OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing v Dang

[2022] NSWPICPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing v Dang [2022] NSWPICPD 32
APPELLANT:	OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing
RESPONDENT:	Thanh Quoc Dang
INSURER:	GFG Alliance Australia Workers Compensation
FILE NUMBER:	A1-W4274/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	15 August 2022
ORDERS MADE ON APPEAL:	1.    The Senior Member’s Certificate of Determination dated 19 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Anshun Estoppel – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 discussed and applied – Bruce v Grocon Ltd [1995] NSWCC 10 discussed – reasonableness – Ling v Commonwealth [1996] FCA 1646; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Champerslife Pty LtdvManojlovski [2010] NSWCA 33 applied – raising a new issue on appeal Mamo v Surace [2014] NSWCA 58 applied – factual error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox Lawyers
Respondent:
Mr S Hickey, counsel
MN Compensation Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Mr G Capel
DATE OF SENIOR MEMBER’S DECISION:	19 November 2021

INTRODUCTION AND BACKGROUND

1. Mr Thanh Quoc Dang (the respondent) commenced employment as a process worker with OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing (the appellant) in 2003. The respondent made a claim for workers compensation in May 2017, alleging injury to his back (lumbar spine). The appellant disputed the claim.

2. The respondent commenced proceedings in the Workers Compensation Commission in May 2019, claiming weekly compensation for a closed period and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The back injury was described as a personal injury or in the alternative an aggravation of a disease as a result the “nature and conditions” of the respondent’s employment between 2003 and 25 September 2016, with the deemed date of injury pleaded as 25 September 2016.[1]

   [1] Application to Resolve a Dispute (ARD) – Injury Details.

3. The matter was listed for conciliation and arbitration on 22 July 2019 at which time the parties agreed to a resolution of the claim. The consent orders, formalised on 24 July 2019, were in the following terms:

   “By and with the consent of the parties, the determination of the Commission in this matter is as follows:

   1.     Amend Application to claim weekly benefits from 2 November 2016 in place of 25 September 2016.

   2.     Award for the [respondent] at the rate of $192.30 per week pursuant to sections 36 and 37 (agreed to total $25,000) from 25 November 2016 to 2 May 2019. Award for [appellant] thereafter.

   3. The [appellant] to pay section 60 expenses to $5,500 on production of accounts receipts or Medicare Charge; otherwise award for the [appellant].

   The following is not a determination of the Commission; however, I note that the parties have agreed:

   1.     The [respondent] acknowledges that as and from 2 May 2019 he has been able to earn in suitable employment as much or more than he would have earned had he remained in the employ of the [appellant] uninjured.”[2]

   [2] ARD, p 60.

4. On 1 December 2020, the respondent sought approval from the appellant to undergo an MRI scan of his lumbar spine. The appellant refused payment for the proposed scan, asserting that the respondent had no further entitlement because of the consent orders entered into on 24 July 2019.

5. In May or June 2021, the respondent made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 13% whole person impairment. The appellant again disputed liability, on this occasion asserting that the respondent was prevented from bringing that claim because the claim was based on medical evidence that was in existence at the time of the prior proceedings and was not disclosed. The appellant asserted that it was prejudiced, and that “the full extent” of the respondent’s claim brought in 2019 had been resolved.

6. On 1 March 2021, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). Claims for workers compensation were, from that date, dealt with in the Workers Compensation Division of the Personal Injury Commission (the Commission).[3]

   [3] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

7. The respondent commenced proceedings in the Personal Injury Commission on 8 September 2021, claiming treatment expenses pursuant to s 60 (including the cost of the MRI scan) and the lump sum in respect of the whole person impairment of his lumbar spine. The date of injury was pleaded as 25 September 2016.

8. The matter came before the then Senior Member Capel on 21 October 2021. Senior Member Capel noted the issues in dispute, which included the appellant’s allegation that the respondent was estopped from bringing his claim. He issued a Direction, directing the parties to file written submissions.

9. Following receipt of the written submissions, Senior Member Capel issued a Certificate of Determination dated 19 November 2021, in which he determined (among other things) that the respondent was not estopped from bringing his claim and that the appellant was liable to pay the respondent the amount claimed in respect of his whole person impairment of the lumbar spine.

10. The appellant appeals that decision.

ON THE PAPERS

1. Section 52(3) of the 2020 Act provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Both parties are content for the matter to be determined on the basis of the documents in evidence and their submissions.

3. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The respondent’s statements

1. The respondent provided a statement dated 17 September 2018.[4] He gave a history of his employment and described the various duties he was required to perform for the appellant. He referred to having experienced a brief period of back pain as a result of lifting weights at a gymnasium, which ceased after he terminated his gym program.

   [4] ARD, pp 1–6.

2. The respondent said that he began to experience low back pain when lifting and twisting in about mid-2015, which was more severe at the end of the day’s work. The respondent provided a history of the treatment he received, including treatment from Dr Balsam Darwish, neurosurgeon. The respondent said he experienced worsening back pain in October 2016, which caused him to cease work. The respondent denied any non-work related causes for his back pain. He denied being able to perform his pre-injury work and asserted that he had no other skills to perform non-manual work.

3. The respondent provided a further statement dated 6 September 2021.[5] He referred to the treatment he had been receiving and advised that at a consultation on 1 November 2018, Dr Darwish provided him with three treatment options. That is, he could have a further injection, or he could learn to live with the pain, or he could undergo surgery. The respondent indicated that he wanted to try and manage his pain and to try to avoid activities that aggravated his condition. He complained of experiencing back pain and pain travelling down his right leg to his ankle.

   [5] ARD, pp 7–10.

4. The respondent said that his general practitioner, Dr Dang Vu Tran, arranged for him to undergo an MRI scan which was performed on 20 December 2020. He said he returned to see Dr Darwish on 22 February 2021 with the results of the scan. The respondent said that Dr Darwish told him that the surgery would assist his leg pain, but would not improve his back pain and also discussed the risks of surgery. The respondent said that he was not comfortable with the risks associated with the surgery and decided to live with the pain. He provided details of his ongoing difficulties in everyday tasks.

5. The respondent provided a third statement dated 5 October 2021.[6] He referred to the earlier compensation claim brought by him in the Workers Compensation Commission. He said that, at that time, he was not in receipt of any weekly income and his treatment expenses were not being paid.

   [6] Application to Admit Late Documents (AALD) dated 12 October 2021, pp 2–3.

6. The respondent stated that his solicitor advised him that he could only make one claim for lump sum compensation, so he instructed his solicitor not to make a claim because he wanted to explore further treatment with Dr Darwish before considering surgery. He said that he saw Dr Darwish on 1 November 2018, settled his claim on 24 July 2019 and had the MRI scan on 20 December 2020, following which he again consulted Dr Darwish. He said that following a discussion with Dr Darwish at that appointment, he decided against undergoing surgery. He said that he then instructed his solicitors to make a lump sum claim on his behalf.

Statement of Ms Collette Nancarrow, self insurance and fitness for work partner for GFG Alliance

1. Ms Collette Nancarrow provided a statement dated 21 October 2021.[7] She advised that she had been responsible for the management of the respondent’s claim from when it was first made. She said that, under her direction, a dispute notice dated 6 July 2017 was issued by the appellant. She said that the main issue was whether the claim was “dishonest.” That is, she explained, whether or not there had been an injury.

   [7] AALD dated 12 November 2021, p 1.

2. Ms Nancarrow stated that she had never before been served with the supplementary report provided by Dr Giblin dated 8 October 2018. She said that she attended the conciliation and arbitration on 22 July 2019, which she expected would not resolve.

