The Star Entertainment Group Ltd v Antoniak
[2024] NSWPICPD 37
•21 June 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | The Star Entertainment Group Ltd v Antoniak [2024] NSWPICPD 37 |
APPELLANT: | The Star Entertainment Group Ltd |
RESPONDENT: | Kabir Antoniak |
INSURER: | Self-insured |
FILE NUMBER: | A1-W2032/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 21 June 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 17 July 2023 is revoked. 2. The matter is remitted to the Workers Compensation Division to be heard and determined by another Member. |
CATCHWORDS: | WORKERS COMPENSATION – consideration of the principles of Anshun estoppel – whether claim for weekly benefits compensation is estopped following a discontinuance of the weekly benefits claim in earlier proceedings – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 applied – adequacy of reasons |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr L Robison, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Masselos & Co Lawyers | |
DECISION UNDER APPEAL: | Antoniak v The Star Entertainment Group Ltd [2023] NSWPIC 351 |
MEMBER: | Mr A Scarcella |
DATE OF MEMBER’S DECISION: | 17 July 2023 |
INTRODUCTION AND BACKGROUND
This matter concerns Anshun estoppel.[1] Mr Kabir Antoniak (the respondent) was employed by the Star Entertainment Group Pty Ltd (the appellant) as a restaurant manager of the Flying Fish restaurant, commencing on 6 November 2018. Mr Antoniak allegedly sustained a psychological injury with a date of injury of 7 January 2019 arising from a number of issues within the restaurant, including changes in respect of tipping and rostering, and a poor probationary review on 9 February 2019.[2]
[1] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun).
[2] Respondent’s statement dated 11 March 2019, p 3 of Application to Resolve a Dispute (ARD).
He made a workers compensation claim which was disputed by the appellant. Two sets of proceedings were commenced in respect of his injury and claim; one before the former Workers Compensation Commission (WCC) bearing matter number 4077/19 (the 2019 proceedings) where the WCC made findings in the respondent’s favour regarding injury and medical expenses; and the current proceedings before the Personal Injury Commission (Commission) bearing matter number W2032/23 (the 2023 proceedings) in respect of weekly compensation. In these proceedings, the appellant argued that what transpired in the 2019 proceedings, namely the respondent discontinuing a claim for weekly compensation, would mean the respondent was estopped in the Anshun sense from making such a claim now. The matter was heard by Member Scarcella who rejected the appellant’s argument and found that the respondent was not estopped from bringing his claim for weekly compensation. The Member issued a Certificate of Determination on 17 July 2023 to this effect and made orders for payment by the appellant, under ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) (the terms of which were agreed to by the parties).
On appeal, the appellant submits that Member Scarcella’s decision is infected with error, in that he failed to properly apply Anshun; erred in finding that the respondent’s action of discontinuing the weekly compensation claim was justified, and lastly, that he failed to provide adequate reasons for his determination.
THE EVIDENCE
As relevant to this matter, Anshun estoppel requires a consideration of the circumstances surrounding the claim(s) in the 2019 and 2023 proceedings in order to ascertain whether it was unreasonable for the respondent not to have pursued (or rather, to have discontinued) the claim for weekly compensation at the time of the 2019 proceedings. This evidence was considered by the Member, and I too set this evidence out below.
The 2019 proceedings
According to the respondent’s statement of 11 March 2019, he notified the appellant of his psychological injury and the events leading up to it, on 14 February 2019.[3] It appears this claim was investigated by the appellant by way of obtaining statements and arranging for the respondent to be independently medically examined by Dr Graham George on 1 April 2019, who provided reports of 10 April and 30 April 2019 in which the doctor opined that the respondent suffered from a psychological condition, namely major depression with anxiety.[4] The respondent completed a formal Workers Injury Claim form on 30 April 2019.[5] In this document, he described his injury as “psychological issues with trauma created by workplace creating depression and anxiety”, caused by stress resulting from lengthy work weeks and pressure from his boss. It provided details as to the respondent’s earnings and required treatment. On 22 May 2019, the appellant disputed the injury under a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[6] The dispute notice conceded injury pursuant to ss 4 and 9A of the 1987 Act, but it raised a defence pursuant to s 11A on the basis that the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken by the appellant in respect of performance appraisal and/or discipline, namely, his probationary review where disciplinary issues were raised. The notice disputed an entitlement to weekly compensation and medical expenses pursuant to ss 33 and 60 of the 1987 Act.
[3] ARD, p 1.
[4] ARD, p 144.
[5] ARD, pp 34–35.
[6] ARD, pp 132–142.
As a result of this dispute, the respondent commenced proceedings in the WCC, claiming weekly compensation and medical expenses. The Application to Resolve a Dispute (ARD) was filed on 12 August 2019.[7] Injury was pleaded as a “psychological injury – disease injury” with a deemed date of injury of 7 January 2019, described as follows:
“1. Injury due to bullying and harassment in the workplace;
2. Excessive work hour demands of the employer;
3. Unfair performance review (09/02/2019) prepared by Chris Matters, the Director of Dining;
4. Failure by the Director of Dining to act on complaints about staff members and part owner, Con Dedes.
5. Failure by Director of Dining Chris Matters to follow up on policies and procedures recommended by [Mr Antoniak].”
[7] The ARD in the 2019 proceedings has been attached to the Reply filed in the 2023 proceedings, p 2.
The ARD particularised a claim for medical expenses and weekly benefits based on a PIAWE of $1,923.07 as follows:
(a) 12 February 2019 to 13 May 2019 under s 36 of the 1987 Act at $1,826.92 per week;
(b) 14 May 2019 to 26 May 2019 under s 37 of the 1987 Act at $1,538.45 per week, and
(c) 27 May 2019 to date and continuing under s 37 of the 1987 Act at $484.37 per week.
I observe that during the course of the matter being heard, the respondent made further submissions specifying an on-going entitlement to weekly compensation from 10 June 2019.[8]
[8] Respondent’s submissions dated 10 October 2019, Reply, p 76.
In the Reply to the ARD, the following matters were raised as being in dispute:
“Weeklies
1 The [appellant] submits that any incapacity suffered by the [respondent] is not related to any injury at work.
2 The [appellant] disputes the rate of weekly compensation claimed by the [respondent].
3 The [appellant] disputes any entitlement to weekly compensation payments pursuant to section 33 of the 1987 Act.
Section 60 expenses
4 The [appellant] submits that the [respondent] has no entitlement to reasonably necessary medical and related expenses pursuant to section 60 of the 1987 Act.
Disease
5 The [appellant] submits that the [respondent’s] employment was not the main contributing factor to a disease contracted by the [respondent], or any aggravation, acceleration, exacerbation or deterioration of a disease as alleged or at all.
Psychological Injury
6 The [appellant] submits that the events alleged by the [respondent] were not real events or did not actually occur.
7 The [appellant] submits that if the [respondent] did suffer a psychological injury, the reasonable actions of the [appellant] with respect to performance appraisal and/or discipline wholly or predominantly caused such injury and therefore, the [respondent] has no entitlement to compensation.”
The matter proceeded to arbitration before Arbitrator Wynyard (as he then was) on 3 October 2019. During arbitration, the appellant sought leave to dispute injury (pursuant to ss 4 and 9A of the 1987 Act) under s 289A of the 1998 Act. The Arbitrator did not grant leave on the basis it was not in the interests of justice, as injury had been conceded in the s 78 notice and appeared to be affirmed by the appellant’s own expert opinion (Dr George).[9] The Arbitrator proceeded to determine the s 11A defence and was not satisfied it was made out, thus awarding the respondent medical expenses. The Arbitrator indicated “there will be an award in favour of the [respondent] in relation to weekly payments”, but first directed the parties to make submissions on quantum of weekly compensation. [10]
[9] Transcript of 2019 proceedings, T11.28–15.5, attached to the Reply.
[10] Transcript of 2019 proceedings, T51.15.
A Certificate of Determination – Oral Decision was issued on 9 October 2019 as follows:
“1. I direct the parties to lodge and serve submissions as to weekly payments by 11 October 2019.
2. I grant leave to the parties to approach on telephone notice to each other in that regard.
3. The [appellant] will pay the [respondent’s] s 60 expenses upon production of accounts, receipts and/or HIC Notice of Charge.
4. I will deliver a decision regarding the weekly payments in accordance with direction 1 above.
5. I decline to exercise my discretion pursuant to s 289A(4) to permit the [appellant] to raise issues of injury pursuant to s 4, substantial contributing factor pursuant to s 9A and main contributing factor pursuant to s 4(b) in accordance with the reasons given in my extempore orders.
6. I grant leave to the [appellant] to rely upon the part of its Part 3 statement in its Reply that allege[s] ‘the [appellant] disputes the rate of weekly compensation claimed by the [respondent]’.
7. I reject the issues raised in Nos. 1, 5 and 6 of Part 3 of the Reply noting that item 7 has already been raised in the [appellant’s] s 78 notice of 7 January 2019.”
By 11 October 2019, submissions as to weekly payments were filed by both parties. The appellant submitted that the respondent had capacity to return to work and thus had no on-going entitlements;[11] while the respondent submitted that he had an on-going entitlement based on a partial incapacity and inability to work as a manager.[12]
[11] Reply, pp 70–74.
[12] Reply, pp 75–78.
Some days later, on 14 October 2019 and before the Arbitrator made findings regarding weekly compensation, the respondent discontinued the weekly compensation component of his matter. This occurred seemingly unbeknownst to the Arbitrator who issued a Certificate of Determination and Statement of Reasons in respect of the weekly compensation claim on 5 December 2019, where various findings were made in favour of on-going entitlements to weekly compensation.[13] This Certificate of Determination was eventually considered a nullity, as I will set out below.
