoppel principles do apply in workers compensation litigation. The ratio in the case was not one of bringing a case under s 4(b)(i) and then s 4(b)(ii) of the 1987 Act. The facts of the case were that the worker did not have evidence to agitate the kind of claim that she brought the second time and that is why the respondent failed on Phillips P’s findings on the legal principles.
There is no point of difference in terms of principle between Fourmeninapub and this case. However, the major point of difference in this case is that the claim was actually run. It is a case of Anshun on steroids because it is not a hypothetical. It was not a question of whether the claim could have been run, it was run and that is an important point.
It is the severance of the weekly compensation benefits after the matter was run is the lacuna for which there was no real evidence. There is no evidence by way of statement or affidavit from the person who thought it was appropriate that the matter be discontinued. There was really no evidence to form a view as to why the claim was severed.
The Star was not suggesting that there was any bad faith or sharp practice on the part of Mr Antoniak or his lawyers. There is no suggestion that they deliberately conspired to preclude the appeal by The Star because of the threshold issue. What has happened, as a result of what occurred, is the appeal being precluded on jurisdictional grounds and therein lays the prejudice.
Anshun is effectively a twofold test. Firstly, has the worker in this case unreasonably severed his case? Secondly, if so, do discretionary factors warrant its application as a bar? The answer to the second question is in the affirmative because The Star could not appeal.

FINDINGS AND REASONS

The legislation and legal principles

At the relevant time, the Workers Compensation Commission Rules 2011 relevantly provided:
“15.7 Discontinuance
(1)An applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.
(2)The applicant and any other party to proceedings may agree to the discontinuance of the proceedings (or any part of the proceedings) as against that other party at any time.
(3)A discontinuance referred to in subrule (1) or (2) takes effect when a notice of the discontinuance, stating the limits (if any) of the discontinuance, is lodged and served on all parties to the proceedings who are not parties to the discontinuance.”
In The Star’s appeal, Wood DP observed that it had not been disputed that Mr Antoniak provided notice to the Commission and the Star on 14 October 2019 that he had discontinued his claim for weekly payments. The fact that Mr Antoniak’s claim for weekly compensation benefits was variously referred to as withdrawn, discontinued or severed in these proceedings is consistent with Wood DP’s observations above.
I do not accept The Star’s submission relying on Kirk, that, if there be a practice of the Commission being permissive of discontinuance, then it is a practice based on an error of how Anshun estoppel operates. I reject the submission that such practice is a Kirk example of where a fundamental error becomes mainstream in a specialist court or tribunal.
The Workers Compensation Commission Rules 2011 that applied in the Workers Compensation Commission, a specialist tribunal, at the relevant time clearly stated that an applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.
This matter has been brought in the Commission, which was established under the Personal Injury Commission Act 2020. Section 3 of the Act sets out the objects of the Act and they relevantly include enabling the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. Section 42 of the Act provides that the guiding principle for the Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
The parties in these proceedings, to their credit, have cooperated in this regard by significantly narrowing the issues for determination.
I now turn to the Anshun estoppel issue.
The Star bears the onus to establish a defence based on Anshun in this case.
Although the circumstances that give rise to estoppel and the underlying principles of the different categories of estoppel vary significantly, the common and essential effect is that a party to litigation is prevented from making an assertion that is contrary to matters of fact and/or law which are deemed to have been conclusively disposed of.
Whilst in its Reply in these proceedings The Star alleged Anshun and res judicata estoppel, it quite properly made no submissions in respect of res judicata in its submissions at the arbitration hearing in these proceedings. The focus was on Anshun estoppel.
In determining whether an estoppel has been made out, I am entitled to look at the record, including Arbitrator Wynyard’s oral decision on 3 October 2019 and the transcript of those proceedings in order to see what was actually decided.[33] I am entitled to consider any material that showed what issues were raised and decided[34] and I am entitled to consider the evidence in the prior proceedings to show what issues were decided.[35] I am to enquire into realities and not mere technicalities.[36]
[33] Egri v DRG Australia Limited (1988) 19 NSWLR 600.
