CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Wood v Woolstar Pty Limited [2021] NSWPIC 372	
		
APPLICANT:	Shane Wood	
		
RESPONDENT:	Woolstar Pty Limited	
		
Member:	Jane Peacock	
		
DATE OF DECISION:	23 September 2021	
		
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; proceedings concerned allegation of injury under section 4(b)(ii) of the Worker Compensation Act 1987 in circumstances where allegation of injury under section 4(b)(i) had been run in prior proceedings and determined in the respondent’s favour; whether an Anshun estoppel applied; Fourmeninapub Pty Ltd v Booth and Secretary, Department of Communities & Justice v Miller & Anor considered; each case to be decided on its own facts; Held – Anshun estopple did not apply; matter remitted for referral to a Medical Assessor in respect of the lump sum claim. 
	
determinations made:	1.	The matter is remitted for referral to a Medical Assessor to assess the degree of permanent impairment, if any, as a result of psychological injury deemed to have occurred on 13 January 2018, such injury consisting in the aggravation of a disease to which employment was the main contributing factor to the aggravation.

2.	The Application to Resolve a Dispute and all documents attached admitted.

3.	Late documents filed by the applicant on 20 July 2021 admitted.

4.	The Reply and all documents attached admitted.

5.	The matter to be relisted for a telephone conference in respect of the claim for weekly benefits and medical expenses once the Medical Assessment Certificate issues.	

STATEMENT OF REASONS

BACKGROUND

1.	By Application to Resolve a Dispute (the Application), as amended, Mr Shane Wood (Mr Wood) seeks lump sum compensation and compensation for weekly benefits and medical expenses as a result of a psychological injury alleged deemed to occur on 13 January 2018 and to consist in the aggravation of pre-existing psychological condition to which employment is alleged to be the main contributing factor to the aggravation.

2.	The respondent is Woolstar Pty Ltd (Woolstar) who was self insured for the purposes of workers compensation.

3.	Woolstar denied liability for the claim.

ISSUES FOR DETERMINATION

4.	Mr Wood, with the consent of Woolstar, amended the application to rely on an agreed date of injury of 13 January 2018. This is a deemed date of injury as the disease provisions are relied upon.

5.	Mr Wood, with the consent of Woolstar, amended the application in the “injury description” to withdraw in the last paragraph the words “developed the gradual onset of a psychological condition”. It is agreed that Mr Wood is estopped from running that case by reason of a former award of Arbitrator Homan as she was then known in the Workers Compensation Commission. That means that Mr Wood is relying on a pleading of injury that “due to the nature and conditions of employment the applicant has suffered an aggravation of his pre-existing psychological condition”. 

6.	Injury is disputed.

7.	Even if successful on the injury question, Woolstar submitted that Mr Wood is estopped by virtue of the principles of Anshun estoppel and there should be an award for Woolstar.

8.	It is agreed that in the event Mr Wood is successful on liability, then the matter would proceed in the first instance to an assessment by a Medical Assessor (MA). This agreement of the parties is in line with the authority of Jaffarie v Quality Castings Pty Ltd [2014] NSWCCPD79 (Jaffarie). Once that medical assessment has been made the matter is to be relisted for a telephone conference in respect of the outstanding issues of weekly compensation and medical expenses which, by consent, will not be dealt with in this determination.

PROCEDURE BEFORE THE COMMISSION

9.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 

EVIDENCE

Documentary evidence

10.	The following documents were in evidence before the Commission having been admitted by consent and considered in making this determination: 
For Mr Wood

(a)	The Application and attached documents, and

(b)	late documents filed 20 July 2021.

For Woolstar

(a)	Reply and attached documents,and

(b)	tendered at the arbitration (by email) the formal part of the Application to Resolve a Dispute filed in the prior Workers Compensation Commission proceedings numbered WCC2096 of 2019 (which was to be filed electronically within seven days of the arbitration). 
Oral evidence

11.	Mr Wood did not seek leave to adduce oral evidence and Counsel for Woolstar did not seek leave to cross-examine Mr Wood.

FINDINGS AND REASONS 

12.	This case must be decided on the evidence and in accordance with the law.

13.	Injury is disputed.

14.	Injury is defined in section 4 of the Workers Compensation Act 1987 as follows:

“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act—

‘injury’ —
(a) 	means personal injury arising out of or in the course of employment,

(b) 	includes a ‘disease injury’, which means—
(i) 	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) 	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) 	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

15.	Mr Wood brought prior proceedings based on an allegation of injury that events at work that he perceived as bullying and harassment caused a disease of gradual onset in the form of a psychological injury. That is, Mr Wood brought proceedings alleging a section 4(b)(i) injury, 
 
16.	The prior proceedings were determined in favour of the respondent with an award made for the respondent Woolstar.

17.	Mr Wood was unsuccessful in his appeal against that award.
18.	It is common ground that Mr Wood is estopped from running that case again. That is, he cannot run a case that alleges a section 4(b)(i) injury.

