Howard v Bede Murray Racing Stables

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Howard v Bede Murray Racing Stables [2022] NSWPIC 665
APPLICANT:	Joanne Howard
RESPONDENT:	Bede Murray
Member:	Paul Sweeney
DATE OF DECISION:	2 December 2022
CATCHWORDS:	WORKERS COMPENSATION - By a section 78 of the Workplace Injury Management and Workers Compensation Act 1998 notice, the employer sought to deny injury to the worker’s neck and shoulders on 16 January 2009; a previous award of the Workers Compensation Commission (WCC) in 2015 ordered the employer to pay permanent impairment compensation in respect of these body parts as a result of the 2009 injury; a further award of the WCC in 2017, entered after an arbitration hearing, ordered the employer to pay section 60 of the Workers Compensation Act 1987 expenses as a result of an injury to the neck on 16 January 2009; Tomlinson v Ramsey Food Processing Pty Limited and Miller v Secretary, Department of Communities and Justice considered and applied; Held – that the earlier awards were binding “judicial determinations” that the worker suffered injury to her neck and both shoulders on 16 January 2009; employer estopped from denying injury in these proceedings both by cause of action estoppel and the principle in Anshun v Port of Melbourne Authority.
determinations made:	1. Respondent to lodge with the Commission under cover of an Application to Admit Late Documents the documents handed up and received into evidence at the arbitration hearing on 22 November 2022. 2. The respondent is estopped from asserting that the applicant did not suffer injury to her cervical spine and both shoulders as a result of injury on 16 January 2009 by the awards in Matter No 5148/14 and2261/17 in the Workers Compensation Commission. 3. In the event that there are outstanding issues liberty to the parties to apply at the appropriate time.

STATEMENT OF REASONS

BACKGROUND

On 25 May 2009, Joanne Howard (the applicant) reported an injury to her neck and both shoulders, which she alleged arose out of and in the course of her employment with Bede Murray Racing Stables (the respondent), on 16 January 2009. The respondent, through its worker’s compensation insurer, Racing NSW Insurance Fund, accepted liability for the injury and paid her compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act).
On four occasions since the reporting of the injury, disputes have arisen between the applicant and the respondent as to aspects of her entitlement to compensation. These disputes were resolved or determined by the Workers Compensation Commission (WCC).
In matter number 5148/14 in the WCC (the 2014 Application), the applicant claimed compensation for permanent impairment pursuant to s 66 of the 1987 Act in respect of her neck and shoulders as a result of the injury. As the respondent ultimately accepted liability for these injuries, the medical dispute as to the degree of her whole person impairment (WPI) was referred to an Approved Medical Specialist (AMS). On 10 December 2014, the AMS issued a Medical Assessment Certificate (MAC) certifying that the applicant suffered 28% WPI as a result of the injury.
On 14 January 2015, an arbitrator of the WCC issued a Certificate of Determination (COD) disposing of the matter. The order of the Commission was:
“That the respondent pay the applicant as lump sum compensation under s 66 of the Workers Compensation Act 1987 $52,250 in respect of 28% permanent impairment resulting from injury on 16 January 2009.”
In 2016, the respondent denied that cervical surgery on 7 November 2016 was reasonably necessary as a result of injury on 16 January 2009. After an arbitration hearing, an arbitrator of the WCC issued a COD in matter no 2261/17 ( the 2017 Application) by which she ordered the respondent to pay the applicant’s s 60 expenses. The front page of the COD contains the following finding:
“That the second operation to the cervical spine performed by Dr Mews on 7 November 2016 and related treatment was reasonably necessary as a result of the injury on 16 January 2019.”
On 9 June 2022, Racing NSW served the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). It stated that Racing NSW had “made the decision to decline liability for the alleged injury on 16 January 2009” and the payment of all workers compensation benefits consequent on it. Relevantly, the notice included the following:
“Racing NSW does not accept you sustained a compensable injury on 16 January 2009 satisfying the requirements of s 4(a) and 9A of the Workers Compensation Act 1987.”
By this dispute notice, Racing NSW set out in summary form the evidence on which it relied to deny liability. This included the evidence of several witnesses, clinical notes of the applicant’s treating general practitioner, and the reports of surveillance of the applicant carried out on instructions of the insurer. It asserted that it relied on this latter evidence:
“to further challenge the credibility of your evidence and your allegation of injury and ongoing injury.”
Following this notice the respondent ceased to pay the applicant weekly compensation or indemnify her in respect of the cost of medical expenses resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