[34] Jackson v Goldsmith (1950) 81 CLR 446 at [467] and Rogers v The Queen (1994) 181 CLR 251 at [263]
[35] Ord v Ord (1923) 2 KB 432 at [442]; Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2) [1967] 1AC 853 at [965] (Carl Zeiss Stiftung); and Murphy v Abi-Saab (1995) 37 NSWLR 280 at [288].
[36] R v Humphrys (1977) AC 1 at [41].

In Anshun, Anshun Pty Ltd (Anshun) had hired a crane from the Port of Melbourne Authority (the Authority). This hiring was governed by an agreement by which Anshun agreed to indemnify the Authority against all actions in relation to injury or loss of life related to the use of the crane. A worker was injured in the course of his employment when a load of girders being handled by the crane fell on him. The worker sued the Authority and Anshun for damages and negligence. Both defendants claimed contribution from one another, but the Authority did not in its defence plead its contractual right to an indemnity. The worker recovered damages and the Court ordered that Anshun should recover contribution from the Authority to the extent of 90% of the damages and the Authority from Anshun in the amount of 10%. The Authority later brought a second action against Anshun pleading its rights under the contractual indemnity. The question that arose for consideration was whether or not the Authority was estopped from maintaining this second action based upon the indemnity.
In not allowing the Authority to maintain its claim based on the contractual indemnity, the plurality in Anshun found as follows:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in 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. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac.(1876) 94 US (24 Law Ed, at p 199).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.”[37]
[37] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589 at [602]–[603].
The majority in Anshun considered that:
“… Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”[38]
[38] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589 at [37].
Anshun estoppel usually arises where a party seeks in subsequent proceedings to raise a defence that could and should have been raised in the earlier proceedings between the same parties but was not. In certain circumstances, the party may be estopped from raising that defence in later proceedings. The underlying rationale is to avoid contradictory outcomes.
There will be an Anshun estoppel where the matter relied on in 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 there. The principle is based on the policy that parties to litigation should bring forward their whole case and not seek to reopen issues in subsequent litigation, not only to avoid the possibility of inconsistent decisions but also to make efficient use of court or tribunal resources and judicial/decision-maker time.
It is insufficient that the issue could have been raised in the earlier proceedings; it must have been unreasonable not to have done so. The principle applies to matters that could have been relied on in the former proceedings to ground a claim, counterclaim or defence and applies whether the matters relied on in the second proceeding to ground a cause of action or by way of defence. Likewise, where the question is the reasonableness or otherwise of conduct in litigating or not litigating a claim. There are circumstances where a party may justifiably refrain from litigating an issue in one proceeding and yet wish to litigate the issue in other proceedings. Some examples, as referred to in Anshun, are expense; importance of the particular issue; and motives extraneous to the litigation.
The Anshun principle has been considered in a number of cases.
Fourmeninapub concerned the application of the principles of estoppel. In particular, it concerned whether the worker’s claim for lump sum compensation for a disease injury pursuant to s 4(b)(ii) of the 1987 Act was barred by issue estoppel and/or Anshun estoppel because a claim under s 4(a) of the 1987 Act had been previously determined. In the alternative, it concerned whether the worker sustained a disease injury pursuant to s 4(b)(ii) of the 1987 Act in the absence of there being a “disease to be aggravated”.
In Fourmeninapub, Phillips P quoted the following passage by McColl JA in Habib v Radio 2UE Sydney Pty Limited (Habib) in respect of Anshun estoppel:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors[2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers.”^[39]
[39] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [84].
In Fourmeninapub, Phillips P found that the Arbitrator had not erred in finding that Ms Booth did not act unreasonably by not claiming that she suffered a disease injury within the meaning of s 4(b)(ii) of the 1987 Act and by not pursuing that cause of action in the earlier proceedings. Phillips P also found that the Arbitrator had not erred in finding that Ms Booth was not estopped by the principal in Anshun from maintaining her cause of action that she suffered a disease injury pursuant to s 4(b)(ii) of the 1987 Act.[40]
[40] Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 at [137].
In its submissions, The Star briefly referred to Geary.