[13] Reply, pp 101–107.
Prior to the Certificate of Determination of 5 December 2019 being issued, the appellant lodged an appeal against Arbitrator Wynyard’s Certificate of Determination – Oral Decision of 9 October 2019. The appeal primarily related to the Arbitrator’s findings in respect of s 11A, but also raised that the Arbitrator failed to determine the weekly compensation award. The appeal was determined on 23 July 2020 by Deputy President Wood who was not satisfied that the monetary threshold was met pursuant to s 352(3) of the 1998 Act, and thus, there was no right of appeal. In her decision, Wood DP confirmed that the claim for weekly compensation had been discontinued on 14 October 2019, at a time the Arbitrator had reserved his decision on weekly compensation. It could not be said that the weekly compensation claim remained on foot. Deputy President Wood therefore held that the amount of compensation which remained in question on appeal was limited to the medical treatment expenses which were below threshold.[14]
[14] Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46.
After this Presidential decision was issued, the respondent sought revocation of Arbitrator Wynyard’s Certificate of Determination of 5 December 2019 which had determined the weekly compensation. This request was done by way of a reconsideration application.
In response to this, on 28 October 2020, Arbitrator Wynyard issued a further Certificate of Determination which confirmed that after the weekly compensation claim was discontinued on 14 October 2019, “any further determination of the issues raised therein was null and void”. His 5 December 2019 decision regarding the weeklies had therefore “ceased to exist, [become] a nullity”.[15]
[15] Certificate of Determination of Arbitrator Wynyard dated 28 October 2020, [29], attached to the Reply, p 165.
The 2023 proceedings
Approximately one month later, on 27 November 2020, the respondent’s solicitor wrote to the appellant’s solicitor enquiring as to whether weekly payments would be made.[16] A response was provided on 30 November 2020, which referred to the discontinued weekly compensation claim in the 2019 proceedings, and thus maintained that there was no valid claim for weekly compensation on foot. The appellant’s solicitor indicated that any such claim would need to be lodged again.
[16] Reply, p 166.
On 1 December 2021, the respondent’s solicitor served on the appellant’s solicitor a report of Dr Christopher Canaris, psychiatrist, dated 10 August 2021,[17] and seeking a review of the s 78 notice.[18] This report appeared to provide general observations in respect of the respondent’s psychological injury arising from employment, but indicated that his condition was in remission. The doctor opined that the respondent was able to work full time but not in work which involved high hours or workload. In response to this, the appellant’s solicitor sought clarification of the claim being made.[19] However, no response was provided.[20]
[17] ARD, p 165.
[18] Reply, p 169.
[19] Reply, p 170.
[20] According to an email dated 22 March 2023 from the appellant’s solicitor to the respondent’s solicitor, Reply, p 175.
Almost 14 months later, on 28 February 2023, the respondent’s solicitor emailed the appellant’s solicitor seeking PIAWE information and other documents.[21] Copies of the prior pleadings relating to the matter were provided on 22 March 2023.[22]
[21] Reply, p 172.
[22] Reply, p 175.
On 16 March 2023, the respondent filed an ARD in the Personal Injury Commission with a matter number of W2032/23, claiming weekly compensation only. Injury was pleaded in the same terms as the 2019 proceedings which I have outlined above at [7]. Weekly compensation was also claimed from 12 February 2019; however, the period extended to 16 August 2021[23] to reflect the entirety of the s 37 period of 130 weeks, and the amounts in dispute changed, based on an updated PIAWE of $1,756.23.
[23] This end date was agreed at arbitration before the Member on 23 May 2023, see reasons [35].
In reply, the appellant sought leave to raise estoppel as follows:
“Estoppel
1 The [respondent] is estopped from bringing a claim for weekly compensation benefits. The [appellant] raises an Anshun and res judicata estoppel in respect of the entirety of the proceedings.
In the alternative to the defence pleaded at 1 above, the [appellant] raises the following issues in dispute:
Notice/procedure
2 The [respondent] failed to make a claim as required by section 260 of the [1998 Act].
3 The [respondent’s] claim for compensation was not made within the time limit prescribed by section 261 of the [1998 Act].
Weeklies
2 [sic] The [respondent] is not incapacitated at all or as alleged.
3 [sic] Any incapacity suffered by the [respondent] does not result from any injury at work; section 33 of the [1987 Act].
4. [sic] The [appellant] disputes the rate of weekly compensation claimed by the [respondent].”
The matter proceeded to arbitration before Member Scarcella on 23 May 2023. The parties agreed to the terms of the weekly compensation order, if the estoppel argument failed. Despite raising res judicata estoppel in its Reply, the appellant made no submissions on res judicata estoppel, and thus, the issue before the Member for determination was limited to Anshun estoppel; namely, whether the respondent was estopped from now bringing his claim for weekly compensation.[24]
[24] Antoniak v The Star Entertainment Group Ltd [2023] NSWPIC 351 (reasons), [26] and [102].
THE MEMBER’S REASONS
In determining this matter, the Member quite rightly set out the chronology of the prior proceedings that occurred before Arbitrator Wynyard, and the appeal before Deputy President Wood,[25] as well as the reconsideration application before Arbitrator Wynyard, which I have outlined above.[26]
[25] Reasons, [6]–[18].
[26] Reasons, [19]–[23].
The appellant’s submissions to the Member
The Member set out the appellant’s submissions, commencing with the submission that there is a risk that in specialist courts or tribunals, there is a departure from case management practices and the common law tradition of estoppel. The appellant said that this matter was “such a case where estoppel, in fact, precludes the litigation from proceeding.” Reference was made to Kirk v Industrial Relations Commission of New South Wales.[27] The appellant submitted that “[m]any practitioners labour under the false legal understanding that a worker can bring a claim for weekly compensation one day, a claim for medical expenses the next day and a lump sum claim the day after that”. The Member noted that the appellant accepted that there are cases where a worker can legitimately bring one part of their claim in one case and another part in another case and “that is because there is one modification to Anshun estoppel”.[28]
[27] [2010] HCA 1; 239 CLR 531 (Kirk).
[28] Reasons, [43]–[44].
The Member noted the submission that the modification applies in an ongoing regime of compensation under a statute as opposed to the common law, because not all rights necessarily accrue simultaneously. Examples were cited, such as a worker being incapacitated, bringing a claim for weekly compensation and later, after surgery, bringing a claim for permanent impairment compensation.[29] It was submitted that excluding the examples where rights “accrue at different points in time and when they are all extant and justiciable, Anshun estoppel does apply and a worker must agitate all aspects of the case at once”.[30]
[29] Reasons, [45].
[30] Reasons, [46].
The Member recorded the appellant’s submission that this case “might be described as Anshun on steroids” because it was not just a problem of the worker splitting his case, “it [was] a problem of a worker … actually running his weekly compensation case.” It was submitted that the respondent persuaded an Arbitrator that he should be compensated for that claim and it was reasonably open for the respondent to bring the claim, which actually was brought and won.[31]
[31] Reasons, [47].
The Member noted that reliance was placed on Fourmeninapub Pty Ltd v Booth[32] and Geary v UPS Pty Ltd[33].[34] It was submitted that the ARD in this case was in respect of a claim for weekly compensation and that was the aspect withdrawn in the prior proceedings. The Member noted the submission that the withdrawal of the weekly benefits claim from the prior proceedings had the result that the prior determination fell short of the monetary threshold to appeal against Arbitrator Wynyard’s determination in accordance with s 352(3) of the 1998 Act.[35]
[32] [2019] NSWWCCPD 25 (Fourmeninapub).
[33] [2021] NSWPICPD 47 (Geary).
[34] Reasons, [48]–[49].
[35] Reasons, [50]–[52].
The appellant referred to there being an element of discretion in applying Anshun estoppel. The appellant submitted that liability was hotly in issue in the prior proceedings and it had put injury in issue and, in the alternative, relied on s 11A of the 1987 Act to defeat the claim. The Member noted the appellant’s submission that by withdrawing the weekly benefits claim, it was “demonstrably prejudiced” in not being able to appeal and seek to set aside Arbitrator Wynyard’s liability findings.[36] It was noted that it did not come to Arbitrator Wynyard’s attention that the weekly benefits claim was withdrawn; the appellant was perhaps not informed given it had lodged an appeal. The appellant said that the merits of its appeal were not the subject of any determination given that the appeal was dismissed on jurisdictional grounds.[37] It said no reasons for the withdrawal of the weekly benefits claim were given, and the worker opposed the appeal.
[36] Reasons, [53].
[37] Reasons, [54].
The appellant submitted that following the respondent’s application for reconsideration, which was dismissed by Arbitrator Wynyard, the respondent sought to reinvigorate the claim for weekly benefits compensation in a letter dated 27 November 2020.[38]
[38] Reasons, [56]–[58].
The appellant submitted that “[o]ne would really struggle to find a case where it is more obvious that it was open to an initiating party to bring both parts of his case and in fact did so.”[39] The appellant contended that, prima facie, it had been established that estoppel had been made out, and to the extent there was a discretionary element, the appellant was prejudiced as it could not run its appeal. It reiterated that there was no statement by the worker or his lawyer explaining the reason for splitting his case. The appellant argued before the Member that there was a severance of the case which already had been run, without any explanation and resulting in actual prejudice. The appellant asserted that the Anshun estoppel defence had been made out and operated as a complete bar to the proceedings.[40]
[39] Reasons, [59].
[40] Reasons, [60]–[61].
The respondent’s submissions before the Member
The respondent submitted that he brought the claim for weekly benefits and medical expenses at the same time. He said at some point a decision was made to discontinue the weekly benefits claim that was for a very good reason, which was detailed in his submissions. He said the claim was discontinued so that he could get further evidence with respect to his incapacity for work.[41]
[41] Reasons, [62].