By these proceedings, the applicant claims weekly compensation from 21 July 2022 and an indemnity in respect of medical and hospital expenses which she alleges have been incurred as a result of the injury in 2009. The Injury Description in the Application to Resolve a Dispute (Application) states that on 16 January 2009:
“The Applicant was using a whipper-snipper on a steep grassed slope. She lost her footing and fell backwards on to the motor of the whipper-snipper. She suffered injury to both shoulders and cervico-thoracic spine.
On 14 January 2015 a Certificate of Determination was issued determining that she suffered 28% WPI.
On 7 November 2016 the applicant came to bilateral C6/7 and C7/T1 posterior cervical foraminotomy. The respondent accepted liability for said surgery.”
The Application also asserts that the applicant suffered “two consequential injury events” which gave rise to revision surgery of her right shoulder and surgical fusion of her left wrist. By its dispute notice, the respondent also denied liability in respect of these consequential medical conditions. It is common ground that the respondent is entitled to maintain that dispute.
When the matter came on for the preliminary conference on 17 October 2022, Mr Hickey, of counsel, appeared for the applicant and Mr Franco, solicitor, appeared for the respondent.
That section of the Application headed “Has the injury been subject to a determination on liability?” particularised the previous CODs dated 10 December 2014 and 22 August 2017. I, therefore, raised the issue of whether the orders made by the WCC in theses CODs gave rise to an estoppel which precluded the respondent from litigating the issue of injury to the applicant’s neck and both shoulders. I referred the parties to the decision of the late Deputy President Roche in Manpower Pty Ltd v Harris.[1]
[1] [2011] NSWWCCPD 10 (25 February 2011) (Manpower).
As the dispute between the parties could not be resolved, I directed that both parties lodge brief written submissions addressing the res judicata/estoppel issue prior to the conciliation conference and arbitration hearing which I fixed for 22 November 2022. I also invited the applicant to lodge the pleadings in respect of prior proceedings culminating in determinations by the WCC so that the issue of estoppel could be properly considered at the hearing.
Mr Franco stated that if the respondent succeeded on the estoppel issue, it sought leave to cross-examine the applicant at an arbitration hearing. I indicated that, in the circumstances of the case, I would grant leave to cross-examine.
When the matter came on for conciliation and arbitration, Mr Hickey of counsel appeared for the applicant and Mr Saul of counsel appeared for the respondent. Unsurprisingly, I was informed that the parties were unable to reach agreement on the injury or estoppel issues. The respondent maintained its dispute in relation to the occurrence of injury in 2009 and in respect of the consequential medical conditions alleged in the Application. Prior to the conciliation conference. there were two noteworthy developments.
First, in its written submissions the respondent argued that Manpower was wrongly decided and should not be followed. Given its challenge to the reasoning in that decision the respondent raised the prospect of an Application for Leave to Refer a Question of Law to the President pursuant to s 351 of the 1998 Act. At the arbitration hearing, Mr Saul pressed for such a referral.
Secondly, the applicant’s late documents included an Amended Application to Resolve a Dispute. Relevantly, it included an additional paragraph under the heading “Has the injury been subject to a determination on liability?” The added paragraph is as follows:
“As a result of the MAC and the COD’s the applicant relies upon and seeks the principles of res judicata and estoppel – see applicant’s submissions.”
At the commencement of the arbitration hearing, Mr Saul objected to the applicant being granted leave to amend the Application to plead res judicata/estoppel. He suggested that the applicant had only sought to raise this issue after it had been raised by me at the telephone conference. He did not rue prejudice.
After a lengthy discussion of the issues in the conciliation phase, I reluctantly agreed to determine three issues:
(a)    Whether I should refer a question of law pursuant to s 351of the 1998 Act for the opinion of the Commission constituted by the President. In essence the question of law was whether Manpower was wrongly decided. As arbitrators of the WCC were not exercising judicial power when the previous awards relating to the liability of the respondent to pay compensation were made, they could not give rise to an estoppel. This argument supposedly arose from the dicta of Kirk J in Searle v McGregor[2].
(b)    Secondly, to rule on the respondent’s objection to the proposed amendment by the applicant to raise the issue of res judicata estoppel.
(c)    On the assumption that I did not refer the matter to the President for an opinion pursuant to s 351, to determine the issue of whether the respondent was estopped from denying injury to the neck and both shoulders by reason of the previous awards.
[2] [2022] NSWCA 213 (26 October 2022) (Searle).
I was happy to deliver rulings in respect of the first two issues orally at the arbitration hearing. However, the respondent took the view that would deny it the opportunity to appeal on these issues. While I did not understand this contention, I finally agreed to deliver short written reasons on the issues in dispute.
Given that the applicant’s entitlement to weekly compensation fell within the third entitlement period, I doubt that I am able to determine it. But as the applicant’s entitlement to all compensation could be defeated if the respondent is able to raise the dispute as to injury contained in the notice of 22 June 2022, I have no doubt that I have jurisdiction to determine the estoppel issue.

