River Hill Contracting Pty Ltd v Moore

Case [2023] WASCA 111

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RIVER HILL CONTRACTING PTY LTD -v- MOORE [2023] WASCA 111

CORAM:   BUSS P

MITCHELL JA

BEECH JA

HEARD:   18 MAY 2023

DELIVERED          :   17 JULY 2023

FILE NO/S:   CACV 68 of 2022

BETWEEN:   RIVER HILL CONTRACTING PTY LTD

Appellant

AND

COLIN MOORE

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   COMMISSIONER COLLINS

Citation: RIVER HILL CONTRACTING PTY LTD -v- MOORE [2022] WADC 60

File Number            :   APP 80 of 2021


Catchwords:

Workers' compensation - Appeal against preliminary decision - Whether Anshun estoppel precluded a worker from pursuing a claim for weekly payments of workers' compensation for incapacity resulting from an injury which an arbitrator determining an earlier claim had found stood outside the proper scope of the earlier proceedings - Whether new compensation application barred by the doctrine of Anshun estoppel

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 57A, s 58, s 61, s 62, s 178

Result:

Leave to appeal granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant : J J Sheldrick
Respondent : T Lampropoulos SC & J N Trigg

Solicitors:

Appellant : Hall & Willcox
Respondent : Stephen Browne Lawyers

Case(s) referred to in decision(s):

Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502

Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1

DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gibbs & McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52; [1999] 2 VR 19

Henderson v Henderson (1843) 3 Hare 100; (1843) 67 ER 313

Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190; (2022) 318 IR 281

Minerology Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230

Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507

JUDGMENT OF THE COURT:

Summary

  1. The Workers' Compensation and Injury Management Act 1981 (WA) (Act) aims to establish a system for resolution of compensation disputes which is timely, cost effective, accessible and in which arbitrated disputes are determined according to their substantial merits with as little formality and technicality as practicable. The length and complexity of the legislative labyrinth which successive amendments to the Act have created challenges the achievement of that objective. Too often, workers' compensation disputes seem to become mired in technical procedural arguments, resolved by long and over-elaborate reasons for arbitral decisions which take many months to produce. It is important that those charged…

Continue reading River Hill Contracting Pty Ltd v Moore

Sign in free to access the full text

Details
AGLC
River Hill Contracting Pty Ltd v Moore [2023] WASCA 111
Case
[2023] WASCA 111
Decision Date

CaseChat Overview and Summary

River Hill Contracting Pty Ltd has appealed to the Supreme Court of New South Wales against the decision of Commissioner Collins of the District Court, who dismissed the appeal from a decision of Arbitrator Nunn. Mr Moore had initially made a claim against River Hill in 2018, which was heard in arbitration. Arbitrator Rutherford ruled that the claim for aggravation of degeneration at L4/5 and L5/S1 was not to be considered as it had not been raised in the original application. Mr Moore then submitted a second arbitration application, which River Hill argued was precluded by the doctrine of Anshun estoppel, which prevents a party from pursuing a claim or issue that was reasonably available in a prior proceeding. Arbitrator Nunn rejected this argument, and River Hill appealed to the District Court, which was dismissed. The appeal to the Supreme Court is based on the argument that Anshun estoppel applies to preclude Mr Moore from pursuing the claim in the second arbitration application.

The primary legal issue in this case is whether Anshun estoppel precludes Mr Moore from pursuing his claim for aggravation of degeneration at L4/5 and L5/S1 in the second arbitration application. The court had to consider whether Mr Moore took reasonable steps to pursue the claim in the first arbitration application and whether the claim could and should have been determined on its merits in resolving the first arbitration application. The court also had to consider whether Anshun estoppel applies even if Arbitrator Rutherford had been correct in accepting River Hill's procedural objection. The court had to examine the principle behind Anshun estoppel, which is to prevent a party from reserving a claim and making it later when it could and should have been made in the earlier proceedings.

The court found that Arbitrator Nunn and Commissioner Collins were correct to conclude that Anshun estoppel does not preclude Mr Moore from pursuing his claim in the second arbitration application. The court found that Mr Moore took reasonable steps to attempt to pursue the claim in the first arbitration application and that the claim could and should have been determined on its merits in resolving the first arbitration application. The court found that Anshun estoppel does not preclude Mr Moore from pursuing the claim in these circumstances, following Arbitrator Rutherford's acceptance of River Hill's procedural objection to the claim being considered in resolving the first arbitration application. The court found that even if Arbitrator Rutherford had been correct in accepting River Hill's procedural objection, in circumstances where Mr Moore had taken steps to pursue the claim in the first arbitration application, no Anshun estoppel would arise. The court found that Mr Moore would not have acted unreasonably in the relevant sense.

The appeal is dismissed with costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Still wanting to pursue his claim based on aggravation of degeneration at L4/5 and L5/S1, Mr Moore submitted a new claim form which led to a further application for arbitration made on 14 December 2020 (second arbitration application).[1] As part of its response to this application, River Hill contended that the doctrine of Anshun estoppel precluded Mr Moore from pursuing the claim sought to be advanced by the second arbitration application. This objection was rejected by Arbitrator Nunn on 21 October 2021. River Hill's appeal to the District Court against Arbitrator Nunn's decision was dismissed by Commissioner Collins on 28 June 2022. River Hill now appeals to this court, in essence on the ground that Anshun estoppel precludes Mr Moore from pursuing his claim arising from aggravation of degeneration at L4/5 and L5/S1 in the second arbitration application.[1] Blue AB 207. In the meantime, the second arbitration application remains unresolved and the substantial merits of the claim arising from aggravation of degeneration at L4/5 and L5/S1 are yet to be considered. There has been considerable delay since Mr Moore first initiated the dispute resolution process on 4 October 2018. No doubt, considerable legal expenses have been incurred by the represented parties in multiple hearings. The objects of the Act in relation to dispute resolution have plainly not been achieved in this case. In our view, Arbitrator Nunn and Commissioner Collins were correct to conclude that Anshun estoppel does not preclude Mr Moore from pursuing his claim arising from aggravation of degeneration at L4/5 and L5/S1 in the second arbitration application. Essentially, that is on the basis that Mr Moore took reasonable steps to attempt to pursue that claim in the first arbitration application and the claim could and should have been determined on its merits in resolving the first arbitration application. Anshun estoppel does not preclude Mr Moore from pursuing the claim in these circumstances, following Arbitrator Rutherford's acceptance of River Hill's procedural objection to the claim being considered in resolving the first arbitration application. Further, even if Arbitrator Rutherford had been correct in accepting River Hill's procedural objection, in circumstances where Mr Moore had taken steps to pursue the claim in the first arbitration application, no Anshun estoppel would arise. In those circumstances, Mr Moore would not have acted unreasonably in the relevant sense. Anshun estoppel takes its name from the High Court's decision in Port of Melbourne Authority v Anshun Pty Ltd.[2] It is an extension of cause of action and issue estoppel. Anshun estoppel operates to preclude the assertion of a claim, or the raising of an issue of fact or law, in a second proceeding if that claim or issue was so connected with the subject matter of a first proceeding as to have made it unreasonable in the context of the first proceeding for the claim not to have been made or the issue not to have been raised in the first proceeding.[3] The rule rests upon the principle that the court requires the parties to litigation to bring forward their whole case and will not permit a party to litigation to reserve a claim and make it later when it could and should have been made in the earlier proceedings.[4][2] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.[3] Anshun (602 - 603); Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [27]; [4] DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 [73].