3. She stated:

   “as the parties were able to negotiate a commercial settlement, which attempted to exhaust the [respondent’s] entitlements to weekly payments and limited medical expenses, I was minded to do so. There was no claim for s 66 benefits at that time or expected. I would not have instructed my solicitors to resolve the claim in that way had a s 66 claim been expected.”[8]

   [8] AALD dated 12 November 2021, p 1, [6].

Dr Balsam Darwish, neurosurgeon

1. The respondent was referred to Dr Balsam Darwish by his treating general practitioner, Dr Dang Vu Tran. Dr Darwish provided a number of reports directed to Dr Dang between 24 November 2016 and 22 February 2021.[9] Dr Darwish also provided a report dated 4 December 2018[10] at the request of the respondent’s legal representatives, which he said was compiled on the basis of the information contained in the reports to and from Dr Tran and the radiology reports.

   [9] ARD, pp 29–33, 39.

   [10] ARD, pp 34–38.

2. Dr Darwish said that he first examined the respondent on 24 November 2016. He advised that the respondent attended with a six-week history of lower back pain and right sided sciatica radiating to the right foot, with paraesthesia in the leg and weakness in the right foot. He described the findings on examination and opined that the respondent’s symptoms suggested right radiculopathy from the L5 Level of the spine. Dr Darwish reviewed an MRI scan dated 20 November 2016, which he said showed a small right L4/L5 disc protrusion which was compressing the right L5 nerve root. He recommended L4/5 perineural cortisone injections.

3. Dr Darwish advised that the respondent returned for review on 8 June 2017. He described the respondent’s complaint as “intermittent lower back pain and pain in the right buttock”, which was not radiating into the leg or associated with sensory or motor symptoms. He reported that the respondent had returned to work with a lifting restriction of up to 6 kilograms. He again recommended cortisone injections and oral medication.

4. Dr Darwish reviewed the respondent again on 24 July 2017. He recommended continuing conservative treatment but advised that if the respondent’s symptoms did not improve, surgical decompression of the right L5 nerve root may be of benefit.

5. On 26 October 2017, Dr Darwish advised that the respondent’s symptoms were well controlled with medication and the respondent should continue with conservative treatment.

6. On 25 January 2018, the respondent again complained of lower back pain radiating into the right leg and Dr Darwish recommended surgical decompression of the right L5 nerve root. He reported that the respondent preferred at that stage to continue with conservative treatment. On 20 April 2018, Dr Darwish reported that the respondent was still not keen on undergoing the surgery.

7. Dr Darwish reviewed the respondent on 13 September 2018 and advised the respondent to undergo an MRI scan. The respondent obtained the scan and returned for review by Dr Darwish on 1 November 2018. Dr Darwish reported that the MRI scan dated 20 September 2018 showed an L4/L5 disc protrusion with dehydration, bilateral L4/L5 lateral recess and compression of both L5 nerve roots. Dr Darwish said that he discussed with the respondent the treatment options, which were to continue with conservative treatment, undergo cortisone injection, or surgery in the nature of an L4/L5 discectomy and decompression of the L5 nerve roots. Dr Darwish added that he explained the risks associated with the surgery and reported that the respondent “was undecided [whether] to have the surgery.”[11]

   [11] ARD, p 37.

8. Dr Darwish opined that the respondent’s condition was work-related.

9. Subsequent to that report, Dr Darwish reported to Dr Tran on 22 February 2021[12] following a further MRI scan performed on 20 December 2020, which he said showed L4/L5 disc dehydration, an annular tear and potential compression of the nerve roots. Dr Darwish informed Dr Tran that he discussed with the respondent the three treatment options available to him. He said that he advised the respondent that the surgery would assist with the right leg pain but not alleviate the low back pain and that the best option was conservative treatment if the symptoms were not severe.

   [12] ARD, p 39.

Dr Matthew Giblin, orthopaedic surgeon

1. The respondent’s solicitors arranged for the respondent to be medically assessed by Dr Matthew Giblin. Dr Giblin examined the respondent and provided a report dated 8 October 2018.[13] He recorded a consistent history of the onset of the respondent’s symptoms and the treatment provided. Dr Giblin noted that the respondent was referred to Dr Darwish in November 2016, who treated the respondent with cortisone injections, and at a consultation in January 2018, Dr Darwish suggested surgery. Dr Giblin further noted that the respondent elected to continue to with conservative treatment.

   [13] ARD, pp 22–25.

2. Dr Giblin recorded the respondent’s ongoing symptoms and difficulties and reviewed the radiological evidence. He formed the view that the respondent suffered an injury to his L4/5 disc as a result of the nature of his work duties, and he was unfit for work involving repetitive bending and heavy lifting. Dr Giblin confirmed that Dr Darwish had offered surgical intervention and that, at that point in time, the respondent had elected to proceed with conservative treatment.

3. In a separate supplementary report also dated 8 October 2018,[14] Dr Giblin assessed the respondent’s whole person impairment of the lumbar spine, which he said was assessed on the proviso that the respondent was not undergoing surgery within the following twelve months.

   [14] ARD, pp 26–27.

4. Dr Giblin performed the assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment Fifth Edition. He opined that he did not consider that the respondent suffered from any significant pre-existing condition.

5. He assessed:

   “Lumbar Spine - was assessed using Table 15.3, page 384.

   He falls into DRE Lumbar Category (3) which gives him 10% whole person impairment.

   Using the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment - 4th Edition - 1st April 2016. Table 4.34, page 28.

   He has difficulty with yard, garden, home care and self care, which gives a further 3%.

   10%+3%=13% whole person impairment.”

THE SENIOR MEMBER’S REASONS

1. The Senior Member identified the issues in dispute as:

   (a)    whether the respondent was estopped from bringing his claim for lump sum compensation, and

   (b)    quantification of the respondent’s entitlement to lump sum compensation (s 66 of the 1987 Act).

2. The Senior Member reviewed the statements in evidence, together with the medical evidence of Dr Darwish and Dr Giblin, and summarised the submissions of both parties. He turned to the question of whether the respondent was estopped from bringing his lump sum claim.

3. The Senior Member referred to and quoted from the High Court decision in Port of Melbourne Authority v Anshun Pty Ltd,[15] in which Gibbs CJ, Mason and Aickin JJ concluded that the principles of estoppel ought to include matters that could and should have been included in earlier proceedings, referred to as a third form estoppel. He noted that this estoppel was referred to in subsequent cases as an Anshun estoppel. The Senior Member also referred to and quoted from the subsequent High Court decision in Tomlinson v Ramsey Food Processing Pty Ltd,[16] in which French CJ, Bell, Gageler and Keane JJ observed that an Anshun estoppel operates to preclude the bringing of a claim or the raising of an issue that is so connected to the subject matter of earlier proceedings that it was unreasonable not to have raised that issue or brought that claim in the earlier proceedings.

   [15] [1981] HCA 45 (Anshun).

   [16] [2015] HCA 28 (Tomlinson).

4. The Senior Member observed that those authorities establish that if a matter relied upon in later proceedings was so relevant to the matters raised in the earlier proceedings that it was unreasonable not to have relied upon it, the party seeking to rely upon it is estopped from doing so. The Senior Member said that this was consistent with the principle in litigation that the whole case should be presented together in order to avoid inconsistent outcomes and unnecessary costs. The Senior Member said that the critical question was whether the failure to proceed with the lump sum claim in the earlier proceedings amounted to an abuse of process and was unreasonable.