19.	It is common ground that in the prior proceedings he did not seek to run a case based on section 4(b)(ii). 

20.	It is common ground that the application filed in the prior proceedings did not “plead’ a section 4(b)(ii) injury. The expert medical opinion upon which Mr Wood relied to found his case was from Dr Oldtree-Clark. Dr Oldtree-Clark was of the opinion that the events at work or Mr Wood’s perception of same resulted in Mr Wood contracting a disease of gradual onset namely a psychological injury. 

21.	It is common ground that Mr Wood had not disclosed his prior psychological condition. He was criticised for this and ultimately his case failed partly because the former decision maker held she was not satisfied she could rely on the expert opinion of Dr Oldtree-Clark for this reason. 

22.	It is common ground that Mr Wood suffered a pre-existing psychological condition. Indeed counsel for Woolstar submitted in regards to the clinical notes:

“Any review of that aspect of the document to which the applicant sought to rely indicates the applicant suffered a pre-existing psychological condition.
There can be absolutely no contest on that and, in fact, the applicant seeks to advance that at this point in time.”

23.	Mr Wood now brings an application in these proceedings in which he gives evidence as to why he did not disclose his prior psychological condition and relies on a further report from Dr Oldtree-Clark that gives an opinion with the benefit of that disclosure, that Mr Wood has suffered an aggravation of a pre-existing psychological condition. Mr Wood also relies on an expert report from Dr Anning that Mr Wood says was not available to him before and which it is submitted supports the case that Mr Wood has suffered an aggravation of his pre-existing psychological condition (disease) to which his employment was the main contributing factor the aggravation.

24.	It would seem to be common ground amongst the experts that Mr Wood suffers a Major Depressive Disorder. Causation is in dispute.

25.	Counsel for Woolstar submitted that the first issue was that Mr Wood had not established the “factual basis to the allegations leading to the allged njury”. Counsel for Woolstar submitted that Mr Wood was “not a witness of truth”.

26.	Counsel for Woolstar submitted that adverse findings should be made about Mr Wood’s credit notwithstanding he did not seek leave to cross-examine Mr Wood. It was clearly put in counsel for Mr Wood’s submissions that the evidence of Mr Wood was untraversed by cross-examination. Counsel for Woolstar had the opportunity to respond to that submission and did not do so. 

27.	The factual allegations made in these proceedings are the same as those made in the prior proceedings which were subject to extensive analysis. 

28.	There is no real dispute on the evidence that various real events took place at work over time which Mr Wood perceived as bullying and harassment. 

29.	The clinical records support that Mr Wood was complaining to his treating doctors over time about feeling victimised at work and the increase in psychological symptoms as a result. Counsel for Mr Wood submitted at some length in respect of the support found in the clinical records. Counsel for Mr Wood went on to submit as follows:
“So when one looks at that in terms of contemporaneous reporting of the general practitioner that I’ve been at pains to take you through, Member, you could only but form the opinion that this worker has very much formed the opinion that he is been the subject of unrelenting efforts on the part of those he works with to make his time at work uncomfortable such that periodically he’s been referred for mental health review by psychologist, he’s been prescribed medication and, on the worker’s account as described in his statement evidence, it’s worked up to the culmination of his departure from employment in early 2018.

That’s consistent, Member, with the findings that Arbitrator Homan made where she identified that real events in the workplace - she accepted that there were real events in the workplace that likely would have played a role potentially and subject to the provision of appropriate medical evidence to support same. Now, we say that medical evidence is seen first and foremost in the opinion - in the clinical notes and it’s seen in the report as expressed by the general practitioner Dr Ayliff. Member Homan at paragraph 164 in her statement relevantly makes this observation, Member:

‘The applicant has identified a large number of incidents characterised by him as bullying and harassment in the workplace. There is no evidence from the respondent to refute the majority of these incidents. Some of these events appear to have been the subject of specific claims for compensation in the past.’

Paragraph 167, and this is with reference to Mr Bina and Ms Brown’s statements:

‘The respondent’s statements do tend to confirm some of the workplace events identified by the applicant were real. The statements also tend to confirm that the applicant may have perceived real events in the workplace as hostile. For example, Ms Brown said that knowing the applicant she used foul language or, for example, said that knowing the applicant, if she used foul language or had accused the applicant of trying to get a second umbrella he would’ve been upset. Mr Bina described the applicant as being physically unhappy.’