EVIDENCE

The documents before the Commission are as follows:
(a)    Application and the documents attached;
(b)    Reply and the documents attached;
(c)    an Application to Admit Late Documents lodged by the respondent on 7 November 2022;
(d)    an Application to Admit Late Documents lodged by the applicant on 22 November 2022, and
(e)    an Application to Admit Late Documents handed up at the conciliation conference containing a further report of the respondent’s investigator.
Other than the objection to the applicant raising the issue of res judicata/estoppel, there was no objection to any of the evidence which touches on the issues which I am required to address in these reasons.

SUBMISSIONS

The submissions of the parties are either recorded or in writing. Accordingly, I do not propose to set out each of the arguments of counsel in these short reasons. I will however attempt to address the general thrust of the arguments in resolving the matters in dispute.
The crux of the respondent’s case is that the entry of the previous awards against it involved an administrative and not a judicial function. The decision in Manpower was, therefore, wrongly decided. By its written submissions, which were prepared by Mr J Morris of Senior Counsel, the respondent submitted that:
“Manpower, properly considered, was wrongly decided. In that case, reliance was placed on Rail Services Australia v. Dimovski [2004] NSWCA 267 and WE Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128.
In those cases, the first determination had been entered by the Compensation Court of New South Wales, which was then used to defeat a second application for a determination in the Workers Compensation Commission (WCC). The first determination in a Court would be capable of giving rise to a res judicata defence. However, in Manpower (as in the present case), the determinations were entered by the WCC or the Personal Injury Commission (PIC) That is an entirely different issue.
Putting aside the question as to whether the PIC has a power to exercise declaratory relief and whether res judicata estoppel is a matter for declaratory relief, there are basic problems with the operation of the defence in PIC with respect to determinations previously made in the WCC or the PIC.”
The respondent questions whether a defence of res judicata is available under the legislative scheme establishing the WCC and the present Commission. It argues (footnotes omitted) that:
“The issue is whether the WCC or PIC, when entering the determination arrived at by consent, was exercising a judicial function (to which res judicata would apply) or was exercising an administrative function. If the latter is correct, then res judicata has no application because, there is no tribunal (in the relevant sense) the previous determinations were not judicial but at their highest administrative, the claim is a statutory right rather than a cause of action at common law, and does not merge in a judgment or is not binding in rem. In this regard the Respondent relies on para 1.02 of Spencer Bower and Handley: Res Judicata (4^th ed) attached.”
The respondent then argues that the principle of res judicata cannot apply because of the reconsideration power found in s 57 of the Personal Injury Commission Act 2020 (NSW) (PIC Act) and in s 350 of the 1998 Act. It refers to Hatfield Engineering v Fitzgerald[3] and Hillinger v Hillinger[4] to highlight its argument that there is no relevant “finality” by the entry of an award or determination by consent.
[3] [2003] NSWCA 345.
[4] (1952) 52 SR (NSW) 105.
Thirdly, the respondent argues, correctly in my view, that the estoppel may not operate on all issues between the parties. An estoppel is limited by the actual dispute and the nature of the determination. It argues that each would need to be looked at with great care before drawing any conclusion.
The applicant , of course, argued that its amendment to plead res judicata/estoppel should be allowed and that the decision in Manpower, which has been applied in very many cases in the WCC and the Commission should be followed.

DISCUSSION AND FINDINGS

Reconsideration

Reference was made to the reconsideration power in s 57 of the PIC Act in written submissions, during the conciliation conference, and in the oral submissions made at the arbitration hearing. However, no formal application was made by the respondent to reconsider the awards of the Commission in matter number 5148/14 or matter number 2261/17.
The Commission’s practice and procedure in respect of reconsiderations is dealt with by Practice Direction no. 17. It requires, inter alia, that a party provide a schedule of fresh or additional or substituted evidence on which the party seeks to rely. It also requires submissions as to why the evidence is fresh evidence or evidence in addition or substitution for the evidence received in the initial decision and submissions as to why the evidence is not available and could not reasonably have been obtained before the decision was made.
These requirements reflect the case law in respect of reconsideration. Many of the cases are collected in the decisions of Samuel v Sebel Furniture Ltd[5] and Schipp v Herfords Pty Ltd.[6] Without any explanation as to the delay in adducing the further evidence relied upon by the respondent in this case, there is no proper evidentiary basis which would permit an application for reconsideration to proceed.
[5] [2006] NSWWCCPD 141 (7 July 2006).
[6] [1975] 1 NSWLR 413
It was not suggested by counsel that I should embark upon an enquiry as to whether leave should be granted to reconsider the previous awards in these proceedings. Thus, neither counsel addressed on the merits of such an application. I understand that the respondent wishes to consider its position in respect of a reconsideration on receipt of these reasons.