In relation to the appellant’s assertion that lawyers should be taking care to bring all their claims at one time, the respondent submitted that the practice of the Commission has always been that cases can be discontinued without penalty and this is told to workers time and again by Members of the Commission.[42]
[42] Reasons, [63].
The respondent stated that he has statutory rights and it is for him to enforce those rights at an appropriate time. The respondent gave an example to the Member and stated it must be remembered that the timetable is set in the Commission to get matters dealt with for workers quickly “without too much recourse to formality”. It was said that they are brought on quickly so that workers have something to live on “without being thrown onto the Centrelink heap”.[43]
[43] Reasons, [64].
The respondent explained that at the time of arbitration, Dr Canaris and Dr George had supported to the claim for weekly benefits at that time, but not on an ongoing basis. As the respondent was claiming weekly compensation beyond that time, he thought it appropriate to bring the claim as a whole and return with further medical evidence, which he said was by way of report of Dr Canaris dated 10 August 2021 that was in evidence in these proceedings.[44]
[44] Reasons, [66], [79].
The respondent asserted that there was no evidence to support any suggestion that the timing of the discontinuance was done purposely to take advantage of the fact that there was a decision made that was helpful to him. As to the asserted prejudice to the appellant, the respondent stated that the appellant lodged its earlier appeal after the respondent had already withdrawn the weekly benefits claim. The respondent said that he did not hold off on discontinuing his claim until such time that he knew an appeal would be made. The respondent submitted to the Member that it was not he who caused prejudice to the appellant, but rather the rules of the Commission that if one does not reach the threshold for appeal, one cannot appeal. The respondent reiterated that he was entitled to take the step he did in withdrawing the weekly benefits claim prior to any appeal being filed.[45]
[45] Reasons, [69].
The respondent asserted that there was no decision thus far in which, in situations like this one, a worker has been estopped from pursuing a claim for weekly benefits at another time.[46] It was said that cases that involved estoppel mainly dealt with the question of whether or not a worker should have bought a different claim at the same time in respect of how they had sustained an injury. This was said to be different to this case, where procedurally, the worker had always been able to bring different claims at different times.[47]
[46] Reasons, [70].
[47] Reasons, [71].
The respondent referred to Fourmeninapub noting the initial claim was made under s 4(b)(i) and the later claim was made under s 4(b)(ii) of the 1987 Act, and also referred to Geary and Woolstar Pty Ltd v Wood[48].[49] He submitted that the factual circumstances in those three matters differed from this case. The respondent reiterated that injured workers’ statutory rights all arise at different times. It was stated that an Anshun estoppel applied in cases where the person or entity against whom the estoppel is seeking to be enforced has acted unreasonably in refraining from including a particular claim in earlier proceedings. The respondent submitted to the Member that there was absolutely nothing unreasonable about what was done by the respondent in the earlier proceedings.[50]
[48] [2022] NSWPICPD 25 (Woolstar).
[49] Reasons, [71]–[72].
[50] Reasons, [76].
The respondent submitted to the Member that he would not find that there was an Anshun estoppel in this case. He said that in Anshun, the issue was whether the insurer could have brought a different claim for indemnity but failed to do so in the actual proceedings and then was estopped because it should have been brought at the same time. The respondent reiterated that this was not such a case for the submissions he made above. The respondent’s case had been brought and run in accordance with guidelines of the Commission and he was entitled to bring that claim again. He submitted that it was not the sort of matter that an Anshun estoppel was meant to catch, for example, a finding on injury.[51]
[51] Reasons, [80]–[83].
The appellant’s submissions in reply before the Member
The Member noted that in reply, the appellant submitted that “[d]eficiency of evidence is no answer to a defence of Anshun estoppel because all cases are capable of being strapped up and improved.”[52] The appellant argued that counsel have all had cases where, following the hearing, they think of things they could have done better and of evidence that, perhaps, should have been obtained beforehand. It said there was nothing unusual about that. The appellant argued that if there is a practice of the Commission being permissive of discontinuance, it is a practice based on an error of how Anshun estoppel operates.[53]
[52] Reasons, [84].
[53] Citing Kirk.
The appellant contended that the need to bring on matters quickly is not unique to the workers compensation jurisdiction. It referred to the Supreme Court, District Court and Local Court, which are governed by the Civil Procedure Act 2005, and s 56 of that Act, which “imposes an obligation on the court, the parties and lawyers to act in a manner which is, inter alia, fast.”[54] The respondent stated that Anshun estoppel will always be a question of the facts in any given case.
[54] Reasons, [86].
The appellant submitted there was no evidence of the respondent’s pressing financial need. It argued the way in which the proceedings were conducted would strongly imply the contrary and it was a few years since the original proceedings were commenced.[55] Further reference was made to Fourmeninapub; the appellant stated that estoppel principles do apply in workers compensation litigation and the ratio of that case was not bringing a case under s 4(b)(i) and then s 4(b)(ii) of the 1987 Act. The appellant argued that there was no point of difference in terms of principle between Fourmeninapub and the present case. It said the major point of difference in this case was that the claim was actually run. “It is a case of Anshun on steroids because it is not a hypothetical. It was not a question of whether the claim could have been run, it was run and that is an important point”.[56]
[55] Reasons, [87].
[56] Reasons, [89].
The appellant asserted it was the severance of the weekly compensation benefits after the matter was run which was the lacuna for which there was no real evidence. It said there was no evidence by way of statement or affidavit from the person who thought it appropriate that the matter be discontinued, or why it was discontinued. The appellant said it was not suggesting that there was any bad faith or “sharp practice” on the part of the respondent or his lawyers. It put that what had happened, as a result of what had occurred, was the appeal was “precluded on jurisdictional grounds and therein [laid] the prejudice”.[57]
[57] Reasons, [90]–[91].
The appellant concluded by saying that Anshun is effectively a twofold test. Firstly, had the worker in this case unreasonably severed his case? Secondly, if so, do discretionary factors warrant its application as a bar? The appellant said that the answer to the second question was in the affirmative because it could not appeal.[58]
[58] Reasons, [92].
The Member’s findings and reasons
The Member quoted rule 15.7 of the Workers Compensation Commission Rules 2011 (2011 Rules).[59] He rejected the appellant’s submission relying on Kirk, that, if there be a practice of the Commission being permissive of discontinuance, then it was a practice based on an error of how Anshun estoppel operates. He rejected the submission that such practice was a Kirk example of where a fundamental error becomes mainstream in a specialist court or tribunal.[60] The Member referred to ss 3 and 42 of the Personal Injury Commission Act 2020 (the 2020 Act).[61] He proceeded to discuss and quote from Anshun,[62] and cited Egri v DRG Australia Limited;[63] Jackson v Goldsmith;[64] Rogers v The Queen;[65] Ord v Ord;[66] Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2);[67] Murphy v Abi-Saab,[68] and R v Humphrys.[69]
[59] Reasons, [93].
[60] Reasons, [95]–[96].
[61] Reasons, [97].
[62] Reasons, [100]–[109].
[63] (1988) 19 NSWLR 600.
[64] (1950) 81 CLR 446, [467].
[65] (1994) 181 CLR 251, [263].
[66] (1923) 2 KB 432, [442].
[67] [1967] 1 AC 853, [965].
[68] (1995) 37 NSWLR 280, [288].
[69] (1977) AC 1, [41].
The Member proceeded to refer to the discussion of the Anshun principle, as well as the decisions of Fourmeninapub;[70] Geary;[71] Habib v Radio 2UE Sydney Pty Limited;[72] Secretary, Department of Communities and Justice v Miller & Anor (No 5),[73] and Woolstar.[74] The Member said: “Fourmeninapub, Miller No 5, Geary and Woolstar were all cases that, amongst other things, confirmed that the Anshun principle can be applied in workers compensation cases after a consideration of the facts and the undertaking of an evaluative exercise. Those cases were factually significantly different to this matter.”[75]
[70] Reasons, [111]–[113].
[71] Reasons, [114]–[124].
[72] [2009] NSWCA 231 (Habib).
[73] Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller No 5).
[74] Reasons, [125]–[126].
[75] Reasons, [128].
The Member proceeded to discuss the chronology of the proceedings.[76] He noted that in the proceedings before him, the date of injury, nature of injury and description in the ARD were in almost identical terms to those in the first proceedings. He said that none of the differences had any effect on the substance of the claim.[77] The Member set out the claim for weekly benefits as particularised in the ARD,[78] noting that “[w]hilst there were some variations in the weekly amounts claimed and the claim was closed off at the end of the second entitlement period, it was effectively the same claim involving the same parties.”[79]
[76] Reasons, [129]–[133].
[77] Reasons, [134].
[78] Reasons, [134].
[79] Reasons, [135].
He turned to discuss the arbitration proceedings in the first hearing before Arbitrator Wynyard.[80] The Member noted that Arbitrator Wynyard refused to exercise his discretion under s 289A(4) of the 1998 Act to grant the appellant leave to dispute psychological injury on the basis that it was not in the interests of justice to do so. The Member also noted that Arbitrator Wynyard “was satisfied that [the appellant’s] defence under s 11A of the 1987 Act had not been made out”.[81] He noted Arbitrator Wynyard entered an award in favour of the respondent that the appellant pay his medical and related expenses on production of accounts, receipts and/or Medicare charge.[82]
[80] Reasons, [136]–[142].
[81] Reasons, [140].
[82] Reasons, [140].