Paragraph 168:

‘Some of the events relied upon by the applicant also appear to have reported contemporaneously to his general practitioner.’

And she goes through the notes that I’ve taken you through, Member. So, Member, just purely from a factual standpoint, and obviously you have the worker’s statements, in particular, his most recent statement, you have also available to you, Member, in the applicant’s late documents some limited material that’s been produced by the employer and it’s perhaps again extraordinary, Member, that the employer has chosen not to put any material before you from what - based on the material that you have available, you could only infer would be a substantial personnel file for the worker given the interactions in the workplace, the issues with respect to his back and his hip but also noting, Member, the fact that a number of claims have been made in the past and dealt with by the insurer and you’ll note, in particular, there’s been section 74 notices issued and you’ll see those at page 14 for an injury - a psychological injury asserted 27 July ’15. Page 19, 28 December 2015 and then this injury in January of ’18.

So at the very least there’s incidents which have been reported to the employer and dealt with by the employer in mid and late 2015 of which the employer has seen fit to provide any material in response. We don’t have anything from the worker’s file other than what’s seen in the applicant’s Application to Admit Late Documents noting, of course, that the employer retained control of all these documents and what one sees from those late documents is the worker identifying issues with any number of workers. Michelle Haladane which by a passing Member Homan observes was a cause for concern and accepted that that was a problem in her reasons. Jason Holland, this is page 23, Bob Phillips and Joan Nelson are all identified.

We have a statement from Angela Brown following an investigation conducted in February 2016. That’s at page 10 of that late document. Email correspondence directed to, it appears, an investigator at page 13 of the late document. Emails in relation to issues and events that occurred on 6 January, 8 January and 13 January ’18. That’s page 27 of that late document and the worker’s detailed contemporaneous note of what occurred, seen his handwritten statement at pages 29 through 33 of that late document and then at page 28 an indication from the employer with respect to further investigations they’re going to undertake.

What we see in response to any of this? Nothing, not one thing. What you have, Member, is the worker’s uncontroverted statements, you have the clinical material from the general practitioner supporting ongoing issues stretching from 2014 all the way through to 2018 associated with the way in which the worker was being treated or perceived he was being treated in the workplace and the understandable, in the eyes of Dr Ayliff, ultimate decompensation and, indeed, foreshadowed, as I observed, by Dr Tawary that this is going to culminate in an unfortunate outcome and that’s effectively what we’ve seen.”

30.	Counsel for Woolstar submitted that Mr Wood could not be accepted as a witness of truth. He submitted that Mr Wood made very serious allegations of physical assault and vandalism of property which do not appear in the clinical records as having, despite their seriousness, been reported to his treating doctor. Counsel for Mr Wood pointed out that there was no  evidence from the respondent to refute Mr Wood’s evidence in this regard.

31.	I do not consider that it is necessary to find that every event that Mr Wood alleged took place in fact took place. It is clear on the evidence, including from Woolstar’s own witnesses, that a number of different events occurred which were real and that Mr Wood perceived as bullying and harassment. These events occurred over time and there is considerable contemporaneous support in the clinical records that Mr Wood was feeling victimised at work and he was experiencing increasing psychological symptoms as a result. As counsel for Mr Wood pointed out:

“So when one looks at that in terms of contemporaneous reporting of the general practitioner that I’ve been at pains to take you through, Member, you could only but form the opinion that this worker has very much formed the opinion that he is been the subject of unrelenting efforts on the part of those he works with to make his time at work uncomfortable such that periodically he’s been referred for mental health review by psychologist, he’s been prescribed medication and, on the worker’s account as described in his statement evidence, it’s worked up to the culmination of his departure from employment in early 2018.”

32.	Abitrator Homan made a finding in the prior proceedings that various real events took place which were perceived by Mr Wood as bullying and harassment and victimisation. This finding was not disturbed on appeal and it is well supported on the evidence before me. When I have regard to all of the evidence I too find that there were various events that took place at work over time that Mr Wood perceived as bullying and harassment. It is clear from the clinical records that he sought medical help as a result of increasing psychological symptoms as a result of what he perceived as victimisation at work. There is nothing in the evidence from Woolstar that would serve to refute in any meaningful way the evidence given by Mr Wood as to what he perceived took place. 

33.	It is not in contest that Mr Wood had a pre-existing psychological condition.
34.	It is not in contest that he now has a Major Depressive Disorder. The expert opinion is unanimous in this opinion.

35.	Dr Anning, IME qualified on behalf of Mr Wood, opines that: 

“I’m of the opinion that the bullying and harassment he experienced whilst employed with Woolworths aggravated his condition. Furthermore, Mr Woods developed a significant depressive condition causally related to the bullying and harassment.”