5. The Senior Member noted that, at the time of the earlier proceedings, the respondent had in his possession two reports from Dr Giblin and that Dr Giblin opined that, if the respondent did not undergo surgery within the following twelve months, his assessment was 13% whole person impairment. The Senior Member said that at that time, the respondent was still considering whether to have the surgery, which had been proposed by Dr Darwish since November 2016. The Senior Member referred to the respondent’s evidence as to why he did not pursue a claim pursuant to s 66 in the earlier proceedings. He said that those reasons included the advice from the respondent’s legal representatives that he could only bring one such claim, and the respondent wanted to consider his future treatment options, including having surgery. The Senior Member said that the respondent finally decided against the surgery when he attended Dr Darwish in February 2021.

1. The Senior Member reviewed the legislation and the former provisions with respect to bringing finality to a claim by way of redemption or commutation. He also reviewed the restrictive amendments to the workers compensation legislation effective from 19 June 2012, including s 66(1A) of the 1987 Act, which restricted the ability to bring a claim pursuant to s 66 to only one claim. The Senior Member discussed the various authorities that followed the amendment.

2. The Senior Member referred to the appellant’s submission that, in accordance with the principle in Anshun, a party should not unreasonably split their case as the respondent had done in this case and caution should be adopted in respect of the application of authorities from the former Compensation Court. The Senior Member observed, however, that those authorities relied upon by the respondent post-dated the decision in Anshun. He quoted from the judgment of Neilson CCJ in Bruce v Grocon Ltd,[17] in which his Honour summarised the relevant principles enunciated in Anshun and the subsequent Compensation Court decisions. The Senior Member further observed that the principles in Anshun were cited with approval in the 2015 decision of Tomlinson, which post-dated the Compensation Court decisions, indicating that the principles had not materially changed over time. The Senior Member acknowledged that Tomlinson involved a consideration of the concept of “abuse of process.” He said that abuse of process was not a subject for consideration in the decision of Phillips P in Fourmeninapub Pty Ltd v Booth,[18] an authority relied upon by the appellant to say that the older Compensation Court cases are inconsistent with that decision.

   [17] [1995] NSWCC 10 (Bruce).

   [18] [2019] NSWWCCPD 25 (Booth).

3. The Senior Member reasoned that Tomlinson established that:

   (a)    an estoppel arose in circumstances where the claim or issue was so closely connected to the subject matter of the prior proceedings that it was unreasonable for it not to have been made in those proceedings;

   (b)    such conduct could amount to abuse of process where utilisation of the court’s procedures would be “unjustifiably oppressive” to a party or “bring the administration of justice into disrepute,” and

   (c)    an estoppel could be available to relieve a party in those circumstances.

4. The Senior Member pointed out that in Booth, there was no evidence in support of a claim of injury within the meaning of s 4(b)(ii) of the 1987 Act at the time of the prior proceedings, however in this case, the respondent had had available to him an assessment of permanent impairment. The Senior Member noted that Booth was authority to say that the onus rested on the party who asserted that the failure to bring a claim or raise an issue in the prior proceedings was unreasonable or was done for no valid reason.

5. The Senior Member said that the appellant relied mainly on the evidence of Ms Nancarrow. He summarised that evidence. He observed that the only explanation offered by Ms Nancarrow as to why the previous proceedings resolved was that it was a “commercial settlement.” He added that it could be inferred that the small amount of compensation agreed to indicated a compromise by both parties, which Ms Nancarrow had described as an attempt to “exhaust” the respondent’s entitlements to weekly payments and treatment expenses. The Member said that, while it appeared that Ms Nancarrow was attempting to finalise the respondent’s claim, Ms Nancarrow did not explain why she did not take into account that the respondent may make a lump sum claim in the future. He described the potential expectation that such a settlement would disentitle the respondent from making a later lump sum claim as “misconceived and somewhat naïve.”[19]

   [19] Dang v OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing [2021] NSWPIC 476 (reasons), [99].

6. The Senior Member pointed to Ms Nancarrow’s evidence that she would not have provided instructions to resolve the matter in that manner had she been aware that the respondent would bring a later claim for whole person impairment. The Senior Member remarked that Ms Nancarrow did not say how her instructions would have changed.

7. The Senior Member observed that Ms Nancarrow did not point to any prejudice to the appellant, or give any indication how the failure of the respondent to rely on the supplementary report of Dr Giblin in the prior proceedings was “unjustifiably oppressive.” Nor did Ms Nancarrow give any detailed evidence of why the lump sum claim was so connected to the earlier claim that the failure to bring the claim in the prior proceedings unreasonable.

8. The Senior Member said that, while the prior proceedings and the current claim for a lump sum involved the same injury and the same body part, the failure to bring the claims at the same was not unreasonable because they are separate heads of compensation. The Senior Member gave examples of how there may be an entitlement to one head of compensation in respect of an injury, but there may be no entitlement to another head of compensation in respect of that injury.

9. The Senior Member discussed the history of the respondent’s injury and referred to the appellant’s dispute notice issued on 6 July 2017, which included a denial that the respondent was entitled to lump sum compensation. He described the resolution of the earlier proceedings as “a commercial decision”.[20] The Senior Member observed:

   “In the dispute notice dated 6 August 2021, [the insurer] raised the issue of an ‘Anshun’ estoppel and indicated that it raised prejudice ‘on the basis it resolved the full extent of your claim as presented in the Application to Resolve a Dispute registered on 21 May 2019’. This is consistent with the facts, namely that the claim pleaded in the prior proceedings was resolved, but it did not explain how the insurer was prejudiced.”[21]

   [20] Reasons, [105].

   [21] Reasons, [106].

10. The Senior Member quoted from President Phillips’ consideration in Booth of the concept of reasonableness, as discussed in Anshun and Tomlinson. He referred to the appellant’s submission that it was not reasonable for the respondent to split his case by failing to disclose the supplementary report when his case would be either determined or resolved on the basis of Dr Giblin’s evidence. The Senior Member expressed the view that it was not appropriate for the respondent to withhold that report but he did not consider such action to be misleading, or that both reports would be inadmissible in the later proceedings. He remarked that, in his experience, legal practitioners frequently seek an impairment assessment to be provided in a supplementary report, whether or not a lump sum claim is made. He said that, in any event, any ethical considerations arising from withholding the supplementary report were not a matter for him to determine.

11. The Senior Member further referred to the appellant’s submission that, on the basis of Anshun, it should not be put to the cost of defending the claim for a second time. The Senior Member conceded that the appellant was exposed to its own costs in the current proceedings, but in this case, it was not exposed to a costs order in respect of the respondent’s legal costs. He remarked that the issue of costs needed to be weighed against the reasonableness of the respondent’s actions.

12. The Senior Member reiterated that the respondent’s evidence was that he refrained from making a lump sum claim earlier because he had been advised that he could only have one lump sum claim and he was contemplating surgery. The Senior Member discussed the reasons for the 2012 amendments to the workers compensation legislation restricting the entitlement to only one claim in respect of a permanent impairment. He expressed the view that, before making a lump sum claim, injured workers should make certain that they had reached maximum medical improvement and that their whole person impairment would not increase.

13. The Senior Member considered that:

    “The decision to proceed with a lump sum claim is not one to be made lightly. The [respondent] had a valid reason for splitting his case, consistent with the principles discussed in Anshun, Tomlinson and [Booth]. If the [respondent] had surgery, it is possible that his whole person impairment might have increased, so his reasons for delaying his claim in my view were entirely understandable and reasonable.”[22]

    [22] Reasons, [112].

14. The Senior Member quoted the passage in Tomlinson, in which their Honours observed that:

    “a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded”.[23]

    [23] Tomlinson, [38].

15. The Senior Member noted that the appellant and its legal representatives made a forensic decision by not engaging an independent medical examiner to assess the respondent’s impairment, and thus had the opportunity to adduce evidence to traverse the respondent’s lump sum claim.