The Member referred to the letter emailed on 14 October 2019, accepting and finding that the letter amounted to a discontinuance of the respondent’s weekly benefits compensation claim. He stated that at this point in time, there was an award for a general order in respect of expenses under s 60 of the 1987 Act and an award for weekly benefits compensation in favour of the respondent, but the latter benefits had not yet been quantified by the Arbitrator.[83]
[83] Reasons, [143].
The Member was satisfied and found that the respondent discontinued his claim for weekly benefits compensation on 14 October 2019. He said that this finding was consistent with that of Wood DP in the appeal against Arbitrator Wynyard’s oral decision.[84] The Member flagged that on 4 November 2019, prior to Arbitrator Wynyard’s determination of the quantum of the respondent’s entitlement to weekly benefits compensation, the appellant lodged the appeal.[85] The Member turned to discuss the reconsideration application which was ultimately dismissed by Arbitrator Wynyard.[86]
[84] Reasons, [144].
[85] Reasons, [145].
[86] Reasons, [146]–[147].
The Member found the discontinuance of the claim for weekly benefits compensation on 14 October 2019 resulted in the decision dated 5 December 2019 as having no effect. Although it had been argued at the arbitration hearing with an award for a yet to be determined for quantum, the claim for weekly benefits compensation had not achieved finality, that is, it had not been conclusively disposed of.[87]
[87] Reasons, [148].
The Member rejected the appellant’s submission that there was no real evidence to form a view as to why the claim for weekly benefits was discontinued. He noted that in the written submissions in the application for reconsideration dated 20 September 2020, the respondent’s counsel (who had appeared at the arbitration hearing on 3 October 2019) provided the reason for discontinuing the claim for weekly benefits. The Member noted that whilst it was not evidence in the form of a statement, he gave it some weight because it was consistent with the respondent’s lawyers’ prompt request for a supplementary report from Dr Canaris on 28 October 2019, and the provision of a supplementary report by the doctor dated 26 November 2019.[88]
[88] Reasons, [149].
The Member turned to the contents of Dr Canaris’ supplementary report, finding it was consistent with the oral submissions made by the respondent in the proceedings before him, namely, “that the purpose of the discontinuance was to obtain further evidence in respect of [the respondent’s] capacity for work because there was a deficiency in respect of such evidence.”[89] The Member further noted that in the supplementary report Dr Canaris clarified the opinion in his report dated 17 June 2019.
[89] Reasons, [150].
The Member found that, in the factual circumstances that he had described, “it was not unreasonable for [the respondent] to discontinue the claim for weekly compensation benefits. He was entitled to discontinue that part of the claim in accordance with the applicable rules at the time, namely, the [2011 Rules].”[90]
[90] Reasons, [151].
The Member referred to the appellant’s clarification in oral submissions that it was not suggesting any bad faith or sharp practice on the part of the respondent or his lawyers deliberately conspiring to preclude the appeal because of the threshold issue. He noted the appellant’s submission that the discontinuance resulted in the appeal being precluded on jurisdictional grounds and caused the appellant prejudice. The Member stated that “[w]hilst this was a consequence of the discontinuance, which I have found not to have been unreasonable, it was necessarily so because of the monetary threshold provision in s 352(3) of the 1998 Act.”[91]
[91] Reasons, [152].
The Member said that if the respondent were estopped from bringing the current claim for weekly benefits compensation, the appellant submitted that the ARD be dismissed. He stated that this:
“would be a serious step and would result in the [the respondent] having no entitlement to weekly benefits by shutting out his claim. Such an outcome would conflict with Arbitrator Wynyard’s oral decision on 3 October 2019 that there be an award in favour of [the respondent] in respect of the claim for weekly benefits compensation that was to be quantified after the consideration of written submissions.”[92]
[92] Reasons, [153].
The Member continued:
“I agree with [the respondent’s] submission, for the reasons stated above, that his matter was not the sort of matter that an Anshun estoppel was meant to catch.”[93]
[93] Reasons, [154].
The Member found that the respondent was not estopped from bringing the current claim for weekly benefits compensation. In accordance with the agreement reached by the parties, he entered an award in the terms referred to in [36] of his reasons.[94]
[94] Reasons, [155]–[156].
The Certificate of Determination issued on 17 July 2023 records:
“The Commission determines:
1. The [respondent] is not estopped from bringing a claim for weekly compensation benefits.
The Commission orders:
2. The [appellant] is to pay the [respondent] weekly compensation as follows:
(a) $1,668.42 per week from 12 February 2019 to 13 May 2019 under s 36(1) of the Workers Compensation Act 1987;
(b) $1,404.98 per week from 14 May 2019 to 26 May 2019 under s 37(1) of the Workers Compensation Act 1987;
(c) $859.71 per week from 27 May 2019 to 2 June 2019 under s 37(2)(a) of the Workers Compensation Act 1987;
(d) $325.87 per week from 10 June 2019 to 16 August 2021 under s 37(2)(a) of the Workers Compensation Act 1987, and
(e) the [appellant] is to be given credit for any payments made.”
GROUNDS OF APPEAL
The appellant agitates three grounds of appeal. They are:
Ground One – Failure to apply the test in Anshun (error of law);
Ground Two – Finding without any or any sufficient evidence that the severance of the claim was justified (error of fact and/or law), and
Ground Three – Failure to give adequate reasons (error of law).
ON THE PAPERS
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.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties, 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.
The appellant does not press for an oral hearing, but “would be pleased to assist the Commission with oral submissions if that were deemed expedient by the Presidential member allocated to the appeal.”[95] The respondent says that the matter can be dealt with on the papers.
[95] Appellant’s submissions, 10 August 2023, Part A, [1.3.6].
I have considered the appeal submissions and the reply and am comfortable that the issues have been suitably framed that I can deal with the appeal ‘on the papers.’
THRESHOLD MATTERS
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.
SOME PRINCIPLES ABOUT ANSHUN ESTOPPEL IN THE COMMISSION
Reading both parties’ submissions in this appeal, there is a sense that the applicability (or not) of the Anshun estoppel principle to workers compensation matters remains a contestable matter. On the appellant’s case, much has been said about how the application of the Anshun principle interrelates with the statutory rules of the Commission. The appellant suggests that the Anshun principle cannot be displaced by the Commission rules.[96] The respondent, to the contrary, asserts that the application of Anshun in this case would offend the Commission’s procedures and rules and would be “ … absurd given the compensatory purpose of the legislation.”[97]
[96] Appellant’s submissions, 10 August 2023, [28].
[97] Respondent’s submissions, 18 September 2023, [19].
This question has been comprehensively determined by the Court of Appeal in Miller v Secretary, Department of Communities and Justice.[98] As a result of this decision, if there had been any doubt, it has been authoritatively confirmed that the Anshun estoppel principle does apply to the 1987 and 1998 Acts and the statutory schemes conducted under those Acts.[99] I set out below the salient passages from Miller No 10 (per Ward P):
[98] [2022] NSWCA 190 (Miller No 10).
[99] “albeit in a somewhat circumscribed way” set out by Brereton JA at Miller No 10, [135].
“118. Relevantly, s 261 of the 1998 Act provides as follows:
‘261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
...’
119. The appellants rely on s 261(3) to demonstrate the incompatibility of the legislative scheme of the 1998 Act with the principle of Anshun estoppel, insofar as Anshun requires parties to bring forward their whole case, yet s 261(3) contemplates that multiple claims for compensation may be made at different times in respect of the injury or death concerned. While it may be accepted that there exists some tension between the principle of Anshun estoppel and s 261(3), this does not in my opinion engender wholesale inconsistency. This is so in light of the consistent application of Anshun in situations where the dispute concerns the whole issue of liability to pay compensation; where a matter has been agitated in subsequent proceedings in circumstances where it was unreasonable not to have relied on that matter in the original proceedings. Section 261(3) is not inconsistent with the operation of Anshun to preclude the agitation in subsequent proceedings of a matter relevant to liability to pay compensation. Rather, s 261(3) appears to me to contemplate circumstances in which successive claims are made concerning liability for disparate injuries suffered in the same, but otherwise compensable incident. There is not, therefore, any substantive inconsistency between the operation of s 261(3) and the continued application of Anshun within the context of the legislative framework beyond the acknowledged difficulties in the application of common law principles to a statutory scheme of this nature.
120. Those acknowledged difficulties also arise with respect to s 261(1), extracted above, which requires that claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time. As noted above, the appellants contend that no such provision would be required if Anshun was of general application, and, further, that the phrase ‘as far as practicable’ is inconsistent with the application of Anshun. However, this again elides the distinction between questions of whole of liability to pay compensation, and successive claims concerning liability for disparate injuries suffered in the same incident. I consider that, while the provision presents difficulties, it does not give rise to express inconsistency between the application of Anshun and the terms of the statute. This same analysis is applicable to ss 65(6), 65(9), and 66(2A) of the 1998 Act, which are in similar terms to the provisions extracted above.”
The application of Anshun in the Commission, however, does not exist in a vacuum. I therefore set out below (in full) two passages of Brereton JA from Miller No 10 (at [134]–[135]) which discuss the considerations that inform a judgment about what constitutes unreasonableness in the context of an Anshun claim in a workers compensation matter. The former s 354(7A) of the 1998 Act, which is referred to by his Honour at Miller No 10 at [134], is now found in s 54 of the 2020 Act.[100]
“134. The Anshun doctrine precludes a party from asserting in later proceedings a claim which, having regard to all the circumstances, could and ought reasonably have been brought in earlier proceedings. It is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding. The rationale of the Anshun doctrine is to prevent a party being vexed by multiple proceedings when the issue raised in the later proceedings ought reasonably have been raised in the earlier proceedings. Proceedings which are caught by Anshun are ex hypothesi vexatious. The Commission had power, under (former) s 354(7A), to dismiss proceedings that are vexatious. Contrary to the respondent’s submissions, the existence of that power is consistent, rather than inconsistent, with the application of Anshun, because it embraces dismissal on the grounds which would attract Anshun.
