Miller v Secretary, Department of Communities and Justice

ller v State of New South Wales [2018] NSWCA 152 Miller v The State of New South Wales [2017] NSWWCC 66 O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282; [2003] NSWCA 146 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Salmon Street Ltd (in liq) v Jorgensen (1991) 56 SASR 158 Secretary, Department of Communities and Justice v Miller [2020] NSWWCCPD 38 Secretary, Department of Communities and Justice v Miller [2020] NSWWCCPD 57 Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235 Stephenson v Return to Work Corporation of South Australia (2019) 134 SASR 141; [2019] SASCFC 89 Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370 Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 VACC Insurance Co Ltd v BP Australia Ltd (1999) 47 NSWLR 716; [1999] NSWCA 427 Category: Principal judgment Parties: David Miller (First Appellant) Terren Tuhi (Second Appellant) Department of Communities and Justice (Respondent) Representation: Counsel: D Hooke SC with SH Hartford Davis (Appellants) PM Morris SC with L Morgan (Respondent)

Solicitors: Stacks Law Firm Southern (Appellants) Moray & Agnew Lawyers (Respondent) File Number(s): 2021/00299055 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission Citation: [2021] NSWPICPD 29 Date of Decision: 23 September 2021 Before: Deputy President M Snell File Number(s): A2-2472/19

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[This headnote is not to be read as part of the judgment] The late Ms Moori Miller was employed by the Department of Communities and Justice at Nynghana Home Care at Brewarrina in North-Western New South Wales. Ms Miller 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, Ms Miller suffered a severe asthma attack. After about 30 minutes, the severity of the attack caused anoxia and cardio-pulmonary arrest. Ms Miller was taken to Nyngan Hospital, where she was pronounced dead. Successive claims for compensation were made first by Mr David Miller, Ms Miller's husband, and then by Mr Miller and Mr Terren Tuhi, Ms Miller's 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 Ms Miller's employment was a "substantial contributing factor" to the asthma attack, because Ms Miller 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 Ms Miller's employment. An Arbitrator found that the relevant "injury" was cardio-pulmonary arrest and found that that injury was causally connected to Ms Miller'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 (inter alia) 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 appeal to this Court was confined to a single issue, being the following question of law: (1) Is the application of the common law doctrine of estoppel associated with Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 as a defence to statutory entitlements consistent with the scheme of the Workers Compensation Act 1987 (NSW) (1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act)?

The Court (per Ward P, Brereton JA and Mitchelmore JA agreeing) held, dismissing the appeal [128] (Ward P), [133] (Brereton JA), [138] (Mitchelmore JA):

As to issue (1):

1. There is no reason in principle why Anshun estoppel ought not be applicable to the legislative schemes established by the 1987 and 1998 Acts: [127] (Ward P). One cannot expect there necessarily to be a perfect alignment between a statutory framework and common law principles, here 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. No such exclusion or inconsistency exists here: [127] (Ward P). Moreover, the application of Anshun is consistent with statutory provision for dismissal of vexatious proceedings in the compensation jurisdiction: [134] (Brereton JA). Lambidis v Commissioner of Police (1995) 37 NSWLR 320, applied.
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: [120]-[121] (Ward P), [135] (Brereton JA). Salmon Street Ltd (in liq) v Jorgensen (1991) 56 SASR 158, distinguished.
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: [123] (Ward P).