16. The Senior Member reasoned that the finality of litigation was an important concept and the workers compensation legislation only allows for a final resolution in very limited circumstances. The Senior Member suggested one method that the appellant could have adopted in order to protect itself against the respondent making the lump sum claim. This method was to require the respondent to amend the claim to include a claim pursuant to s 66 and then enter into an award in the appellant’s favour in respect of that claim.

17. The Senior Member pointed out that the workers compensation legislation does not prevent the worker from splitting his or her claim. He concluded that the respondent had a reasonable and valid reason for electing not to bring his lump sum claim in the earlier proceedings, and that fact outweighed any prejudice the appellant may have suffered. He determined that the respondent was not estopped from bringing his lump sum claim.

18. The Senior Member turned to the issue of the determination of the respondent’s lump sum entitlements. He reproduced the former s 65(3) of the 1987 Act, which precluded the then Workers Compensation Commission from awarding compensation for permanent impairment unless the degree of impairment had been assessed by an approved medical specialist. He noted that that section was repealed by the Workers Compensation Legislation Amendment Act 2018 and that the savings and transitional provisions of that Act meant that the respondent’s claim was governed by the current version of s 65 of the 1987 Act.

19. The Senior Member noted that the respondent submitted that there was no medical dispute in respect of the assessment by Dr Giblin of 13% whole person impairment of the lumbar spine and an award in favour of the respondent should be made for the sum claimed. He further noted that the appellant sought a referral of the assessment to a Medical Assessor because the appellant had not conceded the extent of the impairment.

20. The Senior Member extracted that part of the second reading speech relating the introduction of the 2018 legislation to parliament, in which the purpose of the amendments was to cure the unnecessary delay in the proceedings by removing the requirement for all permanent impairment disputes to be referred to a Medical Assessor.

21. The Senior Member reproduced Dr Giblin’s explanation of his assessment. The Senior Member reiterated that the appellant did not concede the quantum of the respondent’s impairment. He considered, however, that in the absence of compelling reasons as to why he should not determine the claim, it was appropriate for him to do so. He reasoned that:

    (a)    the appellant did not seek to adduce evidence from its own independent medical examiner, although it had the opportunity to do so;

    (b)    the evidence contained medical and radiological reports, including numerous reports from Dr Darwish;

    (c)    a referral to a Medical Assessor would not be cost-effective and would involve undue delay, and

    (d)    the substantive report of Dr Giblin, an experienced orthopaedic surgeon with an interest in lumbar and knee surgery, was comprehensive.

22. The Senior Member discussed the contents of Dr Giblin’s report, which included an examination of the respondent, the objective findings on examination, and a review of the radiological evidence. The Senior Member noted that Dr Giblin gave consideration to the categories and classifications set out in the American Medical Association Guides to the Evaluation of Permanent Impairment Fifth Edition (AMA 5) and the State Insurance Regulatory Authority (SIRA) Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition (the Guidelines). The Senior Member reproduced Dr Giblin’s application of the Guidelines to the assessment of the respondent.

23. The Senior Member concluded that:

    “In my view, Dr Giblin’s approach discloses that he has taken a thorough and informed approach and he applied the Guidelines and AMA 5. His report goes to the substantive merits of the claim and I see no error in his reasoning.

    In my view, Dr Giblin has not misapplied the criteria used to assess permanent impairment. He has not rushed to a decision. He recorded a detailed history and conducted a thorough examination. He explained how he arrived at his assessment and it does not disclose error to warrant a referral to a Medical Assessor.

    Accordingly, I am satisfied that there is no reason why the [respondent’s] lump sum claim should be referred to a Medical Assessor.”[24]

    [24] Reasons, [134]–[136].

24. The Senior Member commented that, since the repeal of s 65(3) of the 1987 Act, he had the power to determine an impairment. He added that he was not making an assessment, that he was determining the impairment on the basis of uncontested evidence of an assessor who was approved by SIRA to assess permanent impairment. The Senior Member ordered the appellant to pay the respondent $30,166.50 in respect of 13% whole person impairment.

25. The Certificate of Determination issued on 19 November 2021 records:

    “The Commission determines:

    1.     The [respondent] sustained injury to his back arising out of or in the course of his employment with the [appellant] on 25 September 2016 (deemed).

2.     The [respondent’s] employment was a substantial or the main contributing factor to his injury.

3.     The [respondent] submitted a claim for compensation on or about 25 May 2017.

4. The [appellant’s] insurer declined liability and issued a notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 on 6 July 2017.

5.     The [respondent] filed proceedings for weekly compensation and medical expenses in matter no. 2451/19 on 21 May 2019.

6.     The [respondent’s] claim for weekly compensation and medical expenses was resolved at a conciliation conference and arbitration hearing on 24 July 2019.

7.     The [respondent] made [a] claim for lump sum compensation on 3 June 2021.

8. The [appellant’s] insurer declined liability and issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 6 August 2021 on the grounds of an ‘Anshun’ estoppel.

9.     The [respondent] is not estopped from bringing his claim for lump sum compensation.

10.   The [appellant] is liable to pay the [respondent] lump sum compensation.

By consent, the Commission orders:

11. The [appellant] to pay medical expenses of $404.65 on production of accounts and/or receipts pursuant to section 60 of the Workers Compensation Act 1987.

By determination, the Commission orders:

12. The [appellant] to pay the [respondent] $30,166.50 in respect of 13% whole person impairment of the lumbar spine, including the 5% uplift, due to injury sustained on 25 September 2016 (deemed) pursuant to section 66 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

1. The appellant brings the following grounds of appeal:

   (a)    Ground One: the Senior Member erred in law as to the nature of an Anshun estoppel;

   (b)    Ground Two: having erred in law as to the nature of an Anshun estoppel, the Senior Member erred by failing to exercise his discretion to apply the Anshun principles to the case;

   (c)    Ground Three: error of fact by accepting that the respondent only made the decision not to proceed with the surgery in 2021, and

   (d)    Ground Four: error of law by taking into account an irrelevant consideration.

LEGISLATION

1. Prior to its repeal on 1 January 2019, s 65(3) of the 1987 Act provided:

   “65    Determination of degree of permanent impairment

   …

   (3)     If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”

2. Section 65 of the 1987 Act, as amended on 1 January 2019 provides:

   “65   Determination of degree of permanent impairment

   (1)     For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

   (2)     If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

   Note—

   The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.

   (3), (4) (Repealed)”.

3. Section 66 of the 1987 Act relevantly provides:

   “66    Entitlement to compensation for permanent impairment

   (1)     A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

   Note—

   No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

   (1A)  Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

   …”.

SUBMISSIONS

Ground One

The appellant’s submissions

1. The appellant submits that there is no doubt that an Anshun estoppel can apply in the Commission, referring to Booth as authority for that proposition and citing, as an example, the non-presidential decision of Member Perry in Geary v UPS Pty Ltd.[25] The appellant quotes from Booth, in which Phillips P discussed the principles and the objective of an Anshun estoppel, namely that, as a matter of public policy:

   (a)    there should be no conflicting judgments on the same set of facts, and

   (b)    the claim or defence was so closely related to the subject matter of the prior proceedings, it would reasonably be expected to have been raised in the prior proceedings.

   [25] [2021] NSWPIC 111.

2. The appellant asserts that an important aspect of the test is whether evidence was clearly available but not relied upon in the prior proceedings. The appellant refers to the two reports of Dr Giblin, which were directed to the respondent’s solicitors and bore the same date. The appellant contends that there is no basis upon which to assert that the supplementary report was not available in the prior proceedings.

