River Hill Contracting Pty Ltd v Moore
[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
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 with the difficult responsibility of navigating through the legislative maze bear in mind the need to focus on the fair and efficient determination of the substantive merits of the case.
The present case ought to have been relatively simple to resolve. It is uncontroversial that the respondent (Mr Moore) suffered a lower back injury in an accident at his work for the appellant (River Hill) on 5 May 2017 (accident). It is common ground that he sustained spinal fractures at L2 and L3 which left him unable to perform his pre-accident duties for some time. Allianz Australia Insurance Limited (Allianz), River Hill's workers' compensation insurer, accepted liability for that injury on 7 June 2017 and began weekly payments of workers' compensation. A dispute arose after those payments were ceased on 24 October 2017. In essence, the issue for determination was whether Mr Moore's ongoing back pain was a result of the spinal fractures at L2 and L3 or, alternatively, aggravation of pre-existing degeneration of his lumbar spine at L4/5 and L5/S1 to which the accident contributed to a significant degree, and whether that back pain prevented Mr Moore from working.
However, River Hill responded to an arbitration application made on 10 December 2018 (first arbitration application) by contending, in effect, that the arbitrator could not resolve the dispute as to whether the accident significantly contributed to the aggravation of pre-existing degeneration at L4/5 and L5/S1. This objection was in essence founded on:
1.Mr Moore's failure to refer to aggravation of degeneration at L4/5 and L5/S1 in his claim form of 29 May 2017 (initial claim form); and
2.Mr Moore's failure to refer to s 58 of the Act in his application for conciliation lodged on 4 October 2018 (first conciliation application).
In written reasons published on 16 March 2020 (reasons), Arbitrator Rutherford accepted this objection and did not resolve the claim arising from aggravation of degeneration at L4/5 and L5/S1 on its merits. The arbitrator also found that Mr Moore had recovered from the L2 and L3 fractures by October 2017 and dismissed the first arbitration application.
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
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].
It has often been emphasised that there are a variety of circumstances explaining why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings.[5] Thus the fact that the party could have raised the claim or issue, while an essential requirement of an Anshun estoppel, is not sufficient. Anshun estoppel is concerned with situations where the party ‘could and should’ have litigated the claim or issue in the earlier proceedings.[6]
[5] Anshun (602 ‑ 603); Clayton v Bant [2020] HCA 44; (2020) 272 CLR 1 [31]; Minerology Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 [167].
[6] Anshun (598); Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502, 509.
Because Anshun estoppel prevents a litigant from having the merits of their claim adjudicated, it is only to be applied in the clearest of cases.[7]
[7] DP World [83]; Gibbs & McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52; [1999] 2 VR 19 [33].
It is established that a decision of a review officer under the Act can give rise to an issue estoppel.[8] Recently, in Miller v Secretary, Department of Communities and Justice,[9] the New South Wales Court of Appeal held that the Anshun principle could apply in relation to proceedings under the workers' compensation legislation in that State, which is broadly similar to the Act. No party to the present appeal contended that Anshun estoppel could not arise in arbitration proceedings under the Act, and we proceed on the basis that the doctrine does apply. However, the following observations of Brereton JA in Miller are also apposite to the application of the Anshun doctrine to the compensation jurisdiction in this State:[10]
The application of Anshun in this context must have regard to the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgment as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier. But that is not to say that the doctrine does not apply; only that whether a claim ought reasonably have been brought in the context of an earlier claim will be informed by those matters.
[8] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363.
[9] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190; (2022) 318 IR 281.
[10] Miller [135].
It is therefore convenient to turn to the relevant statutory provisions before summarising the relevant factual and procedural background.
Statutory framework
Liability to pay compensation
Section 18(1) of the Act provides for the liability of an employer to pay compensation in accordance with sch 1 to the Act if 'an injury of a worker occurs'. The term 'injury' is defined in s 5(1) of the Act to relevantly include:[11]
1.a personal injury by accident arising out of or in the course of the employment; and
2.the aggravation of a pre-existing disease (which includes any physical ailment or defect) where the employment was a contributing factor to that aggravation to a significant degree.
Claim procedure
[11] Paragraphs (a) and (d) of the definition of 'injury', read with the definition of 'disease'.
Section 178(1) of the Act relevantly provides that proceedings for recovery under the Act of compensation for an injury are not maintainable unless:
(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury[.]
The information required by s 178(2) comprises the worker's personal details, 'in ordinary language the cause of the injury', the date and place at which the injury occurred and such other information as is prescribed by the regulations. Regulation 6AA of the Workers' Compensation and Injury Management Regulations 1982 (WA) (Regulations), prescribes the claim form to be used under s 178 of the Act.
However, under s 178(1)(c) of the Act:
[T]he want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause[.]