On 10 September 2019, Mr Peter Geary commenced proceedings against UPS Pty Ltd (respondent) in the then Workers Compensation Commission (2019 proceedings) claiming lump sum compensation in respect of a 37% whole person impairment (WPI), on the basis of injuries to his bilateral shoulders and his neck, as well as medical expenses. The injury allegations in the 2019 proceedings referred to the date of injury as being 1 February 2018 and the injury description as being physical injuries to the right shoulder as a result of overcompensation and consequential injuries to the left shoulder and neck.
On 29 November 2019, a Certificate of Determination – Consent Order issued in respect of the 2019 proceedings (2019 COD) wherein Mr Geary discontinued the s 66 claim; amended the injury details to add the cervical spine; there was an award for the respondent in respect of the allegation of injury and/or consequential injury to the cervical spine; and that the respondent pay medical and related expenses incidental to the left shoulder surgery.
On 28 September 2020, Mr Geary’s lawyers wrote to the respondent attaching a report from Dr Peter Endrey-Walder dated 17 September 2020 and making a claim under s 66 of the 1987 Act for 46% WPI based on injuries to Mr Geary’s bilateral shoulders and cervical spine (2020 claim). The letter also requested that the respondent revoke its denial of liability in respect of the cervical spine injury.
On 5 January 2021, the respondent’s lawyers wrote to Mr Geary’s lawyers making an offer of 13% WPI in respect of the right shoulder only, noting the date of injury as1 February 2018.
On 14 January 2021, Mr Geary, through his lawyers, lodged an ARD in the Personal Injury Commission seeking to agitate the 2020 claim. The ARD claimed lump sum compensation under s 66 of the 1987 Act in respect of 46% WPI. The ARD alleged a disease injury with the deemed date of 1 February 2018 as a result of the nature and conditions of Mr Geary’s employment combined with an incident at work on 1 February 2018, where he sustained physical injuries to his right shoulder. It also alleged that, as a result of overuse and over-compensation, he also sustained consequential injuries to his left shoulder and neck as well as scarring as a result of surgery.
The question for consideration was whether Mr Geary was subject to an Anshun estoppel in now seeking to agitate a claim with respect to a disease injury to his cervical spine by operation of the award with respect to the cervical spine given in the 2019 COD in relation to the frank injury.
In Geary, Phillips P confirmed his observation in his decision in Secretary, Department of Communities and Justice v Miller & Anor (No 5)[41] (Miller No 5), namely, that it was certainly possible in the context of workers compensation cases to pursue different statutory benefits in different proceedings. However, that did not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view.[42] The question is whether it was unreasonable not to have pleaded the cause in an earlier action.
[41] Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38.
[42] Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 at [194].
In Geary, Phillips P referred to the following passage by McColl JA (Giles and Campbell JJA agreeing) in Habib regarding Anshun estoppel:
“The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in 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’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.”[43]
[43] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [81].
Importantly, in Geary, Phillips P quoted the following warning by McColl JA in Habib:
“shut[ting] out a claim ... 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, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’”.[44]
[44] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [85].
In Geary, Phillips P concluded as follows:
“The Member has found that an aspect of the appellant’s [Mr Geary’s] claim, namely his disease claim in relation to his cervical spine based upon the nature and conditions of his employment with the respondent, is not able to be maintained due to the existence of an Anshun estoppel. As I have previously found in relation to claims under the workers compensation Acts, it is possible for various claims under that legislation to be pursued in different proceedings without engaging with the Anshun principle. However the Anshun principle does exist for deployment in workers compensation claims in appropriate cases. By appropriate cases I mean cases where after a consideration of the facts and the undertaking of the evaluative exercise referred to by McColl JA in Habib, the Anshun principles might then be enlivened. Unfortunately for the appellant in this case, the circumstances that have arisen have enlivened the Anshun principle in relation to his lump sum claim pertaining to his cervical spine. …”[45]
[45] Geary v UPS Pty Ltd [2021] NSWPICPD 47 at [123].
