Racing NSW v Goode (NSWPICPD 2023)

Link to Decision

Link to Video

Key Takeaways

• A reminder for insurers about how important it is to carefully consider the grounds on which it disputes claims from the outset and to include consideration of less obvious/common defences (in this matter the Anshun defence); and
• A reminder for parties how to properly prepare arguments concerning the late introduction of new disputes in PIC proceedings.

Brief Facts

There is no dispute the worker (a jockey) sustained very serious injuries (including a complete spinal cord injury) as a result of a fall during a race in 2009. In 2010, the worker received a lump sum payment pursuant to s66 of the Workers Compensation Act 1987 (the 1987 Act) equivalent to 85% WPI.

Over the years, the worker has submitted various claims many, if not most, have been accepted however some claims have been disputed.

In 2020, the worker commenced proceedings in the WCC (as it was at the time) challenging a number of disputes raised by the employer. The 2020 proceedings resolved by consent with the employer agreeing to pay some claims and the worker conceding some awards in the employer’s favour. Relevantly for present purposes, the worker also discontinued some of the claims.

In 2021, the worker commenced proceedings in the PIC. He was challenging numerous disputed issues including some of the issues raised in the 2020 proceedings which had been discontinued.

At the beginning of the hearing of the 2021 proceedings, for the first time, the employer sought leave to rely on Anshun defence with respect to the claims pleaded in the 2021 proceedings which were pleaded in the 2020 proceedings but ultimately discontinued. The thrust of the employer’s proposed reliance on the Anshun defence was that the worker could and should have pursued those claims in the 2020 proceedings.

Broadly speaking, the Anshun defence can be relied upon by a party to prevent another party from pursuing or relying on an issue that could and should have been raised previously. Applied to the present matter, the employer was arguing that the worker pleaded but ultimately discontinued some claims in the 2020 proceedings thus he should not be allowed to litigate those claims in the 2021 proceedings. Another example of the Anshun defence in action would be where, in earlier proceedings, a party could and should have raised a specific defence but did not do so. If activated, the Anshun defence would deny that party the ability to raise that issue in subsequent proceedings.

Arbitral Decision

Member John Wynyard did not grant leave to the employer to rely on the Anshun estoppel principles. He effectively determined that the employer could not rely on the defence because of the late notice given and because the worker would be prejudiced.

Member Wynyard went on to find in favour for the worker with respect to most, if not all, of his claims.

The employer appealed Member Wynyard’s decision. The appeal ultimately focused on Member Wynyard’s failure to properly consider the merits of the Anshun defence when dealing with the s289A application.

Presidential Decision

President Judge Phillips’ decision includes a useful summary of some of the main s298A principles with respect to what disputes can be referred to the PIC. His summary includes a review of the leading case of Mateus v Zodune Pty Ltd t/a Tempo Cleaning Services (NSWWCCPD 2007). In that case, Deputy President Roche provided a non-exhaustive list of matters to be considered and applied in the exercise of the s289A discretion.

President Judge Phillips ultimately determined that Member Wynyard ‘failed to take into account relevant matters, namely the factors referred to in Mateus, including assessing the merit or otherwise of the proposed Anshun defence’ (paragraph 69).

President Judge Phillips then proceeded to re-determine the matter rather than refer it back to another member.

After a thorough review of evidence and relevant principles, President Judge Phillips decided not to grant the employer leave to rely on the Anshun defence. He found ‘that it is not in the interests of justice to grant the [employer] leave under s289A of the 1998 Act. Whilst there could be circumstances where an Anshun estoppel could be established in relation to multiple claims for s60 expenses, the [employer] had not been able to discharge the burden of having the discretion allowed in its favour’ (paragraph 106).

Implications

The presidential decision highlights the importance of sound pleadings and the importance also of having detailed arguments prepared when trying to introduce new issues/disputes in proceedings at the eleventh hour.