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Get it right the first time

  • Newsletter Article
  • Published 14.12.2022

Miller v Secretary, Department of Communities and Justice (NSWCA 2022)

Link to Decision

Key Takeaways

A plaintiff is obliged to bring before the court all relevant considerations relating to the defendant’s liability in the first instance and is not permitted to keep bringing claims which re-frame the nature of the claim being made, after being unsuccessful in earlier proceedings.

Brief Facts

The late worker was employed by the Department of Communities and Justice at Nynghana Home Care at Brewarrina in North-Western New South Wales. The worker was known to be an asthmatic. On 15 April 2011, while driving a community bus from Brewarrina to Dubbo in the course of her employment, the worker suffered a severe asthma attack. After about 30 minutes, the severity of the attack caused anoxia and cardio-pulmonary arrest. The worker was taken to Nyngan Hospital, where she was pronounced dead.

Successive claims for compensation were made first by the worker’s husband, and then by her husband and son, jointly. The first claim for compensation particularised the relevant injury as an ’asthma attack’. In the first of a number of proceedings in the Workers Compensation Commission (as it then was) and then the Personal Injury Commission, an Arbitrator was not satisfied that the worker’s employment was a ’substantial contributing factor’ to the asthma attack, because the worker had suffered from asthma all of her life and the driving of the bus on 15 April 2011 did not catalyse the asthma attack in question.

In the second claim for compensation, the ’injury’ was pleaded as anoxia and cardiac arrest arising in the course of the worker’s employment. An Arbitrator found that the relevant ’injury’ was cardio-pulmonary arrest and found that that injury was causally connected to the worker’s employment by reason of the remote location in which she was required to work insofar as that location deprived her of access to the kind of treatment for her asthma attack that would have prevented the cardio-pulmonary arrest and death. On appeal to the President of the Commission, it was held that the Arbitrator had failed to address the question of Anshun estoppel, which was remitted to a different Arbitrator for determination. The Arbitrator upheld the Anshun defence, as did the Deputy President on appeal.

The Anshun doctrine precludes a party from asserting in later proceedings a claim which, having regard to all the circumstances, could and ought reasonably have been brought in earlier proceedings. It is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding.


The Court held that:

  1. There is no reason in principle why Anshun estoppel ought not be applicable to the legislative schemes established by the Workers Compensation Act 1987 (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). One cannot expect there to be a perfect alignment between a statutory framework and common law principles, in this case the 1987 and 1998 Acts and the principle of Anshun estoppel. Mere difficulty in the application of such principles to the statutory framework should not preclude any attempts to reconcile the two in the absence of an express exclusion of common law principles by the legislature, or manifest inconsistency between the statute and those principles. The application of the principle of Anshun estoppel is consistent with statutory provision for dismissal of vexatious proceedings in the compensation jurisdiction.
  2. Courts have consistently applied Anshun estoppel in the context of the 1987 and 1998 Acts in situations where the dispute concerns the whole issue of liability to pay compensation as opposed to disputes where compensation was claimed for separate entitlements arising from the one incident.
  3. Insofar as the 1998 Act provides that disputes are to be determined according to ’equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’, this does not preclude the application of Anshun estoppel to the legislative scheme. Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice.


The rationale of the Anshun doctrine is to prevent a party being vexed by multiple proceedings when the issue raised in the later proceedings ought reasonably have been raised in the earlier proceedings. A party is required to plead all relevant issues in the one action, rather than re-framing the grounds of the claim after failing on earlier allegations.