Judgment

1. WARD P: This is the latest in a succession of applications relating to claims for compensation, following the death of the late Mrs Moori Miller (the deceased), by members of the deceased's family. The first appellant was the deceased's husband; the second appellant, her son.
2. Briefly, the circumstances in which those compensation claims arose were that the deceased, who was employed by the Department of Communities and Justice (Department) at Nynghana Home Care at Brewarrina in North-Western New South Wales, and was known to be an asthmatic, experienced a severe asthma attack on 15 April 2011, while driving a community bus from Brewarrina to Dubbo in the course of her employment. After about 30 minutes, the severity of the attack caused anoxia and cardio-pulmonary arrest. The deceased was taken to Nyngan Hospital, where she was pronounced dead. The deceased was 48 years old at the time of her death.
3. Successive claims for compensation were made (as described in more detail shortly). The present proceeding is an appeal pursuant to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) from a decision of the Personal Injury Commission, constituted by Deputy President Snell (Miller v Secretary, Department of Communities and Justice (No 9) [2021] NSWPICPD 29 (Miller (No 9)). The appeal is confined (as it must be) to a question of law, namely: Is the application of the common law doctrine of estoppel associated with Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 as a defence to statutory entitlements consistent with the scheme of the Workers Compensation Act 1987 (NSW) (1987 Act) and the 1998 Act?
4. The appellants emphasise that there is an extant finding in their favour that they are entitled to no-fault statutory compensation under ss 25 and 26 of the Workers Compensation Act 1987 (NSW) (the 1987 Act). The effect of the decision in Miller (No 9) is that the appellants are barred from recovering that statutory entitlement by reason of the operation of an Anshun estoppel (eponymously named after the decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (Anshun)). The appellants accept that there can be no challenge to the unreasonableness finding underpinning the Anshun defence.
5. If the appeal is allowed, the appellants seek the remittal of the matter to the Personal Injury Commission for determination of outstanding issues.

First claim for compensation (proceeding no 5831 of 2016)

1. As noted above, the deceased died on 15 April 2011. The first claim for compensation (proceeding no 5831 of 2016) was made by application dated 10 November 2016 by the deceased's husband, Mr Miller, to the then Workers Compensation Commission. The application was made pursuant to ss 25 and 26 of the 1987 Act. The deceased's dependent son (the second appellant in the present proceeding) was a respondent to the first application.
2. The claim form defined the deceased's "injury" as "an asthma attack". The injury was particularised as a disease and the claim was brought as a claim for "aggravation, acceleration, exacerbation or deterioration" of a disease pursuant to s 4(b)(ii) of the 1987 Act. On the question of causation, the relevant counterfactual analysis involved the contention that a better outcome for the deceased would have ensued had the asthma attack occurred in a centre such as Brewarrina rather than in the remote location in which the deceased was at the time (in the course of her employment).
3. In a determination made on 21 March 2017 in Miller v The State of New South Wales [2017] NSWWCC 66 (Miller (No 1)), Arbitrator Batchelor was not satisfied that the deceased's employment was a "substantial contributing factor" to the "injury" (i.e., as defined, the "asthma attack"), within the meaning of s 9A(1) of the 1987 Act, because the deceased had suffered from asthma for all of her life (see at [8]). The Arbitrator noted that it was not in dispute that the driving of the bus on 15 April 2011 did not bring on the asthma attack (see at [107]).
4. Arbitrator Batchelor found that the cause of the deceased's injury was a pre-existing medical condition which was not aggravated by her employment (see at [112]). The Arbitrator (in a passage later endorsed by this Court) observed that in addressing a causal connection between employment and injury, there must be a focus on the injury relied upon by the applicant (see at [107]); and said that, while the deceased's death may have been contributed to by the remoteness of the location, her death was not the injury she sustained (see at [107]). Thus, the Arbitrator concluded that, while the location of events may have been a substantial contributing factor to the deceased's death "it was not such a factor to her injury" (see at [110]).
5. The appellants say that the first application thus failed by reason of a misidentification of the "injury" and insufficient attention to the causal requirement in the presentation of the claim (a problem unable to be rectified on appeal).

Second claim for compensation (proceeding no 2472 of 2019)

1. The second claim for compensation (proceeding no 2472 of 2019) was commenced by application dated 22 May 2019 to the Workers Compensation Commission. The second appellant was this time named as a claimant. On this application, the "injury" was pleaded as anoxia and cardiac arrest arising in the course of employment, per s 4(a) of the 1987 Act. The insurer disputed liability (by notice issued under s 78 of the 1998 Act) (see at [4]), among other things on the basis that: … the claim could not be maintained by reason of estoppels - 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 Jeffery (sic) Parker SC dated 1 September 2017 in WCC A1-5831/16; or in the alternative; • The determination of NSW Court of Appeal dated 12 July 2018 (bearing medium neutral citation [2018] NSWCA 152).
2. The appellants relied in support of this application on the additional evidence of Dr Jennings and Professor Fulde that had been rejected by Parker ADP in Miller (No 2). The claim was presented on the basis that the deceased's employment had taken her away from her normal workplace, where it was said that the additional evidence established that it was more likely than not that the deceased would have survived the asthma attack (see at [33]). It is noted by the respondent that there was no additional evidence adduced relevant to the issue whether, in the relevant counterfactual, the deceased would have appreciated that she was suffering a severe asthma attack and then acted appropriately (but that Arbitrator Wynyard nevertheless concluded that the deceased would have sought medical assistance within the window of opportunity).
3. In the present appeal, the appellants emphasise the dispositive factual finding concerning the causality of the deceased's death made by Arbitrator Wynyard in Miller v Secretary, Department of Communities and Justice (Workers Compensation Commission (NSW), Arbitrator Wynyard, 11 October 2019, unrep) (Miller (No 4)), namely that: 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 10km 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.

