DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

	
CITATION:	Miller v Secretary, Department of Communities and Justice (no 9) [2021] NSWPICPD 29	
		
FIRST APPELLANT:	David Miller	
		
SECOND APPELLANT:	Terren Tuhi	
		
RESPONDENT:	Secretary, Department of Communities and Justice 	
		
INSURER:	QBE TMF	
		
FILE NUMBER:	A2-2472/19	
		
PRESIDENTIAL MEMBER:	Deputy President Michael Snell	
		
DATE OF APPEAL DECISION:	23 September 2021	
		
ORDERS MADE ON APPEAL:	1.	To the extent that it is necessary, the employer’s identity is amended wherever appearing in the current proceedings, to be ‘Secretary, Department of Communities and Justice’ consistent with the order of the President made on 17 June 2020 in Miller No. 5.

2.	The time for making an appeal is extended to 8 February 2021.

3.	The decision of Arbitrator Harris dated 8 January 2021 is confirmed.	
		
CATCHWORDS:	WORKERS COMPENSATION – Extension of time pursuant to Part 16.2 of the Workers Compensation Commission Rules 2011; application of estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellants:	
	Mr J Wilson, counsel	
	Stacks Law Firm	
		
	Respondent:	
	Mr L Morgan, counsel	
	Moray & Agnew Lawyers	
		
DECISION UNDER APPEAL		
		
MEMBER:	Mr J Harris	
		
DATE OF Member’s DECISION:	8 January 2021	

INTRODUCTION AND BACKGROUND
1.	The tragic factual background to this appeal is relatively uncomplicated and can be set out briefly. The following is taken from the decision of the President, Phillips J, in Secretary, Department of Communities and Justice v Miller.  The late Moori Miller (Ms Miller/the deceased) was employed by the Department of Communities and Justice (the employer) at Nynghana Home Care at Brewarrina, in north western New South Wales. The service provided transport for clients to attend medical appointments. Ms Miller had suffered from asthma for the whole of her life. Ms Miller’s duties as a co-ordinator were largely administrative, but she also carried out driving duties from time to time if other drivers were unavailable. On 14 April 2011, Ms Miller drove a community bus from Brewarrina to Dubbo, transporting clients to medical appointments. In the afternoon she made the return journey, bringing the clients back towards Brewarrina. 
2.	When the bus was between Nevertire and Nyngan Ms Miller experienced an asthma attack with breathing difficulties, coughing and gasping for air. After a time she pulled over. A following vehicle realised that Ms Miller was in difficulty and also pulled over. Its driver was Craig Holman, an off-duty ambulance officer. He pulled Ms Miller from the driver’s seat in the bus; she had lost consciousness by this point. Mr Holman considered that Ms Miller was in cardiac arrest and began CPR. Mr Holman contacted the police who attended at the scene with a doctor and nurse from Nyngan Hospital. Resuscitation attempts continued. The Fire Brigade and an ambulance attended. Ms Miller was taken by ambulance to Nyngan Hospital. Resuscitation attempts continued without success. Ms Miller was pronounced dead at 6.23 pm. 
3.	This claim is brought by David Miller (Mr Miller) who was Ms Miller’s husband, together with Terren Tuhi (Mr Tuhi), Ms Miller’s son, who claim the applicable benefits pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act) in respect of Ms Miller’s death. Where it is appropriate to refer to Mr Miller and Mr Tuhi collectively I will describe them as the claimants/appellants. The history of the litigation relating to the claim is lengthy.
THE PROCEEDINGS TO DATE
4.	The appeal before me is from a decision of Arbitrator Harris made on 8 January 2021. The Arbitrator’s reasons referred to the various decisions before he dealt with the matter, described as Miller No. 1 through to Miller No. 7. I will use the same nomenclature as Arbitrator Harris. On that basis the decision of Arbitrator Harris which is under appeal will become Miller No. 8. 
5.	The first three decisions were made in matter no. 5831/16 (the initial proceedings). Because of the matters raised by way of defence in matter no. 2472/19 (the current proceedings) it is necessary to set out in some detail the basis on which the original proceedings were dealt with in Miller No. 1, Miller No. 2 and Miller No. 3. 
Miller No. 1
6.	Miller No. 1 was a decision of Arbitrator Batchelor made on 21 March 2017. Mr Miller was the applicant in the proceedings and Mr Tuhi was named as a respondent. The Arbitrator in those proceedings described the basis of Mr Miller’s argument on ‘injury’:
“[Mr Miller’s] case rests on the proposition that if the deceased had been at her place of work in Brewarrina when she first started to experience symptoms of an asthma attack on 15 April 2011, and not driving the bus as it left Nevertire on its way to Nyngan and Brewarrina, she would have availed herself of treatment options for her condition in Brewarrina. These treatment options were: 
(a) 	using a puffer which she would have had available to her at her place of employment, this place being a ‘controlled environment’ … and one where she carried out her normal day-to-day duties as an employee of the respondent; 
(b) 	returning to her home in Brewarrina, submitted to be a two minute drive of which I was asked to take judicial notice, to use a puffer at home, or alternatively, ventolin or a nebuliser; 
(c) 	attend a pharmacy in Brewarrina which again was submitted to be close by, or 
(d) 	take herself to the Brewarrina Hospital at 60 Doyle Street which was submitted to be a three minute drive from her place of employment, another fact of which I was asked to take judicial notice.”
The Arbitrator described the liability issue before him as:
“Was the deceased’s employment with the [employer] a substantial contributing factor [to] the aggravation, acceleration, exacerbation or deterioration of the disease injury from which the deceased suffered, in accordance with s 4(b)(ii) of the 1987 Act prior to its amendment by the Workers Compensation Legislation Amendment Act 2012?”
7.	Arbitrator Batchelor said that Ms Miller’s “injury was a pre-existing medical condition which was not aggravated by her employment”. The Arbitrator concluded:
“Having regard to all of the evidence I find that [Mr Miller] has not, on the balance of probabilities, discharged the onus of proof on him to show that the deceased’s employment was a substantial contributing factor to the injury suffered by her in the course of her employment on 15 April 2011.”
Miller No. 2
8.	There was an award in the employer’s favour. This decision was the subject of a Presidential appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which was dismissed by Parker ADP in a decision dated 1 September 2017. All of the eleven pleaded grounds of appeal failed. At the conclusion of his decision, dealing with a ground that went to how the Arbitrator dealt with the medical opinion evidence, the Acting Deputy President said:
“… the opinions do not address the fundamental requirement under ss 4 and 9A, namely, that the relevant injury was the aggravation of the pre-existing asthmatic condition. To that aggravation, employment was not a substantial contributing factor, indeed, the employment activities were of no significance at all.”
And:
“As the Arbitrator says, in my view correctly:
‘110. 	... The location of events may have been a substantial contributing factor to the deceased’s death; it was not a factor to her injury.
...
112. 	In this case the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment.’”
Miller No. 3
9.	The matter was appealed to the Court of Appeal pursuant to s 353 of the 1998 Act. In a decision dated 12 July 2018 the appeal was dismissed. Their Honours said:
“11. 	Before the Arbitrator, the [employer] opened the case on the basis that ‘the issue is whether or not the relevant passing – unfortunate passing of the deceased is an injury to which the [deceased’s] employment was a substantial contributing factor’. On no view can that be correct, having regard to the terms of s 25. Compensation is only payable if ‘death results from injury’. The death cannot be the injury.
12. 	Counsel for [Mr Miller] said that ‘[Mr Miller] relies on s 4(b)(ii) in relation to the fact that the applicant had a disease which was the asthma, there was an aggravation, acceleration or deterioration of that disease’.”
10.	Dealing with how the case was presented on Mr Miller’s behalf their Honours observed:
“To anticipate what follows, in this Court, at the forefront of [Mr Miller’s] submissions was that the ADP had failed to identify error in the decision of the Arbitrator when the arbitrator himself failed to address whether the injury was the exacerbation of the asthma attack or the anoxia or the cardiac arrest. The short point, as the respondent submitted, was that that case did not form part of any of the 11 alleged errors raised before the ADP or in the written submissions in support (there was no oral hearing). Accordingly, there was no error, still less any error in point of law, in failing to make findings in accordance with a case which was not put to the ADP.”
11.	Their Honours referred to the grounds raised by Mr Miller on the Presidential appeal and said: “It will be seen that nowhere was any challenge made to the approach taken by the Arbitrator that the ‘injury’ was the deceased’s asthma which had been aggravated or exacerbated when she suffered the asthma attack around the time her bus was leaving Nevertire.” Their Honours went on to say:
“29. 	The short answer to all grounds of appeal is as was said by the [employer]:
‘[Injury] wasn’t ever put in a different fashion. It was never put, either to the Arbitrator or to the Deputy President, that there was an injury simpliciter in the form of a cardiac arrest or anoxia which was the injury which was to be determined by the Arbitrator.’
30. 	That fairly describes the entirety of the proceeding before the ADP. There is ordinarily no error, still less any error of law, in failing to address a case which has not been put.”
12.	The Court also referred to the pleading of ‘injury’ in the Application to Resolve a Dispute, which included reference to “cardiac arrest and [death] due to the remoteness of the location and critical medical attention not being received”. Their Honours said: “It is one thing to describe the mechanism of death, it is another thing entirely to identify the injury”. It was noted the injury for the purposes of the claim “was clarified in the parties’ oral addresses to the Arbitrator”.
13.	The Court said that “it should not be thought that the outcome in this Court would be otherwise if the appeal were less narrowly confined than it is”. Their Honours referred to the causation issue requiring “a counterfactual analysis as to what could have occurred if the asthma attack had commenced while the deceased was in Brewarrina”. It was noted that, on unchallenged findings of the Arbitrator, Ms Miller continued to drive the bus for 25 to 30 minutes after the onset of the asthma attack and only pulled over when asked by one of the passengers. At that stage “there was a very short period, of a matter of a few minutes, within which her life could be saved”. During the previous 25 to 30 minutes she “had taken no steps to address her condition”. She had not used Ventolin, which she had on her. There were two nurses in the vehicle with her. Their Honours referred to “the force of the conclusion by the Arbitrator that he could not be satisfied that the assumptions that the deceased immediately recognised the seriousness of the attack and would have been able, had she been in Brewarrina, to get herself to the hospital in time, could be made out”. Mr Miller’s appeal failed.
Miller No. 4
14.	The current proceedings were commenced by Mr Miller on 22 May 2019. On this occasion Ms Miller’s son, Mr Tuhi (who was a respondent in the initial proceedings) was also named as an applicant. On this occasion the “Cause of Injury” and the description of “how the injury occurred” were described as follows:
“1. 	The deceased suffered anoxia. 
2. 	The deceased suffered a cardiac arrest. 
3. 	The anoxia and/or the cardiac arrest is a personal injury pursuant to section 4(a) of the Act and arose out of or in the course of her employment. 
Further, or in the alternative, we are instructed to make a claim for death benefits under the provisions of Section 25 of the Workers Compensation Act 1987 as amended for the death of Ms Moori Miller arising from an injury pursuant to section 4(b) of the Act as follows: 
1. 	The deceased was suffering from asthma, which is a disease. 
2. 	The ‘aggravation, acceleration, exacerbation or deterioration’ of the asthma (the disease injury) was the worsening of the asthma symptoms and the anoxia, which caused the cardiac arrest. 
3. 	The aggravation of the disease was caused when the effects of the disease were increased by external stimulus, in this case, the unavailability of necessary medical treatment by reason of the location at which the deceased was required to work. 
4. 	The location of the deceased’s employment gave rise to an inability on her behalf to access medical aids and treatment when she suffered an asthma attack which was a substantial contributing factor to her suffering the injury (the anoxia and/or the cardiac arrest).”
15.	The employer relied on a s 78 notice dated 17 January 2019 which, amongst other things, provided:
“Statement of matter/s in dispute 
The evidence indicates that: 
• 	The deceased’s death did not result from an injury within the meaning of s 4 of the Workers Compensation Act 1987; 
• 	In the alternative, the deceased’s employment was not a substantial contributing factor to any injury alleged (see s 9A of the Workers Compensation Act 1987); and 
• 	Further and in the alternative, this claim cannot be maintained by reason of estoppel(s) including an issue estoppel, or in the alternative a res judicata estoppel, or in the alternative an estoppel in the nature of that described by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45, or in the alternative a privity of interest estoppel, created by: 
• 	the determination of Arbitrator Brett Batchelor dated 21 March 2017 in WCC 5831/16; or in the alternative 
• 	the determination of Acting Deputy President Geoffrey Parker SC dated 1 September 2017 in WCC A1- 5831/16; or in the alternative 
• 	the determination of the NSW Court of Appeal dated 12 July 2018 (bearing medium neutral citation [2018] NSWCA 152).
		Issues relevant to the dispute 
		Whether the deceased’s death resulted from an injury within the meaning of s 4; 
Whether the deceased’s employment was a substantial contributing factor to any injury alleged to have resulted in her death; and 
Whether, as a matter of law, this further claim can be maintained by reason of estoppel(s) created by the determinations outlined above.”
16.	The current proceedings were heard by Arbitrator Wynyard on 29 August 2019. There were no applications to take oral evidence. Both counsel addressed and the Arbitrator reserved his decision. A Certificate of Determination and accompanying reasons were issued on 11 October 2019. The Arbitrator set out the pleadings of ‘injury’ made in the initial proceedings and in the current proceedings. He summarised the reasons of the Court of Appeal in Miller No. 3 and of Acting Deputy President Parker in Miller No. 2. The Arbitrator noted the change in how the ‘injury’ was pleaded in the two sets of proceedings. He said that the alleged injury was no longer “the severe asthma attack” but rather “the anoxia and the cardiac arrest”. The Arbitrator noted the further evidence that was rejected by Parker ADP in Miller No. 2 was now included in the material lodged in support of the current proceedings. He noted the allegation that Ms Miller would more likely than not have survived her asthma attack had her employment not taken her “away from her normal work place”. 
17.	Arbitrator Wynyard summarised the medical and related evidence, including that which did not form part of the initial proceedings (the further evidence). He noted the application for admission of the further evidence was rejected by Parker ADP on the basis it was not relevant to the injury allegation made in the initial proceedings, being the aggravation, exacerbation, acceleration or deterioration of Ms Miller’s asthmatic condition. Arbitrator Wynyard said this evidence was “relevant before me however as the issue is now whether the deceased’s anoxia and cardiac arrest arose out of or in the course of her employment”.