In Woolstar, a worker was not estopped from making a claim that his work had aggravated a pre-existing condition under s 4(b)(ii) of the 1987 Act simply because his psychological injury claim under s 4(b)(ii) of the 1987 Act was rejected due to a significant failure to disclose a psychiatric history. On appeal, Snell DP agreed that the worker had not run the aggravation case earlier because he did not have the expert evidence to support it and had forgotten about his non-work related issues that had occurred many years previously and his diagnosis was changed following the disclosure of his pre-existing condition. Employment was the main contributing factor to the aggaravation of that pre-existing disease.
In Woolstar, Snell DP quoted the following passage by McColl JA in Habib after Her Honour had described the test in Anshun as one of reasonableness:
“… Anshun estoppel introduces ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’; it is ‘allied to, but not co-extensive with, res judicata and issue estoppel’. Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 (at [64] - [65]), referring to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at 295) (Full Federal Court).”[46]
[46] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [82].

Consideration and findings

The factual background in respect of the conduct of this matter is somewhat unusual and I have set it out in detail in [2]-[25] above.
Fourmeninapub, Miller No 5, Geary and Woolstar were all cases that, amongst other things, confirmed that the Anshun principle can be applied in workers compensation cases after a consideration of the facts and the undertaking of an evaluative exercise. Those cases were factually significantly different to this matter.
Mr Antoniak lodged an ARD dated 12 August 2019 in the then Workers Compensation Commission claiming weekly benefits and medical expenses (first proceedings) after The Star issued a dispute notice accepting injury within the meaning of ss 4 and 9A of the 1987 Act but relying on s 11A to allege that Mr Antoniak’s psychological/psychiatric injury was wholly or predominantly caused by the reasonable actions of The Star with respect to performance appraisal and/or discipline.
The date of injury in the first proceedings was particularised in the ARD as 7 January 2019, being the deemed date of injury. The type of injury was described as a psychological injury – disease injury. The injury description was particularised in words to the following effect:
(a)    injury due to bullying and harassment in the workplace;
(b)    excessive work hour demands of the employer;
(c)    unfair performance review (9 February 2019) prepared by Chris Matters, the director of dining;
(d)    failure by the director of dining to act on complaints about staff members and the part owner, Con Dedes, and
(e)    failure by the director of dining, Chris Matters, to follow-up on policies and procedures recommended by Mr Antoniak.
The claim for weekly benefits compensation in dispute in the first proceedings was particularised in the ARD to the following effect:
(a)    12 February 2019 to 13 May 2019 under s 36 of the 1987 Act: $1,826.92 per week;
(b)    14 May 2019 to 26 May 2019 under s 37 of the 1987 Act: $1,538.45 per week, and
(c)    27 May 2019 to date and continuing under s 37 of the 1987 Act: $484.37 per week.
The claim for past treatment expenses in the first proceedings was particularised in the ARD as follows:
(a)    general practitioner: $672.48;
(b)    psychologist: $535;
(c)    pharmacy: $11, and
(d)    Medicare: $503.15.
In its Reply in the first proceedings, The Star identified the following matters as being in dispute:
(a)    any incapacity suffered by Mr Antoniak was related to any injury at work;
(b)    the rate of weekly compensation claimed;
(c)    the entitlement to weekly compensation payments under s 33 of the 1987 Act;
(d)    the entitlement to reasonably necessary medical and related expenses under s 60 of the 1987 Act;
(e)    employment was the main contributing factor to a disease contracted by Mr Antoniak, or any aggravation, acceleration, exacerbation or deterioration of a disease as alleged or at all;
(f)    the events alleged by Mr Antoniak were real events or did actually occur, and
(g)    if Mr Antoniak did suffer psychological injury, the reasonable actions of The Star with respect to performance appraisal and/or discipline wholly or predominantly caused such injury and therefore, Mr Antoniak has no entitlement to compensation.