36.	There is no other contributing factor outside of work that Dr Anning identifies as causing an aggravation of Mr Wood’s pre-existing psychological condition. There is no other medical evidence that points to factors outside of work that contributed to the aggravation of Mr Wood’s pre-existing condition.

37.	Dr Kaplan, IME qualified on behalf of Woolstar, opines that Mr Wood had “now developed a depressive disorder that has arisen subsequent to his departure from work.” Dr Kaplan says that can be best attributed to the difficulty in resolving the claim, his sense of failure and victimisation. Whilst I note Dr Kaplan has the benefit of the opinions of Dr Oldtree-Clark and Dr Anning, he does not have the benefit of the clinical records. He is not asked whether Mr Wood has suffered an aggravation of a pre-existing psychological condition. 

38.	When I weigh all of the evidence in the balance I prefer the opinion of Dr Anning to that of Dr Kaplan. 

39.	When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Mr Wood has suffered an aggravation of a pre-existing psychological condition and his employment was the main contributing factor to the aggravation.

40.	The question is whether Mr Wood is estopped by reason of the principle of Anshun estoppel. 

41.	The principle of anshun estoppel derives from the High Court case of Anshun v [1995] NSWCC10; NSWCCR 247. 

42.	This has been dealt with in a number of cases in the Workers Compensation Commission at the presidential level and to which the parties have referred.

43.	Each case has to be dealt with on its own facts but the authorities provide useful summaries of the approach to be adopted.

44.	Counsel for Mr Wood submitted that the most analogous case is that of Fourmeininapub Pty Limited v Booth 2019 WCCPD 25. In that case President Phillips provides a useful summary of the authorities and the approach to be adopted. 

45.	I note in that case the President made a distinction between a section 4(a) injury and a section 4(b)(i) injury. Here perhaps the distinction is not as sharp as both proceedings involve the disease provisions – 4(b)(1) (work cased the disease) in the prior proceedings and 4(b)(ii) (work aggravated the disease) in the instant proceedings. Nonetheless the reasoning of President Phillips is instructive.

