COAT NSW Newsletter
August 2019

In this edition:

Welcome to the COAT NSW newsletter.  In this edition, we look back on a very successful Whitmore lecture held on Thursday, 4 April 2019 with the Hon James L B Allsop AO, Chief Justice of the Federal Court of Australia, and the COAT National Conference held in Melbourne in June.  We give you an update on recent events in Tribunal news, including the AAT review as well as details of the NSW Government’s response to the recommendations made by the Standing Committee on Law and Justice.

We’re also delighted to announce that next year’s Whitmore lecture will be given by Justice Virginia Bell AC, which will be held on Wednesday, 13 May 2020 at the Federal Court, Sydney.  Put the date in your diary now!

Finally, the COAT NSW Conference, looking at the theme of The future now – traditional skills and new technologies, is drawing close.  It will be on 6 September 2019 at the Pullman Hotel and tickets are still available.

My thanks to Marie Johns for putting the newsletter together.  I hope you enjoy it.


Anina Johnson
COAT Convenor


The AGM was held at 5pm on 4 April 2019.  The newly elected committee is as follows:



Anina Johnson Deputy President, Mental Health Review Tribunal

Vice Convenor


Rodney Parsons Registrar, Workers Compensation Commission



Elizabeth Connolly Executive Director, Registry Operations, AAT



Katrina Harry PSM National Registrar, Veterans’ Review Board



Malcolm Schyvens Deputy President, NCAT
Susan Johnston Member, NCAT
Geri Ettinger Mediator
Marie Johns Principal Claims Assessor, Dispute Resolution Service (DRS), SIRA
Jason Cabarrus District Registrar (NSW), AAT



Kathryn McKenzie

2019 COAT NSW Conference

The 2019 COAT NSW Conference will be held at the Pullman Hotel, Hyde Park, Sydney on 6 September 2019.  The conference, entitled “The future is now – traditional skills and new technologies” will explore the impact of digital trends on the work of tribunals, both now and in the immediate future.  The conference will also focus on traditional skills sets of tribunal members including fact finding, face to face engagement and therapeutic jurisprudence.

Tickets are still available.   Register here

2019 Whitmore Lecture    
2019 Whitmore Lecture

The Hon James L B Allsop AO, Chief Justice of the Federal Court of Australia presented the 2019 Whitmore Lecture entitled ‘The Foundations of Administrative Law’ on 4 April 2019 at the Law Courts Building, Queens Square.


The lecture was attended by over 100 members of the judiciary and tribunals and was followed by light refreshments in the Federal Court’s main conference room. The full text of the lecture can be found here:  2019 Whitmore Lecture. Our thanks go to Chief Justice Allsop and the Federal Court for the use of their facilities.

We are pleased to announce that our next speaker for the 2020 Whitmore Lecture will be Justice Virginia Bell.  More details to follow.



2019 COAT National Conference

Over 140 delegates, drawn from Tribunal members across Australia and New Zealand attended the COAT National Conference in June, held at the Melbourne Convention and Exhibition Centre. The theme of the conference, Communicating Justice: Tribunals in the Community, was brought to life through a great mix of plenary and concurrent sessions.

Speakers at the conference drew on their professional expertise to explore and inform around the theme with a focus on communication. Feedback from conference attendees was very positive and the conference organising committee did a wonderful job in developing the program and sourcing a great venue. Access the conference papers here

AAT Review

On Tuesday 23 July 2019 the Hon Christian Porter MP, Attorney-General, tabled in Parliament the report of the scheduled statutory review of the AAT. The review, required under the Tribunals Amalgamation Act 2015 (the TA Act), was undertaken in 2018 by the Hon Ian Callinan AC, former Justice of the High Court of Australia.

The terms of reference of the review included whether the objectives of the TA Act have been achieved; the extent to which the Tribunal operates as a truly amalgamated body; and whether the Tribunal is meeting the statutory objectives contained in section 2A of the Administrative Appeals Tribunal Act 1975, with particular regard to the objective to promote public trust and confidence in the decision making of the Tribunal.

The report looks at a number of aspects of the AAT’s operations and includes a range of recommendations, including about member appointments, management and administration of the Tribunal and its review processes.

The report along with the terms of reference and publicly available submissions can be found on the Commonwealth Attorney-General’s Department website or through the following link: scheduled statutory review

Standing Committee on Law & Justice

On 9 August 2019 the NSW Government, in its response to the Law and Justice Committee’s 2018 Review of the Workers Compensation Scheme and Review of the Compulsory Third Party insurance scheme supported in principle the Committee’s recommendations including the “establishment of a consolidated tribunal with separate workers compensation and compulsory third part insurance divisions”. The NSW Government will now commence consultation with industry stakeholders on the operational model, jurisdiction and scope of such a tribunal, including impacts on scheme participants

The Government’s response is published on the NSW Parliament website here

New Workers Compensation Commission President

The Workers Compensation Commission welcomed Judge Gerard Phillips, who was appointed President of the Commission and a Judge of the District Court of NSW on 23 January 2019.


Judge Phillips was educated at the University of Sydney and holds both bachelor and master degrees in law.  His Honour was a solicitor in private practice for over 30 years, practising both in Australia and the United Kingdom, and was a frequent author on legal and industrial relations issues in publications such as the Australian Financial Review.  He served on the global management committee of the US-based law firm K & L Gates and was national head of the firm’s workplace relations group.


Judge Phillips is only the 8th head of jurisdiction of the Workers Compensation Commission and its predecessors, which is quite remarkable given its 93-year history.  The original Commission opened its doors in 1926.