18.	The Arbitrator referred to the further evidence. He described a report from Dr Jennings dated 4 August 2017, in which the doctor was asked to assume the asthma attack occurred whilst Ms Miller was in her office in Brewarrina, that before she reached a critical state she would have attended her general practitioner or the Brewarrina Hospital and that the hospital would have had the necessary resources to treat her. The doctor was asked to comment on whether Ms Miller would have survived making those assumptions. He described this as difficult to answer. He said that if Ms Miller had received appropriate treatment in a timely manner she may not have deteriorated to cardiac arrest and might have survived. 
19.	The Arbitrator referred to reports from Professor Fulde, an expert in emergency medicine. The doctor assumed that the asthma attack began some 40 minutes before Ms Miller pulled over to the side of the road. The Arbitrator described the doctor’s opinion that Ms Miller, if the attack occurred while she was in her office in Brewarrina, would have had access to “several health carers in easy proximity”. He said that if the attack had occurred while Ms Miller was in her office in Brewarrina, on the probabilities she would not have deteriorated suffering a cardiorespiratory arrest and would have survived her asthma attack. The Arbitrator referred to a statement of Heather Finlayson, the Health Service Manager at Brewarrina Hospital. She said that on 15 April 2011 the hospital had a doctor on call, and had emergency equipment including a defibrillator, oxygen, adrenaline and salbutamol. She said that if Ms Miller had attended the hospital on 15 April 2011 she would have been treated using this equipment. 
20.	The Arbitrator referred to additional evidence put on by the employer in the current proceedings. There was a report of Associate Professor Joseph, a specialist in emergency medicine, dated 13 April 2016. That doctor said the first ‘000’ call was at 16:32 hours, and Ms Miller blacked out a few minutes later. The doctor said that she was in cardiorespiratory arrest at that time. Once she suffered cardiopulmonary arrest her chances of survival would have been “very low or negligent [sic, negligible]”. The Arbitrator referred also to a report from Professor Keogh, a cardiologist, who considered that with an earlier arrival by ambulance Ms Miller would still have died. 
21.	Arbitrator Wynyard referred to a decision of the President, Phillips J, in Fourmeninapub Pty Ltd v Booth. He reproduced a number of passages from authorities on estoppel and res judicata that were referred to by the President in that decision. He noted the President found that the principle of issue estoppel did not apply in that matter, because the cause of action decided in the first proceedings (injury pursuant to s 4(a) of the 1987 Act) was different to the cause of action alleged in the second proceedings (injury pursuant to s 4(b)(ii) of the 1987 Act). It was found that the elements of res judicata were absent. The Arbitrator referred to the President’s consideration of the issue of Anshun estoppel in that matter. The President concluded that the available evidence, when the earlier proceedings were brought by the worker, was insufficient to alert the worker that she could have suffered a disease injury within s 4(b)(ii). The Arbitrator said the same issues arose in the current proceedings. 
22.	Arbitrator Wynyard said that Anshun estoppel is discretionary, the question was whether Mr Miller unreasonably refrained, in the initial proceedings, from relying on the claim brought in the current proceedings.
23.	The Arbitrator said this could be answered, to some extent, by the refusal of Parker ADP to admit the further evidence on which Mr Miller sought to rely in Miller No. 2. It was refused on the basis that it was not relevant to the allegation of injury by way of aggravation of Ms Miller’s disease of asthma. That evidence having been excluded, Arbitrator Wynyard said Mr Miller was unable to pursue the alternative claim that the ‘injury’ was one consisting of anoxia and cardiac arrest, to which the remote location was a substantial contributing factor. Arbitrator Wynyard referred to the “counterfactual” analysis in which the Court of Appeal engaged in Miller No. 3. He said the factual conclusion in that analysis was that there was only “a very short period, of the matter of a few minutes”, within which Ms Miller’s life could have been saved. The Arbitrator said the “counterfactual scenario”, considered by Parker ADP and the Court of Appeal, “was concerned only with that period”. He said that a “counterfactual analysis as to whether the deceased could have spent that 30 or so minutes having effective treatment, had she been in Brewarrina, was a matter of conjecture”. The Arbitrator said that the evidence in the initial proceedings “did not deal with this scenario” as it was directed to the question of aggravation of the asthmatic condition. The Arbitrator concluded on this point:
“Accordingly, there was an absence of medical evidence before Arbitrator Batchelor to support the present claim, which is based on the occurrence of a personal injury pursuant to s 4(a), namely the cardio-pulmonary arrest. This evidence was supplied in the present case, which I now turn to.”
24.	The Arbitrator dealt with the medical opinion in the further evidence (see [17] to [20] above) and concluded:
“I am satisfied that, had the deceased suffered her asthma attack whilst she was in her office at Brewarrina 30 minutes before she suffered her cardio-pulmonary arrest, she would probably have survived. I accept the evidence of Dr Jennings and Professor Fulde, which indeed accords with common sense, in that regard. The place of the injury, being in a remote location following her driving in the course of her employment from Brewarrina to Dubbo and thence through Nevertire to a point about 10 km from Nyngan, was a substantial contributing factor to her cardio-pulmonary arrest. The location deprived the deceased of the opportunity to have either the means or the time to avail herself of appropriate treatment.” 
The Arbitrator said that the onus lay on the employer to establish an estoppel on the basis of Anshun. He said:
“118. 	I was not assisted by Mr Morgan’s appeal to logic. Whilst the manner of the deceased’s death could be described as a progression from the onset of the asthma attack to the anoxia and cardiac arrest, the mere fact that the proceedings are closely related is insufficient. Whilst the location of the deceased’s cardiac arrest was found not to be a contributing factor to the onset of the asthma (as the asthma was not related to employment) it was a factor in the injury that has now been pleaded, that is to say, the anoxia and cardiac arrest. 
119. 	The fact that the deceased was driving the respondent’s van as part of her employment when she suffered her injury was a substantial contributing factor to that injury. I am satisfied that, as indicated, the deceased would have survived her attack had she been in her office at Brewarrina.
120. 	Mr Morgan relied on the findings in matter 5831/16 regarding the counterfactual assumptions that had not been established on the evidence in that matter. As indicated, there was an absence of medical evidence in that matter required to support the s 4(a) claim that was before me. I have the additional evidence to which I have referred which was not part of the earlier matter. 
121. 	Further, my determination is not inconsistent with that of Arbitrator Ba[t]chelor in respect of the same transaction, that is, they do not conflict. Each is concerned with a different injury which arose from that transaction, namely the death of Mrs Miller. The mere fact that the two proceedings are closely related is insufficient to establish an Anshun estoppel.”
Miller No. 5
25.	The employer appealed from the decision of Arbitrator Wynyard. The employer sought that its identity be amended to be ‘Secretary, Department of Communities and Justice’. The President, Phillips J, who dealt with the Presidential appeal in Miller No. 5, made orders to that effect. That amendment is not reflected in some of the documents subsequently lodged and/or issued in these proceedings. To the extent that it is necessary, the employer’s identity is amended wherever appearing in the current proceedings to be consistent with the order of the President referred to in this paragraph. 
26.	The President summarised the issues, evidence and decisions in Miller Nos. 1, 2, 3 and 4. He set out the principles governing appeals pursuant to s 352 of the 1998 Act. There were three grounds raised. The first was that the Arbitrator erred in finding that Messrs Miller and Tuhi (who I will refer to as ‘the claimants’ in Miller No. 5) were not estopped, through operation of the principles of res judicata or issue estoppel, from pursuing the further claim, in the current proceedings, in respect of the death of Ms Miller. The second was that the Arbitrator erred in finding in favour of the claimants contrary to the evidence and in the absence of adequate reasons. The third was that the Arbitrator failed to properly apply the principles in Anshun.
27.	Dealing with the first of these grounds, the President quoted from a number of authorities which dealt with the principles governing res judicata and issue estoppel. His Honour said that it was firstly necessary to identify the nature of the case that was conducted in Miller No. 1. He said that the pleading of ‘injury’ in the initial proceedings was “singularly unhelpful”, a problem also identified by the Court of Appeal in Miller No. 3. The President said that Mr Miller, in the initial proceedings, relied on an allegation of ‘injury’ being the aggravation, acceleration or deterioration of a disease, asthma, for the purposes of s 4(b)(ii) of the 1987 Act. He said that in the current proceedings “whilst the facts remained the same … the case was pleaded differently”. He said that it was now alleged “that the anoxia or cardiac arrest suffered by the deceased was a personal injury pursuant to s 4(a) of the 1987 Act”. 
28.	Dealing with res judicata, the President said that claims pursuant to s 4(a) and s 4(b) were “separate and distinct causes of action”, referring to his own decision in Booth. His Honour said that the claim pressed in the current proceedings had not “passed into judgment in the proceedings before [the first Arbitrator]”. He concluded that the employer’s first ground of appeal, insofar as it relied on res judicata, failed. 
29.	The President dealt with the issue estoppel argument. He noted the employer’s argument that there was a clear issue estoppel on the issue of the remoteness of Ms Miller’s location. He noted Arbitrator Wynyard’s finding that the two causes of action were different and therefore no issue estoppel arose. The President also referred to an argument on the claimants’ part that the parties were not the same in the initial and current proceedings, as Mr Tuhi was not a party to the initial proceedings. The President referred to the alternative proposition that Mr Tuhi was Mr Miller’s privy in the initial proceedings. He said there was no argument on this topic and there was no developed submission regarding whether there was “a relevant divergence” between Mr Miller’s position and that of Mr Tuhi, for the purposes of any potential issue estoppel. 
30.	The President concluded that Arbitrator Wynyard had not “grappled with the issue estoppel question” that was raised by the Department. He said the matter “needs to be remitted to another arbitrator to be redetermined with properly developed submissions”. His Honour said that the issue of “Mr Tuhi’s position” could then also be ventilated. 
31.	The President dealt with Ground No. 2, describing the essence of the ground as being that the Arbitrator should not have given the weight which he did to the reports of Dr Jennings and Professor Fulde. He said there was an attack on the assumptions on which these opinions were based. His Honour said there was a basis for each of the three assumptions on which these doctors relied. He accepted the claimants’ submission that the ground did not raise any estoppel flowing from Miller No. 3. He said that no submissions made good the allegation that the reasons were inadequate. Error was not made out and Ground No. 2 failed. 
32.	Dealing with Ground No. 3, the President quoted from the decisions in Anshun and Habib v Radio 2UE Sydney Pty Ltd. His Honour said that, in matters before the Commission, it was necessary that Anshun be considered in the context of the statutory framework. His Honour said that there are public policy interests in the finality of litigation and avoidance of conflicting judgments. Both a defendant, and the court or tribunal entertaining the dispute, should not be burdened with having to determine disputes arising from a common substratum of facts twice in the same cause. His Honour said that “Anshun estoppel is available for deployment in matters before the Commission”. He noted a submission by the claimants that Anshun involves “matters that are inherently discretionary and involve evaluative [judgment]”. He noted the claimants’ submission that an appeal on this basis involved error of the kind in House v The King, which it was submitted the Department had not attempted to demonstrate.
33.	The President said that the Department’s main complaint was that the initial proceedings and the current proceedings were “so close that they should have been pursued in the earlier proceedings … the same death benefit is sought in both proceedings arising from the same factual circumstances.” The President referred to the following statement of principle by Arbitrator Wynyard, which he described as “succinct and entirely uncontroversial”: 
“… the relevant enquiry is as to whether [Mr Miller] unreasonably refrained from including it in the proceedings before Arbitrator Batchelor. The question involves consideration of whether, having regard to the first claim and its subject matter, it would be expected that Mr Miller would have included the present claim and thereby enabled the relevant issues to be determined in the one proceeding.”
34.	The President said:
“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.”
35.	The President referred to the following statement of principles by Neilson CCJ in Bruce v Grocon, saying it “neatly summarised” the authorities:
“(a) 	the principle in the Port of Melbourne Authority v Anshun Pty Ltd 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.”
36.	The President said that Arbitrator Wynyard’s rejection of the Anshun defence was made “essentially on two bases”. The first was that “the mere fact that the proceedings are closely related is insufficient”. The second was the “additional medical evidence … which has figured highly in the learned Arbitrator’s decision”. Arbitrator Wynyard noted the further evidence was not available in the original proceedings to support a claim pursuant to s 4(a) but was available in the proceedings before him. The President described this statement as correct, but said it was “not the end of the matter”. His Honour said it was then necessary to explore “the evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”. The President said that the Arbitrator failed to “undertake this consideration”. 
37.	The President said that there should have been an inquiry regarding whether it was unreasonable not to have advanced a case pursuant to s 4(a) in Miller No. 1. This would entail consideration of what was known to Mr Miller and his legal advisers at that time and an evaluative judgment of whether the failure to then advance the s 4(a) case was unreasonable. 
38.	The President said that “the following was available in Miller No. 1”:
(a)	the injury pleading in the Application referred to cardiac arrest and death as a result of suffering the asthma attack due to the remote location and failure to receive critical medical attention;
(b)	a certificate of Dr Abbas that Ms Miller had a cardio-pulmonary arrest;