Further, under s 178(1)(d), the failure to make a claim within 12 months is not a bar to the maintenance of proceedings if:
[I]t is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.
Section 57A of the Act provides for the relevant claim procedure where a claim for weekly payments is made by a worker to an insured employer under s 178(1)(b) of the Act.[12] In essence, the employer must make a claim to the insurer within five days of being served with a medical certificate in the prescribed form.[13] Within 14 days of the employer's claim, the insurer must give the worker notice as to whether liability is accepted or disputed in respect of the weekly payments claimed, or that a decision is not able to be made within the prescribed time.[14] An employer must commence weekly payments 14 days after being notified that the insurer accepts the claim or an arbitrator has ordered the commencement of weekly payments under s 58 of the Act.[15]
[12] See s 57A(1) of the Act.
[13] Section 57A(2A) of the Act.
[14] Section 57A(3) of the Act.
[15] Section 57A(7) of the Act.
Section 58(1) of the Act provides for an arbitrator, on the application of the worker, to hear and determine the question of liability to make the weekly payments claimed in certain circumstances. Those circumstances include where, after making the claim and serving a medical certificate, the worker has not received the first of the weekly payments claimed within 19 days or receives notice that liability is disputed.
Section 61(1) of the Act limits the circumstances in which payments of compensation for total or partial incapacity which have commenced under the Act may be discontinued or reduced. One of those circumstances is where 'the worker has returned to work'. Section 61(3) provides for a worker who disputes the right of his employer to discontinue or reduce weekly payments to apply for an order of an arbitrator that the weekly payments not be discontinued or reduced. The arbitrator may adjourn the application, dismiss the application or make an order for weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.[16]
[16] Section 61(4) of the Act.
Under s 62(1) of the Act:
Any weekly payment may be reviewed by an arbitrator on an application either of the employer or of the worker, and on such review, may be discontinued, reduced, or increased subject to any maximum provided, as from such date as the arbitrator, having regard to the past or present condition of the worker, sees fit.
Dispute resolution generally
Part XI of the Act provides the process for dispute resolution under the Act, which is usually by conciliation followed by arbitration of matters in dispute which are not resolved by conciliation. The term 'dispute' is relevantly defined in s 176(1) of the Act to include a dispute in connection with a claim for compensation, or the liability to pay compensation, under the Act.
Section 177(1) of the Act provides for the objects of Part XI in the following terms:
The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that —
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
(d)in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
Conciliation
Section 182E of the Act provides for a party to a dispute to apply to the Director in accordance with the Act and the conciliation rules for resolution of the dispute by conciliation. Under s 182O(1) of the Act, conciliation ends when agreement is reached by the parties on all matters in dispute, the conciliation officer believes that there is minimal chance of agreement or further agreement being reached, or the time limit for conciliation has expired. Section 182O(2) provides for the conciliation officer to issue a certificate setting out the outcome of the conciliation.
Arbitration
Under s 182ZT of the Act, if a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with the Act and the arbitration rules for determination of the dispute by arbitration. Under s 182ZU, an application for arbitration cannot be accepted by the Registrar unless accompanied by a certificate from the Director stating that no matter in dispute is suitable for conciliation, or a certificate of a conciliation officer under s 182O identifying the matter or matters in dispute that have not been resolved by conciliation.
Section 185 of the Act provides that the arbitrator to whom a dispute is allocated is to determine the matter or matters in dispute in accordance with the Act and the arbitration rules.
By s 188(2)(b) of the Act, an arbitrator is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Under s 189 of the Act:
(1)The granting of relief or redress under this Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim.
(2)However subsection (1) does not prevent the arbitrator from determining that a matter is beyond the scope of the application for conciliation that preceded the application for arbitration and should be the subject of another application for conciliation.
Section 211 of the Act provides that, subject to the Act, an arbitrator may make such decisions as the arbitrator thinks fit.
Section 217B of the Act provides that, except as otherwise provided by the Act, a decision of an arbitrator is final and binding on the parties and is not subject to an appeal. Under s 219 of the Act, a person to whom money is to be paid under a decision of an arbitrator may enforce the decision by filing in a court of competent jurisdiction a certified copy of the decision and an affidavit as to the amount not paid under the decision.
Factual and procedural background
The following factual and procedural background does not appear to be controversial.
Accident and initial medical assessment in May 2017
On 5 May 2017, Mr Moore (who was employed by River Hill as a plant operator/truck driver) suffered a back injury in the accident, in which he was crushed between a loader bucket and a hopper.