Reference of a question of law

The decision in Manpower has been applied by members of the Commission in numerous cases over the last decade. As the respondent submits, it states that consent orders may give rise to an estoppel. The Deputy President adopted the reasoning of McColl JA in Habib v Radio 2UE Sydney Pty Ltd[7] where her Honour said at [186]:
“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.’”
[7] [2009] NSWCA 231.
While I referred to the reasoning in Manpower at the preliminary conference in the matter, it has limited application to the circumstances of this case. Neither of the awards on which the applicant relies to make out an estoppel were consent awards. The 2014 award was a determination of WPI following certification by an AMS in a MAC that the applicant suffered WPI as a result of the 2009 injury. The 2017 award was made by an arbitrator after a contested hearing on the issue.
Thus, an opinion in answer to a question of law limited to whether consent awards are capable of giving rise to estoppels or whether Manpower was wrongly decided would not assist in determining the issue in this case. The issue of estoppel involves a consideration of the 2014 and 2017 applications. These were not specially addressed by the respondent in argument.
While Searle’s case suggests that some functions of the Commission are purely administrative, it is not authority for the proposition that determinations by the WCC or the Commission as to whether a worker has suffered an injury are administrative decisions. It would be surprising if this core role of the WCC or Commission did not involve a judicial function. There is ample authority to suggest that it does.
Recent appellate case law appears entirely consistent with the reasoning in Manpower. It also supports the proposition that the doctrine of estoppel has a role to play in the statutory scheme established by the legislation underpinning the WCC and the Commission.
Against that background, the respondent has not made out an arguable case for a novel or complex question of law and I decline to refer the matter to the President pursuant to s 351. I should add that the respondent did not comply with Practice Direction no. 5. While the application was foreshadowed in the written submissions of Mr Morris, and an oral application was made at the arbitration hearing, the question of law sought to be referred was not explicitly stated in a document.

Leave to rely on res judicata/estoppel

In my opinion there is no merit in the respondent’s position on this issue. The applicant set out the previous awards of the Commission which determined her rights to permanent impairment compensation and to medical expenses in her Application. The effect of these awards was raised and discussed at the telephone conference.
If it had not turned its mind to the legal effect of the awards prior to that time (which I doubt), the respondent was given the opportunity to lodge written submissions and make oral submissions at the arbitration hearing addressing their effect. It is not conceivable that the respondent was in any way prejudiced by my raising of the issue at the preliminary conference.
Accordingly, over the respondent’s objection, I propose to grant leave to the applicant to argue that the 2014 and 2017 awards give rise to an estoppel.