(c)	Dr Jennings’ report dated 8 October 2015 described the asthma attack as a substantial contributing factor to Ms Miller’s death. It said that “[i]f the narrowing of the airways is severe, and goes untreated, the body’s tissues become ‘hypoxic’ (deprived of adequate oxygen supply) which may lead to cardiac arrest”, and
(d)	the Coroner’s finding dispensing with an inquest “attributes the direct cause of death as being ‘anoxia’ due to antecedent causes, ‘severe asthma attack’”.
39.	His Honour said that the above material “was all available to the [claimants] and their advisers prior to the commencement of the 2016 proceedings”. He said that “[n]o issue appears to have been taken regarding the progression of events from the onset of the severe asthma attack, the consequent anoxia and cardiac arrest”. He said that the “similarity of the proceedings in and of themselves is not determinative but it is certainly a factor that needs to be evaluated”. The President said that this issue “will need to be properly prepared and explored”. He said the matter required remittal to another arbitrator for re-determination so the Anshun issues could be properly considered and addressed. He said that in rejecting the Anshun argument, the Arbitrator failed to apply the test which he properly set for himself in his reasons at [104] (see [33] above).
40.	The President distinguished his own decision in Booth, which dealt with Anshun. He said that in Booth there was no evidence, at the time the first proceedings were filed, which would have put the worker or her advisers on notice of a psychiatric condition which had not yet materialised. His Honour said that this contrasted with the current matter, in which the events of 15 April 2011 were “well known to the parties and their representatives”. The President concluded that the Arbitrator, in failing to “conduct the enquiry” referred to in his reasons at [104], had “acted upon a wrong principle in a House v The King sense.”
41.	The President also referred to the argument advanced by Mr Tuhi in Miller No. 5 that he was not a party in Miller No. 1 or the subsequent appeals, that he was not Mr Miller’s privy, and that he was not bound by the manner in which Mr Miller conducted the proceedings. The President said this had not been raised before Arbitrator Wynyard at first instance. His Honour said that he was remitting the matter in any event, if the argument was to be seriously pursued it could be explored on the remitter. The matter was remitted to another Arbitrator to be dealt with in accordance with the reasons. 
Miller No. 6
42.	The matter was remitted to Arbitrator Harris. After conducting a telephone conference, the Arbitrator issued a Certificate of Determination dated 1 July 2020. The Certificate of Determination said the parties did not agree on the effect of the orders made in Miller No. 5, and whether the issues of s 4(a) and s 9A had been decided or whether they remained in issue for determination on the remitter. It said the claimants were to lodge an Application for Reconsideration of the decision in Miller No. 5 and it was appropriate that this be determined before the matter proceeded further. A reconsideration application was filed by the claimants on 12 August 2020. 
Miller No. 7
43.	The President reconsidered the decision in Miller No. 5, and amended Order No. 3 of his previous orders so that it provided:
“3.	The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons, and limited to determining the appellant’s claims in respect of:
(a) 	issue estoppel
(b)	Anshun estoppel.”
Miller No. 8
44.	This is the decision with which I am required to deal in the current appeal. In those circumstances the decision of Arbitrator Harris is summarised in some detail. An arbitration hearing was held on 1 December 2020. Mr Wilson appeared for the claimants and Mr Morgan for the Department. The parties had previously lodged written submissions, Mr Morgan’s dated 7 November 2020 and Mr Wilson’s dated 27 November 2020. Arbitrator Harris noted that, during the arbitration hearing, the claimants withdrew the submission that the second applicant, Mr Tuhi, was not a party to the initial proceedings.
45.	Arbitrator Harris said that the Department carried the onus of proof in establishing a defence based on issue estoppel or estoppel on the basis of Anshun. He dealt initially with issue estoppel. He quoted from Blair v Curran. He referred in detail to the factual findings of Arbitrator Batchelor in Miller No. 1, dealing with ‘injury’. The Arbitrator noted that, in the current proceedings, the pleaded injury was “anoxia and cardiac arrest” which was found by Arbitrator Wynyard to be an injury within the meaning of s 4(a). Arbitrator Harris noted that he was bound by this finding in Miller No. 4, confirmed on appeal in Miller No. 5, that this was an injury to which the relevant employment was a substantial contributing factor. He set out Arbitrator Wynyard’s finding on the causal nexus between injury and employment in his reasons, found in Miller No. 4 at [116] of that decision (set out at [24] above). 
46.	Arbitrator Harris described that finding as apparently expressed in terms of satisfaction of s 9A, and said it referred to employment being a ‘substantial contributing factor’ to the cardio-pulmonary arrest. The Arbitrator said this could be “distinguished from the finding in Miller No. 1 which concerned the causal nexus between the place of work and the injury then pleaded”. The Arbitrator quoted from the discussion of principle by McColl JA in Habib dealing with issue estoppel, and referred to Kuligowski v Metrobus, where it was said that “[t]he issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case”. He noted the High Court in that case referred to “the strict requirements for the application of issue estoppel”.
47.	The Arbitrator rejected the employer’s submission that the asthma attack and the cardiac arrest were the same injury, describing this as “factually incorrect” and inconsistent with its submissions in Miller No. 3. He said the finding in Miller No. 1 was in respect of a “different injury occurring at a slightly different time” to that alleged in the current proceedings. The issue estoppel defence was unsuccessful.
48.	Arbitrator Harris then dealt with Anshun estoppel. He noted the employer referred to Bruce v Grocon, quoted by Phillips P in Miller No. 5. He noted the employer’s reference to the current proceedings seeking “the same entitlement … arising out of the same fact circumstance and relating to the same compensation”. The employer submitted a conscious decision was made not to pursue the allegation based on s 4(a) in the initial proceedings, and this was unreasonable having regard to the benefits of finality of litigation and other matters identified by the President in Miller No. 5. It submitted that the onus had shifted to the claimants to explain why it was not unreasonable to pursue the claim in the current proceedings, and no evidence was adduced as to why the s 4(a) cause of action was not pursued in the initial proceedings. The employer referred to the description on the claimants’ part, in Miller No. 1, to the asthma attack narrowing the airways, depriving the body tissues of oxygen supply, which “then leads to cardiac arrest”. In Miller No. 1 it was submitted on Mr Miller’s part that this “is what occurred with Moori’s [Ms Miller’s] situation”. The Department submitted that “[t]his comment showed that the claimants knew during the hearing of Miller No. 1 that [Ms Miller] suffered the s 4(a) injury that was subsequently relied upon in Miller No. 4”.
49.	The Arbitrator summarised the claimants’ submissions. They submit there may be a variety of reasons for why a party refrains from litigating an issue. Additional medical evidence was available in Miller No. 4 to support the claim pursuant to s 4(a). The onus of proof, of demonstrating that the failure to litigate the Anshun defence in Miller No. 1 was unreasonable, rests on the employer. The claimants submit the issue of unreasonableness involves a consideration of what was known to the claimants and their legal advisers, there is an evaluative element based on what a litigant could reasonably be expected to do. The claimants’ submissions refer to Champerslife Pty Ltd v Manojlovski, where Allsop P said:
“The mere fact that the matter could have been raised does not mean that it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.” (emphasis in original)
50.	The claimants submitted that what is required is “a broad, merits-based judgment which takes account of the public and private interest involved in the conduct of applications in the Workers Compensation Commission”. The claimants submitted that “the rules of evidence are not strictly applied, the legislation is ‘considered to be beneficial’”. They submitted that “most importantly the costs of conducting the hearing is governed by legal aid funded by the system which is designed to support the benefit of workers and which should not be drained by conducting expensive and over prepared litigation”. The claimants submitted they “had not acted unreasonably ‘considering the effort that has been given to this litigation’”. They referred to the medical evidence from Associate Professor Bryant and Dr Jennings that was obtained prior to the initial proceedings. It was submitted this evidence was sufficient for the claim to “succeed on its merits” and it was not reasonable to incur “a multitude of expenses in order to cover every contingency in every matter”. The claimants submitted the effect of this would be that “the system would be unfairly burdened and not be complying with the requirements under the WIRO Funding Policy”. 
51.	The claimants submitted that further expert and lay evidence (which was rejected on appeal in Miller No. 2) came into existence after Miller No. 1. This was when the issues raised by the Arbitrator in Miller No. 1 were considered. The additional evidence became “‘reasonable and necessary’ in accordance with fulfilling obligations through WIRO”. The claimants submitted that the “further evidence addressed the issue of s 9A in the context of the ‘cardiac arrest injury rather than the asthma attack injury’”. They submitted the further evidence “was not so relevant” in Miller No. 1 because it was not what was pleaded. The Arbitrator said that the claimants emphasised the difference between the allegation of injury by way of an asthma attack, and that by way of anoxia and cardiac arrest in the current proceedings.
52.	The Arbitrator quoted a substantial passage from the employer’s oral submissions in reply. It submitted that the arguments run in the current proceedings were “squarely pleaded … back in 2016”. It submitted “they ran this argument and had the material available to run this argument years ago and here we are re-litigating it.” The Department referred to the arguments put on the claimants’ part based on “WIRO funding” and submitted these were put “without any evidence to support the proposition”. The passage is reproduced at [175] below.
53.	The Arbitrator quoted from Anshun and from the decision of the President in Miller No. 5, including the summary of principles in Bruce v Grocon (quoted at [35] above). He referred to the discussion of principle by McColl JA in Habib. He noted the error identified by the President in Miller No. 5 was a failure to consider “the evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”.
54.	The Arbitrator said he accepted the employer’s submission that the claimants’ legal representatives knew, in the initial proceedings, that Ms Miller suffered cardiac arrest as a s 4(a) injury in the course of her employment. The Arbitrator referred to the transcript of the arbitral hearing in Miller No. 1 where it was submitted on Mr Miller’s behalf:
“The other - just from a general point of view I take that the urgency of the need for someone who’s suffering an asthma attack and I take you to page 4 of Dr Jennings's report at page 258 of the ARD where he outlines just from an input point of view what occurs when someone is having an asthma attack which can be summarised as being the narrowing of the airways. The body tissues become hypoxic which is being deprived of oxygen supply which then leads on to cardiac arrest and that is what occurred with [Ms Miller’s] situation and which then the cause of death being anoxia which is total deprivation of oxygen.” 
55.	Arbitrator Harris said that the above passage from the submissions in Miller No. 1 was raised in submissions before him, on the issue of whether the claimants knew about the occurrence of a s 4(a) injury at the time of Miller No. 1. The Arbitrator said that the claimants did not then address the point, but rather submitted that different injuries were alleged in the two sets of proceedings. The Arbitrator referred to the summary by the President, in Miller No. 5, of the evidence that was known to the claimants at the time Miller No. 1 was being prosecuted (see [38] above). The Arbitrator adopted that summary. The Arbitrator said that evidence “established that [Ms Miller] had suffered a s 4(a) injury, namely anoxia and cardiac arrest”. The Arbitrator said:
“It is otherwise a self-evident fact that the deceased was in the course of her employment driving the community transport bus from Dubbo to Brewarrina when she suffered the asthma attack. Shortly thereafter the deceased suffered anoxia and cardiac arrest and died. During this period, the deceased remained in the course of her employment.” 
56.	The Arbitrator said that the additional evidence lodged by the claimants in Miller No. 4 was summarised by the President in Miller No. 5 at [85]–[98] and he adopted that summary. He said:
“The further evidence does not essentially enlarge on whether the deceased worker suffered a s 4(a) injury but whether, had the initial asthma attack occurred in Brewarrina, the deceased worker had available medical treatment in order to survive.” 
57.	Arbitrator Harris referred to the pleading of ‘injury’ in Miller No. 1 and the Department’s letter of denial. He accepted that an allegation of injury within the meaning of s 4(a) of the 1987 Act was not made in Miller No. 1. The Court of Appeal in Miller No. 3 had described the injury pleading as “insufficient” and the alleged injury was “only clarified in oral submissions”. The Arbitrator said that injury within the meaning of s 4(a) was “not an issue in the prior proceedings because the [claimants] did not pursue the s 4(a) action, not because the denial letter disputed or did not dispute a s 4(a) injury”. 
58.	The Arbitrator referred to Anshun and the High Court’s observation in that case that there was no explanation, and no evidence led, to explain why the relevant allegation was not pursued in earlier proceedings. He noted the Department’s submission that there was no evidence regarding the “WIRO funding policy”, which was advanced by the claimants as an explanation for why the s 4(a) injury was not pursued in the initial proceedings. There was no evidence from the claimants’ solicitors that further medical reports could not have been obtained. He accepted the employer’s submission that the explanation of why the s 4(a) injury was not pursued in the initial proceedings was made “in the absence of evidence”. He said the explanation was “otherwise inconsistent with the finding that they were aware of the s 4(a) action at the relevant time and had sufficient evidence to establish it”.
59.	Arbitrator Harris summarised his reasons for accepting that the employer’s defence based on Anshun was made out:
(a)	He accepted that, at the time of making submissions in the initial proceedings, the claimants’ legal representatives were aware of the specific s 4(a) injury, in the course of Ms Miller’s employment, which was subsequently pleaded and argued in the current proceedings.
(b)	He accepted that both the initial and current proceedings involve the “same factual context in which the [claimants] seek the same relief”. 
(c)	The facts on which the employer relies to establish the defence “are established from the evidence that was served in the [initial] proceedings and what has been shown to have been known by the [claimants] when Miller No. 1 was argued”. 