46.	President Phillips reasoned as follows:

“Anshun estoppel prevents a party from relying on a claim or defence if it unreasonably refrained from including it in the earlier proceedings. In Anshun, Gibbs CJ, Mason and Aickin JJ said: 
‘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.”  Anshun, [37].
Their Honours also said:
‘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.’ Anshun, [40].
In Habib, McColl JA said:
‘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: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers.’ Habib, [84].
It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so. In determining the Anshun estoppel question it is necessary to undertake an analysis of the medical evidence available in the proceedings below, to determine whether Ms Booth failed to bring the claim under s 4(b)(ii) in the proceedings before Arbitrator O’Moore. In particular it is necessary to consider whether, in the proceedings before Arbitrator O’Moore, there was an absence of medical evidence required to support the s 4(b)(ii) claim (which was determined in proceedings before Arbitrator Edwards). I accept Ms Booth’s submissions that the appellant has not taken me to any particular evidence to support its claim that the ‘alternative case’ was plainly available but not utilised in the previous proceedings. This is despite the appellant having filed supplementary submissions on the principle of Anshun estoppel, following my Direction. 
It is accepted that Ms Booth did not specifically bring a claim for a disease injury pursuant to s 4(b)(ii) in proceedings that were determined by Arbitrator O’Moore. For the reasons discussed above, under ground one, I am not satisfied that Arbitrator O’Moore determined whether a compensable disease condition had been sustained pursuant to s 4(b)(ii). That is because what was in issue was whether Ms Booth sustained a personal injury under s 4(a) arising out of or in the course of employment. As Ms Booth submits, s 4(a) and s 4(b)(ii) are separate and distinct causes of action which materialised when the evidence was available to pursue those claims. For the reasons discussed below, it was not until the report of Dr Scurrah in November 2017 that Ms Booth and her legal representatives were in a position to bring a claim for compensation pursuant to s 4(b)(ii). That is because Dr Scurrah’s evidence was the only evidence that specifically dealt with a disease injury.
I accept the appellant’s submission that at the time of proceedings before Arbitrator O’Moore, the bipolar condition had materialised and was diagnosed. However, the only evidence before Arbitrator O’Moore concerning a causal connection between the bipolar condition and employment was that of Dr Huntsman. 
In determining the issue of Anshun estoppel Arbitrator Edwards considered the medical evidence available during the proceedings before Arbitrator O’Moore. Arbitrator Edwards observed that Dr Walden disagreed with the opinion of Dr Pearson that Ms Booth’s episode of hypomania was secondary to her antidepressant medication prescribed for treatment of her PTSD and depression, and that Dr Walden opined that the Bipolar Disorder was a ‘new psychiatric disorder’ not causally related to the antidepressant medication. I observe that the report of Dr Pearson, of August 2005, wherein he opines ‘a causal connection to the onset of the bipolar condition due to [Ms Booth’s] major depressive condition and the aggressive medication for her work related medical condition’ is not in evidence before me nor was it before Arbitrator Edwards. However, I accept Arbitrator Edwards’ finding that Ms Booth and her legal representatives:
‘would have learnt upon the issuing of the MAC by Dr Walden that she was of the opinion the bipolar condition was not [causally] related to the injury by the ingestion of prescribed antidepressant medication; and that the bipolar condition was excluded from the assessment of the degree of permanent impairment resulting from the injury.’
Arbitrator Edwards considered Dr Huntsman’s medical evidence. In particular, Arbitrator Edwards noted that Dr Huntsman opined that employment was a substantial contributing factor to the onset of Ms Booth’s PTSD and Bipolar II Mood Disorder and that her psychological condition was directly and causally related to the November 2002 incident. Arbitrator Edwards also observed that Dr Huntsman agreed with Dr Walden’s opinion that Ms Booth’s hypomanic symptoms were precipitated by antidepressant medication and resolved quickly on cessation of that medication. Dr Huntsman concluded that, in the absence of any earlier history, it was likely that Ms Booth’s Bipolar Disorder was related to the November 2002 incident which ‘acted to ‘trigger’ her illness’. However, as Arbitrator Edwards found, Dr Huntsman did not explain how the November 2002 incident acted to trigger the bipolar condition. There was no further evidence on the causal connection between the bipolar condition and employment, that was available in the proceedings before Arbitrator O’Moore.
I accept that Ms Booth was legally represented in all the proceedings before the Commission. However, I am not satisfied that the evidence available at the time of proceedings before Arbitrator O’Moore was sufficient for Ms Booth or her legal representatives to be alerted to the fact that she suffered or could have suffered from a disease injury under s 4(b)(ii). That evidence, as Ms Booth submits, was not directed to the application of s 4(b)(ii), it was directed to the application of s 4(a). Further, the avilable evidence was not sufficient to warrant Ms Booth or her legal representatives to obtain a further medico-legal report directed to s 4(b)(ii).
I do not accept the appellant’s submissions that to succeed on the bipolar condition claim under one iteration of the concept of injury in the second proceedings (before Arbitrator Edwards), having failed in the first (before Arbitrator O’Moore), is an affront to the administration of justice. Firstly, that is because, for the reasons discussed above, there was no evidence available at that time to support a s 4(b)(ii) claim and because Arbitrator O’Moore did not make factual findings pursuant to s 4(b)(ii). Secondly, it is because Arbitrator Edwards’ decision on s 4(b)(ii) and Arbitrator O’Moore’s decision are not inconsistent in respect of the same transaction. Thirdly, the mere fact that the two proceedings are closely related is insufficient to find Anshun estoppel. Accordingly, having regard to the subject matter of the earlier proceedings and the evidence available at that point in time, it was not unreasonable for Ms Booth not to bring a claim for s 4(b)(ii) in the earlier proceedings. The appellant has not discharged the legal onus of proof that the evidence establishes, on the balance of probabilities, that it would have been unreasonable for Ms Booth not to rely on s 4(b)(ii) in the earlier proceedings. 
For the reasons discussed above, Arbitrator Edwards did not err in finding that Ms Booth did not act unreasonably by not claiming that she suffered a disease injury within the meaning of s 4(b)(ii) and by not pursuing that cause of action in the earlier proceedings. Nor did Arbitrator Edwards err in finding that Ms Booth was not estopped by the principle in Anshun from maintaining her cause of action that she suffered a disease injury pursuant to s 4(b)(ii). Arbitrator Edwards’ factual findings in this regard were open on the evidence and disclosed no error. 
In any event, it would have been improper for Ms Booth’s legal representatives to bring a disease claim in the 2009 proceedings. That is because on the available medical evidence, there was no case for a disease injury pursuant to s 4(b)(ii). I would remark that if a claim is misconceived or lacking in substance it is liable to be dismissed pursuant to s 345(7A) of the 1998 Act.
It follows that ground two is not made out.”
47.	Counsel for Woolstar referred to the decision of President Phillips in Secretary, Department of Communities & Justice v Miller & Anor (No 50 [2020] NSWWCCPD38 (Miller No 5).