The 2014 Application

By a s 74 notice, dated 21 October 2014, Racing NSW stated that the matters in dispute concerning the 2009 injury were as follows:
“1. You have not suffered any injury to your shoulders arising out of or in the course of your employment with Bede Murray Racing ('Bede') as required by Section 4(a) of the Workers Compensation Act 1987.
2. Your employment with Bede was not a substantial contributing factor to any injury sustained to your shoulders as required by Section 9A of the Workers Compensation Act 1987.
3. The aggravation injury of the cervical spine sustained by you on 16 January 2009 has since resolved. You therefore have no incapacity for work arising from that injury and have no entitlement to any weekly benefits pursuant to Section 33 of the Workers Compensation Act 1987.
4. You have not suffered any permanent impairment with respect to a work related injury suffered during your employment with Bede, pursuant to Section 66 of the Workers Compensation Act 1987.
5. Any claim for medical treatment is not considered reasonably necessary with respect to a work related injury, in accordance with Section 60 of the Workers Compensation Act 1987.”
By the 2014 application, the applicant claimed permanent impairment compensation in relation to the injury of 16 January 2009. The application described injury as follows:
“Full thickness tear of supraspinatus tendon and significant tendinopathy in right shoulder necessitating surgical intervention on 19 October 2009 and related injury to C5/6 and C6/7 levels at the cervical spine necessitating surgical intervention on 10 July 2013.”
The applicant claimed the sum of $62,842 pursuant to s 66 in respect of WPI of the cervical spine, right shoulder, left shoulder and scarring.
By its Reply, which was dated 21 October 2014, the respondent set out the following grounds on which it sought to dispute the applicant’s claim for permanent impairment compensation:
“1.     That the aggravation to the cervical spine suffered by the applicant on 16 January 2009 has now resolved. Therefore, any ongoing symptoms or incapacity for employment are unrelated to the aggravation sustained in the workplace.
2.     That the applicant did not receive any injury to the shoulders arising out of or in the course of employment with the respondent on 16 January 2009 or on any other date.
3.     That the applicant is no longer suffering any incapacity for work as a result of the aggravation injury on 16 January 2009.
4.     That the applicant does not suffer any permanent impairment as a result of any injury sustained during the course of her employment with the respondent. In the alternative, any impairment is less than alleged.
5. If there is found to be permanent impairment arising out of the aggravation injury sustained then a deductible proportion under s 323 is applicable to s 66 of the 1987 Act.”
Plainly, the respondent’s Reply conceded injury to the applicant’s cervical spine, although it pleaded that the effects of the injury were transient. The Reply put in issue injury to the applicant’s shoulders.
The body parts referred for assessment as a result of the injury were:
“Cervical spine;
Right upper extremity – shoulder;
Left upper extremity – shoulder;
Scarring”
On 10 December 2014, Dr Thomas Davis, an AMS, determined a medical dispute, as that term is used in s 319 of the 1998 Act . It is quite clear that before that date the respondent conceded, explicitly or by its conduct, that the applicant suffered injury to the cervical spine and both shoulders as a result of the incident on 16 January 2009. If the respondent pressed the issues raised in the Reply, the dispute would not have been referred for medical assessment until the issue of injury to these body parts had been agreed or determined by the WCC. One assumes that the respondent’s acceptance of these injuries, took place at a telephone conference, although the evidence is silent on this aspect.
By the MAC, the AMS certified that the applicant suffered 26% WPI of the cervical spine, 5% WPI of the right upper extremity and 2% WPI of the left upper extremity. The reference to the upper extremities refers to the shoulder injuries alleged by the applicant.
On 14 January 2015, a WCC arbitrator disposed of the dispute between the parties by making the following order:
“That the respondent pay the applicant, as lump sum compensation under s 66 of the Workers Compensation Act 1987, $52,250 in respect of 28% permanent impairment resulting from injury on 16 January 2009.”

The 2017 Application

By the 2017 application, the applicant sought the cost of further surgical procedures performed on her cervical spine on 10 July 2013 and 7 November 2016 from the respondent. The injury description is identical with that in the earlier proceedings. By its Reply, the respondent relied on a series of s 74 notices issued by its insurer between 2 June 2016 and 7 April 2017.
By a s 74 notice dated 2 June 2016, the respondent had stated that the matters in dispute were:
“Approval for the surgery proposed by Dr Peter Mews in his report of 10 December 2015 is denied. On the basis of independent medical evidence to hand, the procedure is not considered to be reasonable and necessary medical treatment as prescribed by s 60 of the Workers Compensation Act 1987.”
On 22 August 2017, after a contested arbitration hearing, Arbitrator Rimmer made the findings and orders which I have recorded above. At [112] of her reasons, she stated:
“I am satisfied that the second operation to the cervical spine performed by Dr Mews on 7 November 2016 and related treatment was reasonably necessary as a result of the injury on 16 January 2009.”

Other proceedings

There have been other proceedings between the parties which have either been discontinued or resolved on the basis of an agreement to pay compensation to the worker in respect of the injury in 2009. However, they are not they material to the estoppel issue.