135. Further, the application of Anshun in the compensation jurisdiction, albeit in a somewhat circumscribed way, is well-established by authority. 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. To the extent that the legislative scheme does not permit one claim to be litigated in the context of another, the Anshun doctrine would not be engaged. Similarly, if as a matter of practice in the jurisdiction, it was usual for one type of claim to be brought separately and later than another, Anshun would not require that it be brought in earlier proceedings. What the authorities establish is that a worker is not required to bring forward at once all claims for all types of compensation in respect of all injuries arising out of the one event, and may pursue different types of compensation and in respect of different injuries separately, but may not in a later application claim, on an alternative basis, the same relief as has earlier been denied – which is what the appellants here sought to do.” (footnotes omitted)
[100] Since 1 March 2021.
Before the Member, there was reference made to a number of Commission decisions involving Anshun arguments, including my decision in Geary. In Geary, I set out a number of principles arising from a review of Anshun authorities. I set these out in full below:
“81. In Anshun, the following circumstances were existent. Anshun Pty Ltd (Anshun) had hired a crane from the Port of Melbourne Authority (the Authority). This hiring was governed by an agreement by which Anshun agreed to indemnify the Authority against all actions in relation to injury or loss of life related to the use of the crane. A worker was injured in the course of his employment when a load of girders being handled by the crane fell on him. The workman sued the Authority and Anshun for damages and negligence. Both defendants claimed contribution from one another, but the Authority did not in its defence plead its contractual right to an indemnity. The worker recovered damages and the Court ordered that Anshun should recover contribution from the Authority to the extent of 90% of the damages and the Authority from Anshun in the amount of 10%. The Authority later brought a second action against Anshun pleading its rights under the contractual indemnity. The question that arose for consideration was whether or not the Authority was estopped from maintaining this second action based upon the indemnity.
82. In not permitting the Authority to maintain its claim based upon the contractual indemnity, the plurality found as follows:
‘In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac.(1876) 94 US (24 Law Ed, at p 199).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.’
83. In terms of conflicting judgments, the High Court said as follows:
‘By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.’
84. The Anshun principle has been considered in a number of cases. Notably in Habib McColl JA (Giles and Campbell JJA agreeing) said as follows regarding Anshun estoppel:
‘The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.’(emphasis added)
85. Further in Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages her Honour describes Anshun as ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’ (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
86. In Habib at [84] her Honour said as follows:
‘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’.
87. And further at [85] of Habib her Honour provides the following warning:
‘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’’.
88. I have previously discussed the application of the Anshun principle in the context of workers compensation matters. In Miller No 5 the following discussion appeared at paragraphs [185] and following:
‘185. Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: ‘Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits’ and s 354(3) of the 1998 Act: ‘The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’ Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel.
186. I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides:
‘Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.’ (emphasis added)
187. The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd, the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts.
...
194. The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd in the following terms:
‘The principles which I distil from these authorities are:
(a) the principle in [Anshun] extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.’
89. Miller No 5 was decided before the commencement of the 2020 Act. Section 350 of the 1998 Act which I have referred to above was repealed and its modified version can be found in ss 56 and 57 of the 2020 Act. For the purposes of this argument however there is no material change to this provision which would alter or affect my remarks in Miller No 5 at [187]. The position under the 2020 Act is that decisions under the Workers Compensation Acts (as defined in s 5 of the 2020 Act) are final and binding except as provided for by the 2020 Act or the enabling legislation. There is no provision in the 2020 Act which would modify or derogate from the approach taken to questions of Anshun estoppel in the Personal Injury Commission’s legacy organisations, the Workers Compensation Commission or the Compensation Court before it.” (footnotes omitted)
The facts of what occurred in this matter in terms of when proceedings were commenced, what the claims were, that there was a partial discontinuance and then the filing of a second set of proceedings are not matters of controversy between the parties. The facts that I consider to be non-controversial are as follows:
(a) The parties in the 2019 and 2023 proceedings were the same. Both parties were legally represented in both sets of proceedings. Both proceedings, as will be seen below, pleaded a psychological disease injury with a deemed date of 7 January 2019. The injury details as to how this injury was alleged to have been caused are the same in both proceedings. I provide more details of this below.
(b) The 2019 proceedings were filed in the then Workers Compensation Commission, which was the appropriately empowered entity with the power to decide that dispute. The Workers Compensation Commission was abolished on the day the Personal Injury Commission was established.[101] Establishment day of the Commission was 1 March 2021.[102] Since establishment day, the Commission has been invested with power to hear and determine disputes under the 1987 and 1998 Acts.[103] The Commission was the body with the authority under the 2020 Act to hear and determine this dispute.
In the ARD filed in the 2019 proceedings,[104] the respondent claimed both payments of weekly compensation and medical expenses. The deemed date of injury was specified as 7 January 2019 and the injury was pleaded as a “psychological injury - disease injury”.[105] The 2019 proceedings were heard before Arbitrator Wynyard on 3 October 2019, with the Arbitrator making a finding in favour of the respondent for the medical expenses in an oral decision. The Arbitrator then directed the parties to file written submissions about the respondent’s claim for weekly payments.[106]
By letter dated 14 October 2019 addressed to the Arbitrator and copied to the appellant, the respondent withdrew the claim for weekly payments of compensation.[107]
(c) The 2023 proceedings were filed in the Commission. The respondent claimed weekly compensation payments based on a disease injury dated 7 January 2019. The “injury description” in the 2023 proceedings was identical to that previously pleaded in the 2019 proceedings.[108]
(d) As can be seen, both the 2019 and 2023 proceedings were about the same injury. The difference being that in the 2019 proceedings, medical expenses and weekly payments of compensation were claimed, until the latter was abandoned. The 2023 proceedings was a better prepared reprise of the earlier claim for weekly compensation arising from the same facts and the same injury.
[101] Clause 3, Part 3 of Schedule 3 of the 2020 Act.
[102] Section 6(3)(a) of the 2020 Act.
[103] Clause 3, Part 3 of Schedule 3 of the 2020 Act.
[104] Reply, p 2.
[105] Reply, p 6.
[106] Reply, p 69.
[107] Reply, p 78.
[108] 2019 proceedings, Reply, p 6; 2023 proceedings, “Injury Details”, ARD, p 8 of 12.
LEGISLATION
Rule 15.7(1) of the 2011 Rules provided:
“15.7 Discontinuance
(1) An applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.”
The equivalent provision in the Personal Injury Commission Rules 2021 (2021 Rules) is r 76 which provides:
“76 Discontinuance of proceedings
An applicant may discontinue applicable proceedings, or part of applicable proceedings, as against one or all of the other parties to the proceedings, at any time before the proceedings are finally determined.”
Also relevant to this appeal is r 78 of the 2021 Rules:
“78 Statement of reasons for decision
(1) This rule applies only in relation to the following applicable proceedings—
(a) Commission proceedings,
(b) merit review proceedings.
(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.
Section 43 of the 2020 Act provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
DISCUSSION
As to Ground One
As is usually the case in a matter involving an argument about Anshun estoppel, the history of the litigation inter partes is important. The appellant has set out the history in its submissions at paragraphs [10]–[24] of its principal submissions on this appeal dated 10 August 2023. This history has been recounted above and so I will not repeat these passages here. There is no disputation about the factual accuracy of what has occurred, rather the contest is about the applicability (or not) of Anshun estoppel to those facts.
The appellant submits that all forms of estoppel apply to workers compensation matters. The appellant acknowledges that workers are not required to bring all of their conceivable claims at once, but says, “[r]ather, a worker must bring (or, more correctly ‘raise’) all claims that are reasonably open for him or her to bring at the time.”[109]
[109] Appellant’s submissions, 10 August 2023, [26].
The appellant then frames its argument in the following manner:
“It having been established in, inter alia, Fourmeninapub, that Anshun applies it is no answer to the defence that any rules of the Commission or the prior Commission allowed for discontinuance without penalty as the member seemingly found in para [95] and [96] of his decision in rejecting a submission made by the employer that the practice of [discontinuance] of part of claims and coming back again reflected a widespread misunderstanding in this Commission which was akin to what had occurred in [Kirk] (where a different tribunal had fallen into error through a litigation culture in a specialist forum where common law principles, which applied, had been in practice abandoned). With respect, the approach of the member clearly confirms that a Kirk error on the question of partial discontinuance of compensation claims does exist in this jurisdiction because of his reasoning away from the common law orthodoxy in Anshun by calling in aid the adjective law (ie [procedural] rules) of the Commission. Those rules do not displace Anshun. Or, if they do, it necessarily follows that Fourmeninapub was wrongly decided.[[110]]
The comments of the member at para [153] respectfully disclose a misapprehension of principle. In this paragraph, he said (with emphasis added)
‘If Mr Antoniak were estopped from bringing the current claim for weekly benefits compensation, The Star submitted that the ARD be dismissed. This would be a serious step and would result in Mr Antoniak having no entitlement to weekly benefits by shutting out his claim. Such an outcome would conflict with Arbitrator Wynyard’s oral decision on 3 October 2019 that there be an award in favour of Mr Antoniak in respect of the claim for weekly benefits compensation that was to be quantified after consideration of written submissions.’
That a litigant would be ‘shut out’ of bringing a claim is not a reason not to erect the bar in Anshun. Rather it is descriptive of the bar itself. To be estopped is to be barred or ‘shut out’. The erection of the bar presupposes the existence of a right which will be extinguished – either a substantive right to a remedy, or at the very least the chose in action to sue for that remedy.”[111]
[110] The appellant notes it does not contend that Fourmeninapub was wrongly decided.