3. The appellant submits that the Senior Member appeared to focus on whether the excuse was reasonable, rather than the potentially more important question of whether the respondent was splitting his case. The appellant refers to the history recorded by Dr Giblin, in particular that Dr Giblin had recorded that surgery had been proposed, but the respondent had elected to pursue conservative treatment. The appellant contends that the respondent’s evidence that he did not make the decision to not have surgery until the consultation with Dr Darwish on 22 February 2021 was wrong.

1. The appellant asserts that the earlier cases, particularly those that pre-dated Tomlinson, should be treated with caution and are unlikely to reflect the current law. The appellant submits that Tomlinson makes it clear that the concept of an estoppel extends not only to the splitting of causes but also to splitting of “points of fact”, which in this case concerns the extent of the respondent’s whole person impairment. The appellant contends that the Senior Member erred by not considering that the impropriety of the respondent’s solicitors in withholding the supplementary report could have founded an estoppel. The appellant says that the conduct amounts to an abuse of process, which encompasses issues of fairness and it was not fair for the respondent to only present one of the two reports of Dr Giblin.

2. The appellant submits that the respondent’s conduct of re-litigating the case and relying upon the evidence that was withheld was “unjustly oppressive” to the appellant and brought the “administration of justice into disrepute”, again relying upon Tomlinson. The appellant says that the respondent had already had the opportunity to bring his claim and rely on the supplementary report but chose not to do so.

3. The appellant contends that, since 2015 the respondent had not changed his mind about having the surgery, and so he was not permitted to withhold Dr Giblin’s supplementary report.

4. The appellant refers to the approach taken in the Compensation Court decision of Thompson v George Weston Foods Ltd,[26] in which McGrath CJ concluded that there was no rule that prevented a worker from bringing one type of claim and then claiming a different benefit at a later stage. The appellant asserts that that approach is inconsistent with Tomlinson. The appellant adds that in Aon Risk Services Australia Limited v Australian National University,[27] the Court took into account the use of the Court’s resources, as well as those of the parties.

   [26] [1990] NSWCC 18 (Thompson).

   [27] [2009] HCA 27 (Aon).

5. The appellant concedes that the Commission operates in the context of a statutory scheme, but says that this fact does not mean that an Anshun estoppel cannot apply in the Commission. The appellant explains that there is a difference between a common law court, where all available claims and evidence must be brought together, and the Commission, which allows a party to bring further claims and adduce further evidence where there has been a change of circumstances. The appellant gives as an example the situation where a worker brings proceedings for necessary treatment expenses but his right to claim weekly payments had not yet crystalised.

6. The appellant points to its concession in this matter that the respondent was entitled to further treatment expenses despite the previous settlement, which recognised that “estoppels do operate differently in these types of matters.”[28]

   [28] Appellant’s submissions, [20].

The respondent’s submissions

1. The respondent contends that the Senior Member did not err in respect of his conclusions as to the nature of an Anshun estoppel. The respondent submits that:

   (a)    the Senior Member clearly referred to the respondent having split his case and that Tomlinson applied;

   (b)    the Senior Member acknowledged that, because of the decision in Tomlinson, caution was required in the application of the older authorities such as Thompson, by including considerations of whether the respondent was “splitting his case” and of the unnecessary use of the court’s resources, and

   (c)    those considerations were relevant to the application of an Anshun estoppel.

2. The respondent submits that the Senior Member provided a detailed summary of the relevant case law and the factors that would support the application of an Anshun estoppel, as well as considering whether a party acted justifiably and reasonably in not raising an issue in the earlier proceedings involving the same subject matter. The respondent says that the Senior Member referred to the preference that all issues should be determined in the same proceeding but recognised that there may be a number of circumstances where a party may justifiably refrain from litigating an issue in one set of proceedings but later elect to pursue the claim.

3. The respondent says that the Senior Member considered a number of authorities that post-dated the High Court’s decision in Anshun, which the Senior Member considered were supportive of the respondent’s position in preserving his entitlements to lump sum compensation when he was harbouring doubts about the surgery. The respondent referred to the Senior Member’s consideration of whether the pursuit of a claim not brought in earlier proceedings may lead to conflicting judgments, which was an important consideration in a determination of whether an estoppel arises.

4. The respondent refers to Tomlinson, which was taken into consideration by the Senior Member when he reasoned that where the claim or issue was so connected to the subject matter of the earlier proceedings, it would be unreasonable not to have brought that claim or raised that issue in the first proceedings. The respondent also refers to the Senior Member’s consideration of the notion of abuse of process, which applies where the use of the court’s procedures would be so unjustifiably oppressive to a party that it would bring the administration of justice into disrepute.

5. The respondent indicates that the Senior Member set out the countervailing considerations in respect of the rights and obligations of the parties which were to be taken into account. Further, the Senior Member observed that the focus on the guiding principles was the reasonableness of the actions and the potential for inconsistencies, as set out by Neilson CCJ in Bruce.

6. The respondent pointed to the Senior Member’s reasons in which the Senior Member observed that the question was whether the failure to make a claim for the lump sum in the earlier proceedings constituted an abuse of process and was unreasonable. The respondent further pointed to the Senior Member’s reasons for concluding that the action taken by the respondent in splitting his case was reasonable and justified, namely that the respondent was still contemplating the question of surgery and he was only entitled to make one claim for a lump sum.

7. The respondent submits that this ground of appeal should fail, and the appeal ought to be dismissed.

Ground Two

The appellant’s submissions

1. The appellant submits that as a result of the Senior Member incorrectly determining that an Anshun estoppel did not apply, the Senior Member further committed a discretionary error by failing to apply the Anshun principles. The appellant submits that Ms Nancarrow’s evidence that she was taken by surprise by the new claim is not a factor to consider when determining whether an Anshun estoppel arises but was a factor to be taken into account by the Senior Member when he exercised his discretion. The appellant says that the discretionary factors the Senior Member was required to take into account when considering whether to impose a bar included:

   (a)    prejudice in the handling of the claim;

   (b)    additional costs;

   (c)    the agreement to enter into consent orders which would not otherwise have been done because of the issues in the matter and which was intended to bring finality to the claim, and

   (d)    the conduct of the respondent’s legal representatives in withholding the supplementary report of Dr Giblin.

2. The appellant points to the Senior Member’s suggestion that the appellant could have required the respondent to amend his claim and then have included an award in favour of the appellant in respect of s 66 of the 1987 Act. The appellant submits that it should not have been expected to guess what additional claims might be made. The appellant says that the range of potential claims is “limitless and this is not how the concept in Anshun operates.”[29]

   [29] Appellant’s submissions, [23].

The respondent’s submissions

1. The respondent maintains that the Senior Member did not err in respect of his consideration of the nature of an Anshun estoppel or in determining that the estoppel did not apply. The respondent submits that this ground of appeal is dependent upon the success of the first ground of appeal. The respondent therefore seeks to rely upon his submissions already made and submits that this ground of appeal should fail and be dismissed.

Ground Three

The appellant’s submissions

1. The appellant asserts that the Senior Member erred in accepting the fact that the respondent did not decide against surgery until 2021. The appellant submits that Dr Darwish identified the possibility of surgery in his report dated 24 November 2016, and that the respondent informed Dr Giblin in 2018 that he intended to continue with conservative treatment. The appellant contends that the respondent’s evidence that he had only recently made the decision against surgery should have been rejected. The appellant maintains that the respondent was aware of the potential for surgery for approximately five years and at no stage intended to proceed down that path. The appellant says that there was no change in circumstances in that time.