(d)	He accepted that the claimants did not bear the onus of proof on the Anshun issue. He said the claimants have not produced any evidence as to why injury was argued as it was in Miller No. 1 and a different injury was raised in Miller No. 4. He said a similar observation was made by the High Court in Anshun. The claimant’s explanation that they were “not aware of the s 4(a) injury and that the further evidence was relevant to that decision does not stand up to any proper analysis”. The Arbitrator accepted the employer’s submission that the employer could not put on evidence explaining why the claimants’ legal representatives made the choice they did. 
(e)	Other submissions made by the claimants by way of explanation were made, as the employer submitted, in the absence of evidence. The claimants refer to the “need to limit ‘unnecessary and excessive disbursements’ in order to comply with WIRO’s disbursement funding policy”. The Arbitrator said this does not explain why further questions were not asked of experts in the initial proceedings to elucidate the causal connection between injury and employment. The Arbitrator said this argument did not “sit with” his conclusion that the claimants were aware of the s 4(a) injury when Miller No. 1 was argued. 
(f)	The claimants’ explanation that the evidence “came to light” after the decision in Miller No. 1 is a poor one. The reasons in Miller No. 1 were based on submissions made by the employer in those initial proceedings.
(g)	The further evidence relied on in Miller No. 4 went to the medical facilities available in Brewarrina, and to what would probably have happened if Ms Miller sought medical treatment between the onset of the asthma attack and the acute deterioration some 30 to 40 minutes later when she suffered the s 4(a) injury. This evidence went to the “causal connection as defined in s 9A between the employment and the injury”. It did not directly address the deficiency in the evidence noted in the following passage by the Court of Appeal in Miller No. 3:
“The issue of causation required a counterfactual analysis as to what could have occurred if the asthma attack had commenced while the deceased was in Brewarrina. The critical matter in the present case was that, on the unchallenged findings of primary fact, the deceased continued to drive the vehicle for 25–30 minutes after the onset of the asthma attack, and only pulled over when asked to do so by one of the passengers.”
(h)	The claimants relied on a submission that the “rules of evidence are not as strictly applied” in the Commission. The Arbitrator said it was unclear how this explained the failure to raise the s 4(a) injury in the initial proceedings. He rejected the submission that this was relevant to a consideration of Anshun in the circumstances.
(i)	The claimants relied on a submission that the “legislation is considered to be beneficial”. The Arbitrator referred to a number of relatively recent Court of Appeal and High Court decisions that declined to adopt a beneficial approach to the construction of various provisions in the New South Wales legislation; not all aspects of the legislation are beneficial to workers. The Arbitrator said that it is “otherwise unclear and was not explained by the [claimants] how a beneficial approach to construction of the legislation assists the [claimants] on this issue”.
(j)	The Arbitrator referred to s 3 of the 1998 Act. The “system objectives” include the delivery of benefits “efficiently and effectively”. He said it was not in the interests of efficiency that different allegations of injury are argued in separate proceedings. It was an inefficient application of Commission resources where the separate proceedings led to “a multitude of [appellate] decisions”. There was a public interest in the finality of litigation. The Arbitrator adopted the policy considerations discussed by Phillips P in Miller No. 5 at [187] (see [32] above). He accepted there was a competing private interest on the claimants’ part in recovering compensation entitlements. 
(k)	The Arbitrator said there was also a public interest in the avoidance of conflicting judgments. “The factual matrix clearly shows that the subject matter [of the current proceedings] was relevant to the subject matter of the [initial] proceedings as discussed in Champerslife.” The reasoning in Miller No. 1, and the discussion in Miller No. 3 in the Court of Appeal, is inconsistent with the findings on s 9A in the current proceedings. The comments of the Court of Appeal “were based on the absence of any causal connection between the employment concerned and the injury alleged”. The Court of Appeal described its conclusions in the Department’s favour as being “in the context of ‘any formulation of the injury’”. 
(l)	The Arbitrator said the findings by Arbitrator Wynyard in Miller No. 4 are “grossly inconsistent” with the s 9A finding in Miller No. 1. The findings in Miller No. 4 “had no regard nor did they explain the ‘unchallenged findings’ that [Ms Miller] took no steps in the first 30 minutes of the asthma attack to seek any treatment. This further matter illustrates the gross inconsistency between the decisions in the prior and present proceedings on s 9A of the 1987 Act.”
60.	Arbitrator Harris made an ultimate finding of fact:
“For all these Reasons, I am satisfied that it was unreasonable that the [claimants] did not pursue the s 4(a) injury in Miller No 1 and that the Anshun estoppel defence is established.”
61.	There was an award in favour of the employer.
62.	It follows from the above that the state of the current proceedings is:
(a)	The issues of ‘injury’ (pursuant to s 4(a) of the 1987 Act), ‘substantial contributing factor’ (pursuant to s 9A of the 1987 Act) and res judicata were decided in the claimants’ favour in Miller No. 4 and were not disturbed in the Presidential decisions in Miller No. 5 and Miller No. 7.
(b)	The issue that Mr Tuhi was not a party to, and was not bound by, the decision in Miller No.1 was withdrawn by the claimants in Miller No. 8.
(c)	The question of issue estoppel was decided in the claimants’ favour in Miller No. 8. That finding was not the subject of appeal.
(d)	The issue of estoppel on the basis of Anshun was decided in the employer’s favour in Miller No. 8, with the result that there was an award in the employer’s favour. That decision is challenged by the claimants in this appeal.
ON THE PAPERS
63.	Section 52(3) of the Personal Injury Commission Act 2020 (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.”
64.	Messrs Miller and Tuhi (the appellants) submit that the appeal cannot be decided solely on the basis of the written material. The employer (the respondent) submits that it can. The appellants’ submissions do not otherwise deal with the issue. They give no reasons for why an oral hearing would be desirable. The respondent submits that the appeal “can be determined on the papers but in the event the presidential member may be assisted by oral argument the respondent is able to participate”. 
65.	Anshun estoppel is the single issue remaining in dispute between the parties. That issue has been the subject of submissions in Miller Nos. 4, 5, and 8. It is the subject of written submissions by the parties in this appeal. There is no indication from the appellants that those submissions do not adequately deal with the issue nor of anything the appellants seek to deal with orally that has not been dealt with in writing. 
66.	Having regard to Procedural Directions PIC2 and WC3, 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.
THRESHOLD MATTERS
Quantum
67.	There is no dispute between the parties that the threshold requirements as to quantum pursuant to ss 352(3) of the 1998 Act have been met. 
Time
Background and submissions
68.	Section 352(4) of the 1998 Act provides that an “appeal can only be made within 28 days after the making of the decision appealed against”. The claimants sought to lodge an Appeal Against Decision of Arbitrator on the afternoon of 5 February 2021, the last day on which the appeal could be brought within time. It was rejected by the Registrar due to non-compliance with Practice Direction No. 6. The claimants corrected the non-compliance and re-lodged the appeal on 5 February 2021 at 5.08 pm. Due to the operation of r 8.1 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) which then had application, the appeal was taken to have been lodged on the next business day after 5 February 2021. The claimants properly accept that the appeal was made outside the period provided in s 352(4) of the 1998 Act and that an extension of time is required pursuant to r 16.2(5) of the 2011 Rules.
69.	It has been held that, where an appeal has been lodged out of time, with an application to extend time, prior to the relevant commencement of the 2020 Act on 1 March 2021, r 16.2(5) of the 2011 Rules has continued application. There is no argument made to the contrary.
70.	The relevant provisions in r 16.2 of the 2011 Rules provide:
“(5) 	The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) 	A party who seeks an extension of time as referred to in subrule (5) must—
(a) 	as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) 	lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
71.	The appellants state in their submissions that, following rejection of the appeal in its original form because submissions were not set out dealing discretely with each ground of appeal, the submissions were redrafted to cure this defect and forwarded to counsel. After finishing a conference, counsel advised the appellants’ solicitors that the corrected submissions could be lodged. The corrected appeal was lodged electronically at 5.08 pm, with the consequence that it was taken to have been lodged out of time.
72.	The appellants refer to a decision of Baldwin v Greater Building Society Ltd. In that case an appeal was lodged within time but rejected by the Registrar because of procedural defects. On an application to extend time the delay was insignificant, there was no prejudice and the appeal was described as arguable. Deputy President Roche extended time in the circumstances. The appellants submit the appeal raises “serious questions of law in an extremely complicated legal matter” and it is in the interests of justice that time be extended. They submit a failure to extend time would cause demonstrable and substantial injustice as they would lose the right to appeal and “be potentially deprived of a right to compensation”. They submit there is no prejudice and that exceptional circumstances exist. They submit the extension of time is consistent with a timely resolution of a dispute that has a lengthy history of arbitration hearings, determinations and appeals.
73.	The Department submits, incorrectly, that an application to proceed out of time was previously made and granted. It does not otherwise address the extension application. 
Consideration
74.	The principles stated by McHugh J in Gallo v Dawson have been frequently applied in applications to extend time to appeal in the Commission. These were summarised by Roche DP in Allen v Roads and Maritime Services as involving the need to have regard to the following:
“(a) 	the history of the proceedings;
(b) 	the conduct of the parties;
(c) 	the nature of the litigation;
(d) 	the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) 	the prospects of the applicant succeeding in the appeal, and
(f) 	upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”
75.	Additionally, a Presidential member, dealing with an application to extend time pursuant to r 16.2, is required to consider the presence of ‘exceptional circumstances’ as “a matter within jurisdiction as opposed to a precondition”. The phrase is considered in the context of the Uniform Civil Procedure Rules 2005 by Campbell JA in Yacoub v Pilkington (Australia) Ltd. That decision has been frequently applied in dealing with the extension of time pursuant to r 16.2(5) of the 2011 Rules. 
76.	The appeal came to be out of time as it was initially rejected by the Registrar due to non-compliance with Practice Direction No. 6. It has been held that “inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances”. In Yacoub it was said: 
“Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).”
“Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).”
“Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
77.	The appeal comes with a history of multiple decisions between the parties. The current proceedings involve the consideration of earlier proceedings and are necessarily complicated by the history. A point has been reached where a single issue remains on appeal, whether there was error in the conclusion of Arbitrator Harris that there was an estoppel on the basis of Anshun. The circumstances in which the appeal is brought are unusual, they are not those that are “regularly, routinely or normally encountered”. In the overall circumstances I am satisfied that ‘exceptional circumstances’ are made out. This is a factor that favours the granting of an extension of time. It does not follow from the above that ‘exceptional circumstances’ will necessarily be present in all matters that involve an extensive procedural history.
78.	The history of the proceedings favours the extension of time. It is desirable that the appeal be dealt with, concluding the matters in dispute in the Commission. There is nothing in the conduct of the parties that militates against an extension of time. The nature of the litigation, for reasons briefly referred to above, favours an extension of time. The consequences to the parties, who have both expended resources and energy over a long period getting the litigation to this stage, favour the extension. The claimant’s prospects of success on the appeal are arguable. I note the Department has a vested right to retain the decision in its favour subject to whether the extension is granted. The time by which the appeal was out of time is very short. There is no suggestion of prejudice. The interests of justice favour the extension which is sought. Time to appeal is extended to 8 February 2021. 
TRANSITIONAL MATTERS
79.	After Miller No. 8 was determined, and after the current appeal was lodged, the Workers Compensation Commission of New South Wales was abolished. The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021. The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, and Arbitrator Harris became a principal member of the Personal Injury Commission. At the time of the decision in Miller No. 8 the decision maker was an arbitrator, and I will refer to him by that title.
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
80.	Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
81.	In Raulston v Toll Pty Ltd, Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) 	An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) 	Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) 	It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
82.	In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”. The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
83.	In Northern NSW Local Health Network v Heggie, Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
84.	The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill. Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”
85.	In Cruceanu v Vix Technology (Aust) Ltd Basten JA said:
“The scope of the appeal available under s 352 does not depend upon nice distinctions between facts, law and discretion; rather, these three terms encompass the full range of functions exercisable by an arbitrator. The most important word is ‘error’. By requiring satisfaction as to the existence of an error, s 352 precludes a Presidential member upholding an appeal merely on the ground that he or she thought a different outcome was to be preferred.”
GROUNDS OF APPEAL
86.	The appellants raise the following grounds of appeal:
(a)	The Arbitrator erred in finding that the appellants did not provide any evidence as to why they chose to argue injury in the manner they did in Miller No. 1 and raise a different injury in Miller No. 4. (Ground No. 1)
(b)	The Arbitrator erred in finding that there was no evidence advanced by the appellants as to why the course was taken not to argue the s 4(a) injury in the prior proceedings. (Ground No. 2)
(c)	The Arbitrator erred in finding that the explanation that the appellants were not aware of the s 4(a) injury and that the further evidence was relevant to that decision did not stand up to any proper analysis. (Ground No. 3)