Legislative framework

1. The legislative scheme under the 1987 Act, which was in force at the time of the deceased's death, for compensation for the estate and dependants of a deceased worker who dies in the course of employment, encompasses the definition of "injury" (see s 4(a)) as being, relevantly, "personal injury arising … in the course of employment". By s 4(b)(ii), the term "injury" includes what is now known as "disease injury", which means the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease, but only "where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration". By s 9A(1), compensation is payable if "the employment concerned was a substantial contributing factor to the injury".
2. By the time of the second application, the relevant legislation was the 1998 Act as it was in force as at 22 May 2019. From 1 March 2021, the Workers Compensation Commission was abolished, and the matter became a matter within the Workers Compensation Division of the Personal Injury Commission.
3. The jurisdiction of the Commission is created and defined by the 1998 Act, which established the Workers Compensation Commission of New South Wales (s 366(1)) and invested it with "exclusive jurisdiction to examine, hear and determine all matters arising under [the 1998 Act] and the 1987 Act" (see s 105(1) of the 1998 Act). Emphasis is placed by the appellants on the fact that the jurisdiction of the Commission is relevantly confined by the claim-based notification and payment regime (which they identify as the cardinal features of the legislative scheme).
4. The process for making a claim for compensation as set out in the 1998 Act encompasses the following.
5. An injured worker is to give notice of the injury to the employer as soon as possible after the injury happens (s 254(1)), and the notice must state "the cause of the injury" (s 255(1)(b)). Compensation cannot be recovered under the 1998 Act unless a "claim for the compensation has been made within 6 months" of either the injury or the date of death (s 261(1)). A claim must be made in accordance with the Workers Compensation Guidelines (s 260(1)), and must include, inter alia, "full details" including of the "injury received by the claimant" (s 282(1)(a)).
6. Within 21 days after a claim for weekly payments is made, the person on whom the claim is made must "determine the claim" (by accepting liability and commencing payments, or by disputing liability) (s 274(1)(a) and (b)). Thus, it is said that the "claim" itself is to be determined by the employer (or its insurer) in response to a statutory notice and not by the Commission.

Appellants' submissions

1. The appellants submit that the legislative framework of the 1987 Act is not consistent with the application of the common law principle of Anshun estoppel as a defence to defeat a statutory entitlement; and they argue that the principle of Anshun estoppel is not available for use to defend applications brought before the Commission (cf the conclusion in Miller (No 5) at [187]).
2. In this regard, the appellants place emphasis on the recognition in the authorities (see below) that Anshun estoppel has the status of a "true estoppel". It is submitted that the relevant enquiry is therefore not as to the finality of a decision of the Commission (as it is said would be the required focus in determining whether issue estoppel or res judicata could be applied) but instead to whether the statutory regime is consistent with the importation of a non-statutory common law defence.
3. The appellants argue that the focus of Anshun estoppel on "reasonableness" is to be understood as a prism for analysing the conscience of the litigant, consistently with the ordinary principles of estoppel. Reference is made to British Airways Board v Laker Airways Ltd [1985] AC 58, where Lord Diplock at 81 referred to different categories of a "legal or equitable right not to be sued", including a contractual right (for example an exclusive jurisdiction clause), and other defences that can be "given anticipatory effect as a right not to be sued", of which his Lordship said: Of such defences it is not difficult to point to a number of examples most of them equitable in historical origin, such as estoppel in pais … promissory estoppel, election, waiver, standing by, laches, blowing hot and cold - to all of which the generic description of conduct that is 'unconscionable' in the eye of English law may be given.
4. It is noted that the above passage was cited alongside the decision in Anshun by the plurality in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 at 394, their Honours (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) saying that the bringing of proceedings "with respect to one claim" might "properly to be seen, in the circumstances of the case, as an election ... not to proceed on another claim ... thus giving rise to an estoppel by conduct such that it would be unconscionable for that other claim to be pursued". In VACC Insurance Co Ltd v BP Australia Ltd (1999) 47 NSWLR 716; [1999] NSWCA 427 Fitzgerald JA commented (at [24]) on "the present uncertainty concerning the nature and scope of Anshun estoppel".