2. The appellant adds that, even if the Senior Member’s factual finding was correct, the Anshun estoppel applies because the respondent was splitting his evidence and his cause of action.

The respondent’s submissions

1. The respondent asserts that the Senior Member did not fall into error in the manner complained of by the appellant. The respondent submits that the Senior Member did not find that the respondent only made his decision about the surgery in 2021. The respondent refers to the Senior Member’s observation that at the time the respondent consulted Dr Giblin, he had been contemplating the surgery that had been repeatedly recommended by Dr Darwish. The respondent says that the Senior Member made it clear that the respondent was undecided about whether he would undergo the surgery. The respondent submits that there was evidence to that effect in the histories recorded by Dr Darwish and in the respondent’s statements dated 6 September 2021 and 5 October 2021. The respondent asserts that it was clear from the evidence that Dr Darwish was suggesting surgery, which the respondent was avoiding, and that the respondent was hopeful that conservative measures might lead to improvement in his condition.

2. The respondent refers to the Senior Member’s consideration of the respondent’s explanation as to why he did not pursue a lump sum claim in the prior proceedings. The respondent points to the appellant’s allegation of error on the part of the Senior Member where the appellant says that the Senior Member determined that the respondent “only” decided not to proceed with the surgery in 2021. The respondent submits that the Senior Member says that it was clear that the Senior Member did not make that determination. The respondent quotes from the Senior Member’s reasons, in which the Senior Member observed that the respondent “finally decided against having surgery in February 2021” (respondent’s emphasis).[30]

   [30] Reasons, [79].

3. The respondent submits that the appellant’s assertion that the respondent at no stage during the five-year period intended to proceed to surgery mis-states the evidence. The respondent says that evidence supports that he had a “dilemma of doubt as to whether or not he would eventually have to succumb to surgery.”[31]

   [31] Respondent’s submissions, [33].

4. The respondent contends that the Senior Member’s conclusion that the respondent finally decided against the surgery was supported by the respondent’s statement evidence and by Dr Darwish’s advice on 22 February 2021 that the surgery would relieve the leg pain but not the back pain, and conservative treatment was the best option. The respondent maintains that from 2018 until 2021, he was contemplating the surgery repeatedly recommended by Dr Giblin in 2016 but was hoping conservative measures would be sufficient. The respondent asserts that this evidence weighs against the notion put forward by the appellant that the respondent at no stage intended to proceed with surgery, or that there was no change in circumstances.

5. The respondent submits there was admissible evidence that in 2018, when he obtained both reports from Dr Giblin, he was contemplating surgery at that time but was in doubt and hesitant about the surgery. Additionally, that at the time of the former claim for weekly payments and treatment expenses, the respondent was advised that he could only make one claim for a lump sum and he decided not to pursue a lump sum claim at that time because he wished to consider his treatment options. The respondent submits that all of the reports of Dr Darwish, together with the respondent’s statements dated 6 September 2021 and 5 October 2021, contain direct evidence to that effect, or if not, provide sufficient facts to enable the Senior Member to infer that the respondent wished to preserve his position in respect of the lump sum claim.

6. The respondent submits that the Senior Member was correct to conclude that the principles in an Anshun estoppel do not apply when he observed that:

   “The crucial component is whether the decision to refrain from raising the matter, or in the present case, making the claim for lump sum compensation at the same time as the claims for weekly compensation and medical expenses, constituted an abuse of process and was unreasonable.”[32]

   [32] Reasons, [77].

7. The respondent maintains that the appellant has mis-stated and distorted the Senior Member’s reasons. The respondent adds that the appellant’s submissions represent that the respondent’s statement evidence is not credible yet there was no finding against the respondent’s credibility and there is no such challenge in the appeal. The respondent says that the appellant has overlooked the available evidence and this ground of appeal should fail and ought to be dismissed.

Ground Four

The appellant’s submissions

1. The appellant contends that the Senior Member erred by taking into account the fact that the appellant did not qualify its own independent medical examiner. The appellant submits that it should not have been expected to fully prepare its evidence in the case where the defence of estoppel was available. The appellant says that the main purpose of the doctrine is to shield the appellant from repeated litigation.

The respondent’s submissions

1. The respondent submits that there is no basis upon which to assert that the Senior Member took into account an irrelevant matter. The respondent asserts that it is unclear from the appellant’s submissions as to where the Senior Member fell into error or how the appellant suffered some actual injustice or unfairness. The respondent points out that the Senior Member simply observed that the entitlement to a lump sum was in issue and the appellant had not obtained an opinion from an independent medical examiner in either of the proceedings.

2. The respondent submits that, if the appellant’s submissions are referrable to the Senior Member’s decision to determine the lump sum claim without a referral to a Medical Assessor, the Senior Member was merely commenting that the appellant had no “fall back” position if the estoppel issue raised was unsuccessful. The respondent submits that, if the appellant is claiming that it has been unfairly disadvantaged by not being afforded such a “fall back” position, such a complaint would offend the principles of an Anshun estoppel.

3. The respondent submits that this ground of appeal ought to fail and should be dismissed.

THE RELIEF SOUGHT

1. The appellant submits that the appeal should be allowed, the Senior Member’s Certificate of Determination should be revoked, and a new determination made that the claim pursuant to s 66 of the 1987 Act is defeated by the application of an Anshun estoppel.

2. The respondent seeks to have the appeal dismissed.

CONSIDERATION

Ground One

1. The appellant asserts that the Senior Member erred in law as to the nature of an Anshun estoppel. The appellant submits that the supplementary report by Dr Giblin was clearly available in the earlier proceedings, which was a very relevant factor. The fact that the supplementary report was available was not disputed.

2. It is indeed relevant that the report was available and that the respondent elected not to rely on it to bring the lump sum claim at that time.

3. The appellant asserts that the earlier authorities relied upon by the respondent in his submissions and the Senior Member in his determination are inconsistent with the more recent development of the law, particularly the (2015) High Court decision in Tomlinson. The appellant’s submissions to the Senior Member on this point were:

   “There is no doubt that all of the forms of estoppel identified in Tomlinson apply in this Commission; [Booth]. Older cases from the Compensation Court on this question need to be approached with caution because the abolition of that Court in 2003 preceded the now leading authority in Tomlinson on estoppels arising from an abuse of process. That which appeared to be sanctioned in [Thompson] … for example, appears to be directly opposed to what has been admonished since Tomlinson on the question of case splitting. Case management and the notion that the Court’s resources are a relevant consideration have also developed since that time; [Aon]. It is also contrary to the reasoning in [Booth] (except in that case the estoppel was held not to apply because the worker did not have [medical] evidence to run both claims – which is the exact opposite of the history of the present case in which there was a [whole person impairment] report at the outset). Also, whilst it is accepted that the finality of litigation in common law claims is different to statutory claims in some cases, the difference would be in relation to issue estoppel where an award of statutory benefits does not estop a claim for benefits in futuro which are the subject of changing circumstances; Roche v Australian Prestressing Services Pty Ltd [2013] NSWWCCPD 7. That is a totally different question from a party splitting its case at the outset when it is seized of the evidence as is the case here.

   The [appellant] submits that the [respondent] ought not be permitted to proceed with the current claim because he should not have split his case.”[33]

   [33] Appellant’s submissions to the Member, [8]–[9].

4. In Tomlinson, the plurality considered the concept of abuse of process, and observed:

   “Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

   Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.”[34]

   [34] Tomlinson, [25]–[26].

5. It is clear from the above passage that an abuse of process and an Anshun estoppel are two distinct concepts, although may have overlapping features.