On 10 May 2017, a general practitioner issued a first medical certificate in the form required by reg 6A of the Regulations (First Medical Certificate).[17] The clinical findings were that Mr Moore suffered from 'tender L3-5 region with paraspinal tenderness, no focal neurologic deficit'. The diagnosis was '[l]ow back injury, needs further investigation, background of [chronic] back pain'. The injury was said to be both a new condition and the recurrence of a pre-existing condition. Mr Moore was certified to have no capacity for any work from 10 - 17 May 2017.
[17] Green AB 125 - 126.
On 19 May 2017, Mr Moore underwent an MRI and a CT scan of his lumbosacral spine. The CT scan report revealed fractures at L2 and L3, as well as degeneration at L4/5.[18] The MRI report recorded similar findings.[19] As a result, he was in a Jewett back brace for two months.
Claim for compensation on 29 May 2017
[18] Green AB 129.
[19] Green AB 127.
On 29 May 2017, Mr Moore made a claim for compensation under s 178(1)(b) of the Act accompanied by the First Medical Certificate. The prescribed initial claim form completed by Mr Moore required him to identify the occurrence, the 'most serious injury or disease caused (ie fracture, burn, abrasion)' and the 'bodily location of the injury or disease (ie upper arm, eye)'. There was very little space on the form for Mr Moore to complete these details. Mr Moore identified his 'most serious injury' as 'L2 L3 fractures' and the bodily location of the injury as 'lower back'.[20]
[20] Green AB 132 - 133.
On 7 June 2017, River Hill's insurance company Allianz accepted liability for Mr Moore's claim in respect of the 'lower back fractures in L2 and L3' pursuant to s 57A of the Act. Weekly payments of compensation commenced shortly afterwards, and were backdated to 17 May 2017.
On 11 September 2017, Mr Moore commenced a return-to-work program in consultation with both his rehabilitation provider and Dr Coert Erasmus (who appears to be his general practitioner).
On 23 October 2017, Dr Erasmus certified a 'final certificate of capacity' that Mr Moore had full capacity to return to work the next day, that is, from 24 October 2017.[21]
Return to work in October 2017
[21] Green AB 137.
Mr Moore returned to work on 24 October 2017 performing light duties.
On 24 October 2017, Allianz ceased weekly payments of compensation to Mr Moore on the basis that he had returned to work pursuant to s 61 of the Act. Mr Moore continued undertaking paid work for River Hill.
Medical assessments by Dr Hardcastle in February - March 2018
On 6 February 2018 and 15 March 2018, Allianz obtained medical reports from an orthopaedic surgeon, Dr Hardcastle. Dr Hardcastle noted the history of fractures at L2 and L3 and degeneration at L4/5 and L5/S1.[22] In his report of 6 February 2018, Dr Hardcastle expressed the following opinion:[23]
The history is consistent with an impact extension injury resulting in minimally displaced spinous process fractures which from my clinical assessment have gone on to union as would be expected. There is likely to have been an extension injury to a pre-existing degenerative lumbar spine as well which is the more likely cause of the ongoing mechanical symptoms that have continued. It would be worthwhile getting a bone scan at this stage to see if there is still any residual effects of his trauma or whether the lower back inflammatory features relate more to the pre-existing degenerative disease.
[22] Green AB 138 - 143 and 146 - 148.
[23] Green AB 142.
In his report of 15 March 2018, prepared after a bone scan had been performed and showed degeneration at L4/5 and left L5/S1, Dr Hardcastle said:[24]
There is no specific evidence of any post-traumatic features that one would consider to any significant extent, accepting that the injury itself may have caused some increase in the osteoblastic activity at the L4/5 and L5/S1 levels. However, this is unlikely to be to a significant extent and more a mild to at most, moderate aggravation of this.
Therefore, I can now assess his permanent impairment based on the injury to the L2 spinous process as the predominant work-related injury. (emphasis added)
Mr Moore's employment with River Hill ceases in July 2018
[24] Green AB 147.
On 6 July 2018, River Hill advised Mr Moore (who had apparently been performing farm duties rather than working as a truck driver/plant operator) that there was no further farm work available for him. Mr Moore's employment with River Hill ceased at this time.[25]
Medical assessment by Mr Watson in August 2018
[25] Agreed chronology (White AB 36).
On 17 August 2018, a consultant neurosurgeon, Mr Watson, wrote a report to Mr Moore's solicitors which addressed the effects of the accident, including possible aggravation of the lower back degeneration at L4/5 and L5/S1.[26] After noting the clinical history and continuing symptoms at L4/5 and L5/S1, Mr Watson summarised the position in the following terms:[27]
Mr Moore sustained an injury to his back on 5 May 2017 when he was pinned (by the leg of a Saltmaster) across his chest onto the bucket of a loader which was impinging on his lumbar spine. This resulted in well‑documented fractures of the spinous process of L2 and a minor fracture of L3. A Jewett brace was worn for two months and the appropriate investigations included CT and MRI scan.