[111] Appellant’s submissions, 10 August 2023, [28]–[29].
In its response, the respondent says that the appellant’s case proceeds on an erroneous view of Anshun estoppel and that it fails to pay due regard to the long-established practice and procedure of the Commission. The respondent also argues that the appellant’s submissions have not said in terms how the Anshun principle was misapplied by the Member.
The respondent then submits:
“A necessary distinction in the current proceedings is that the appellant’s complaint does not relate to a failure to raise a relevant defence, but rather, a supposed failure to press a claim. To succeed with such an argument, the appellant would need to establish that the worker’s claim for weekly compensation (as pressed in the current proceedings) was so relevant to the subject matter of the proceedings in 2019 (i.e. the proceedings to determine the section 11A defence and an entitlement under section 60 of the 1987 Act), that it would have been unreasonable not to have pressed that claim in 2019.
As the High Court noted in Anshun, a material consideration is whether the subsequent proceedings would result in an outcome which would conflict with the earlier decision. No such conflict could result from the worker’s decision in 2019 to discontinue his claim for weekly compensation, and to confine his application to seeking a finding that the section 11A defence was unfounded, and that he was entitled to relief under section 60.”[112]
[112] Respondent’s submissions, 18 September 2023, [10]–[11].
In short, the respondent says that there is no chance of a conflicting decision arising in this matter.
The respondent points to the former s 354 of the 1998 Act, since repealed and replaced in the same form in s 43 of the 2020 Act, and argues that the appellant’s Anshun submission would mean that, contrary to s 43, the respondent’s case would not be decided on its merits.[113]
[113] Respondent’s submissions, 18 September 2023, [22].
The respondent refers to passages from my decision in Racing NSW v Goode[114] and says that there can be no suggestion that the respondent acted unreasonably in discontinuing part of the earlier proceeding and further that the appellant had advanced no argument as to why this action was unreasonable.[115]
[114] [2023] NSWPICPD 43 (Goode).
[115] Respondent’s submissions, 18 September 2023, [24]–[26].
The respondent sums up its overall response as follows:
“Given the provisions of Rule 15.7, and the common practice of discontinuance and subsequent lodgement of disputes in the Commission, no respondent could have reason to understand that an applicant, by discontinuing an aspect of an application for relief, would be abandoning and forfeiting particular entitlements. The value of the worker’s claim for weekly compensation in the current proceedings, given the incapacity resulting from his compensable injury, is substantial, as is borne out by Member Scarcella’s determination. The appellant could not conceivably have believed that the worker, in discontinuing that claim before Arbitrator Wynyard (after making oral submissions as to his entitlement to weekly payments) had elected to abandon that entitlement. Moreover, anyone with knowledge and experience of Commission proceedings would appreciate that discontinuance of a claim does not constitute an irrevocable forfeiture of rights to be compensated, serving as a basis for an award to be entered against the worker should such a claim be pressed in the future, but is a momentary procedural step contemplated by Rule 15.7.”[116]
[116] Respondent’s submissions, 18 September 2023, [28].
In its reply submissions dated 10 October 2023, the appellant says this about the Commission’s practices:
“That which is stated by the respondent at [paragraph [5] of the respondent’s submissions] namely that the appellant’s argument is ‘… contrary to the established practice and procedure, principles and jurisprudence of the Personal Injury Commission, and its predecessor, the Workers Compensation [Commission] …’ may be exactly right, or at the very least this is perceived to be correct by several practitioners in this jurisdiction. That is why this appeal has been brought – to demonstrate the existence of an entrenched, but wrong, approach to litigation in this Commission despite authorities confirming that the principles in Anshun do apply in this area of litigation (including those reviewed by the Member from para [121] of reasons and elsewhere in the decision).”[117]
[117] Appellant’s submissions in reply, 10 October 2023, [3].
The appellant says that the two sets of proceedings were closely connected, noting that the subject matter of the second set of proceedings was litigated in the first set of proceedings (until discontinued).[118] The appellant also submits that the existence of statutory provisions to act informally[119] does not permit a court or tribunal to act contrary to substantive law.[120]
[118] Appellant’s submissions in reply, 10 October 2023, [5]–[6].
[119] See s 43 of the 2020 Act.
[120] Appellant’s submissions in reply, 10 October 2023, [7].
On 24 May 2024, I issued a Direction to the parties. The Direction requested the following submissions:
“… the parties are invited to provide submissions on the following issue:
I refer to the appellant’s submissions in chief, dated 10 August 2023, and in particular paragraphs [28] and [29] which refers to Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531. In considering the contents of those two paragraphs of the appellant’s submissions, the parties are asked to consider the following remarks of the Court of Appeal in Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 (Miller No 10) at [135] and provide a submission on their application (if any) to the present appeal:
‘135. Further, the application of Anshun in the compensation jurisdiction, albeit in a somewhat circumscribed way, is well-established by authority. 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. To the extent that the legislative scheme does not permit one claim to be litigated in the context of another, the Anshun doctrine would not be engaged. Similarly, if as a matter of practice in the jurisdiction, it was usual for one type of claim to be brought separately and later than another, Anshun would not require that it be brought in earlier proceedings. What the authorities establish is that a worker is not required to bring forward at once all claims for all types of compensation in respect of all injuries arising out of the one event, and may pursue different types of compensation and in respect of different injuries separately, but may not in a later application claim, on an alternative basis, the same relief as has earlier been denied – which is what the appellants here sought to do.’ (emphasis added)
The parties responded to the Direction by submitting the following.
The appellant supplied written submissions dated 7 June 2024 in response to the Direction. The appellant says that “[t]he parties to this appeal agree there is a practice in the Commission of splitting cases.”[121] However the appellant says the disagreement revolves around the question of whether this “practice” offends Anshun. The appellant submits that even though Miller No 10 at [135] says regard must be had to the practice of a jurisdiction, the practice of the Commission cannot displace Anshun, because if it did this would be a Kirk type error. The appellant says that Miller No 10 at [135] is reference to a “ … legitimate practice in the Commission, reflective of the statutory rubric in which it operates, and any relevant practice directions and the like. It is not an endorsement of error, entrenched or otherwise.”[122] The appellant maintains that what happened in this matter is beyond what could be called an established practice in terms of the discontinuance after the hearing, thus depriving the appellant of an opportunity to appeal.[123]
[121] Appellant’s submissions, 7 June 2024, [3].
[122] Appellant’s submissions, 7 June 2024, [6].
[123] Appellant’s submissions, 7 June 2024, [7].
The respondent filed its response to the Direction in submissions dated 14 June 2024. The respondent submits that Miller No 10 at [135] says that different types of compensation benefits can be pursued at different times. The respondent submits that there is no provision in either the 1987 or 1998 Acts that requires all workers compensation claims to be brought together or that a discontinuance is in fact an abandonment of the claim. The respondent points to the former (now repealed) Workers Compensation Commission rule 15.7 dealing with discontinuances. The appropriate rule is now r 76 of the 2021 Rules. This rule, the respondent says, gives an unfettered right to discontinue without having rights extinguished and the right under this rule was exercised by the respondent.
Consideration
The gravamen of the appellant’s argument in this ground appears in the appellant’s submissions at [28] (see [76] above). Namely, that the effect of the Commission’s rules regarding discontinuance effectively ousts the Anshun doctrine from application in Commission proceedings.
The appellant makes reference to a passage in Heydon J’s decision in Kirk. It is apparent that this is a reference to what appears in his Honour’s decision at [122] which reads as follows (footnotes omitted):
“Our legal system has often had to balance the advantages of creating specialisation over the disadvantages of doing so. It is commonly thought better, for example, that allegations of crimes be tried by judges expert in criminal law and procedure. The same is true, mutatis mutandis, of company work, bankruptcy, personal injury claims, planning law and many other categories of litigation. Sometimes the legislature elects to create separate courts for the particular litigation. Sometimes it creates separate divisions within a court. Sometimes it leaves it to the courts themselves to create appropriate lists, the precise nature of which may readily be changed from time to time. A writer in the late 20th century said:
‘History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.’
However that may be, the appellants referred in submissions to the danger of conferring jurisdiction to hear criminal proceedings on courts the practitioners in which are unfamiliar with all the relevant rules. There is a related danger in that course in that the courts on which the jurisdiction has been conferred, while in some sense specialist, are not familiar with all the relevant rules. Thus a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up. Medical students usually detect in themselves at a particular time symptoms of the diseases they happen to be studying at that time. Academic lawyers interested in a particular doctrine can too often see it as almost universally operative. So too courts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted. Courts which are ‘preoccupied with special problems’, like tribunals or administrative bodies of that kind, are ‘likely to develop distorted positions.’ Thus Jaffe said, discussing the factual position illustrated by R v Bradford: ‘[R]oad-maintenance authorities sorely pressed to find gravel within the parish will not place a high value on the amenities of the gentry's parks.’ It may be that something like this underlay the process by which the Industrial Court adopted the construction of ss 15, 16 and 53 of the [Occupational Health and Safety Act1983 (NSW)] which the majority have rejected, and failed to notice the closely related difficulty of the unsatisfactory way the charges were pleaded. To say that is not to negate the importance of increased industrial safety, or the importance of giving full effect to the statutory language, properly construed, which creates methods of increasing it. Nor is it necessarily to question whether creating specialist courts devoted to the fulfilment of that and other vital public goals is the best way of increasing industrial safety. It is merely to raise a caveat about accepting too readily the validity of what specialist courts do – for there are general and fundamental legal principles which it can be even more important to apply than specialist skills.”