6. In Tomlinson, their Honours proceeded to observed that:

   “The third form of estoppel is now most often referred to as ‘Anshun estoppel’ although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.”[35]

   [35] Tomlinson (per French CJ, Bell, Gageler and Keane JJ), [22].

1. In its submissions to the Senior Member the appellant referred to the concept of “abuse of process” and included the above extracts from the judgment in Tomlinson in which the overlap between the concepts of estoppel and of abuse of process were discussed. The appellant did not, however, actively submit that in this case, there had been an abuse of process, or that the respondent’s action was unjustly oppressive or had brought the administration of justice into disrepute. The appellant’s case before the Senior Member was that an Anshun estoppel applied.

2. The law with respect to raising an argument on appeal in circumstances where that argument was not raised below was summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace:[36]

   “A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so.”[37]

   [36] [2014] NSWCA 58 (Mamo).

   [37] Mamo, [75].

3. The Senior Member cannot be seen to have fallen into error in circumstances where the argument that the conduct of the respondent constituted abuse of process now put forward by the appellant was not the subject of submissions at arbitration.[38]

   [38] Brambles Industries Limited v Bell [2010] NSWCA 162, [22].

4. The appellant’s submission that the cases that preceded Tomlinson are no longer “good law” cannot be accepted. The Senior Member succinctly identified the principles established in Tomlinson, summarised above at [45], including that an estoppel arose in circumstances where the claim or issue was so closely connected to the subject matter of the prior proceedings that it was unreasonable for it not to have been made in those proceedings. That is, that an estoppel could arise where the respondent had split his case, and it was unreasonable for him to have done so.

5. In Anshun, Gibbs CJ, Mason and Aickin JJ discussed the principles of what has been generally referred to as the “third form of estoppel.” Their Honours said:

   “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.”[39]

   [39] Anshun, 602–603.

6. It can be seen from the passages quoted above in both Anshun and Tomlinson that Tomlinson did not change the nature or application of an Anshun estoppel and that the earlier cases, including those determined in the context of the statutory scheme applicable to workers compensation, remain authoritative.

7. A summary of the principles enunciated in the early cases with respect to estoppel and its scope in the workers compensation jurisdiction was provided by Neilson CCJ in Bruce. Of particular relevance to the issues in this case, his Honour observed that an Anshun estoppel extends to claims as well as to defences and would apply if it was unreasonable not to rely on that matter now agitated in the original proceedings. His Honour added that such unreasonableness would depend on the facts of each particular case.

8. In the present matter, the Senior Member observed that:

   “I am mindful that in Tomlinson, the High Court cited Anshun with approval, so the case law has not markedly changed since the demise of the Compensation Court. Of course, the focus in Tomlinson was the abuse of process.”[40]

   [40] Reasons, [89].

9. The Senior Member’s conclusion to reject the submission made by the appellant that the earlier cases were no longer good law was consistent with Tomlinson and was correct.

10. The appellant submits that the Senior Member appeared to focus on whether the excuse was reasonable, rather than the potentially more important question of whether the respondent was splitting his case. There is no authority to support the appellant’s proposition that the fact that the respondent was “splitting his case” weighs more heavily than a consideration of whether or not it was reasonable for him to have done so.

11. An estoppel arises in circumstances where the claim or issue is so closely connected to the subject matter of the prior proceedings that it was unreasonable for the claim or issue not to have been made in those proceedings. It proceeds on the basis that the party has split his or her case, and it was unreasonable to do so. It is a composite concept.

12. Although he considered it improper of the respondent to withhold the supplementary report, the Senior Member commented that it was not a matter that he was required to deal with. The undisclosed supplementary report was evidence that tended to show that the respondent could have brought his lump sum claim at that time. It did not go to the assessment of whether the action in not pursuing the lump sum claim was or was not reasonable.

13. The appellant’s submission is rejected.

14. The appellant asserts that the decision of Thompson, in which McGrath CJ concluded that there was no rule that prevented a worker from bringing one type of claim and then claiming a different benefit at a later stage, is inconsistent with Tomlinson. The appellant does not explain where any inconsistency lies, and any purported inconsistency is not apparent on a plain reading of both Thompson and Tomlinson.

15. It follows that Ground One of the appeal is not made out and fails.

Ground Two

1. In Ground Two of the appeal, the appellant asserts that by virtue of the Senior Member’s finding that an Anshun estoppel did not apply, the Senior Member further erred by failing to apply the principles relevant to that estoppel. The appellant submits that the fact that Ms Nancarrow was surprised by the claim was a factor to take into account in the exercise of his discretion as to whether to impose the estoppel. The appellant submits that the discretionary factors that the Senior Member was required to consider included that:

   (a)    the appellant was prejudiced in the claims handling process;

   (b)    additional costs were incurred on its part;

   (c)    the consent orders entered into were intended to be a final resolution of the respondent’s entitlements, and

   (d)    the respondent withheld the supplementary report.

2. The Senior Member considered the evidence and said that the appellant did not show evidence of any real prejudice in the handling of the claim. The appellant had the opportunity to address the claim had it chosen to do so. The fact that the respondent consented to orders in relation to the respondent’s claim for weekly payments and treatment expenses, which disposed of the earlier claim was unpersuasive. There was no provision in the consent orders to protect the appellant from a later lump sum claim being brought pursuant to s 66 of the 1987 Act, in circumstances where such a claim was at large.

3. The Senior Member considered the evidence of Ms Nancarrow. He made the observation that the earlier settlement appeared to represent a compromise and that Ms Nancarrow had done her best to finalise the claim but she did not explain why she did not expect a future lump sum claim. He considered that Ms Nancarrow’s expectation was unrealistic. The Senior Member observed that the lump sum entitlement and the entitlements to weekly compensation and treatment expenses were separate heads of compensation. After considering Ms Nancarrow’s evidence, he concluded that her evidence was unpersuasive in respect of a consideration of whether the failure to pursue the lump sum claim in the earlier proceedings was unreasonable. He noted that the onus rested on the appellant to show that the failure to bring the claim was unreasonable.

4. The Senior Member further considered the respondent’s conduct in respect of withholding the supplementary report. He said:

   “The [appellant] submits that it was not reasonable for the [respondent] to split his case by withholding evidence in circumstances where the worker knew that his litigated claim would be determined or settled based on Dr Giblin’s evidence. That might well be true, and in my view, both reports of Dr Giblin should have been served, even if the lump sum claim was not pressed, but I would not consider the action to withhold the report was misleading or that this would make both reports inadmissible in the current proceedings. In my experience, legal representatives of workers and employers almost always seek lump sum assessments of impairment in separate supplementary reports, whether there is a lump sum claim or not.”[41]

   [41] Reasons, [108].

5. The Senior Member considered the question of costs and observed that he must weigh that factor against the reasons given by the respondent as to why the respondent did not pursue his claim in the earlier proceedings. The Senior Member weighed that evidence against the respondent’s evidence that he did not pursue the claim initially because he had not finally decided whether to have surgery and because he could only make one lump sum claim.

6. In Ling v Commonwealth[42] the Federal Court found the plaintiff’s failure to plead his claim as a cross-claim in the earlier proceedings was held to have been reasonable and there was no Anshun estoppel. Wilcox J said:

   “In considering reasonableness ... consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier ...

   In assessing the reasonableness of Mr Ling’s failure to raise his claim against the Commonwealth when he was sued by it in the earlier action, it is necessary to look at the whole of the circumstances that he then confronted. His claim involved facts that overlapped the Commonwealth’s case to some extent but were substantially extraneous to that case.”[43]

   [42] [1996] FCA 1646 (Ling).

   [43] Ling, [10]–[11].