(d)	The Arbitrator erred in finding that the respondent could not file evidence explaining as why the appellants were unable to provide evidence in the earlier proceedings, and that it was unreasonable not to do so. (Ground No. 4)
(e)	The Arbitrator erred in rejecting the appellants’ submissions that the “rules of evidence are not as strictly applied” in the Commission as relevant to the consideration of the Anshun principle. (Ground No. 5)
(f)	The Arbitrator erred in rejecting the appellants’ submission that the “legislation is considered to be beneficial” to the consideration of the Anshun principle. (Ground No. 6)
(g)	The Arbitrator erred in deciding that both proceedings relate to the same factual circumstances involving similar causes of action. (Ground No. 7)
(h)	The Arbitrator erred in finding that the appellants knew at the time of Miller No. 1 that the deceased suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest. (Ground No. 8)
(i)	The Arbitrator erred in finding that the factual matrix showed that the subject matter was relevant to the subject matter of the prior proceedings as discussed in Champerslife. (Ground No. 9)
(j)	The Arbitrator erred in failing to take into account and refer to the obligation to conduct proceedings according to law, with due regard to equity, good conscience, and the substantial merits of the case. (Ground No. 10)
87.	The employer, in its submissions, states that the appellants’ Outline of Submissions deals with only nine grounds and does not deal with Ground No. 3. It submits that Ground No. 3 “is caught by the tenor and thrust of the submissions in toto” and states that it has responded to Ground No. 3. The appellants have not lodged submissions in reply disagreeing with this assertion. 
GROUND No. 2
The Arbitrator erred in finding that there was no evidence advanced by the appellants as to why the course was taken not to argue the s 4(a) injury in the prior proceedings.
GROUND NO. 3
The Arbitrator erred in finding that the explanation that the appellants were not aware of the s 4(a) injury and that the further evidence was relevant to that decision did not stand up to any proper analysis.
GROUND NO. 8
The Arbitrator erred in finding that the appellants knew at the time of Miller No. 1 that the deceased suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest.
88.	These grounds are related and go predominantly to the findings relating to the state of knowledge of the appellants at the time of Miller No. 1. It is convenient to deal with them together.
Appellants’ submissions
89.	The appellants submit they did advance an explanation for why the s 4(a) injury was not argued in Miller No. 1. They submit they were not aware of the s 4(a) injury and “the further evidence was relevant to that decision”.
90.	The appellants distinguish between asthma, argued to be an injury pursuant to s 4(b)(ii) in Miller No. 1, and “anoxia and/or cardiac arrest”, argued to be an injury pursuant to s 4(a) in Miller No. 4. The appellants submit the causes of action are different. They submit that “therefore, the consideration of the ‘remoteness of the location’ and any findings of fact or conclusions drawn in proceedings give rise to different considerations because there are different injuries pleaded”.
91.	The appellants submit the further evidence from Dr Jennings, Professor Fulde and Ms Finlayson goes to the remoteness of the location and that this was a substantial contributing factor to Ms Miller’s cardio-pulmonary arrest. They submit there was “an absence of such evidence in the earlier proceedings required to support the s 4(a) claim”. They submit there was “an absence of medical evidence” in Miller No. 1 to support the claim based on cardio-pulmonary arrest, an “injury within the meaning of s 4(a)”.
Respondent’s submissions
92.	The employer (the respondent) submits the Arbitrator made a finding noting the absence of evidence regarding why the s 4(a) injury was not argued. It submits the Arbitrator noted the employer’s submission that it could do little else than identify the evidence that was available to the appellants in their own case in Miller No. 1, identifying anoxia as the cause of death. It asks rhetorically “what more could the respondent have done than identify the evidence that existed in the appellants’ own case in Miller No. 1 … that the evidence clearly established anoxia was the cause of death”. It submits the appellant was then “best placed” to elucidate the approach taken. The respondent submits the fact that cardiac arrest arose from the asthma/anoxia was an issue and debated in Miller No. 1.
Consideration
Some principles
93.	It is common ground that the respondent carried the onus of establishing a defence on the basis of Anshun estoppel.
94.	In Anshun the plurality quoted the following passage from Henderson v Henderson: 
“… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to 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.”
95.	The plurality in Anshun, following a discussion of later relevant authorities, said:
“37. 	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. 
38. 	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.” (omitting references)
96.	The plurality at [40] to [41] said:
“40. 	The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. 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.
41. 	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.”
97.	The appellants’ submissions refer to the discussion by McColl JA of Anshun estoppel in Habib, where her Honour referred to Anshun introducing “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”. The appellant submits this “requires a consideration of what was known to the [appellants] and their advisers at that time, not now after the proceedings”.
98.	Her Honour in Habib referred to the test as “one of reasonableness”. Her Honour said:
“83. 	An Anshun estoppel also arises where an omission to plead a claim or defence will contribute to the existence of conflicting judgments, including those which are contradictory, though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction. Thus an Anshun estoppel will apply even though the parties to the second proceedings are not the same as in the first. Although there may be ‘no question ... of oppression and unfairness’ where the parties in the second action ‘were not parties to the earlier action’, the new proceedings may threaten the integrity of the administration of justice if they raise the prospect of conflicting judgments.
84. 	A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form. In determining whether an Anshun estoppel has been established, the court inquires into realities and not mere technicalities. The Court can look at ‘any material that shows what issues were raised and decided’”. (omitting references)
99.	The appellants’ submissions also refer to Champerslife. In that decision Allsop P said:
“The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.” (emphasis in original)
100.	Giles JA outlined multiple procedural impediments in the path of Champerslife pursuing a claim for a debt as part of earlier proceedings. His Honour made a finding that Champerslife “did not act unreasonably” in the circumstances, in failing to pursue the cause of action in earlier proceedings. 
Application
101.	The appellants submit that the s 4(a) injury was not argued in Miller No. 1, as the appellants were unaware of that injury and that the further evidence (a reference to the additional evidence relied on in Miller No. 4) was “relevant to that decision”. This essentially restates submissions made before, and rejected by, Arbitrator Harris in Miller No. 8. Arbitrator Harris’s reasons referred to part of the submissions made by the appellants’ counsel in Miller No. 1 (see the passage quoted at [54] above) which were relevant to the state of knowledge of the appellants and their advisers at the time of Miller No. 1. It is the respondent’s case that the state of knowledge, inherent in this submission, demonstrated awareness at the time of Miller No. 1 that the asthma attack led to anoxia and cardiac arrest, which was fatal. The Arbitrator accepted this submission and specifically rejected the appellants’ submission that they were “unaware at the time of Miller No. 1 of the s 4(a) injury as pleaded in Miller No. 4”. Arbitrator Harris’s finding on the appellants’ state of knowledge at that time was based, in addition to the above submission in Miller No. 1, on the evidence then available to the appellants and those advising them. 
102.	The President in Miller No. 5 said that a consideration of the reasonableness of the appellants not running the ‘injury’ case, based on s 4(a), in Miller No. 1, involved: 
“… a consideration of what was known to the [appellant] and his advisers at the time of Miller No 1 and then the undertaking of the evaluative judgment as to whether it was unreasonable not to have pursued this allegation”. 
103.	The President, in his reasons at [198], dealt with the state of knowledge of the appellants and their advisors, saying “the following was available in Miller No. 1”: 
(a)	The pleading of injury said:
“As a result of suffering the asthma attack, the deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received, which was in the realms of her employment as a Home Care Service driver.”
(b)	The certificate of Dr Abbas, who cared for Ms Miller at the scene, said:
“4. 	At about 6.00 pm on the 15 April, 2011 at Mitchell Highway, Nyngan, I examined Moori Miller 
5. 	Based wholly or substantially on the above knowledge, I am of the opinion that 
• 	Moori had a cardiopulmonary arrest at the time of examination. She was non-responsive. Her pupils was [sic] dilated and fixed. She was placed on the side of the road on her back by her mates.”
(c)	The statement of Mr Holman, the ambulance officer who assisted at the scene said:
“At the same time I diagnosed that the woman was in cardiac arrest, she had an absent pulse, absent respirations and her skin was cyanosed. I commenced CPR, being checked the airway which was clear and commenced cardiac comprehensions [sic].”
(d)	The report of Dr Jennings dated 8 October 2015, addressed to the appellants’ solicitors, stated:
“(c) Was the asthma attack a substantially contributing factor to the death of the deceased? 
Yes, most likely. 
(d) If so, why was the asthma attack a substantially contributing factor to the death? 
Asthma is a chronic, reversible narrowing of the small airways within the lungs. Narrowing of the airways results in less air being able to be delivered to the lungs, ultimately reducing the availability of oxygen to the body and the removal of carbon dioxide, which is required for cellular respiration. If the narrowing of the airways is severe, and goes untreated, the body’s tissues become ‘hypoxic’ (deprived of adequate oxygen supply) which may lead to cardiac arrest.”
(e)	The Coroner’s finding dispensing with an inquest of 5 May 2014 in which he attributes the direct cause of death as being “anoxia” due to antecedent causes, “severe asthma attack”.	
104.	The Arbitrator adopted the above description of the evidence known to the appellants, at the time of Miller No. 1. This involved a factual finding regarding the state of knowledge of the appellants at the time that Miller No. 1 was pursued. The Arbitrator, dealing with whether the appellants had knowledge of the s 4(a) injury at the time of Miller No. 1, additionally found:
“It is otherwise a self-evident fact that the deceased was in the course of her employment driving the community transport bus from Dubbo to Brewarrina when she suffered the asthma attack. Shortly thereafter the deceased suffered anoxia and cardiac arrest and died. During this period, the deceased remained in the course of her employment.”
105.	The Arbitrator dealt with the probative force of the additional evidence that was relied on in Miller No. 4 but not in Miller No. 1. He said that it “almost, if not exclusively, addressed the medical treatment that was available if [Ms Miller] was in Brewarrina at the time of suffering an asthma attack and what may have happened if [Ms Miller] had then sought medical treatment”. He concluded that portions of it addressed the nature of Ms Miller’s cardiac arrest and death, but that these matters were already known to the appellants. This factual finding was inconsistent with the appellants’ argument that the additional evidence, postdating Miller No. 1, informed a state of knowledge that ‘injury’ could be established on the basis of s 4(a).
106.	Arbitrator Harris made a finding:
“For the reasons expressed earlier, I am satisfied that at the time of making submissions in the prior proceedings before Arbitrator Batchelor, the [appellants’] legal representatives were aware of the specific s 4(a) injury occurring in the course of employment which was subsequently pleaded and argued in Miller No 4.” 
107.	In Ground No. 8 error is alleged in the finding that the appellants “knew at the time of Miller No. 1 that [Ms Miller] suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest”. It is appropriate at this point to consider whether Ground No. 8 can succeed. The appellants’ submissions in support of Ground No. 8 appear at [18] to [22] of their submissions on this appeal. Some of the submissions direct themselves to the evaluative issue, regarding whether it was unreasonable that s 4(a) was not relied on in Miller No. 1, rather than to whether there was error in the specific factual finding made by the Arbitrator. The issue of unreasonableness is raised and dealt with later in these reasons. 
108.	The appellants make a general submission that the causes of action in s 4(a) and s 4(b)(ii) are “different” and therefore considerations of remoteness and any “fact or conclusions drawn give rise to different considerations because there are different injuries pleaded”. This general submission is not further developed. The conclusion of Arbitrator Harris, on the appellants’ state of knowledge at the time of Miller No. 1, was based on specifics drawn from the transcript in Miller No. 1 and the findings of Phillips P regarding the facts known to the appellants at the time of Miller No. 1 by reference to evidence then available. The arguments made by the appellants, going to alleged error in the factual finding that they were aware of the availability of the s 4(a) injury at the time of Miller No. 1, raise the following:
(a)	The further evidence from Dr Jennings, Professor Fulde and Ms Finlayson’s statement go to the fact that Ms Miller was driving in a remote location and this was a substantial contributory factor to the cardio-pulmonary arrest.
(b)	There was an absence of such evidence in Miller No. 1 to support the claim in respect of cardio-pulmonary arrest, an injury within the meaning of s 4(a). 
109.	The Arbitrator in Miller No. 8 addressed these propositions (see [105] to [107] above). Arbitrator Harris’s finding at [112] of his reasons is inconsistent with the appellants’ submissions going to the state of their knowledge at the time of Miller No. 1. This appeal is brought pursuant to s 352 of the 1998 Act and is subject to s 352(5) (see [80] to [85] above). It is necessary that an appellant establish error of fact, law or discretion. The appellants on this point restate the position they adopted at the arbitration, which was decided against them. Their submissions dealing with Ground No. 8 make no meaningful attempt to identify relevant error. Ground No. 8, to the extent to which it involves challenge to the factual finding regarding the state of the appellants’ knowledge at the time of Miller No. 1, cannot succeed. To the extent to which the submissions dealing with Ground No. 8 deal with unreasonableness (the ground itself does not) that issue is dealt with below.
110.	The above discussion additionally has the effect that Ground No. 2 cannot succeed. The appellants’ stated reason for not arguing the s 4(a) injury in Miller No. 1 was that they were not aware of the s 4(a) injury and that the further evidence was relevant to that decision. This is contrary to Arbitrator Harris’s finding referred to at [106] above and the appellants’ challenge to that finding has failed. Ground No. 3 similarly cannot succeed. Ground No. 3 challenged the Arbitrator’s rejection of the appellants’ submission that they were not aware of the s 4(a) injury and that such an explanation did not stand up to any proper analysis. This ground is inconsistent with the Arbitrator’s finding, which has not been disturbed, regarding the state of knowledge of the appellants at the time of Miller No. 1.