At Kirk [122], in what are clearly obiter remarks, Heydon JA sagely warns about what he sees are the dangers associated with specialist courts and tribunals departing from established “traditions, standards and mores of the wider profession and judiciary.” In the final sentence of [122], his Honour states the caveat or warning regarding practices adopted by specialist tribunals which may take the tribunal out of the mainstream of legal thought.
I accept that the Commission is established as a specialist tribunal. The reference to this passage in Kirk is to ground a submission that the Commission, in as much as its rules permit discontinuances of part or entire applications at any time, conducts a practice which is outside the mainstream of legal thought and practice. This practice of permitting discontinuances under the rules, the appellant contends, has the effect (or tendency) of rendering nugatory the application of Anshun to such circumstances.[124]
[124] This submission was dealt with by the Member and rejected at reasons [95].
For the reasons outlined below, I do not accept this submission.
The application of Anshun in the workers compensation jurisdiction is well established by authority.[125]
[125] Miller No 10, [135] and see in particular footnote 14 referred to in that paragraph.
Reading both the appellant’s and respondent’s submissions, it appears that both attempt to reduce the application of Anshun estoppel to a binary choice of whether the Commission’s rules and the Commission’s practices or the Anshun principle prevail in this circumstance. With respect to both submissions, this is not a correct statement of principle. It is beyond argument[126] that Anshun estoppel applies to workers compensation matters. The rules of the Commission, such as the rule permitting discontinuances, are part of the “conventions of practice and procedure” which “inform a judgement as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier.”[127] Or in this case, not to have continued prosecuting the weekly compensation claim in the 2019 proceedings. The key is the assessment of unreasonableness in the given circumstance.
[126] Miller No 10.
[127] Miller No 10, [135].
The existing rules and conventions of the Commission are an element of the overall consideration of what is reasonable or not in the context of Anshun estoppel. This is consistent with McColl JA’s remarks in Habib (at [85]) that the Anshun power is “not to be exercised except ‘after a scrupulous examination of all the circumstances.’” Such an examination would therefore include, inter alia, an assessment of the customs, practices, and rules applicable to the matter at hand.
I would also remark that virtually every court and tribunal has rules governing the discontinuance of matters. Some require leave to be sought and granted, sometimes leave may be granted on terms. Others provide for different processes. A rule governing a discontinuance or providing for how it may be exercised, far from being outside mainstream legal practice, is in fact a very common, if not universally accepted, aspect of court and tribunal practice. I therefore do not accept the underlying premise of the appellant’s submission that the Commission’s rule regarding discontinuances is somehow a heretical departure from the norm. The remarks from Kirk regarding a practice outside mainstream legal mores therefore do not arise.
Further, I do not accept the overall thrust of the appellant’s submission that the Commission rule regarding discontinuances has taken the Commission outside of mainstream common law concepts like Anshun estoppel. The Commission rule and Anshun exist side by side and it is a matter in any given case for unreasonableness to be judged by a “scrupulous examination of all the circumstances”. Unreasonableness is the essential criteria by which Anshun estoppel is judged.[128]
[128] For example see the discussion on this question at Miller No 5 at [194], Miller No 10 at [134].
The appellant has also taken issue with what the Member said at reasons [153] regarding the serious step of shutting out the respondent from his claim, saying that this is “not a reason not to erect the bar in Anshun.”[129] The fact is Anshun estoppel is a serious step and this is the precise description given to it by McColl JA in Habib (set out above). A fair reading of this part of the Member’s reasons reveals the Member assessing the submission, put by the appellant, of the effect of making the Anshun order sought. It is but an element of the overall consideration of unreasonableness.
[129] Appellant’s submissions, 10 August 2023, [29].
In terms of the respondent’s submissions, I accept that the existence of the now s 43 of the 2020 Act is an element that needs to be considered consistent with what I have said (above) arising from Miller No 10 at [135]. It is not per se determinative.
I do not however accept that the “compensatory purpose of the legislation”[130] is a relevant consideration in judging the reasonableness or not of what has occurred. The Court of Appeal has definitely held that Anshun is available to be used in respect to claims under the 1987 and 1998 Acts, both of which are compensatory statutes.[131]
[130] Respondent’s submissions, 18 September 2023, [19].
[131] Miller No 10.
This appeal ground rests upon the notion that the Commission’s rule regarding a discontinuance displaced Anshun principles and any approach consistent with that rule was an error of law. This assertion has not been established.
Ground One is therefore dismissed.
As to Ground Two
The appellant points to reasons [149] and [150] and says that the finding made by the Member at that point in the decision was made without a proper evidentiary basis. The appellant says that the reliance on a statement from the respondent’s counsel was insufficient to provide the required evidentiary support for the finding. The appellant then submits the following:
“In any event, the proposition that a case could be bolstered with more or better evidence is both a truism and universal to all litigation. If the potential to get better evidence was a rejoinder to the prima facie application of Anshun, then the doctrine could never apply, because all cases could be improved - this case was no different in that respect.”[132]
[132] Appellant’s submissions, 10 August 2023, [33].
In reply the respondent says that the rationale for the discontinuance was as follows:
“In submissions dated 20 September 2020, the worker sought to have the award of weekly compensation rescinded given that it had been entered in error. The rationale for discontinuing the claim for weekly compensation was explained at [9] of those submissions:
‘The [respondent] discontinued the claim for weekly compensation in mid-October 2019 because his legal advisers considered that it was necessary to lodge further evidence to explain his circumstances in early June 2019, and thereafter. It was (and remains) the intention of the [respondent] (and his legal representatives) to lodge a further Application to Resolve a Dispute in respect of the claim for weekly compensation.’”[133]
[133] Respondent’s submissions, 18 September 2023, [17].
The respondent says that a worker has no obligation to press all claims at the one time and that he is entitled to discontinue a part of his proceedings under the former r 15.7 of the 2011 Rules. The respondent says the appellant’s application of Anshun is contrary to s 354 of the 1998 Act (this is an incorrect reference, the relevant provision is now s 43 of the 2020 Act), is a “frivolous endeavour”, “devoid of merit”.[134]
[134] Respondent’s submissions, 18 September 2023, [34]–[35].
In its reply submission, the appellant says most, if not all, courts and tribunals have rules that deal with discontinuances. The appellant notes that leave to discontinue was not required in the WCC, but says “evidence should be adduced and is required to displace what would otherwise be the application of Anshun.”[135]
[135] Appellant’s submissions in reply, 10 October 2023, [10].
The appellant concludes with the following submission:
“Contrary to [paragraph [34] of the respondent’s submissions] there is nothing frivolous about the appellant’s position. The appellant was denied an appeal in the original proceedings because of the respondent’s litigation conduct. It is entitled to rely upon Anshun in defending the claim. An Anshun estoppel will always, by definition, mean that the ‘merits’ of an applicant’s case are not considered. This does not amount to elevating technicality over substance, nor does it violate s 354 of the 1998 Act or any other provision. The entire purpose of Anshun estoppel is to preclude or bar the running of subsequent cases where appropriate.”[136]
[136] Appellant’s submissions in reply, 10 October 2023, [11].
Consideration
The appellant points to reasons [149]–[150] as constituting the error complained of in this ground. These two paragraphs though are part of a wider consideration by the Member of the explanation by the respondent of why the weekly compensation claim in the 2019 proceedings was discontinued. This wider consideration appears from reasons [148] and goes to the ultimate finding at reasons [151] that it was not unreasonable for the respondent to discontinue the claim for weekly compensation in the 2019 proceedings. A decision should be read as a whole.[137]
[137] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale).
These passages read as follows:
“148. I find that the discontinuance of the claim for weekly benefits compensation on 14 October 2019 resulted in the decision dated 5 December 2019 as having no effect. In such circumstances, the claim for weekly benefits compensation, although it had been argued at the arbitration hearing with an award for a yet to be determined quantum of weekly benefits compensation, it had not achieved finality. That is, it had not been conclusively disposed of.
149. I reject The Star’s submission that there was no real evidence to form a view as to why the claim for weekly benefits compensation was discontinued. In the written submissions in the application for reconsideration dated 20 September 2020, Mr Antoniak’s counsel, Mr Tanner, provided the reason for discontinuing the claim for weekly benefits compensation. Mr Tanner appeared on behalf of Mr Antoniak at the arbitration hearing on 3 October 2019. Whilst it was not evidence in the form of a statement, I give it some weight because it was consistent with Mr Antoniak’s lawyers prompt request for a supplementary report from Dr Canaris on 28 October 2019 and the latter’s provision of a supplementary report dated 26 November 2019.
150. The contents of Dr Canaris’ supplementary report was consistent with the oral submissions made by Mr Antoniak in the current proceedings, namely, that the purpose of the discontinuance was to obtain further evidence in respect of Mr Antoniak’s capacity for work, because there was a deficiency in respect of such evidence. In his supplementary report, Dr Canaris clarified the opinion in his report dated 17 June 2019 as follows:
‘I think it is fair to say that at the time of my consultation with him [Mr Antoniak] on 8 June 2019 he was not fit to work in the hospitality industry generally as opposed to being restricted only from working in management positions. In so say [sic, saying], I note that the hospitality industry is generally stressful and demanding.’
151. In the factual circumstances described above, I find that it was not unreasonable for Mr Antoniak to discontinue the claim for weekly compensation benefits. He was entitled to discontinue that part of the claim in accordance with the applicable rules at the time, namely, the Workers Compensation Commission Rules 2011.”
As can be seen, particularly at reasons [149] and [150], the Member’s thinking was influenced by two matters. Firstly, the Member gave “some weight” to the respondent’s counsel’s explanation about the necessity for the discontinuance. Secondly, the Member was also influenced by Dr Canaris’ supplementary report (dated 26 November 2019) which was supportive of the purpose of the discontinuance being to obtain further evidence.