Respondent's submissions

1. The respondent points to the appellant's acknowledgement that, if an Anshun defence as a matter of law is available in these proceedings, no appeal is maintainable; noting that the appeal is limited expressly to the appellant's proposition that the common law doctrine of Anshun estoppel cannot be applied in the determination of proceedings brought in the Workers Compensation Commission. That said, the respondent accepts that the context of the appeal is relevant, pointing (as have the appellants) to the history of the proceedings leading to the present appeal.
2. Referring to the decisions in Miller (No 1) and Miller (No 4), the respondent maintains that the different outcomes are impossible to reconcile except upon the basis that different but available inferences were drawn by different Arbitrators from much the same facts. The respondent says that there were two sets of proceedings both seeking the same benefit and resulting in contradictory judgments on the issue of whether "death results from injury".
3. The respondent accepts that the application of relevant principle to claims under Workers Compensation legislation has long been recognised to present difficulty, noting that the history of the application of Anshun estoppel in workers compensation proceedings was outlined in Israel v Catering Industries (NSW) Pty Ltd [2017] NSWWCCPD 53 (Israel v Catering Industries) at [107]-[127]. The respondent says that it is evident from the history there summarised that Anshun estoppel has consistently been applied in situations where the dispute concerned the whole issue of liability to pay compensation, a matter then was sought to be agitated in subsequent proceedings seeking the same compensation, and it was found to have been unreasonable not to have relied on that matter in the original proceedings. It is said that in each case care was taken to distinguish between successive claims where the dispute extended to the whole question of liability to pay compensation and successive claims where the issue was liability for disparate injuries suffered in the same but otherwise compensable incident.
4. The respondent argues that this approach is consistent with the Salmon Street decision and says that, insofar as the appellants contend that Salmon Street establishes that Anshun estoppel did not apply in the South Australian statutory regime, this is incorrect. The respondent says that King CJ was careful to distinguish between disputes which extended to the whole issue of liability to pay compensation and disputes where compensation was claimed for separate entitlements arising from the one incident. It is said that his Honour's conclusion was that these separate entitlements would not merge in a decision concerning a claim for one of those entitlements; but that a finding as to res judicata was appropriate where a determination was made in a dispute concerning the whole question of liability to pay. The respondent says that, with respect to Anshun estoppel, King CJ concluded that an application could be an abuse of process in a matter if a particular claim should have been included in the primary application.