In the current proceedings before me, the date of injury, nature of injury and injury description in the ARD were in almost identical terms to those in the first proceedings. None of the differences had any effect on the substance of the claim. The claim for weekly benefits compensation in dispute was particularised in the ARD to the following effect:
(a)    12 February 2019 to 13 May 2019 under s 36 of the 1987 Act: $1,668.42 per week;
(b)    14 May 2019 to 26 May 2019 under s 37 of the 1987 Act: $1,404.98 per week;
(c)    27 May 2019 to 2 June 2019 under s 37 of the 1987 Act: $959.71 per week;
(d)    10 June 2019 to 26 July 2019 under s 37 of the 1987 Act: $413.68 per week;
(e)    27 July 2020 to 12 August 2020 under s 37 of the 1987 Act: $413.68 per week, and
(f)    13 August 2020 to 12 February 2021 under s 37 of the 1987 Act: $506.23 per week (period amended at the arbitration hearing to extend to 6 August 2021).
Whilst there were some variations in the weekly amounts claimed and the claim was closed off at the end of the second entitlement period, it was effectively the same claim involving the same parties.
At the arbitration hearing in the first proceedings, The Star confirmed that it sought to put injury in dispute contrary to its dispute notice under s 78 of the 1998 Act.
Arbitrator Wynyard referred to s 289A(1) of the 1998 Act, which states that a dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed. Arbitrator Wynyard was satisfied that, on reading The Star’s dispute notice, Mr Antoniak would be under no doubt whatsoever that the only issue he had to meet was the defence under s 11A of the 1987 Act.[47] Accordingly, the Arbitrator refused to exercise his discretion under s 289A(4) of the 1998 Act to grant The Star leave to dispute psychological injury on the basis that it was not in the interests of justice to do so.
[47] Reply at pages 29-30 [transcript dated 3 October 2019].
Arbitrator Wynyard observed:
“Further, I think in cases of this nature where there is no challenge on any version of the respondent’s case that Mr Antoniak is carrying a psychological injury, to make him go through the whole process again I think is also a matter of real prejudice.”[48]
[48] Reply at page 31 [transcript dated 3 October 2019].
Counsel for The Star provided oral submissions in respect of the defence under s 11A of the 1987 Act, as did counsel for Mr Antoniak.
Arbitrator Wynyard was satisfied that The Star’s defence under s 11A of the 1987 Act had not been made out.[49] The Arbitrator found that Mr Antoniak had a continuing incapacity and sought written submissions in respect of the quantum of the same.[50] The Arbitrator entered an award in favour of Mr Antoniak that The Star pay his medical and related expenses on production of accounts, receipts and/or Medicare charge. The Arbitrator further stated:
“There will be an award in favour of the applicant in relation to weekly payments and I stand the matter over in accordance with my direction [the written submissions on weekly benefits].”[51]
[49] Reply at page 66 [transcript dated 3 October 2019].
[50] Reply at page 67 [transcript dated 3 October 2019].
[51] Reply at page 68 [transcript dated 3 October 2019].

On 9 October 2019, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination – Oral Decision in the terms referred to in [9] above.
On or about 11 October 2019, the parties lodged their respective submissions in accordance with Arbitrator Wynyard’s direction.
On 14 October 2019, Mr Antoniak, through his lawyers, emailed the Workers Compensation Commission and The Star advising that his instructions were to withdraw the claim for weekly benefits of workers compensation and requested that an award be entered in accordance with the Certificate of Determination – Oral Decision dated 9 October 2019. I accept and find that the letter amounted to a discontinuance of Mr Antoniak’s weekly benefits compensation claim. At this point in time, there was an award for a general order in respect of expenses under s 60 of the 1987 Act and an award for weekly benefits compensation in favour of Mr Antoniak but the latter benefits had not yet been quantified by the Arbitrator.
I am satisfied and find that Mr Antoniak discontinued his claim for weekly benefits compensation on 14 October 2019. My finding in this regard is consistent with that of Wood DP in the Appeal Against Arbitrator Wynyard’s oral decision (the Appeal).
On 4 November 2019, prior to Arbitrator Wynyard’s determination of the quantum of Mr Antoniak’s entitlement to weekly benefits compensation, The Star lodged the Appeal. The Star relied on the grounds of appeal referred to in [12] above.