Estoppel

The jurisdiction of the Commission is to be found in s 105 of the 1998 Act. The jurisdiction of the former WCC was prescribed in the same terms. Relevantly, s 105(1) states:
“Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Section 56 of the PIC Act deals with the effect of decisions of the Commission. It is as follows:
“Except as otherwise provided by this Act or enabling legislation, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) To avoid doubt, this section does not limit any power of the Supreme Court to provide relief for jurisdictional error in proceedings for the judicial review of a decision of the Commission.”
The effect of decisions of the WCC was prescribed by the former s 350 of the 1998 Act which is as follows:
“(1)    Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)     A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)     The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
In Searle, Kirk JA, who delivered the judgment of the Court, considered s 26 of the PIC Act, which provides for the referral of matters which fall within federal jurisdiction to the District Court. At [14], he stated:
“State tribunals are not forbidden by the principle from taking steps or resolving issues which do not involve the exercise of judicial power, even if the dispute might otherwise be seen to fall within the scope of what would have been Federal jurisdiction (that is, if judicial power were to be exercised). There is no suggestion that Ch III restriction on allocation of decision-making authority at the State level is more restrictive than the restriction at Federal level. It is well-established that Federal tribunals are permitted to resolve a wide range of disputes under Federal law so long as the exercise of power is not characterised as being judicial in nature.”
At [21], his Honour stated:
“Mr McGregor also submitted that determination of claims for statutory benefits under the MAI Act would be subject to the Burns v. Corbett limitation. This is a submission open to substantial doubt, for it is questionable whether the various determinations of such benefits involve the exercise of judicial power. In that regard it is notable that claims for statutory workers compensation benefits in the Federal sphere have long been, in general, determined first by an administrative agency (Comcare), with a review right in the Administrative Appeals Tribunal: Safety, Rehabilitation and Compensation Act 1998 (Cth), parts 5 and 6. However, it is not necessary to address the issue of the nature of claims for statutory benefits here.”
The respondent relies on these observations to argue that determinations of the WCC and the Workers Compensation Division of the Commission did not involve an exercise of judicial power. It followed that decisions of either Commission did not give rise to estoppels presumably even when the determination was one made by an arbitrator of the WCC or a member of the Commission after a contested hearing.
The respondent’s argument was mounted without any analysis of the statutory underpinnings of either tribunal. It was mounted without reference to the case law in respect of estoppel in the WCC or the Commission.
In Patricia Orellana-Fuentes v Standard Knitting Mills Pty Ltd & Anor; Carey v Blasdom Pty Ltd t/as Ascot Freight Lines & Anor[8] the NSW Court of Appeal considered whether the WCC was a Court. Ipp JA, (Spigelman CJ, and Hanley JA agreeing), after considering the functions of arbitrators of the WCC, said this at [36]:
“Undoubtedly, the Commission does exercise judicial powers, but this does not necessarily make it a Court. There are many institutions that exercise judicial powers but are well-recognised not to be Courts.”[9]
[8] [2003] NSWCA 146 (20 June 2003).
[9] Orellana-Fuentes at [39].
In South Western Sydney Area Health Service v Edmonds,[10] McColl JA after considering the legislative framework of the WCC described procedure in WCC at [94]:
“Nevertheless, although the Commission operates pursuant to a legislative framework which frees it, to some degree, from ‘constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals’ (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as ‘pleadings’ (cf the primary judgement at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings ‘take the form of litigation between parties’: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ). In contrast, in the ‘pure’ European model of the inquisitorial process, the ‘task of the judge... is to act as a protagonist in the proceedings and it is the judge and prosecuting officials, not the parties, who have the responsibility for seeking out and testing the evidence, often in advance of a formal hearing’: Creyke and Bedford, at 4. Although I note, in this respect, that the Guidelines state ‘[q]uestions to witnesses, if any, will be by or through the Arbitrator’, it is not clear to what extent this is actually observed. Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng, for example, concerned a complaint that an Arbitrator hearing a case in 2003 limited the time for cross-examination by the employer.”
[10] [2007] NSWCA 16 (16 February 2007).
The case law suggests that the question of whether estoppel arises is not answered by enquiring whether the status of a tribunal is administrative or judicial. In Papua & New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353 (Guba) the High Court considered whether the decision of a land Board appointed pursuant to the Papua Land Ordinance 1911-1953 gave rise to an estoppel. In a much quoted passage, Gibbs J, as he was then, said at [453]:
“The use of the phrase ‘judicial tribunal’ in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor v. Commissioner of Income Tax, Colombo, per Lord Radcliffe (1961) AC 584, at pp 597-599. A fairly obvious example is the case of a court-martial, whose sentence might in some circumstances be pleaded as an estoppel (Hannaford v. Hunn (1825) 2 C & P 148, at p 155 [1825] EngR 877; (172 ER 68, at p 71) ), although not made in the exercise of judicial power (cf. R. v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, at pp 466-468; R. v. Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, at p 23). The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc: see Halsbury's Laws of England, 3rd ed., vol. 15, pp. 212-214; Spencer Bower & Turner on Res Judicata, 2nd ed. (1969), pp. 21-28. It will accordingly not be necessary to canvass the authorities to which we were referred, and which deal either with issue estoppel or with the nature of judicial power.
In Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) (1967) 1 AC, at pp 909-910, Lord Reid said that it ‘is clear that the earlier judgment relied on must have been a final judgment, and that there must be identity of parties and of subject matter in the former and in the present litigation’. The Board had power under s. 9 of the Land Ordinance 1911-1953 to determine finally and conclusively the case of disputed ownership of land that came before it. Under the section, the Board was appointed to ‘decide’ the case, and to give a ‘decision’, and these words, prima facie, and in the absence of any indication to the contrary, import that the Board was to make a binding determination - see Spackman v. Plumstead District Board of Works (1885) 10 App Cas 229, at p 235. The fact that an appeal lay from the decision did not make it any the less final - see Wakefield Corporation v. Cooke (1904) AC 31, at p 36; Marchioness of Huntly v. Gaskell (1905) 2 Ch 656, at p 667 (at p454)”.
Applying this reasoning, Campbell CJ, in the Compensation Court of New South Wales, in Lambidis v Commissioner of Police[11], held that the decision of the Government and Related Employees Appeal Tribunal on whether a police officer had been hurt on duty gave rise to an estoppel which precluded him from relitigating matter in the Compensation Court. This finding was upheld by the NSW Court of Appeal[12].
[11] 1994 NSWCCR 583.
[12] Lambidis v Commissioner of Police (1995) 37 NSW LR 320.
Similarly, in Kuligowski v Metrobus[13], the High Court accepted that the findings of a Review Officer of the Conciliation and Review Directorate established pursuant to the Western Australian Workers Compensation and Rehabilitation Act 1981 could give rise to an estoppel. The reasoning has been repeatedly applied by courts and tribunals throughout Australia.
[13] [2004] HCA 34.
In Tomlinson v Ramsey Food Processing Pty Limited[14], the plurality of the High Court contrasted estoppel by an exercise of judicial power with estoppel in relation to a judicial determination. At [21] they said:
“Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law”.
[14] [2015] HCA 28 (12 August 2015).
While the jurisdiction of the WCC or the Commission is not coextensive with that formerly possessed by the Compensation Court, both tribunals had or have exclusive jurisdiction to determine all disputes arising under the 1987 and 1998 Acts other than those assigned to the residual jurisdiction of the District Court. Subject to appeal and the power to reconsider, their decisions are “final and binding on the parties”. There is a long-standing authority that neither the right of appeal nor the power to reconsider call into question the binding nature of their determinations.[15]
[15] Somodaj v Australian Iron & Steel Ltd [1963] HCA 50 (Somodaj) at [9].
Plainly, both tribunals have jurisdiction to “decide finally a question arising between the parties” under the Workers Compensation Legislation. In Somodaj, the plurality considered s 36 (2) of the Workers Compensation Act 1926, which was in similar terms to the power to reconsider in the 1998 Act and in the PIC Act. It concluded that the power did not prevent the characterisation of an award of the former Commission as:
“an adjudication upon the rights of the parties, not of an interlocutory character, but completely effective unless and until it should be rescinded, altered or amended by the Commission. Some confirmation of this view may be found in the provisions of s. 37 of the Act which provides that no award, order, or proceeding of the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatever.”
While, as the respondent argues, they may not exercise judicial power, in determining injury disputes arbitrators of the WCC and members of the Commission make judicial determinations.
In the 2014 application, the applicant sought permanent impairment compensation in respect of her neck and shoulders as a result of the 2009 injury. While the respondent raised various issues in its dispute notice and in its Reply, it did not choose to litigate the issues before an arbitrator. Rather, it conceded that the applicant suffered injuries to her cervical spine and shoulders and consented to the assessment of WPI by an AMS .