GROUND NO. 5
The Arbitrator erred in rejecting the [appellants’] submissions that the ‘rules of evidence are not as strictly applied’ in the Commission as relevant to the consideration of the Anshun principle.
GROUND NO. 10
The Arbitrator erred in failing to take into account and refer to the obligation to conduct proceedings according to law, with due regard to equity, good conscience, and the substantial merits of the case.
Appellants’ submissions
111.	The appellants refer to s 354 of the 1998 Act. They submit the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act) and that the Commission “is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (s 354(3) of the 1998 Act). The appellants submit the Arbitrator has “misapplied, or misunderstood, this principle in considering the relevant issues so far as the Anshun estoppel defence is concerned”. The appellants refer to Onesteel Reinforcing Pty Ltd v Sutton. They quote from passages of that case which state that the rules of evidence do not apply.
112.	The appellants refer to a duty to “conduct proceedings according to the law, with due regard to equity, good conscience, and the substantial merits of the case”. They submit that “decisions must have regard to the justice and merits of the case”. They refer to Hilliger v Hilliger and Samuel v Sebel Furniture Ltd as authority that the Commission “has a duty to do justice between the parties according to the substantial merits of the case”. They submit the Arbitrator “failed to do justice between the parties according to the substantial merits of the case”.
Respondent’s submissions 
113.	The respondent submits the rules of evidence are “not strictly relevant [to] operation of the Anshun principle”. It accepts that the Commission is mandated to act according to equity, good conscience and the substantial merits of any case. It submits the Anshun principle seeks to achieve a just, equitable and efficient system of justice. It refers to the observations of McColl JA in Sutton, that procedures in the Commission “are to be conducted with as little formality and technicality as the proper consideration of the matter permits”. The respondent refers to the judgment of McColl JA in Sutton where it was said “procedures before the Commission are not governed by the rules of evidence or matters of technicality or legal form”. It submits that operation of the principles of Anshun estoppel involve the “direct application” of the above principles that govern the Commission’s procedures. It submits “the [principles] in Anshun are broader still and look to the efficient operation of the ‘system’”.
114.	The respondent submits the Arbitrator was not under an obligation to spell out the matters referred to in the appellants’ submissions dealing with Ground No. 10.
Consideration 
115.	These grounds both involve the former s 354 of the 1998 Act. It is convenient to deal with them together. Section 354 of the 1998 Act was repealed with the commencement on 1 March 2021 of the 2020 Act. The provisions of the former s 354 are now contained in s 43 of the 2020 Act and are in substantially identical form to the former provisions. Section 43 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.”
116.	In Sutton Allsop P said:
“2. 	The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.
3. 	Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.” (excluding references)
117.	In the same case McColl JA said:
“It might be accepted that provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions and, further, r 15.2 of the Workers Compensation Commission Rules recognises that ‘evidence before the Commission must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’. It is nevertheless necessary to be alert to the fact that ‘the rules of evidence, excluded by statute, [should not be allowed] to ‘creep back through a domestic procedural rule’.” (excluding references)
118.	The provisions of the former r 15.2 are now found in r 73 of the Personal Injury Commission Rules 2021 (the 2021 Rules) which provide:
“73 	Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a) 	evidence should be logical and probative,
(b) 	evidence should be relevant to the facts in issue and the issues in dispute,
(c) 	evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) 	unqualified opinions are unacceptable.”
119.	That the rules of evidence do not apply in the Commission is not controversial. Ground No. 5 seeks to identify error in that the Arbitrator “erred in rejecting the [appellants’] submissions that the rules of evidence are not as strictly applied in the Commission as relevant to the consideration of the Anshun principle”. It is not that the rules of evidence are applied in the Commission in a more relaxed fashion than in courts, they do not apply. Procedural provisions such as r 73 of the 2021 Rules do apply, but do not represent a reintroduction of the rules of evidence. Rules of law and principles of procedural fairness also apply. In South Western Sydney Area Health Service v Edmonds McColl JA said:
“Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice …”.
120.	Arbitrator Harris dealt with the appellants’ submission on this point in his reasons at [141] where he said:
“The [appellants] also submitted that the ‘rules of evidence are not as strictly applied’ in the Commission. It is unclear how that submission explains the failure to raise the s 4(a) allegation in the prior case. The fact that the rules of evidence are not strictly applied otherwise does not mean that they are ignored. The Court of Appeal has previously held in South Western Sydney Area Health Service v Edmonds that the principles of procedure set out in the Workers Compensation Commission Rules ‘broadly reflects fundamental principles of the common law concerning admissibility of evidence’. I reject the applicants’ submission as relevant to the consideration of the Anshun principle.”
121.	The President in Miller No. 5 specifically concluded that the principles in Anshun were applicable in the Commission in an appropriate case, saying: “Anshun estoppel is available for deployment in matters before the Commission” (see [32] above). In considering the principles governing the operation of Anshun, his Honour accepted a submission by the appellants that whether the principle of estoppel “is engaged must be considered in the rubric of the practices and procedure applicable to proceedings in the Commission”. 
122.	The Arbitrator observed, in my view correctly, that it was “unclear how that submission [regarding the rules of evidence] explains the failure to raise the s 4(a) allegation in the prior case.” He rejected the appellants’ submission on the point as being irrelevant to the Anshun argument, again in my view correctly. The appellants, both on this appeal and before Arbitrator Harris, make no specific argument and cite no authority regarding how the non-application of the rules of evidence affects the operation of Anshun in the Commission. They make no specific argument regarding how, in the circumstances of the case, the non-application of the rules of evidence would affect the result. Ground No. 5 is without merit and fails. 
123.	The submissions in support of Ground No. 10 are expressed in the most general of terms and essentially express dissatisfaction with the result. Section 352(5) of the 1998 Act requires the identification of error of fact, law or discretion (see [80] to [85] above). It is not an error that an arbitrator does not explicitly refer to the former s 354 of the 1998 Act (now in s 43 of the 2020 Act). The appellants refer to s 329 of the 1998 Act, saying that section is “in broad unlimited terms and the decisions must have regard to the justice and merits of the case”, citing Target Australia v Mansour. Section 329 (which is dealt with in Mansour) is a provision that deals with the referral of a matter for further medical assessment. It is not of apparent relevance to the issues in this appeal and the appellants’ submissions do not identify any apparent relevance. 
124.	The submissions refer to Hilliger and Samuel. Samuel is a decision dealing with the reconsideration power pursuant to the former s 350(3) of the 1998 Act. Its only conceivable relevance to the current case is that it refers to Anshun and associated authorities in the context of whether these are relevant to exercise of the reconsideration power. The issues in the appeal before me do not involve exercise of the reconsideration power. Hilliger is an appellate decision involving the Landlord and Tenant (Amendment) Act 1948. It has been held to be relevant to interpretation of the reconsideration power in New South Wales workers compensation legislation. This is because of the similarity between the statutory provision conferring a discretion in Hilliger and the wording in various expressions of the reconsideration power in the Workers Compensation Act 1926 and subsequent amendments of the legislation. The appellants do not identify how the matters raised in Ground No. 10 would affect the result. I note for completeness that the reconsideration power is now contained in s 57(1) of the 2020 Act. Ground No. 10 does not identify appealable error and fails.
GROUND NO. 6
The Arbitrator erred in rejecting the appellants’ submission that the “legislation is considered to be beneficial” to the consideration of the Anshun principle.
Appellants’ submissions
125.	The appellants refer to the various authorities cited by Arbitrator Harris in response to the appellants’ submission on this topic. The appellants submit that the various cited authorities apply “the principle to individual factual circumstances and not rebutting the principle as the Arbitrator has done”. They submit “the legislation should be considered to be beneficial to the worker”. They submit this supports the appellants “on the issue of explaining why the evidence was not led at the earlier proceedings”. The appellants refer to the ‘system objectives’ in s 3 of the 1998 Act. They submit that “every issue and comprehensive evidence covering every issue cannot be explored and dealt with in every application before the Commission otherwise the Commission would not be conducted in an efficient and effective manner”. 
126.	The appellants’ submissions refer to the Arbitrator’s reference, in his reasons at [146], to “a competing private interest in the [appellants’] favour to recover compensation entitlements”. They submit the Arbitrator failed to explain why he accepted this proposition, its relevance and “what part it played in his decision on the issue of Anshun”, particularly his finding that the appellants acted unreasonably.
Respondent’s submissions
127.	The respondent submits “the beneficial nature or otherwise of the legislation is irrelevant to the application of the Anshun principle”. It submits Anshun “sits very comfortably” with the objects in s 3 of the 1998 Act, it is consistent with avoiding a “multiplicity of proceedings as here”. 
Consideration
128.	The Arbitrator dealt with a submission that the relevant workers compensation legislation is ‘beneficial’ in his reasons at [142] where he said:
“I also reject the [appellants’] submissions that the ‘legislation is considered to be beneficial’. That submission reflects an outdated approach. Recent Court of Appeal and High Court authority have either declined to adopt a beneficial approach (see for example Hochbaum v RSM Building Services Pty Ltd and Hunter Quarries Pty Ltd v Mexon) or found that aspects of the legislation were clearly not beneficial to workers: see ADCO Constructions Pty Ltd v Goudappel and Cram Fluid Power Pty Ltd v Green. It is otherwise unclear and was not explained by the applicants how a beneficial approach to construction of the legislation assists the applicants on this issue.”
129.	The parties’ submissions refer to s 3 of the 1998 Act which provides:
“3 	System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives—
(a) 	to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) 	to provide—
• 	prompt treatment of injuries, and
• 	effective and proactive management of injuries, and
• 	necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c) 	to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) 	to be fair, affordable, and financially viable,
(e) 	to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) 	to deliver the above objectives efficiently and effectively.”
130.	The appellants seek to distinguish the authorities cited by the Arbitrator on the basis that they involved “individual factual circumstances”, as opposed to “rebutting the principle” of the legislation being beneficial. In Bird v Commonwealth the plurality, dealing with the Compensation (Commonwealth Government Employees) Act 1971 (Cth), said that “[t]he Act, it is true, is remedial legislation and if there is any ambiguity ought not be construed narrowly”. In Goudappel, which dealt with the 1987 and 1998 New South Wales Acts, the Workers Compensation Legislation Amendment Act 2012 (2012 Amending Act) and an associated regulation, the plurality (after referring to Bird) said:
“It can be accepted, as was put by counsel for Mr Goudappel, that the [1987 Act’s] remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the [1987 Act] as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified.” 
131.	Their Honours said, of the regulation at issue in Goudappel, that “[i]ts purpose was patently not beneficial”.
132.	In Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan Messenger it was submitted that the 1987 Act was “beneficial legislation which should not be construed narrowly or with limitations not found in the statute”. Payne JA referred to the ‘system objectives’ in s 3 of the 1998 Act. His Honour said:
“These objectives identify the purpose of the Act as being to, inter alia, ‘provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses’ (s 3(c)) and that the system ‘be fair, affordable and financially viable’ (s 3(d)). The appellant submitted that a beneficial construction is an aspect of a purposive construction. Section 3(d) makes clear that this is a scheme which aims to be fair, affordable and financially viable. One cannot say that every grant of an entitlement should be construed broadly because it is a beneficial scheme.” (omitting references)
133.	His Honour observed that the ‘system objectives’ in s 3 of the 1998 Act included both the delivery of benefits to workers and the provision of a workers compensation system which is “fair, affordable, and financially viable”. His Honour quoted the following from the remarks of Gleeson CJ in Carr v Western Australia: 
“... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.” (omitting references)
134.	Payne JA concluded on the issue:
“The Workers Compensation Act does not pursue a single purpose of providing the maximum amount of benefits to workers at all costs. Where, as here, the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For this Court to construe the Workers Compensation Act as though it pursues only the purpose of providing benefits to workers to the fullest extent possible would be contrary to the manifest intention of the legislation.”
135.	Goudappel and Mexon are binding authorities of the High Court and the Court of Appeal respectively. I do not accept the proposition that their effect is restricted (as the appellant submits) to the specific factual circumstances with which they deal. As a general proposition, the legislation is of a remedial nature which requires a beneficial construction, if open. It is necessary that the purpose of the provision being construed be considered. By way of example, in Green Gleeson JA said of the 2012 Amending Act:
“It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”