Appellants' submissions in reply

1. By way of clarification, the appellants note in their reply submissions that the historical version of the legislation which is relevant to the determination of this appeal is the version in force at the time of the deceased's death (being the reprint for 1 February 2011 to 30 June 2011) and that the definition to which the respondent refers at [7] of its submissions was introduced in 2012. The appellants note that, in the relevant version of the legislation, where the injury was characterised as the aggravation, acceleration, exacerbation or deterioration of a "disease", the employment had to be "a contributing factor", not (as the respondent suggests at [7]) "the main contributing factor".
2. Insofar as the respondent (at [3]-[15]) has summarised the "context of the appeal", the appellants say that this summary tends to overlook certain matters. First, that the injury the subject of the second application (anoxia and cardiac arrest) was a different injury from that which was the subject of the first application (an asthma attack). It is noted that Arbitrator Harris described it as "a different injury occurring at a slightly different time, some 30 minutes later" (see at [68]). The appellants emphasise that Arbitrator Harris' findings in that regard were not the subject of a presidential appeal and are not before this Court. Second, it is said that the suggestion that "different but available inferences were drawn by different arbitrators from much the same facts" seriously understates the significance to the conclusions drawn in Miller (No 4) of the additional evidence of Dr Jennings and Professor Fulde. It is noted that, in describing the additional evidence (from [47]) Arbitrator Wynyard emphasised (at [48]) that, whereas it had not been relevant to the first application, that evidence was relevant as the issue was now whether the deceased's anoxia and cardiac arrest arose out of or in the course of her employment (see at [49]) and that, in the dispositive part of the reasoning (see at [116]), Arbitrator Wynyard then specifically relied upon and "accept[ed]" the additional evidence in the course of reasoning to his conclusion. Third, it is said that the respondent's reference to "contradictory judgments" (at [15] of its submissions) is wrong at a terminological level (because the Commission does not give "judgments", instead, it gives "a certificate as to the determination", together with a "brief statement" setting out the Commission's reasons (ss 294(1)-(2) of the 1998 Act)) and over-stated at a substantive level (because the certificates (and reasons) resolved different claims based upon different injuries, based upon different evidence).

Determination

1. As is well understood, an Anshun estoppel "preclude[s] the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it" (see Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [27] (per French CJ, Kiefel, Keane and Nettle JJ)). It is an extension of "cause of action estoppel" (which operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment) and "issue estoppel" (which operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment).
2. The High Court in Tomlinson v Ramsey Food Processing (French CJ, Bell, Gageler and Keane JJ) said (at [22]): The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense.
3. The reference to Anshun as a "true estoppel" may be understood as being a reference to an estoppel analogous to estoppel by deed or estoppel by representation (see Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 where Deane and Gaudron JJ said (at 274-275) that issue estoppel was not a true estoppel - compare this with the dicta of Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22 at 466) but was instead a different manifestation of the same policy considerations underpinning res judicata, namely: finality, injustice to an individual, and the "scandal of conflicting decisions". It is noted by the appellants that in Rogers v The Queen, Deane and Gaudron JJ said that the Anshun principle "if it be one, is to be treated with caution" and that it is "separate and distinct from the principles which secure the final, binding and conclusive nature of judicial determinations" (their Honours noting that the conflation of those principles could only result in confusion).

Endnotes

1. Within the meaning of s 9A(1) of the Workers Compensation Act 1987 (NSW) ("the 1987 Act").
2. Miller v The State of New South Wales [2017] NSWWCC 66 ("Miller No 1").
3. Miller v State of New South Wales [2017] NSWWCCPD 38 ("Miller No 2").
4. Miller v State of New South Wales [2018] NSWCA 152 ("Miller No 3").
5. Miller v Secretary, Department of Communities and Justice (No 2472/19, 11/10/19) ("Miller No 4").
6. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45.
7. Secretary, Department of Communities and Justice v Miller [2020] NSWWCCPD 38 ("Miller No 5").
8. Miller v Secretary, Department of Communities and Justice (No 2472/10, 1/7/2020) ("Miller No 6"); Secretary, Department of Communities and Justice v Miller [2020] NSWWCCPD 57 ("Miller No 7").
9. Miller and Tuhi v Secretary, Department of Family and Community Services [2021] NSWWCC 22 ("Miller No 8").
10. Miller v Secretary, Department of Communities and Justice (No 9) [2021] NSWPICPD 29 ("Miller No 9").
11. Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"), s 353(1).
12. Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [27] (French CJ, Kiefel, Keane and Nettle JJ); Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 at [22] (French CJ, Bell, Gageler and Keane JJ).
13. See now Personal Injury Commission Act 2020 (NSW), s 54.
14. Ada v Westmead Centre Parramatta Hospital (1985) 1 NSWCCR 101; Thompson v George Western Foods Ltd (1990) 6 NSWCCR 370; Salmon Street Ltd (in liq) v Jorgensen (1991) 56 SASR 158; Kerr v Hunter District Water Board (1991) 7 NSWCCR 289; Lambidis v Commissioner of Police (1995) 37 NSWLR 320; Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247; Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235; Israel v Catering Industries (NSW) Pty Ltd [2017] NSWWCCPD 53 at [107]-[127]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2022