It is probable that the certification of the AMS does not give rise to an estoppel, although by s 326 of the 1998 Act the MAC is conclusively presumed to be correct as to, inter alia, “the degree of permanent impairment of the worker as a result of an injury”.[16] But the orders of the Commission in the COD of 14 January 2015 are a final and binding determination by the WCC that the applicant is entitled to permanent impairment compensation for her cervical spine and shoulders as a result of the 2009 injury.
[16] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 (11 September 2013).
Undoubtedly, an acceptance that the applicant suffered injury to her cervical spine and both shoulders in 2009 is “legally indispensable” to the award of permanent impairment compensation resulting from the 2009 injury. Conversely, if the respondent was successful on the issue of injury raised in these proceedings, it would give rise to conflicting judgments as the injuries pleaded by the applicant in the 2014 Application are identical to the injuries pleaded in these proceedings.
A similar rationale is applicable to the 2017 proceedings. The applicant claimed the cost of the medical treatment as a result of the 2009 injury to her cervical spine. The arbitrator’s finding was that cervical surgery in 2016 was reasonably necessary as a result of the 2009 injury. There is no doubt that is the same cervical injury that the respondent wishes to impugn in these proceedings. It is a fundamental premise of the finding of the arbitrator that the applicant suffered injury to her cervical spine in 2009.
In my opinion, the respondent is estopped from denying that the applicant suffered an injury to her cervical spine on 16 January 2009 by terms of the awards of 14 January 2015 and 7 November 2016. It is estopped from denying that the applicant suffered injury to her shoulders by the terms of the award of 14 January 2015. While precise categorisation of the estoppel was not canvassed at the arbitration hearing, contrary the earlier decisions of the Compensation Court, I prefer the view that it is a variant of cause of action estoppel.