136.	The first of the passages quoted from Mexon at [132] above is consistent with the respondent’s submission, which I accept, that the principle in Anshun “sits comfortably” with the system objectives in s 3 of the 1998 Act. It is also consistent with the President’s statement in Miller No. 5 that Anshun has application in the Commission. The appellants submit the beneficial nature of the legislation is relevant, in considering whether the respondent discharged its onus of demonstrating that the appellants acted unreasonably, in not including the s 4(a) claim in the initial proceedings. There is no developed argument explaining why this is so.
137.	The Arbitrator put the state of the authorities too broadly in simply rejecting the proposition that the “legislation is considered to be beneficial” (see the passage of Goudappel quoted at [130] above). The Arbitrator was correct in his comment that it “is otherwise unclear and was not explained by the [appellants] how a beneficial approach to construction of the legislation assists the [appellants] on this issue”. The appellants have not made a submission demonstrating, on the basis of authority or reasoned argument, that acceptance of their argument, that the legislation in a general sense is beneficial, would change the result. Ground No. 6 fails. 
GROUND NO. 1
The Arbitrator erred in finding that the appellants did not provide any evidence as to why they chose to argue injury in the manner they did in Miller No. 1 and raise a different injury in Miller No. 4.
GROUND NO. 4
The Arbitrator erred in finding that the respondent could not file evidence explaining as why the [appellants were] unable to provide evidence in the earlier proceedings, and that it was unreasonable not to do so.
GROUND NO. 7
The Arbitrator erred in deciding that both proceedings relate to the same factual circumstances involving similar causes of action.
GROUND NO. 9
The Arbitrator erred in finding that the factual matrix showed that the subject matter was relevant to the subject matter of the prior proceedings as discussed in Champerslife.
Appellants’ submissions
138.	The appellants submit that they did not bear the onus on the Anshun issue, citing the President’s decision in Booth at [130]. They submit the respondent did not provide “any outline or basis to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable”.
139.	The appellants make the following submission in respect of Ground No. 4:
“The [r]espondent failed to file evidence that the reasons advanced by the [a]ppellants were unreasonable in the conduct of the first proceedings, nor explaining why the [appellants] were not in a position to file such evidence as to explanation nor to offer any evidence as to the fact that such evidence should have been filed and that it was unreasonable not to do so, and that such evidence should have been filed, and the reasons why it should have been filed.” 
140.	The appellants submit there was a “need to limit ‘unnecessary and excessive disbursements’ in order to comply with WIRO’s disbursement funding policy”. They submit this explains why “further questions were not asked of medical experts in the prior proceedings to elucidate matters pertaining to the causal connection between injury and the employment concerned”.
141.	The Arbitrator found that, at the time of making submissions in the initial proceedings, the appellants’ legal representatives were aware of the specific s 4(a) injury occurring in the course of employment, subsequently argued in Miller No. 4. Dealing with Ground No. 7, the appellants submit the Arbitrator should not have accepted that the appellants “knew at the time of Miller No. 1 that [Ms Miller] suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest”. The appellants submit:
“The factual matrix and the medical evidence available at the relevant time of the original proceedings did not clearly show that the subject matter was relevant to the subject matter of the prior proceedings, at the time of those proceedings, as discussed in Champerslife.”
142.	The appellants submit the initial proceedings dealt with a disease injury, the second with a s 4(a) injury. “The causes of action are different, and the facts are different, and this differentiation was not known at the time of the original proceedings and did not become known until after those proceedings.”
143.	Ground No. 8 predominantly deals with the state of knowledge of the appellants at the time of the original proceedings and is dealt with at [106] to [109] above. To the extent that the submissions on this ground raise issues of unreasonableness I will refer to them here (see [109] above). The appellants refer to Anshun, submitting that “there may be a variety of reasons why a party justifiably refrains from litigating an issue”. They submit that whether it was unreasonable to have not advanced the s 4(a) case in Miller No. 1 “requires a consideration of what was known to the appellants and their advisers at that time, not now after the proceedings”. The appellants refer to the observations in Habib that the exercise requires “an evaluative element based upon what a litigant could reasonably have been expected to do in the earlier proceedings”.
144.	Ground No. 9 largely recites a submission made by the appellants relating to Ground No. 7 (see [141] above). The appellants refer to Champerslife. They submit the first matter to be considered, dealing with unreasonableness, was whether a matter was so relevant that it was unreasonable not to rely on it in the initial proceedings. The appellants submit the Arbitrator failed to consider:
(a)	the respondent carried the onus;
(b)	what was reasonable in the earlier proceedings at the time, in circumstances where the rules of evidence did not apply and the legislation is to be considered beneficially;
(c)	the proposition that because a matter could have been raised does not necessarily mean that it should have been;
(d)	evidence should have been provided by the respondent and was not, regarding reasonableness;
(e)	the principles laid down in Champerslife.
145.	The appellants submit the Arbitrator assessed the first proceedings in a mechanistic fashion, without giving reasons for this, rather than a value judgment referable to the conduct of modern litigation, particularly in the Commission where there has to be flexibility and where there are limited resources. It is submitted the Arbitrator failed to consider these issues. They submit the crucial question is whether “a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”. The appellants refer to Yat Tung Investment Co Ltd v Dao Heng Bank Ltd, a case that was criticised in Anshun as taking the principle in Henderson v Henderson “too far”. It was there described as “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings”. The appellants describe this as “overstating the principle which is what appears to have occurred with the Arbitrator”. The appellants submit that Anshun applies where a matter is “so relevant as to make it unreasonable not to raise it”. The appellants submit the “only logical conclusion was that they had not acted unreasonably”.
146.	The appellants refer to “the ‘WIRO’s disbursement funding policy’ and the necessity to ensure that unnecessary and excessive disbursements are not incurred”. They submit this is a matter that needs to be taken into account. “[I]t was not reasonable to incur a multitude of expenses in order to cover every contingency in every matter otherwise the system would be unfairly burdened”. The restrictions placed upon injured workers and their legal representatives in the conduct of proceedings are relevant to the value judgment at the relevant time.
Respondent’s submissions
147.	The respondent submits Anshun estoppel is to be understood within “the overall objectives and principles of the delivery of justice within the court system and statutory tribunals”. These principles and objectives reflect the manner in which the Commission should conduct its business. The Arbitrator’s clear findings referenced the President’s decision in Miller No. 5, evidence was available regarding the s 4(a) injury as early as the Deputy State Coroner’s findings in 2014, that anoxia brought on by a severe asthma attack was the cause of death. This was two years before the proceedings in Miller No. 1 were commenced.
148.	The respondent submits it was not for it to provide evidence going to the unreasonableness of the appellants’ conduct or explain why the appellants were not in a position to provide evidence in the earlier proceedings. It simply identified that the argument was available and not pursued in Miller No. 1, it was then up to the appellants to respond. It submits the appellants’ reference to the WIRO funding policy is irrelevant. The respondent submits the cause and consequence of Ms Miller’s “asthma condition and ultimate passing were well known”. That the cardiac arrest had “arisen from the asthma/anoxia was plainly an issue and was debated in Miller No. 1”. 
149.	Dealing with Ground No. 9, the respondent submits there were four elements relevant to Ms Miller’s fatal injury:
(a)	Ms Miller suffered from a longstanding asthmatic condition;
(b)	the condition was serious and at times poorly controlled;
(c)	she suffered an asthma attack during the course of her employment, and
(d)	the attack was a severe one which led to her suffering cardiac arrest. 
150.	The respondent submits this “bare factual matrix” required an analysis by those acting for Ms Miller to advance an argument with respect to its compensability. The evidentiary basis for Miller No. 1 included a report from an expert in emergency care and a respiratory physician. It is submitted that to suggest this matrix was “anything other than relevant to an analysis as to the application of s 4(a) or s 4(b) of the [1987 Act] is disingenuous”.
Consideration
151.	The appellants submit they did not bear the onus on the issue of the alleged Anshun estoppel. The respondent does not suggest otherwise. The appellants submit the Arbitrator failed to consider the fact that the respondent carried the onus. The Arbitrator specifically observed that the appellants did not bear the onus on this issue. The Arbitrator referred to a submission by the appellants that “the employer failed to adduce evidence and for them to respond”. This is similar to a submission made on this appeal (see [139] above). The Arbitrator dealt with this submission, saying: 	
“132. 	Whilst the [appellants] do not bear the onus of proof, they have not provided any evidence as to why they chose to argue injury in the manner they did in Miller No 1 and raise a different injury in Miller No 4.
133. 	I accept the [respondent’s] submissions that no evidence was advanced by the [appellants] as to why the course was taken not to argue the s 4(a) injury in the prior proceedings. The explanation that they were not aware of the s 4(a) injury and that the further evidence was relevant to that decision does not stand up to any proper analysis. 
134. 	A similar observation concerning the failure by the party refraining to act to place evidence explaining their decision was made by the plurality in Anshun. I agree with Mr Morgan’s submission that his client could not file evidence explaining why the [appellants’] legal representatives made the choice they did.”
152.	The appellants have effectively put the same submission on appeal. Whilst the respondent carried the onus on this issue, it was not incumbent on the respondent to establish the defence on evidence in its own case. As was said by McColl JA in Habib, “[t]he Court can look at ‘any material that shows what issues were raised and decided’” (see [98] above). 
153.	There is no error in how the Arbitrator dealt with this issue. The arguments described at [138] above cannot succeed.
154.	The appellants refer to the “WIRO’s disbursement funding policy”. It is submitted the need to comply with this policy assists in explaining “why further questions were not asked of medical experts in the prior proceedings to elucidate matters pertaining to the causal connection between injury and the employment”. This argument was made before the Arbitrator, who rejected it:
“The [appellants] referred to the need to limit ‘unnecessary and excessive disbursements’ in order to comply with WIRO’s disbursement funding policy. That explanation does not explain why further questions were not asked of medical experts in the prior proceedings to elucidate matters pertaining to the causal connection between injury and the employment concerned. The explanation also does not sit with my conclusion that the [appellants] were aware of the s 4(a) injury at the time of arguing Miller No 1.” 
And:
“The applicants referred to the system being legally funded and should ‘not be drained by conducting expensive and over prepared litigation’. There was no evidence of the extra cost in obtaining the further evidence relied upon in the present proceedings. There was no evidence why the relevant questions could not have been asked at first instance.”
155.	It does not assist to restate the submission on appeal. Section 352(5) of the 1998 Act requires the identification of error of fact, law or discretion. The appellants’ submissions do not identify error in how the Arbitrator dealt with the issue at first instance. The argument could not have succeeded in any event. As the Arbitrator correctly observed, he had made a positive finding that the appellants were aware of the s 4(a) injury at the time of Miller No. 1, a finding that is dealt with above. Additionally, the appellants’ reliance on the WIRO funding regime as a matter relevant to why the s 4(a) allegation was not brought in the initial proceedings was, as the Arbitrator correctly observed, unsupported by evidence. The reference to the funding of the legal aid system is unsupported by evidence.
156.	I have dealt above with arguments regarding the Arbitrator’s finding that the appellants knew at the time of Miller No. 1 that Ms Miller had suffered an injury within the meaning of s 4(a) in the course of her employment. I have concluded that the appellants’ challenge to this finding fails (see [110] above). It follows that the argument regarding funding would not have changed the result in any event. The other argument made in support of Ground No. 4 is difficult to follow. It may seek to argue that the onus was on the respondent to adduce evidence before the Arbitrator, in the respondent’s case, dealing with why the appellants failed to pursue the s 4(a) allegation in the initial proceedings. Such a submission would be inconsistent with Habib at [84] (see [98] above). Grounds Nos. 1 and 4 do not succeed.
157.	Ground No. 7 states there was error in the following finding made by the Arbitrator:
“I accept the employer’s submission that both the prior and present proceedings relate to the same factual circumstances involving extremely similar causes of actions.”
158.	The appellant submits that s 4(a) and s 4(b) involve “causes of action [that] are different, and the facts are different”, a differentiation that it is submitted was not known until after the original proceedings. The appellant submits one involved a disease injury, the other “personal injury as defined by s 4(a)”.
159.	The appellants, dealing with Ground No. 7, submit that the Arbitrator should not have accepted that the appellants “knew at the time of Miller No. 1 that [Ms Miller] suffered both an asthma attack (s 4(b)(ii)) and a s 4(a) injury described as anoxia and cardiac arrest”. Again, this is inconsistent with the Arbitrator’s findings regarding the state of the appellants’ knowledge at the time of Miller No. 1. I have concluded above that that finding did not involve appealable error. I have accepted that the Arbitrator’s relevant findings of the matters known to the appellants, prior to the commencement of Miller No. 1, were properly available on the evidence and did not involve error. These were the matters adopted by the Arbitrator from the decision of the President in Miller No. 5 at [198] to [199]. 
160.	The decision in Anshun specifically notes that “contradictory judgments” may come about if they “declare rights which are inconsistent in respect of the same transaction”, though they “may not be pronounced on the same cause of action”. Assuming the correctness of the proposition that the two are different causes of action, this is not inconsistent with the application of Anshun if appropriate, on the facts and circumstances overall. The submission regarding the presence of two different causes of action would not, if accepted, change the result. 