On 5 December 2019, the Workers Compensation Commission issued Arbitrator Wynyard’s Certificate of Determination and Statement of Reasons in respect of the claim for weekly benefits, which Mr Antoniak had already discontinued on 14 October 2019. The determination was in the terms set out in [13] above. It was not disputed that Arbitrator Wynyard was unaware that the claim for weekly benefits compensation had been discontinued prior to the issue of his Certificate of Determination and Statement of Reasons.
In Mr Antoniak’s application for a reconsideration of Arbitrator Wynyard’s determination in respect of weekly payments dated 5 December 2019, he sought to have the orders made therein rescinded. The Arbitrator dismissed the application for reconsideration on the basis that, once the discontinuance was lodged, there was no longer any dispute to decide and that his decision that post-dated the discontinuance made his decision in respect of the claim for weekly benefits compensation null and void. Therefore, there was nothing to reconsider in the application before him.
I find that the discontinuance of the claim for weekly benefits compensation on 14 October 2019 resulted in the decision dated 5 December 2019 as having no effect. In such circumstances, the claim for weekly benefits compensation, although it had been argued at the arbitration hearing with an award for a yet to be determined quantum of weekly benefits compensation, it had not achieved finality. That is, it had not been conclusively disposed of.
I reject The Star’s submission that there was no real evidence to form a view as to why the claim for weekly benefits compensation was discontinued. In the written submissions in the application for reconsideration dated 20 September 2020, Mr Antoniak’s counsel, Mr Tanner, provided the reason for discontinuing the claim for weekly benefits compensation. Mr Tanner appeared on behalf of Mr Antoniak at the arbitration hearing on 3 October 2019. Whilst it was not evidence in the form of a statement, I give it some weight because it was consistent with Mr Antoniak’s lawyers prompt request for a supplementary report from Dr Canaris on 28 October 2019 and the latter’s provision of a supplementary report dated 26 November 2019.[52]
[52] ARD at pages 163-164.
The contents of Dr Canaris’ supplementary report was consistent with the oral submissions made by Mr Antoniak in the current proceedings, namely, that the purpose of the discontinuance was to obtain further evidence in respect of Mr Antoniak’s capacity for work, because there was a deficiency in respect of such evidence. In his supplementary report, Dr Canaris clarified the opinion in his report dated 17 June 2019 as follows:
“I think it is fair to say that at the time of my consultation with him [Mr Antoniak] on 8 June 2019 he was not fit to work in the hospitality industry generally as opposed to being restricted only from working in management positions. In so say [sic: saying], I note that the hospitality industry is generally stressful and demanding.”[53]
[53] ARD at page 164.
In the factual circumstances described above, I find that it was not unreasonable for Mr Antoniak to discontinue the claim for weekly compensation benefits. He was entitled to discontinue that part of the claim in accordance with the applicable rules at the time, namely, the Workers Compensation Commission Rules 2011.
The Star clarified in its oral submissions that it was not suggesting any bad faith or sharp practice on the part of Mr Antoniak or his lawyers deliberately conspiring to preclude the Appeal because of the threshold issue. The Star submitted that the discontinuance resulted in the Appeal being precluded on jurisdictional grounds and caused it prejudice. Whilst this was a consequence of the discontinuance, which I have found not to have been unreasonable, it was necessarily so because of the monetary threshold provision in s 352(3) of the 1998 Act.
If Mr Antoniak were estopped from bringing the current claim for weekly benefits compensation, The Star submitted that the ARD be dismissed. This would be a serious step and would result in Mr Antoniak having no entitlement to weekly benefits by shutting out his claim. Such an outcome would conflict with Arbitrator Wynyard’s oral decision on 3 October 2019 that there be an award in favour of Mr Antoniak in respect of the claim for weekly benefits compensation that was to be quantified after the consideration of written submissions.
I agree with Mr Antoniak’s submission, for the reasons stated above, that his matter was not the sort of matter that an Anshun estoppel was meant to catch.
Accordingly, I find that Mr Antoniak is not estopped from bringing the current claim for weekly benefits compensation.
In accordance with the agreement reached by the parties, I enter an award in the terms referred to in [36] above.

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2023] NSWPIC 351

17 July 2023