I note my colleague Mr Philip Hardcastle also reviewed Mr Moore and arranged for a bone scan on 9 March 2018. That study has been reviewed and I did not see any concerning uptake at the spinous process of L2 or evidence of any displacement or non-union. There was a significant degree of degenerative change in the lumbar spine particularly at L4/5 and L5/S1.
[26] Green AB 149 - 155.
[27] Green AB 151.
In answer to a question as to whether Mr Moore's ongoing symptoms were caused by the accident of 5 May 2017, Mr Watson said:
Mr Moore's ongoing symptomatology is certainly contributed to by the accident of May 2017. Some of the current symptomatology is puzzling in that it is several lumbar segments below the fractured spinous process of L2 and L3. There has perhaps been a degree of aggravation of pre‑existing degeneration (seen on the scans at L4/5 and L5/S1).
(emphasis added)
In answer to a question as to whether any of the injuries/symptoms were an aggravation of pre-existing injuries, diseases or conditions, Mr Watson said:
In my opinion, Mr Moore has sustained injuries that are seen clearly on radiology at the spinous process of L2 and L3. There may have been some degree of aggravation of pre-existing degeneration at the lumbar spine at L4/5 and L5/S1. (emphasis added)
Mr Watson expressed the opinion that Mr Moore was unfit to work as a plant operator since 5 May 2017 and was unfit to work as a truck driver from that date to May 2018. Mr Watson was of the view that, in August 2018, Mr Moore was fit to work as a truck driver subject to conditions such as lumbar support and not driving over rough terrain.[28]
Assessment by Dr Erasmus on 19 September 2018
[28] Green AB 154.
A report by Dr Erasmus indicated that Mr Moore was not fit for employment due to on-going lower back pain and has been unfit to work since the accident.[29]
First conciliation application on 4 October 2018
[29] Blue AB 261
On 2 October 2018, Mr Moore's solicitors sent an email in the following substantive terms to Allianz:[30]
By virtue of his lower back injury, Mr Moore was totally unfit for work from around May 2017 to November 2017. From December 2017 to July 2018 he performed lighter duties for River Hill working as a Farmhand. Mr Moore has not been engaged in any duties since July 2018.
I note from the list of payments provided by you to our office that Mr Moore received weekly payments from 17 May 2017 to 24 October 2017.
In our opinion, Mr Moore should have continued to receive weekly payments after 24 October 2017 as he had not, and has not, returned to his pre-injury duties.
Would you please confirm that weekly payments will be reinstated and backdated to when they were ceased? If you do not agree to do this, or if we do not hear from you, we are instructed to lodge an Application at WorkCover.
[30] Blue AB 250.
On 4 October 2018, Mr Moore filed an application for conciliation at WorkCover WA, in the approved form.[31]
[31] Blue AB 241 - 244.
The form indicated that the injury or injuries occurred on 5 May 2017 and described the injury or injuries as 'spinal fractures'. The dispute to which the application related was identified as '[n]on-payment of weekly compensation (ie wages)'. The form described the outcome sought by Mr Moore in the following terms:[32]
Mr Moore seeks reinstatement of weekly payments backdated to 25 October 2017 (and ongoing) and payment of statutory allowances relating to injuries he sustained to his lower back on 5 May 2017, pursuant to section 61 or alternatively section 62 of the [Act].
[32] Blue AB 242.
Attached to the conciliation application were the claim form of 29 May 2017, Allianz's acceptance of liability, the email of 2 October 2018, the First Medical Certificate, reports of the CT scan and MRI done on 19 May 2017 and the reports of Mr Watson and Dr Erasmus referred to above.
Outcome of conciliation certified on 3 December 2018
On 3 December 2018, a conciliation officer issued a certificate of outcome under s 182O of the Act.[33] The certificate relevantly identified the issues for conciliation in the following terms:
1. Unlawful cessation/reduction -
[Mr Moore] seeks reinstatement of weekly payments of compensation, backdated to 25 October 2017 (and ongoing) as there was never a full return to work for the purposes of section 61 of the Act.
2. Review of weekly payments -
Alternatively, [Mr Moore] seeks reinstatement of weekly payments of compensation backdated to 25 October 2017 (and ongoing) pursuant to section 62 of the Act.
[33] Blue AB 264.
In certifying that these issues had minimal prospects of resolution, the conciliation officer described the matters remaining in dispute in the following terms:[34]
1. 3/12/2018 - Minimal prospect of resolution -
[Mr Moore] denies ever having made a return to work for the purposes of section 61 of the Act, and therefore claims that his weekly payments of compensation were unlawfully discontinued by [River Hill].