7. In Habib v Radio 2UE Sydney Pty Ltd,[44] McColl JA said (citations omitted):

   “Thus Anshun estoppelintroduces ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’…”.[45]

   And:

   “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. In determining whether an Anshun estoppel has been established, the Court inquires into realities and not mere technicalities. The Court can look at ‘any material that shows what issues were raised and decided’.

   In considering whether an Anshun estoppel has been established it is necessary to bear in mind that ‘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’”.[46]

   [44] [2009] NSWCA 231 (Habib).

   [45] Habib, [82].

   [46] Habib, [84]–[85].

8. In the further decision of the Court of Appeal, Champerslife Pty Ltd v Manojlovski,[47] Allsop P (as his Honour then was) observed that the concept of unreasonableness requires two assessments to be made. His Honour said:

   “The question of unreasonableness is derived significantly from the matter being so relevant to the subject matter of the first proceeding. There are at least two related assessments that have to be made: was the matter so relevant that it can be said to have been unreasonable not to rely upon it in the first proceeding? ...

   One fundamental error in the approach of the respondent was to build on the proposition that because the matter could have been raised in the first proceeding to draw a conclusion, it should have been. That mechanistic approach was what Lord Bingham was rejecting in the above passage from Johnson v Gore Wood. It is also what Gibbs CJ, Mason J and Aickin J found objectionable in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. In that case at 590, Lord Kilbrandon spoke of the principle as ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’ (emphasis added). This way of putting it overstated the principle. The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.” (emphasis in original)[48]

   [47] [2010] NSWCA 33 (Manojlovski).

   [48] Manojlovski, [3]–[4].

9. The critical reasons given for not pursuing the claim in the earlier proceedings were that the respondent only had an entitlement to make one claim for lump sum compensation, the surgery, if undertaken, might likely alter the assessment of his whole person impairment and he was yet to make a final determination about the surgery. Those facts found support in the evidence.

10. The Senior Member clearly addressed the relevant factors relied upon by the appellant to show that the failure to bring the claim was unreasonable.

11. The appellant’s case substantially rests on an assertion that because the respondent could have brought his case in the earlier proceedings, he should have. That submission falls foul of the observations of Allsop P in Manojlovski.

12. There is no basis upon which to assert that the Senior Member failed to “apply the Anshun principles,” which involved a consideration of whether the respondent’s decision to split his claim was unreasonable. Ground Two of the appeal fails.

Ground Three

1. The appellant asserts that the Senior Member erred in accepting the fact that the respondent “only” decided against surgery in 2021. As the respondent submits, the Senior Member did not make that finding. The Senior Member’s reasons included the following:

   “In this matter, the [respondent] had in his possession two reports from Dr Giblin. Dr Giblin provided an assessment of 13% whole person impairment ‘on the proviso that he is not having surgery within the next twelve months’[49]. At that stage, the [respondent] was still contemplating the surgery that had been repeatedly recommended by Dr Darwish since November 2016.

   In his last statement, the [respondent] explained why he did not bring a lump sum claim at the time of the earlier proceedings. His solicitors told him that he could only make one claim for lump sum compensation, so he decided not to make a claim because he wanted to consider his treatment options, including surgery. He finally decided against having surgery in February 2021 when he returned to see Dr Darwish armed with an updated MRI scan.”[50]

   [49] ARD, p 25.

   [50] Reasons, [78]–[79].

2. The respondent’s explanation was consistent with the respondent’s statement evidence, when read together with the evidence of Dr Darwish. Dr Darwish said that at the consultation which took place in November 2018, he explained the risks associated with the surgery and reported that the respondent “was undecided [whether] to have the surgery.”[51]

   [51] ARD, p 37.

3. The Senior Member’s conclusion was also consistent with the respondent’s evidence that:

   (a)    he commenced the earlier proceedings because he was not in receipt of weekly payments or treatment expenses;

   (b)    he did not pursue a lump sum claim at the time because he was aware that he only had one claim available;

   (c)    he was subsequently advised by Dr Darwish that the surgery would not improve his back pain and that he should pursue conservative treatment, and

   (d)    after that advice, he decided to exercise his entitlement to lump sum compensation.

4. The history recorded by Dr Darwish was that, as at 1 November 2018, the respondent was “undecided” about the surgery. The history recorded by Dr Giblin in his substantive report dated 8 October 2018 was that:

   “Surgical intervention has been advised by his specialist and if this happens it would be a microdiscectomy at an estimated cost of $20,000.00.

   At this point in time he has elected not to proceed with surgery and be treated in a conservative manner. If he continues to be treated in a conservative manner and not have surgery ...”.[52]

   [52] ARD, p 24.

5. The phrase adopted by Dr Giblin that “at this point in time …” and the observation that “if he continues to be treated in a conservative manner …” are sufficient, in my view, to lead to the inference that the respondent had not yet made a final determination in relation to undergoing surgery. That inference is supported by the history recorded by Dr Darwish that, as at 1 November 2018, the respondent was “undecided” about undergoing surgery.

6. The appellant has mis-stated the Senior Member’s conclusion, which was a finding of fact. It is well settled that, in order to disturb a Member’s finding of fact, the appellant must show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that it establishes that the Member’s decision is wrong.[53]

   [53] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25.

7. It cannot be said that, in this case, the Senior Member’s finding of fact was arrived at by committing any such errors. The inference drawn by the Senior Member that the respondent finally decided against undergoing surgery in 2021 was available to him and the appellant has not pointed to any persuasive evidence to the contrary. This ground of appeal fails.

Ground Four

1. The appellant asserts that the Senior Member erred in law by taking into account an irrelevant consideration. The appellant refers to the Senior Member’s observation that the appellant did not obtain independent medical evidence in respect of an assessment of the respondent’s whole person impairment. In a rather circular argument, the appellant asserts that it should not have been expected to obtain such evidence when it had available to it the doctrine of estoppel.

2. The respondent indicates that it is unclear how the Senior Member fell into error and where the appellant may have suffered some lack of fairness or injustice.

3. The Senior Member made the following observations:

   “According to Tomlinson, ‘a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded.’

   The [appellant] and its solicitors made the forensic decision to refrain from qualifying an [independent medical examiner] during the course of the prior claim, so it did not have a fall-back position if the factual dispute was unsuccessful.

   In the current proceedings, yet another forensic decision was made against qualifying an [independent medical examiner]. It could not be said that the [appellant] has not been afforded the opportunity to obtain medical evidence to challenge the [respondent’s] lump sum claim.”[54]

   [54] Reasons, [113]–[115].

1. It is clearly apparent from the above passage that the Senior Member, in considering the fact that the appellant could have, but elected not to, qualify its own independent medical examiner to address the question of the respondent’s whole person impairment, was applying the requirement in Tomlinson. It was most relevant when considering whether the appellant had been denied the opportunity to adduce evidence, a factor to be taken into account when assessing whether an Anshun estoppel should apply.

2. The respondent submits that, if the complaint relates to the Senior Member having determined the lump sum claim without referring the claim for assessment by a Medical Assessor, the Senior Member’s reference to the fact was simply a passing observation.

3. The appellant’s grounds of appeal do not point to any error on the part of the Senior Member by proceeding to determine the respondent’s lump sum claim. If this ground was intended to raise such a contention, it is not apparent from the manner in which the ground is articulated or in the submissions purportedly addressing this ground.

4. The appellant has failed to establish that the Senior Member took into account an irrelevant matter and this ground of appeal fails.

CONCLUSION

1. The appellant has failed to establish error on the part of the Senior Member and the appeal fails. The Senior Member’s Certificate of Determination is confirmed.

DECISION

1. The Senior Member’s Certificate of Determination dated 19 November 2021 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

15 August 2022