Anshun

The question of whether the principle in Port of Melbourne Authority v Anshun Pty[17] applies to proceedings for compensation under the 1926 and 1987 Acts and in what circumstances has been debated for many years. One of the views propounded was that it had no application whatsoever to the statutory schemes. That view, which was accepted by a number of judges of the former Compensation Court, was derived from the decision of the South Australian Supreme Court in Salmon Street Ltd (in liq) v Jorgensen[18].
[17](1981) 147 CLR 589.
[18] (1991) 56 SASR 158 (Salmon).
In Miller v Secretary, Department of Communities and Justice[19] the appellant argued that Anshun estoppel did not apply in the WCC or the Commission so as to prevent her from bringing a second claim. He argued, inter alia, that the function of an arbitrator was “merely administrative”. He relied on the authority of Salmon.
[19] [2022] NSWCA 190.
After considering the extensive case law relating to Anshun estoppels in workers compensation tribunals and the relevant legislative provisions, Ward P (with whom Mitchelmore JA agreed) stated at [125] that:
“By s 350(1) of the 1998 Act, a decision of the Commission under the Workers Compensation Act is final and binding on the parties (albeit subject to the abovementioned exceptions). The adversarial nature of the proceedings before the Commission and the finality of decisions resolving such proceedings is sufficient to engage the principle of Anshun estoppel. It is therefore unnecessary to characterise the nature of the power exercised by the Commission in so doing.”
At [134] Brereton JA stated:
“The Anshun doctrine precludes a party from asserting in later proceedings a claim which, having regard to all the circumstances, could and ought reasonably have been brought in earlier proceedings. It is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding. The rationale of the Anshun doctrine is to prevent a party being vexed by multiple proceedings when the issue raised in the later proceedings ought reasonably have been raised in the earlier proceedings. Proceedings which are caught by Anshun are ex hypothesi vexatious. The Commission had power, under (former) s 354(7A), to dismiss proceedings that are vexatious. Contrary to the respondent’s submissions, the existence of that power is consistent, rather than inconsistent, with the application of Anshun, because it embraces dismissal on the grounds which would attract Anshun”.
It is not possible to find in the evidence any reasonable basis for the respondent’s failure to assert and argue a defence to the 2009 injury in the 2014 proceedings or the 2017 proceedings. All the evidence on which it seeks to rely was available at that time. As Roche DP stated in Manpower, the principles that there should be finality in litigation and that a litigant should not be twice vexed in the same matter are consistent with the statutory objectives of the WCC and the Commission to provide fair and cost-effective resolution of worker’s compensation disputes.
Without canvassing matters that might arise in a reconsideration application, it is difficult to envisage any proper basis on which an employer might be permitted to raise an injury dispute 13 years after its alleged occurrence in circumstances where it has foregone the right to argue the injury issue in earlier proceedings. In my opinion the defence sought to be raised in these proceedings was so relevant to the subject matter of the earlier proceedings that it was unreasonable not to rely on it. Accordingly, the respondent is estopped from disputing that the applicant suffered an injury to the neck and shoulders as a result of the 2009 injury by the Anshun principle.

Identity of the respondent

By the 2014 application, the applicant described the respondent as Murray Family Investments Ply Ltd t/as Bede Murray Racing Stables. Subsequently, both parties have referred to the respondent as Bede Murray Racing Stables. The latter is not a legal entity. While I do not believe that it in any way affects my determination in these proceedings, the Application should be amended before further steps are taken.
In the event that there are outstanding factual issues to be determined, I give the parties liberty to apply by way of a conference at an appropriate time.

[2022] NSWPIC 665

2 December 2022