[River Hill] submits that weekly payments of compensation were ceased lawfully, with [Mr Moore] receiving wages (as opposed to compensation) from 25 October 2017 through to July 2018. [River Hill] also claims that for a number of periods between October 2017 and July 2018, [Mr Moore] was in receipt of wages that exceeded what would have been payable via weekly payments of compensation.
2. 3/12/2018 - Minimal prospect of resolution -
[Mr Moore] seeks reinstatement of weekly payments of compensation from 25 October 2017 and ongoing on the basis he was never able to make a return to full pre-injury duties. [River Hill] submits that [Mr Moore] made a full return to work, with a final medical certificate being issued on 24 October 2017, and no further medical certificates have been issued since to indicate any ongoing incapacity.
First arbitration application on 10 December 2018
[34] Blue AB 264 ‑ 265.
On 10 December 2018, Mr Moore lodged the first arbitration application (A56736) with the Workers' Compensation Arbitration Service.[35] The application identified the nature of the injury or injuries sustained on 5 May 2017 as 'Spinal Fractures'. The form indicated that Mr Moore was claiming weekly payments from 25 October 2017 and ongoing. The issues in dispute were described in the following terms:
[Mr Moore] seeks reinstatement of weekly payments backdated to 25 October 2017 (and ongoing) and payment of statutory allowances relating to injuries he sustained to his lower back on 5 May 2017, pursuant to section 61 or alternatively section 62 of the [Act].
Conduct of the first arbitration
[35] Blue AB 267.
After a series of directions hearings, the first arbitration was listed for hearing on 6 and 7 June 2019 before Arbitrator Rutherford. In an outline of submissions filed on 24 May 2019, Mr Moore submitted that the injuries he sustained on 5 May 2017 were a fracture of the spinous process of L2 and L3, and an aggravation of pre-existing degeneration of the lumbar spine at L4/5 and L5/S1.[36]
[36] Blue AB 311.
In an outline of submissions filed on 31 May 2019, River Hill said that the admitted injury was of lower back fractures at L2 and L3, and it was not admitted that Mr Moore suffered any injury to L4/5 and L5/S1. It in effect contended that the arbitration application should be confined to whether Mr Moore was entitled to compensation in respect of the admitted injury.[37] Arbitrator Rutherford noted that this was the first occasion on which River Hill had raised this issue.[38]
[37] Blue AB 320 - 323.
[38] Reasons, par 123 (Blue AB 369).
On 16 March 2020, Arbitrator Rutherford ordered that the first arbitration application be dismissed, for written reasons which the arbitrator published.
In essence, the arbitrator found that Mr Moore suffered L2 and L3 fractures occasioned by the accident but had recovered from that injury by October 2017.[39] The arbitrator found that Mr Moore was incapacitated for his pre-injury duties and for work which he would otherwise be suited for due to symptoms originating from degenerative changes to the L4/5 segment of his lower back.[40] The evidence of Dr Hardcastle and Mr Watson suggested that the accident contributed to those symptoms to a significant degree.[41]
[39] Reasons, par 117 (Blue AB 368).
[40] Reasons, par 118 (Blue AB 368).
[41] Reasons, par 119 (Blue AB 368).
The arbitrator noted that River Hill had not admitted that Mr Moore suffered any injury to the L4/5 area.[42] There was no application for determination of that liability under s 58 of the Act before the arbitrator, which could only be made if the requirements of s 57A, s 178 and s 179 of the Act were met.[43] Neither s 61 nor s 62 of the Act applied to incapacity from injuries which had not been admitted or determined under s 58 of the Act.[44] There was no evidence that the L4/5 condition was a consequence or sequelae of the admitted injuries (the L2 and L3 fractures).[45] Further, there was no evidence connecting the claimed incapacity and the admitted injury.[46]
[42] Reasons, par 131 (Blue AB 370).
[43] Reasons, pars 131 - 133 (Blue AB 370 - 371).
[44] Reasons, pars 134 - 140 (Blue AB 371 - 372).
[45] Reasons, par 141 (Blue AB 372).
[46] Reasons, par 143 (Blue AB 373).
The arbitrator therefore found that Mr Moore failed to establish that weekly payments of compensation were unlawfully terminated. Mr Moore had also failed to establish any incapacity from July 2018 as a result of the admitted injury. Mr Moore's arbitration application was therefore dismissed.[47]
Second arbitration application
[47] Reasons, pars 148 - 150 (Blue AB 373 - 374).
On 6 April 2020, Mr Moore completed a second workers' compensation claim form in relation to injuries sustained on 5 May 2017. Mr Moore also relied on the First Medical Certificate for this claim (ie the certificate dated 10 May 2017). In this second claim form, Mr Moore identified as the 'most serious injury or disease caused' as including 'L4/5 injury, L5/S1 injury'.[48] The claim form appears to have been given to River Hill on or about 10 June 2020. On 12 June 2020, Allianz issued a notice that a decision as to whether or not to accept liability was not able to be made within the time allowed by s 57A(3) of the Act.[49]
[48] Green AB 158.