On appeal, the appellant takes issue with the Member’s reliance on the explanation by the respondent’s counsel. It is said to be of no evidentiary value or insufficient evidentiary value for the use to which it was put. Dr Canaris’ report is also criticised as not revealing the thinking behind the decision to discontinue, and hence undermining the Member’s reliance on it.
Regarding the appellant’s submission about the use to which the Member put Dr Canaris’ supplementary report,[138] I do not think that this is a fair construction of what the Member said. The Member clearly viewed the supplementary report as the further evidence that needed to be obtained to later pursue the respondent’s weekly compensation claim. The latter opinion is a development on Dr Canaris’ opinion of 17 June 2019[139] in that the doctor says that when he saw the respondent on 8 June 2019, he was in fact not fit to work in the hospitality industry generally, and not just in management as had been said. This is clearly further evidence on the question of work capacity which is necessary for any consideration of the respondent’s claim for weekly compensation. The explanation for the discontinuance, given by the respondent’s counsel, was to obtain such evidence. So in that respect, the opinion is supportive of the explanation.
[138] ARD, p 163.
[139] ARD, p 158.
The criticism that the doctor did not address the discontinuance is, with respect, not to the point when the Member’s reasons are read in context.
I do not accept that there was no or no sufficient evidence for the Member to make the findings that he did that are contested in this ground. The Commission is not bound by the rules of evidence.[140] The Member gave the explanation of the respondent’s counsel “some weight”[141] and said the latter opinion of Dr Canaris was supportive of the need for further evidence, that report constituting that further evidence.
[140] Section 43(2) of the 2020 Act.
[141] Reasons, [149].
In terms of the sufficiency of evidence, this is usually a question for the first instance decision maker as to the weight that is accorded to the evidence in question. If it is found to be sufficient, it does not matter if it is in some way unsatisfactory.[142] I would also note that issue was not taken with the veracity of the explanation by the respondent’s counsel. Whilst evidence could have been led from the respondent or indeed his solicitor about why the weekly compensation claim was discontinued, an explanation was proffered which was not challenged and the Member was right to consider the explanation and give such weight to it as he thought fit. This approach is in keeping with the procedure provided for under the 2020 Act, in particular s 43.
[142] North Sydney Leagues’ Club Limited v Synergy Protection Agency Pty Limited [2012] NSWCA 168, [48].
The appellant has been unable to establish error, Ground Two is dismissed.
As to Ground Three
The appellant criticises the Member’s finding at reasons [154] which reads as follows:
“I agree with Mr Antoniak’s submission, for the reasons stated above, that his matter was not the sort of matter that an Anshun estoppel was meant to catch.”
The appellant submits the following in support of this ground:
“A number of problems flow from the above passage. Firstly, workers compensation matters, especially those severed, and more especially those severed after success such as to deprive a respondent of a right of appeal, are exactly the kind of case where Anshun applies. Secondly, it is not clear if ‘the sort of matter’ means all workers compensation matters, given the member’s earlier allusion to matters of practice and experience (it is accepted that earlier in the decision the member cited several authorities suggesting that the principles do at least potentially apply). Thirdly, if the member accepted that Anshun might apply to some workers compensation claims, he did not clearly say why this one did not [attract] the bar despite the conduct of the litigation set out at length both in these submissions and at the arbitration hearing.”[143]
[143] Appellant’s submissions, 10 August 2023, [35].
The respondent says this ground is devoid of merit and that the Anshun argument is “manifestly unfounded”.[144] The respondent says that “[n]o other conclusion was open given the wholly misconceived basis of the appellant’s case.”[145]
[144] Respondent’s submissions, 18 September 2023, [37].
[145] Respondent’s submissions, 18 September 2023, [38].
In its reply submissions, the appellant says that a Presidential Member should decide the matter in accordance with the law rather than an argument between counsel about the quality of submissions.[146]
[146] Appellant’s submissions in reply, 10 October 2023, [12].
Consideration
This ground mounts a challenge to the adequacy of the Member’s reasons at [154].
The Court of Appeal has recently stated the Commission’s obligations to give reasons. In Fisher v Nonconformist Pty Ltd,[147] Kirk JA set out the obligation at [136]–[139]. His Honour noted that there is no general common law duty on executive decision makers to give reasons, such as exists for judicial officers. Rather their duty is usually imposed by statute, in this case s 294 of the 1998 Act and r 78 of the 2021 Rules.
[147] [2024] NSWCA 32 (Fisher).
I set out Fisher at [139] which contains the summary of the required standard:
“The appellants’ submissions did not address these requirements. They assumed that the test of adequacy of reasons was the same for a Member of the Commission as it would have been for a judge. Whether or not the Member gave adequate reasons had to be assessed against the content of the legal duty which required the giving of reasons. However, it is not necessary to consider this issue any further because even if it is assumed that there was a duty to give reasons to the same standard expected of a judge, no breach of that standard is made out by the appellants. The nature of that standard was summarised in Ming [v Director of Public Prosecutions (NSW) [2022] NSWCA 209], after referring to relevant authority:
‘[43] What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.’”
To this I would add that in considering the adequacy or not of reasons that are given, one must read the decision as a whole.[148] This is a pertinent point to make as reasons [154] is the terminus of the Member’s reasoning process in considering the applicability or not of Anshun estoppel to the respondent’s claim. These are the principles that I will apply in considering this ground.
[148] Beale.
I have set out above the relevant principles to be applied in approaching an Anshun submission. In particular I refer to the passages from Habib that I have set out at [68] above. These passages, when taken with the remarks of Brereton JA in Miller No 10 at [134]–[135], reflect the considerations that a decision maker is called upon to weigh up when examining whether an Anshun application can be made good or not. It involves “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” and that “the doctrine [is] concerned with substance and not form.”[149] In particular there needs to be an examination of “the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgement as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier.”[150]
[149] Habib, [82], [84].
[150] Miller No 10, [135], per Brereton JA.
The Member in his decision went through, necessarily so when Anshun is raised, the history of the matter at reasons [1]–[25]. The Member then, after noting some matters of procedure, summarised the parties’ arguments at [42]–[93]. The Member then examined the various authorities relating to Anshun in the Commission, noting the former r 15.7 of the 2011 Rules. This took place at reasons [93]–[126]. The Consideration section of the decision commences at reasons [127]. Much of this section of the decision is a close examination of that which factually transpired in the 2019 proceedings in terms of what was pleaded or claimed and a description of the proceedings before Arbitrator Wynyard.
The dispositive section of the decision really only commences at reasons [149], which is where the Member, having established the history of the litigation, actually began considering the application of Anshun to the circumstances of this matter.
The question in this case was not that an available claim, namely for weekly compensation, had not been raised, rather it had most definitely been raised in the earlier proceedings and was then discontinued, only to be later reprised in the 2023 proceedings. Effectively it was the same claim being pursued by the respondent in the 2023 proceedings, the difference being the additional evidence (Dr Canaris’ report) regarding the respondent’s capacity for work.
This is a slightly different situation to most Anshun arguments which involve a subsequent proceeding advancing a claim(s) which had not been pursued in an earlier proceeding(s). As a consequence, it was right and proper that attention be paid to the discontinuance. It seems however that the Member was much taken by the respondent’s entitlement to discontinue under the rules.[151] This was a proper matter to consider having regard to Miller No 10 at paragraph [135], but only to inform the question of unreasonableness. It is clear that at reasons [149]–[151] the consideration is about the circumstances of the discontinuance. Reasons [153] is problematic. I have no issue with the Member noting that an Anshun order contrary to the respondent would be a “serious step”, but the Member goes on to note that such an outcome would produce a decision in conflict with Arbitrator Wynyard’s decision in favour of weekly benefits. At reasons [148], the Member noted that the decision of Arbitrator Wynyard dated 5 December 2019 had no effect as a result of the discontinuance. By definition this could not be a conflict. I note that there was both an oral decision on 3 October 2019 and a subsequent one on 5 December 2019, both dealing with weekly benefits with the discontinuance occurring between them both. The fact is the discontinuance had an effect and the respondent cannot have both the benefit of the discontinuance and the 2023 proceedings in terms of potential conflicting decisions. The Member has not explained this issue, let alone why it would create conflicting decisions, which is an important Anshun consideration.
[151] Reasons, [151].
The appellant rightly complains about what appears at reasons [154]. The Member has not explained in terms why this matter was not “the sort of matter that an Anshun estoppel was meant to catch.” None of the authorities delineate any categories of cases that fall inside or outside the principle, although Brereton JA at paragraph [135] of Miller No 10 does state some salient principles that should inform considerations in workers compensation matters. Clearly this consideration was one that affected the Member’s consideration of the result in the decision. In terms of the duty to give reasons (see Fisher [139] above) the Member has not fully exposed his reasons for this aspect of his decision. Whilst reasons do not have to be lengthy or detailed, they do need to explain the conclusion. I am not satisfied that the Member has met this standard, especially when I consider reasons [154].
Ground Three has been established.
DECISION
This appeal has succeeded in part in that Ground Three has been established, although the first two grounds obviously have not. The question is whether the ground that has been established is material to the overall result such that the Certificate of Determination should be revoked.
Reasons [154] does refer to the reasons that the Member had relied on “above” that paragraph. As I have found, the dispositive section of the decision is relatively short, that is reasons [149]–[154]. It is not possible to say that the reasoning in [154] was so unrelated to the overall decision so as to not have affected the result. On its face, [154] does appear inextricably linked with that which went before it.
In the circumstances, the Certificate of Determination dated 17 July 2023 is revoked.
I remit the matter to the Workers Compensation Division to be heard and determined by another Member.
Judge Phillips
PRESIDENT
21 June 2024
19
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