48.	Again President Phillips provided a useful summary of the authorities and the approach to be adopted as follows:

“In terms of dealing with Ground Three, it is convenient to set out the framework within which Anshun estoppel operates as the basis for the determination of this appeal ground. 
McColl JA in Habib described Anshun estoppel in the following terms:
‘The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.’ (emphasis added)
In Anshun itself, Gibbs CJ, Mason and Aickin JJ described the principle in the following manner:
‘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.’
And further their Honours also said:
‘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.’
Returning to Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages, her Honour describes Anshun estoppel as “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
In particular at [84] her Honour says:
‘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.”
Her Honour also warns at [85] that:
•	‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’.’ (emphasis added)

•	Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: “Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits” and s 354(3) of the 1998 Act: “The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel. 
I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides: 
‘Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.” (emphasis added)
The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd, the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts . 
It is apparent that the main complaint advanced by the appellant in this matter is that the case advanced in Miller No 1 (and subsequently appealed in Miller Nos 2 and 3) and that are now pursued in Miller & Anor No 4 are so close that they should have been pursued in the earlier proceeding. The appellant points to the fact that the same death benefit is sought in both proceedings arising from the same factual circumstances. 
The respondents assert that whether any general principle regarding abuse of process or estoppel is engaged must be considered in the rubric of the practices and procedure applicable to proceedings in the Commission. The respondents, quite properly, describe the task in applying Anshun in the following terms:
‘In any event, as the passage quoted from the plurality in Anshun establishes,] the consideration of whether an estoppel is made out involves questions of reasonableness and justification. Those are matters that are inherently discretionary and involve evaluative judgement. Even if there were prima facie a basis upon which an Anshun estoppel might be found, the appellant has not demonstrated any error on the part of the Arbitrator in the exercise of his discretion and evaluative judgement. In order to do so, the appellant would have to establish error of the kind identified in House v The King,[] which it has not attempted to do.’
The respondents say that no error has been established in the Arbitrator’s approach at either a factual or discretionary level. This is a reference to the House v King principle relied upon by the respondents which provides as follows:
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’
The learned Arbitrator commenced his consideration of Anshun estoppel principles at Reasons [98]. At Reasons [104] the learned Arbitrator correctly records that the principle of Anshun estoppel is “discretionary” and that:
‘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.’
This with respect is a succinct and entirely uncontroversial formulation on the Anshun estoppel question to be answered in this matter. The appellant’s submissions do not assist with the determination of the issue as to whether it was unreasonable of Mr Miller to have failed to have brought the present proceeding or allegations in Miller No 1.
The appellant of course bears the burden of proof in establishing that it was unreasonable not to have done so. I accept that it is the general tenor of the appellant’s submissions that the failure to advance the case in Miller No 1 was unreasonable and in support of these submissions the appellant points to the similarity of the two cases in terms of the facts and the relief sought and that the only difference in Miller & Anor No 4 is the fact that the pleading is different and that this was a matter of choice and discretion made by the respondent and his advisers. I note the following statement in Anshun regarding the choice a party might make not to litigate a matter:
‘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 eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.’
The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd in the following terms:
‘The principles which I distil from these authorities are:
(a) 	the principle in 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.’
The learned Arbitrator, having posed the correct question at Reasons [104], then proceeds to review that which transpired In Miller Nos 1, 2 and 3, before turning to the final issue for determination, being the Anshun estoppel.
At Reasons [118]–[121] the learned Arbitrator then considers whether or not the Anshun estoppel is made out. He finds it is not, essentially on two bases. The first is “the mere fact that the proceedings are closely related is insufficient”. However, it is clear that it is the additional medical evidence in Miller & Anor No 4 which has figured highly in the learned Arbitrator’s decision. At Reasons [120] the Arbitrator finds:
‘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.’
This is a correct statement of fact; the learned Arbitrator was possessed of evidence which was not before the first instance decision maker in Miller No 1. However, that is not the end of the matter. The question which needed to be explored at this point was the exercise of the “evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” in accordance with McColl JA’s remarks in Habib which I have set out above. The learned Arbitrator did not undertake this consideration. 
However, it is hard to discern where the enquiry which is posed by the learned Arbitrator at Reasons [104] is actually answered in terms. The fact, as stated at Reasons [110] that “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” was factually correct. This finding ought to have led the learned Arbitrator, consistent with the task set at Reasons [104], to considering whether or not it was unreasonable not to have advanced this case in Miller No 1. This would have entailed a consideration of what was known to the respondent 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. For example, the following was available in Miller No 1:
(a)	The application in respect of death of worker filed in 5831/16 pleads the following in Part 4:
‘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)	Secondly, Dr Abbas provided an expert certificate pursuant to s 177 of the Evidence Act 1995 on 4 August 2011. Dr Abbas, a general practitioner, said as follows:
‘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)	Mr Craig Holman, an ambulance officer, gave the following statement to the NSW Police on 27 June 2011:
‘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)	In a report addressed to the respondent’s solicitors dated 8 October 2015, Dr Paul Jennings stated as follows:
‘(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)	Finally, I would refer to 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”.
This material was all available to the respondents and their advisers prior to the commencement of the 2016 proceedings. No issue appears to have been taken regarding the progression of events on 15 April 2011 from the onset of the severe asthma attack, the consequent anoxia and cardiac arrest. However the case now advanced, notwithstanding this knowledge, was not advanced in the 2016 proceedings.
The similarity of the proceedings in and of themselves is not determinative but it is certainly a factor that needs to be evaluated. However, the question that the learned Arbitrator had to grapple with was whether or not it was unreasonable of the respondent not to have proceeded with the current allegations in the 2016 proceedings. 
These are matters which will need to be properly prepared and explored. Accordingly, it is appropriate that the matter be remitted to another Arbitrator for redetermination to enable the Anshun issues to be properly considered and addressed. The learned Arbitrator was not much assisted by not being taken to these issues which go directly to whether an Anshun estoppel arises or not. I am satisfied that the learned Arbitrator was aware of the Anshun principle as described at Reasons [104]. However in rejecting the Anshun argument, the learned Arbitrator failed to apply the test which he had quite properly set for himself at Reasons [104].
I note that reference has been made to my decision in Booth in as much as it dealt with an Anshun estoppel question. In that case I held that there was no Anshun estoppel as there was no evidence at the time of the filing of Ms Booth’s original proceedings which would have put her or her advisers upon notice of a psychiatric condition which had not yet materialised. That is to be contrasted with the situation here where the knowledge of what transpired on 15 April 2011 was in fact well known to the parties and their representatives. I think the facts in Booth can therefore be distinguished accordingly from those in this matter. 
I therefore conclude that the learned Arbitrator, by not undertaking the enquiry that I have referred to above, namely whether it was unreasonable not to have advanced the current claim in the earlier proceedings, has in fact acted upon a wrong principle in a House v The King sense. The material which I have briefly outlined above was not taken into account in terms of considering the question of unreasonableness. The learned Arbitrator was thus in error.” 
49.	Counsel for Mr Wood submitted that the case can be distinguished from the Miller case as follows:

“They had medical evidence available to them at that time to run that case, the case was pleaded in that form at that time but the ground was withdrawn and not pursued. Ultimately Mr Miller and his son were unsuccessful, they turned around and commenced the case having made an explicit decision not to pursue that line or argument in the first instance. 

Now, that’s the classic Anshun estoppel. The evidence is there, you can run that case, you make a decision not to run the case that way. That’s not this case. This case was only ever run on the 4(b)(i) line. The medical evidence to support the case, i.e., the report of Dr Anning that has a detailed analysis of – sorry, Mr Anning that has a detailed analysis of matters to causation was not available and that argument is now in a position to be able to be put and the proposition put and there’s a separate and distinct injury as the Act allowed and the President makes that very observation in Miller – may very well have been number 7 – no, it’s number 5, Member, that’s the 2020 decision at 38 - I’ve just gone and lost my place – where he talks in terms of needing to be careful in the workers compensation field as far as the Act is concerned where there’s potentially multiple causes of action arising out of the one injury in dealing with Anshun estoppels.

In our submission, the absence of Mr Anning’s report makes it clear that there was no basis upon which the 4(b)(ii) argument could’ve been run in the original proceedings. In those circumstances, there can be no criticism, we say, levelled at the worker because any – there was no basis upon which to pursue such an argument in the initial proceeding. Finally just trying to find the paragraph, I had it a moment ago, Member.

If you look at page – paragraph 200 of that second – of that most recent decision, the 2020 decision of President Phillips. Paragraph 200 you’ll see there where Anning analysed all the evidence. He ultimately concludes the evidence was available to run the argument and the decision was taken not to run it and that was the basis upon which there was an acceptance that there was an Anshun estoppel.

So we say no, Member, the case was not there, it was not in a position to be able to be run at the initial proceedings. It wasn’t part of the case at any stage before Arbitrator Homan. In those circumstances we say no Anshun Estoppel lies.”

50.	Counsel for Woolstar submitted that Mr Wood is caught by the principles of Anshun estoppel. He submitted:

“The question of the Anshun estoppel issue is then raised in the section 78 notice dated 26 March 2021 and, in particular, at page 65 of the Reply but when looking at the claim and what evidence was available before Member Homan in matter number 2096 of 19, I draw your attention to the Application to Admit Late Documents which should include, Member, as I understand it, the ARD from the earlier proceedings where the applicant sought weekly benefits of compensation, lump sum compensation and medical expenses. He advanced a claim for psychological injury and stated he suffered a gradual onset of a psychological injury culminating in permanent impairment.