Judge Phillips takes over as President from Judge Greg Keating, who was President for 11 years and served for a substantial period as a committee member of the NSW Chapter of COAT.  While COAT NSW will miss the valuable contribution made by Judge Keating, it is excited by the appointment of Judge Phillips, who has already expressed his strong support for the Council of Australasian Tribunals and the important role it plays in supporting and developing tribunal standards and practice throughout the Commonwealth, States, Territories and New Zealand.


Under Judge Gerard Phillips’ leadership, the Workers Compensation Commission has embarked on a project to expand its digital service capability.  By year’s end, the Commission expects to have full implementation of its online lodgment portal.  The new digital platform will provide significant benefits to stakeholders including:

  • 24/7 access to lodge and view applications from any device;
  • Access to, and exchange of, information online;
  • Electronic access to documents produced by third parties;
  • Real time access to the progress of matters, including future allocations such as medical appointments and hearings;
  • Opportunities to further reduce timeframes to resolve disputes;
  • SMS technology for notification of listings and medical assessments;
  • Ability to brief Counsel electronically.

COAT NSW welcomes Judge Phillips and wishes his Honour every success in his new role at the Commission.

Case Summary

Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25

The incursion of alcohol fuelled violence remains an unfortunate fixture of modern society despite reform in legislation and social protest. This case tells the story of one of many collateral victims of such violence whom, in the course of their everyday employment, often remain unseen. From this landscape of misfortune springs lessons in estoppel for decision makers.

In short, falling from this judgment are two principles of guidance for decision makers. First, that where issues of estoppel are sought to be raised, pleadings and submissions should be made clearly and separately. Second, decision makers should, even in the absence of clear pleadings and submissions, seek to address those issues with distinction and totality.  

In Fourmeninapub Pty Ltd v Booth (2019) NSWWCCPD 25, a worker employed as a bar attendant in a pub witnessed two violent fights between patrons, one in which she tried to intervene. In doing so, she had the misfortune of receiving a splattering of blood and became troubled at the possibility of contracting a blood borne disease. She was diagnosed with Post Traumatic Stress Disorder and, later, Bipolar Disorder. Subsequently, a series of claims were made and determined by the Workers Compensation Commission.  

Judge Phillips, sitting on appeal as President of the Workers Compensation Commission, considered the principles of issue estoppel, the doctrine of res judicata and Anshun estoppel in determining whether a claim for compensation under section 4(b)(ii) of the Workers Compensation Act 1987 (NSW) (the “1987 Act”) was barred by virtue of the determination of an earlier claim brought by the worker pursuant to section 4(a) of the 1987 Act. His Honour also addressed the question of whether there can be a disease injury pursuant to section 4(b)(ii) in the absence of there being a disease to be aggravated. Additionally, the matter raised the jurisdictional question of whether the Commission can enter an award for costs pursuant to section 341 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

In allowing the appeal, his Honour overturned the decision of the Arbitrator on the disease injury ground (without issue of principle) and found that the worker was not estopped from bringing her claim on the basis of issue or Anshun estoppel. His Honour also determined that the Commission had no jurisdiction in the proceedings to make a costs order. In coming to this decision, his Honour noted that the appellant conflated the principles of issue estoppel and the doctrine of res judicata and, importantly, that the Arbitrator did not properly address issue estoppel.

In relation to the first principle of guidance, Judge Phillips helpfully summarised the principles of issue estoppel as well as distinguishing those from the doctrine of res judicata at [90]-[92]:

“Issue estoppel may arise as a consequence of a state or fact of law being determined, which would prevent a party from bringing, or defending, a claim in relation to a different benefit…The doctrine of res judicata provides that a cause of action which has been determined by a court of competent jurisdiction or by a tribunal may not be re-litigated.”          

In making this distinction, His Honour observed the remarks of the High Court in Blair v Curran [1939] HCA 23 at [532]:

“The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact of law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

His Honour also set out a simple summary of the rationale for the use of Anshun estoppel which is helpful guidance for the determination of matters that bring this into issue:

“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.” [at 130]

In relation to the second ground of guidance, the importance for decision makers of dealing with claims in estoppel separately and in sufficient detail, his Honour’s finding of error at [97] below are instructive. It ought be noted that his Honour observed that this error was born out of confusion stemming from the pleadings in which issue estoppel, the doctrine of res judicata and Anshun estoppel were pleaded together in a general sense.

“Arbitrator Edwards makes several references to the terms “issue estoppel”, “res judicata” and “Anshun estoppel” during the arbitration proceeding, suggesting that he intended to deal with those principles separately. Arbitrator Edwards determined the application of the doctrine of res judicata and Anshun estoppel separately in his decision, but failed to determine the application of issue estoppel. Having said that, the submissions before Arbitrator Edwards on the principle of issue estoppel were not fully articulated or developed. While it is not an error for an Arbitrator not to deal with an argument never properly articulated, to the extent that Arbitrator Edwards failed to determine the application of the principle of issue estoppel on the basis of the submissions before him it was a constructive failure to give reasons.”

By way of summary, particularity and detail are characteristics of the law, its application and practice often attracting criticism when used to excess. This case confirms that sometimes, such particularity is necessary in both pleadings and decisions.


Council of Australasian Tribunals NSW Chapter Inc (COAT NSW)
ABN 85 266 469 622
Ph: 0418 281 116
PO Box 268, Darlinghurst NSW 1300

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