OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing v Dang [2022] NSWPICPD 32

Background

The Respondent Worker, Than Quoc Dang, sustained an injury to his back in the course of his employment with the Appellant, OneSteel Reinforcing Pty Ltd, deemed to have occurred on 25 September 2016.

In 2019, the Respondent Worker commenced proceedings for weekly compensation payments and medical expenses. The consent orders from this proceeding stated that the Appellant would pay the Respondent $25,000.00 in weekly benefits and medical expenses up to $5,500.00.

On 1 December 2020, the Respondent Worker sought approval to undergo an MRI scan for his back.  Payment was denied by the Appellant, who asserted that the Respondent Worker was not entitled to further payments after the consent order.

On 9 March 2020, the Respondent made a claim for s66 lump sum compensation in respect of his back injury. This claim was declined via a s78 notice, on the basis that that the Respondent had relied on the supplementary report of Dr Giblin, which was available and not disclosed at the time of the 2019 proceedings. The Appellant specifically relied upon the principles of estoppel in the case of Port of Melbourne Authority v Anshun Pty Ltd and in Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 (Anshun).

In response, the Respondent Worker lodged an Application to Resolve a Dispute seeking medical expenses and s66 compensation. At the Commission, Member Glenn Capel found in favour of the Respondent Worker.

Member Capel did not consider that the Respondent Worker was estopped from relying on the report of Dr Giblin in the subsequent lump sum proceeding, as the previous proceeding related to weekly compensation and medical treatments. Furthermore, the Member did not consider it an abuse of process for the Respondent Worker to bring separate claims for compensation, in circumstances where he had been contemplating surgery, and thus the assessment of Dr Giblin would have become inaccurate for WPI purposes had it been used in earlier proceedings.

Issues

The main issue in this case was the claim for estoppel consequent to earlier consent orders. Specifically, the Appellant argued that Member Glenn Capel had failed to properly apply the principles of estoppel contained in Anshun, and thus the Respondent Worker should be estopped from bringing forth his lump sum compensation claim.

Decision on Appeal

The Appellant argued that law relied upon by the Member was inconsistent with the recent High Court decision of Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA (Tomlinson). This case recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Essentially, if a relevant claim or issue is made in a latter proceeding and it causes an abuse of process, this can be grounds for an estoppel.

Therefore, the Appellant had submitted that the Respondent Worker should be estopped from making his claim for lump sum compensation, as splitting up the claim between weeklies/medicals and lump sum compensation, constituted an abuse of process.

However, Deputy President Wood found that the abuse of process in Tomlinson, and Anshun estoppel, are two distinct concepts. One does not overpower the other, rather they build on each other.

An Anshun estoppel arises in circumstances where the claim or issue is so closely connected to the subject matter of the prior proceedings that it is unreasonable for the claim or issue not to have been made in those proceedings. Whilst slightly different, it still proceeds on the basis that if a party has split his or her case, it must be considered whether it was unreasonable to do so.

Deputy President Wood emphasised that there was no authority to support the Appellant’s allegation that the mere fact that the Respondent Worker was “splitting his case” weighs more heavily than a consideration of whether or not it was reasonable for him to have done so.

Ultimately, she held that whilst it may have been improper for the report to remain undisclosed, the report only showed the Respondent Worker could have brought his lump sum compensation claim at an earlier time. It did not go to the assessment of whether the action in not pursuing the lump sum compensation claim at a later point in time, was unreasonable.

Deputy President Wood emphasised the decision of the Court of Appeal in Champerslife Pty Ltd v Manojlovski. Noting that the mere fact that the matter could have been raised does not mean it should have been raised. Rather, it has to be so relevant as to make it unreasonable not to raise it.

In this matter the Respondent Worker had explained his reasons for not making his lump sum claim sooner. He was conscious of the fact that he was only entitled to make one claim for lump sum compensation, and he was at the time of the first proceeding, still unsure as to whether he was going to undertake the surgery. Thus, it was found that his decision to split is claim was reasonable, in circumstances where the surgery would logically affect his whole person impairment.

Consequently, Deputy President Wood was satisfied that Member Glen had applied the correct reasoning, and the Respondent was not estopped from bringing forth his s66 lump sum claim.

Implications

Before raising issues of estoppel, employers and insurers must consider:

1. Whether a Worker’s failure to raise an issue or claim in an earlier proceeding, can be considered an abuse of process.
2. A request for an explanation for the Worker’s decision to delay or ‘split’ claims should be sought to address the issue of reasonableness in not bringing all claims at the same time.
3. In determining if it was an abuse of process, it must be considered whether it was unreasonable for the claim or issue not to have been made in the earlier proceedings.
4. In assessing reasonableness, the mere fact that the issue could have been raised does not mean it should have been raised. Rather, it has to be so relevant as to make it unreasonable not to raise it. Reasonableness is to be assessed on a case-by-case basis.

Contributor: Melissa Cuadros Lu

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.