[49] Green AB 160.
On 21 October 2020, Mr Moore lodged a second conciliation application in respect of injuries sustained in the accident.[50] A certificate of outcome was issued by a conciliation officer on 23 November 2020, indicating that there was minimal prospect of resolution of the dispute.[51]
[50] Blue AB 57.
[51] Appellant's book of documents in the District Court, p 1 - 3.
On 14 December 2020, Mr Moore made the second arbitration application (A96333) for weekly compensation payments in respect of injuries sustained in the accident.[52]
[52] Blue AB 207.
On 6 May 2021, Arbitrator Nunn heard a preliminary application by River Hill for the second arbitration application to be dismissed, relying on cause of action estoppel or Anshun estoppel arising from the determination of the first arbitration application. River Hill also contended that the requirements of s 178 of the Act were not satisfied. Mr Moore sought relief under s 58 of the Act.
On 21 October 2021, Arbitrator Nunn dismissed the application on the preliminary issues, leaving Mr Moore to pursue his claim, for written reasons which he published.[53] The arbitrator determined that Mr Moore was not prevented from proceeding with the second arbitration application by either cause of action estoppel or Anshun estoppel. While the claim for compensation was made outside the 12-month time limit provided for by s 178(1)(b) of the Act, River Hill had not established that the delay had caused it any prejudice.
[53] Blue AB 221.
The second arbitration application presently remains on foot and, as already noted, is yet to be determined.
Appeal to the District Court
On 17 November 2021, River Hill appealed against the order of Arbitrator Nunn dismissing its preliminary application. The amended appeal notice identified two questions of law: in effect whether the arbitrator erred in finding Mr Moore was not estopped from pursuing the second arbitration application by (1) cause of action estoppel or (2) Anshun estoppel.[54]
[54] Blue AB 48 - 52.
The appeal to the District Court was heard by Commissioner Collins on 11 March 2022. On 28 June 2022, the commissioner published written reasons for dismissing the appeal.[55] The commissioner concluded that Arbitrator Nunn had not made any error of law in determining that Mr Moore was not prevented from pursuing the second arbitration application by either cause of action estoppel or Anshun estoppel. On 30 June 2022, the commissioner made orders granting leave to appeal, dismissing the appeal to the District Court and ordering River Hill to pay Mr Moore's costs of that appeal.[56]
[55] Blue AB 3.
[56] Blue AB 2.
The appeal to this court
On 15 July 2022, River Hill appealed to this court against the commissioner's orders dismissing the appeal to the District Court. River Hill advances three grounds of appeal which challenge the commissioner's conclusion that Anshun estoppel did not preclude Mr Moore from pursuing the second arbitration application.
An appeal from the commissioner's decision lies under s 254 of the Act, so long as the appeal relates to a question of law and leave to appeal is obtained from this court.
Grounds 1 and 2 allege methodological errors by the commissioner. Ground 3 in substance contends that the commissioner erred in law in failing to find that Anshun estoppel applied to preclude Mr Moore from pursuing the second arbitration application.[57]
[57] White AB 6 - 7.
Ground 3 is the dispositive ground in this appeal. The application of the Anshun principle requires the making of an evaluative judgment which has, as its touchstone, the question of reasonableness. Although evaluative, it involves the application of a legal standard rather than the exercise of a discretion. A finding as to Anshun estoppel is one which, like a finding of negligence, an appeal court can and should set aside if appropriately satisfied that the finding was wrong.[58] The court is required to give the judgment which in its opinion ought to have been given at first instance while observing the natural limitations that exist in any case proceeding wholly or substantially on the record. However, in general the appellate court is in as good a position as a primary judge to decide on the proper inference to be drawn from undisputed facts.[59] In this case the 'correctness standard' applies.[60]
[58] Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230 [58] - [60].
[59] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] - [26].
[60] To adopt the language used by Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541[35] - [50], in passages adopted by this court in Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [124] - [129].
This court is in as good a position as the commissioner, who did not receive any oral evidence, to determine the question of whether the Anshun doctrine precludes Mr Moore from prosecuting the second arbitration application. If this court concludes that the doctrine applies on the uncontroversial facts referred to above, then ground 3 will be established and the appeal will be allowed. If the court determines that the doctrine does not apply on those facts, then the errors asserted by grounds 1 and 2 could not, if established, have affected the outcome. Turning as it does on the question of whether the doctrine applies on those facts, the appeal to this court relates to a question of law for the purposes of s 254(a) of the Act.