Turning to the annexures to that ARD, in particular, those identified at part 6 under the heading Supporting Documentation you can see there, there is the complete record of the Engadine Medical Centre and that’s at about the eighth item down. Any review of that aspect of the document to which the applicant sought to rely indicates the applicant suffered a pre-existing psychological condition.

There can be absolutely no contest on that and, in fact, the applicant seeks to advance that at this point in time. The notes of the general practitioner identify that. The further aspect is that at the hearing occurring - I don’t know the date that the matter was previously heard but extensive submissions were made by Mr Parker of counsel who was acting for the respondent concerning the nature of the claim that was being advanced.

The applicant at that point had the opportunity to do one of a number of things. He could maintain his claim for an allegation of injury pursuant to section 4(b)(i) and take the risk of an estoppel being involved to sought to be relied upon by the respondent in light of his knowledge of those submissions and review of the evidence or alternatively, the applicant could consider his position, discontinue his claim and make any - take any steps he considered necessary to further prepare it. He continued in light of the first. 

Any allegation by the applicant that he did not know of a pre-existing condition and consequently the question of the possibility of a section 4(b)(ii) injury would be comfortably rejected by you, Member, in light of those facts. Now, the applicant is presented with an opportunity to pursue his claim in a number of different ways and he chose to press it on the basis of the 4(b)-type-(ii) injury.

In the applicant’s position which I’m - I assume a submission will be made by Mr Morgan that there was just no evidence to support a claim based on 4(b)(ii) must be viewed in light of the material served under the original Application to Resolve a Dispute and the submissions made at that time. The further aspect is it’s the exact same evidence that’s been relied by the applicant to assert the different type of the injury except for the modification of the opinion of Dr Oldtree Clark or his flip=flopping and the addition of the opinion of Dr Anning but with the qualifications and submissions I made concerning how exactly he might treat the opinion of Dr Anning. It’s a matter of choice and discretion as to how the applicant can pursue his claim. 

The risk is that if he did, or in the way in which he did advance that claim, Member, he opens himself up to a real and distinct possibility of an estoppel being found under the principles identified in Anshun. Further to that, Member, there’s simply no explanation from the plaintiff’s camp as to why the 4(b)(ii)-type injury was not pursued in the earlier proceedings. The difficulty there is that it’s on the applicant to put on evidence that might address that particular issue.

In light of the submissions made during the earlier proceedings by Mr Parker no doubt there was a conscious decision by the applicant to not pursue that type of claim. In those circumstances, it’s an unreasonable position of the applicant to take and then the applicant needs to explain why it was not unreasonable to pursue the claim at the particular point in time.

What we are facing here is a claim for an aggravation-type injury which is very much a mirror image of the factual case that has been previously been advanced by the applicant and that is a circumstance to which Anshun and the various cases including Bruce v Grocon and that sort of thing are designed to deal with. The fact is the applicant was unsuccessful in establishing injury in the first instance in his various failings as identified by Arbitrator Homan but he has not - he’s simply sought to rehash the same factual case, add a couple of reports which are lacking in their own regard and then seek to pursue this apparent alternative case and Anshun, in the respondent’s submission, the applicant would be estopped from doing that.”

51.	What the authorities can be distilled as saying is for me to find Mr Wood was estopped by virtue of an Anshun estoppel is I would have to find that it was unreasonable of him not to run the section 4(b)(ii) aggravation case in the prior proceedings. The onus would appear to be on Woolstar to establish this because President Phillips said that the onus was on the appellant in that case. Each case has to be decided on its own facts. Here Mr Wood did not run the section 4(b)(ii) case because he did not have expert evidence that supported that case. Without that evidence he could not run that case. The finding in this case that Mr Wood has suffered an aggravation injury (section 4(b)(ii)) is not one which is inconsistent with the findings made in the prior proceedings. I am not satisfied that the principles of Ashun estoppel apply in the present case to preclude an award in his favour. 

52.	Given my finding that I am satisfied on the balance of probabilities that Mr Wood has suffered an aggravation of a disease to which his employment was the main contributing factor to the aggravation, this means the matter will now be remitted for referral to a MA to assess the degree of permanent impairment if any, as a result of psychological injury deemed to have occurred on 3 July 2018. The documents to be forwarded to the MA are those admitted in these proceedings as set out above. As per the parties agreement and in accordance with the authority of Jaffarie, the matter will be relisted for a telephone conference to deal with the outstanding issues of weekly compensation and compensation for medical expenses.