161.	The appellants submit the “differentiation” between the two asserted causes of action was not known until after the original proceedings. This is inconsistent with the Arbitrator’s finding, confirmed above, regarding the appellants’ state of knowledge prior to Miller No. 1.
162.	Ground No. 7 does not succeed. 
163.	Dealing with Ground No. 9, the appellant refers to an unspecified passage from the reasons of Allsop P in Champerslife; it raises the matters raised in the passage quoted at [99] above. The appellants submit there are related assessments that have to be made. One is “was the matter so relevant that it can be said to have been unreasonable not to rely on it in the first proceeding”. The appellants submit the Arbitrator “did not consider this issue in any detail”. They submit the consideration of that issue should have taken into account the fact that the respondent carried the onus, that the rules of evidence did not apply and that the legislation was to be construed beneficially. The appellants submit it is wrong to hold that because a matter could have been raised in earlier proceedings it should have been. This is the predominant issue raised in Ground No. 9, that the Arbitrator failed to engage in an assessment of the “evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” (see [97] above). Further aspects of the appellants’ submissions on Ground No. 9 are summarised at [144] to [146] above.
164.	The appellants submit the above matters should have been addressed by the respondent in evidence and that the respondent should have put on evidence regarding unreasonableness. They submit that, in the absence of such evidence, the Arbitrator came to his own conclusions and did so failing to take account of the principles laid down in Champerslife. They submit the Arbitrator failed to carry out a “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case”. They submit the crucial question is whether “a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”.
165.	I note that issues relating to onus, the non-application of the rules of evidence in the Commission, and the beneficial nature of the legislation, have been raised in other grounds and considered above. I concluded that the issues regarding onus, beneficial legislation and the rules of evidence did not involve appealable error. The appellants again make submissions referring to “the WIRO’s disbursement funding policy”. Again, those submissions are devoid of any evidentiary foundation.
166.	Allsop P, at the commencement of his reasons in Champerslife, noted that the High Court in Anshun had “referred to the ‘inutility’ of founding the test for the application of the principle in Henderson v Henderson on abuse of process”. His Honour said “it is necessary to eschew language of abuse of process”. I do not accept the appellants’ submission that the crucial question is whether “a party is misusing or abusing the process of the court”. The President in Champerslife went on to say, accepting part of what was said by Lord Bingham in Johnson v Gore Wood & Co, that “the assessment is not to be made mechanistically, but rather there is a value judgment to be made referable to the proper conduct of modern litigation”. The President said that the test is whether the matter not relied on in the earlier proceedings was “so relevant as to make it unreasonable not to raise it” (emphasis in original). 
167.	It is submitted that the Arbitrator “did not consider this issue in any detail”, did not consider “what was reasonable in the conduct of the earlier proceedings at the time of those proceedings [nor] subsequently”. It is submitted the Arbitrator fell into the error that occurred in Yat Tung, considering that if a matter could have been litigated in earlier proceedings then “it should have been litigated”. 
168.	The Arbitrator specifically acknowledged the appellants’ submission that “there may be a variety of reasons why a party justifiably refrains from litigating an issue”. He noted the President’s observation in Miller No. 5 that “the mere fact that a party makes a choice to litigate a matter in other proceedings is insufficient to ground an Anshun estoppel”. He quoted from the decision of Allsop P in Champerslife at [3] to [4] of that decision. He noted the appellants’ submission that whether it was unreasonable not to have advanced the s 4(a) case in the initial proceedings involved “a consideration of what was known to the [appellants] and their advisers”. He referred to the reference by McColl JA to the “evaluative element” based upon what a litigant could reasonably have been expected to do in the earlier proceedings. He described the appellants’ submissions at length.
169.	The Arbitrator quoted from Anshun at [37] of that decision (see [95] above). The Arbitrator specifically referred to the fact that the error identified by the President in Miller No. 5 was a failure, by the arbitrator in Miller No. 4, to consider the “evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”.
170.	Arbitrator Harris made findings regarding the appellants’ state of knowledge of the s 4(a) injury at the time of Miller No. 1. Those findings are discussed above dealing with other grounds of appeal (see [104] to [106] above). These support the conclusion that the appellants, at the time of Miller No. 1, “were aware of the specific s 4(a) injury occurring in the course of employment which was subsequently pleaded and argued in Miller No 4”. 
171.	The appellants relied on two related arguments to explain why the s 4(a) injury was not raised in Miller No. 1. One was that they did not, at that time, have medical evidence supporting the availability of such an allegation. This was raised before Arbitrator Harris. The second was that the WIRO funding policy restricted their ability to obtain medical evidence. They submitted that further evidence came into existence after the decision in Miller No. 1, which was rejected on appeal in Miller No. 2. They submitted the further evidence had then become “reasonable and necessary” in accordance with “fulfilling obligations through WIRO”. This was raised before Arbitrator Harris. 
172.	The Arbitrator, in my view correctly, rejected these submissions. There was no evidence to support the proposition that restrictions, related to WIRO funding of disbursements, prevented the appellants from obtaining medical evidence regarding the s 4(a) allegation prior to Miller No. 1. The Arbitrator’s finding regarding the state of the appellants’ knowledge at the time of Miller No. 1, consistent with the President’s findings in Miller No. 5, was that the appellants in any event were aware of the relevant facts to establish the injury pursuant to s 4(a). 
173.	The appellants, before the Arbitrator, pursued essentially the same argument on the topic of reasonableness that is pursued on this appeal. They submitted it was up to the respondent to establish unreasonableness, to make submissions to this effect and “to present evidence to say it and then we should respond to it”. The Arbitrator quoted the respondent’s submissions in reply:
“The deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received when she was in the realms of her employment as a Home Care service driver. Now as far as putting on evidence to say that it was unreasonable for the [appellants] in these proceedings to run the arguments they run now in the original proceedings, what can we do other than to say they squarely pleaded it back in 2016 and we’re here fighting about it again, the matter having been to the Presidential level twice and been to the Court of Appeal once, were squarely raised as the basis for the claim for compensation in 2016 is the very issue we’re arguing about today. Now what more can someone in our, the respondent, do when responding to an assertion of the right to compensation other than to say, hang on a second, they ran this argument and had the material available to run this argument years ago and here we are re-litigating it. Now we’d proved that, (a) the evidence is there. We’ve proved that there on top of the issue was being a relevant matter that needs to be determined. What more can we do? I mean, we can’t delve into the minds of Mr Wilson and his solicitors and try to come up with an explanation as to why they conducted themselves in the fashion they did. And Mr Wilson says well it’s all to do with WIRO funding without any evidence to support the proposition in his submissions. We can do no more than what we’ve done and that is identify the fact that these issues were live issues, that they weren’t litigated. They’re now being litigated again and they should have been litigated in the first instance and say, right that’s unreasonable with reference to the general principles that are discussed by the President in his decision and discussed by the High Court in Anshun. And in Anshun, in that very decision, the High Court identifies the fact that in the failure on the part of the party that hadn’t raised or contested the issue at the relevant point had put no evidence on to explain why they hadn’t done it and that’s exactly what we’ve got here.”
174.	The above squarely called for “a value judgment to be made referable to the proper conduct of modern litigation” (to borrow from the reasons of Allsop P in Champerslife).
175.	The Arbitrator considered “[t]he absence of evidence concerning why s 4(a) was not raised in the prior proceedings”, under which heading he said:
“127.	The [respondent] referred to the absence of evidence from the [appellants] explaining why they did not argue the s 4(a) injury in the prior proceedings and referred to observations by the plurality in Anshun where the High Court observed that no explanation was then provided. It submitted that no evidence was led explaining why the decision was made. With some justification, the [respondent] refers to the [appellants’] submission without any evidence regarding the WIRO funding policy which were advanced as a reason for not pursuing the s 4(a) action in the previous proceedings. It was otherwise submitted by the [respondent] that the [appellants’] submission was made in the absence of evidence from the solicitor that the further reports could not have been obtained.
128. 	I accept the respondent’s submission that the [appellants] have attempted to explain why the s 4(a) claim was not pursued in the prior proceedings in the absence of evidence. The [appellants’] explanation by way of submission is otherwise inconsistent with the finding that they were aware of the s 4(a) action at the relevant time and had sufficient evidence to establish it.”
176.	The available evidence relevant to unreasonableness, in the context of Anshun estoppel, will vary depending on the circumstances of each case. By way of example, in Champerslife there was material, referred to in the Court of Appeal, that explained the procedural and practical impediments to the relevant allegation being pursued in the earlier litigation (see [100] above). In the current matter, the arguments available to the respondent on the topic of unreasonableness were largely summarised in the respondent’s submission quoted at [173] above. The Arbitrator said “the facts relied upon by the employer are established from the evidence that was served in the prior proceedings and what has been shown to have been known by the [appellants] when Miller No 1 was argued”. This did not involve a need for the respondent to put on additional evidence on the issue. It was apparent from the pleadings from time to time, the history of the litigation, the submissions, the evidence from both parties and the multiple decisions. This did not involve a rejection of the proposition that the respondent bore the onus on the issue. Rather, it involved an acceptance that the onus could be discharged on the evidence overall, without the need for further evidence on the topic to be put on by the respondent. 
177.	In Anshun the plurality said that “there is no reason for thinking that the indemnity issue could not have been determined in the [first proceedings]”. Referring to the rights available to the Port of Melbourne Authority in the first proceedings, their Honours said:
“Indeed, by making a claim for contribution the Authority asserted a right which was inconsistent with the right which it asserts in the present action. In the [first] action it might have asserted a right to indemnity and in the alternative a right to contribution. Instead, for reasons which have not been explained, the Authority confined itself to the claim for contribution.” (emphasis added)
178.	Their Honours also referred to the fact that the judgment which the Authority sought in the second action was inconsistent with that obtained in the first, saying: “It is this inconsistency between the judgment obtained in the first action and the judgment sought to be obtained now that is of importance.” Their Honours said that “[i]f successful, the indemnity case would have obviated an inquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment.” Their Honours also said: “The Authority did not adduce evidence at the trial to show why it failed to raise the indemnity issue in the first action.” (emphasis added)
179.	Having rejected the appellants’ argument that they were unaware, at the time of Miller No.1, of the s 4(a) injury, the Arbitrator said there was no evidence from the appellants regarding why the s 4(a) injury was not argued in the initial proceedings. Arbitrator Harris noted this was similar to observations by the plurality in Anshun. The Arbitrator accepted the respondent’s submission that it could not lodge evidence “explaining why the [appellants’] legal representatives made the choice they did”. 
180.	The Arbitrator referred to the judgment of the Court of Appeal in Miller No. 3 (dealing with s 9A) in which the Court said there was a lack of evidence regarding any causal connection between the employment and the injury as alleged. The Court said its observations regarding the determination in the respondent’s favour were “made in the context of ‘any formulation of the injury’”. The Arbitrator described this as a “gross inconsistency” between the findings in Miller No. 1 and Miller No. 4.	
181.	The Arbitrator dealt with those matters that were relevant in considering whether the appellants’ failure to include the claim pursuant to s 4(a) in the initial proceedings was unreasonable. Given the Arbitrator’s finding that the appellants were aware, at the time of Miller No. 1, of the evidence necessary to support a case based on s 4(a), there was no reason why that argument could not have been determined in the original proceedings. This was a relevant factor referred to by the plurality in Anshun. The Court of Appeal noted that the pleading in Miller No. 1 included reference to “cardiac arrest and [death] due to the remoteness of the location and critical medical attention not being received”. Although referred to, the Court of Appeal noted that such an injury allegation was not relied on in Miller No. 1, the allegation of the injury relied on having been “clarified in the parties’ oral addresses to the Arbitrator” (see [12] above). 
182.	The Arbitrator relied in part on the failure of the appellants to put forward any persuasive evidence regarding why they proceeded as they did. This was a factor that was referred to in the reasons of the plurality in Anshun, in which the failure to include the relevant pleading in the original litigation was found to be unreasonable. By bringing the s 4(a) case in the current proceedings, the appellants produced a situation where, on the Arbitrator’s findings, there was inconsistency between the judgment obtained in Miller No. 1 and the findings in Miller No. 4. This is a factor that the plurality in Anshun described as one “of importance”. The fashion in which the Arbitrator dealt with the issue of unreasonableness was consistent with the approach (which the Arbitrator referred to) of the plurality in Anshun. I cannot see that the Arbitrator erred in adopting an approach consistent with that of the High Court in Anshun.
183.	Ground No. 9 fails.
184.	The appeal does not succeed.
DECISION
185.	The decision of Arbitrator Harris dated 8 January 2021 is confirmed.

Michael Snell
Deputy President
23 September 2021