Anshun estoppel on River Hill's approach
In the first arbitration application, Mr Moore sought a determination that he was entitled to weekly payments of workers' compensation for incapacity resulting both from the admitted L2 and L3 fractures and the claimed aggravation of degeneration at L4/5 and L5/S1. River Hill in effect contended, and Arbitrator Rutherford accepted, that the claim based on aggravation of degeneration at L4/5 and L5/S1 was not within the proper scope of the first arbitration application and was not capable of being brought within the proper scope of the first arbitration application.
On the assumption that River Hill was correct in that contention, there is no basis for finding that it was unreasonable, in the Anshun sense, for Mr Moore not to have raised the claim based on aggravation of degeneration at L4/5 and L5/S1 in the first arbitration application. Mr Moore attempted to do so, but it was contended and held that he was not able to pursue that claim in the first arbitration application. Mr Moore cannot be said to have acted unreasonably in failing to make a claim in the first arbitration application which it was not open to him to raise in that application. Mr Moore did not reserve a claim to be able to make that claim later. Rather, he attempted to pursue that claim in the first arbitration application but was told he could not do so.
It is also relevant to note that there would be no inconsistency between the arbitrator's decision on the first arbitration application and an order for weekly payments made in the second arbitration application. The first arbitration application resolved only that the admitted injury (the fractures to L2 and L3) did not cause any ongoing incapacity for work from October 2017. Arbitrator Rutherford did not resolve the merits of a dispute as to whether the accident significantly contributed to incapacity resulting from aggravation of degeneration at L4/5 and L5/S1. The claim of incapacity resulting from aggravation of degeneration at L4/5 and L5/S1 was not dealt with at all in the first arbitration application, and so a finding of incapacity arising from that injury would not contradict the conclusions reached by Arbitrator Rutherford in the first arbitration application.
The position of River Hill in this appeal is that Mr Moore unreasonably failed to raise a claim in the first arbitration application which River Hill successfully contended was not and could not be raised in that application. Adopting this position, River Hill is forced to contend that Mr Moore lost the ability to pursue a claim based on aggravation of degeneration at L4/5 and L5/S1 when he signed the first conciliation application on 4 October 2018.[61] At that point in time, on River Hill's submissions, Mr Moore could not raise a claim based on aggravation of degeneration at L4/5 and L5/S1 in the first arbitration application because the first conciliation application did not refer to s 58 of the Act and the procedural requirements of s 57A had not been satisfied.[62] Yet, on River Hill's view, Anshun estoppel would prevent the claim being raised in any later proceedings. In that manner, River Hill contends that, by failing to refer to aggravation of degeneration at L4/5 and L5/S1 in his initial claim form and failing to refer to s 58 of the Act in his first conciliation application, Mr Moore ensured that this aspect of his claim can never be determined on its merits.[63]
[61] Blue AB 240.
[62] Appeal ts 17 ‑ 18, 22, 33 ‑ 34.
[63] Appeal ts 25.
For reasons which we will explain, the Act did not provide for that triumph of technical form over substance in the determination of the first arbitration application. However, even if the Act did have that effect, then the common law doctrine of Anshun estoppel would not prevent Mr Moore from pursuing his claim by adopting the correct procedure. Even if he could have brought the claim in the first arbitration proceedings but was defeated in his attempt to do so by the arbitrator's acceptance of River Hill's formal objection to the claim being considered, Mr Moore would not have acted unreasonably in the Anshun sense. He has not sought to reserve a claim to be advanced later. Even if he failed to complete the initial claim form and first conciliation application correctly by mis-identifying the relevant sections of complex legislation, the mistake was not obvious and caused River Hill no substantive prejudice. Anshun estoppel would not preclude Mr Moore from pursuing the claim in those circumstances.
As the principles in [9] above show, even where a litigant deliberately refrains from raising a claim or issue, it by no means follows that an Anshun estoppel will arise so as to preclude the party from raising it in subsequent proceedings. Anshun estoppel can arise in circumstances where, by inadvertence or negligence, a party fails to raise a claim or an issue.[64] Even so, ordinarily the case for preclusion is stronger where the party has made a deliberate choice not to raise the claim or issue. Moreover, in the present case Mr Moore did not, through inadvertence or negligence, fail to raise his claim in relation to aggravation of degeneration at L4/5 and L5/S1. To the contrary, he did raise that claim. The rejection of his attempt to make out that claim was founded on perceived procedural flaws. While the fact-dependent nature of the enquiry as to unreasonableness makes universal statements inappropriate, it will be a rare case where an attempt to raise a claim in proceedings that is defeated by procedural defects amounts to conduct that is unreasonable in the sense required to sustain an Anshun estoppel.
[64] See, for example, the often-cited statement of Wigram VC in Henderson v Henderson (1843) 3 Hare 100, 115; (1843) 67 ER 313, 319.
