The Star Entertainment Group Ltd v Antoniak - [2024] NSWPICPD 37

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICPD 37
Decision Date: 21 June 2024

CaseChat Overview and Summary

The Star Entertainment Group Ltd appealed against a decision of the Full Bench of the Commission, which had affirmed a decision of Arbitrator Wynyard. The dispute centred on whether The Star Entertainment Group Ltd could invoke Anshun estoppel to prevent Mr. Antoniak from claiming weekly benefits compensation in a workers' compensation matter, after he had discontinued his claim for weekly benefits in earlier proceedings. The Court was required to determine whether the principles of Anshun estoppel applied to prevent Mr. Antoniak from re-litigating the claim for weekly benefits compensation, and whether the reasons provided by the Commission were adequate in light of the estoppel principles. The Court also needed to consider whether the Commission's approach to the procedural rules and the application of Anshun estoppel was correct.

The Court examined the principles of Anshun estoppel, noting that the estoppel applied to prevent a party from asserting a claim that was inconsistent with a prior decision in which the party had not pursued a particular argument or claim. The Court found that the Commission had erred in its application of Anshun estoppel by considering the procedural rules of the Commission rather than the common law principles. The Court held that the Commission's reasoning was inadequate because it had failed to properly consider the principles of Anshun estoppel as established in Fourmeninapub. The Court also found that the Commission's decision to reject The Star's submission on partial discontinuance of claims had confirmed an error similar to that identified in Kirk. The Court concluded that the Commission's approach to the procedural rules did not displace the common law principles of Anshun estoppel, and that the Commission's reasoning was flawed.

The Court set aside the decision of the Full Bench of the Commission and remitted the matter for reconsideration in light of the Court's findings. The Court emphasised that the Commission must adhere to the principles of Anshun estoppel and provide adequate reasons for its decisions, particularly in cases involving the application of estoppel principles. The Court also highlighted the importance of the Commission acting according to equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms, as required by the relevant statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.” 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].

Ratio Decidendi

Legal Principle Established

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