As noted in [11] above, in applying the concept of Anshun estoppel in the context of proceedings under the Act, and in evaluating the question of unreasonableness, regard must be had to the structure and scheme of the Act. Given the focus of the Act on the resolution of disputes on their substantial merits without regard to technicalities and legal forms, acceptance of River Hill's arguments as outlined in [78] above would be perverse.
Anshun estoppel on the proper approach
In any event, we do not accept the premise of River Hill's argument that Mr Moore failed to properly raise his claim based on aggravation of degeneration at L4/5 and L5/S1 in the first arbitration application. In our view, Mr Moore was wrongly excluded from having that claim, which he had attempted to raise, determined on its merits in the first arbitration application. As counsel for the appellant effectively accepted,[65] no Anshun estoppel can arise in those circumstances.
[65] Appeal ts 66 - 67.
River Hill's argument is in part reliant on the absence of any reference to aggravation of degeneration at L4/5 and L5/S1 in the initial claim form completed by Mr Moore on 29 May 2017. However, the prescribed claim form provided only a very short space for Mr Moore to identify the 'most serious injury or disease' caused by the occurrence. At the time he completed the form, the fracture at L2 and L3 could fairly be regarded as the 'most serious injury'. But the prescribed form did not require Mr Moore to list all injuries to which the accident substantially contributed. The location of the injury identified on the form ‑ Mr Moore's lower back - covered the area of the fractures and the degenerative changes.
In any event, even if Mr Moore's completion of the initial claim form had been deficient in failing to refer to aggravation of degeneration at L4/5 and L5/S1, that would not preclude a claim based on that injury being pursued in the first arbitration application. River Hill's objection is a formal objection and there is no suggestion that it was prejudiced by Mr Moore's failure to specify that injury in the initial claim form. The scans and assessments conducted shortly after the accident identified the degeneration and the potential aggravation of that degeneration by the accident. If the failure to refer to aggravation of degeneration at L4/5 and L5/S1 was a defect in Mr Moore's completion of the form, the defect was due to a mistake or other reasonable cause, which arose from the prescribed form merely requiring Mr Moore to identify only the 'most serious injury'. Section 178(1)(c) of the Act, set out at [16] above read with s 188(2)(b), referred to at [27], would have enabled the claim based on aggravation of degeneration at L4/5 and L5/S1 to be pursued in the first arbitration application in these circumstances.
While the first conciliation application form referred to the injuries as 'spinal fractures', it also referred to Mr Moore seeking weekly payments relating to injuries he sustained to his lower back on 5 May 2017. In the context of the prior medical assessments, that could be understood as raising a dispute in relation to incapacity resulting from lower back injuries to which the accident substantially contributed. Even if Mr Moore referred to the wrong sections of the Act in saying that payments were sought pursuant to s 61 and s 62 of the Act (a question it is unnecessary for this court, which has received no submissions on the question, to resolve) the reference to the wrong provision would not invalidate an application. The first conciliation application is not to be read in a narrow and pedantic manner, and in substance raised the dispute as to whether Mr Moore was entitled to weekly payments of workers' compensation for incapacity arising from an injury to his lower back to which the accident substantially contributed.
Even if the issue relating to aggravation of degeneration at L4/5 and L5/S1 was technically outside the scope of the dispute which had been the subject of conciliation, the preferable course was for the arbitrator to have considered Mr Moore's claim under s 189(1) of the Act (set out at [28] above). While that provision did not prevent the arbitrator from requiring a further conciliation, it did not require the arbitrator to do so. In the absence of any indicated prejudice to River Hill which could not be cured by an adjournment, or any indication that further conciliation was likely to resolve that aspect of the dispute, this would have been the appropriate course for Arbitrator Rutherford to have adopted. That approach would have enabled the substantial merits of the dispute to have been resolved with as little formality and technicality as practicable, consistently with s 188(2)(b) and s 177(1) of the Act.
Therefore, Mr Moore's claim based on aggravation of degeneration at L4/5 and L5/S1 was properly raised in the first arbitration application. That dispute could and should have been resolved on its merits by Arbitrator Rutherford. It cannot be said that Mr Moore failed to raise the claim in the first arbitration application in a way that attracts the operation of the Anshun doctrine. While Mr Moore's attempt to have that claim resolved on its merits in the first arbitration application was stymied by the acceptance of River Hill's procedural objection to that occurring, he remains free to pursue the claim in the second arbitration application.
Orders
For the above reasons, Arbitrator Nunn and Commissioner Collins were correct to conclude that Anshun estoppel did not preclude Mr Moore from pursuing the claim based on aggravation of degeneration at L4/5 and L5/S1 in the second arbitration application. While we would grant leave to appeal, the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Associate to the Honourable Justice Mitchell
17 JULY 2023
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