Abrahams and Comcare
[2008] AATA 572
•3 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 572
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/0046
GENERAL ADMINISTRATIVE DIVISION ) Re GAVIN ABRAHAMS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date3 July 2008
PlaceSydney
Decision The proceedings are dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975.
....................[sgd]....................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – Federal Court Remittal – Claim for injury to right hand and wrist - Reconsideration by Comcare of earlier decision after remittal – Costs – Assertion that proceedings rendered abortive – Whether power to make a decision – Whether power to order costs – Proceedings frivolous or vexatious or no jurisdiction – Application dismissed
Administrative Appeals Tribunal Act 1975, ss 25, 34D, 42B, 42C, 43
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 24, 62, 64, 67
Abrahams v Comcare (2006) 93 ALD 147
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Abrahams and Comcare (2006) 44 AAR 14; [2006] AATA 793
Re Coyne and Comcare Australia (1995) 37 ALD 553
Re Knight and Comcare (1994) 20 AAR 455
ReWilliams and Australian Electoral Commission (1995) 21 AAR 467
REASONS FOR DECISION
3 July 2008 Senior Member, Mrs Josephine Kelly SUMMARY
1. These proceedings, A2007/46, have been remitted "for further consideration according to law" by Justice Madgwick of the Federal Court (see Abrahams v Comcare (2006) 93 ALD 147). His Honour's opening sentence in that decision was: "This is an unfortunate case". If that were the situation on 6 December 2006 when His Honour published his decision, it is difficult to find the words to describe its state before me.
2. The issue driving these proceedings, probably since April 2006, is the question of costs.
3. The claim the subject of these proceedings was made in July 2003 (the 2003 claim) for injury to the right hand and wrist, specified as carpal tunnel syndrome, which first happened on 1 June 2002 at 8:30 am.
4. Mr Abrahams had made an earlier claim in 2001 for "overuse injury affecting the right arm" (the 2001 claim). Comcare accepted liability for a "sprain of shoulder and the upper arm (right)", "sprain of unspecified site of elbow and forearm (right)" and "neck sprain" on 24 July 2001. In February 2003 a "cease liability" decision was made in respect of that claim.
5. The current dispute between the parties arose after Justice Madgwick published his decision, and before the matter came on for hearing on remittal before me on 21 June 2007.
6. On 25 May 2007, Comcare made a reconsideration decision pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to the February 2003 "cease liability" decision. The reconsideration decision was that Mr Abrahams suffered "chronic pain syndrome affecting the whole of the arm including the wrist/hand from 16 May 2001" which was relevantly caused by his employment. The significant finding was acceptance of liability for the right wrist/hand, which is the subject of the claim in the present proceedings.
THE ISSUES
7. In general terms, the case for Mr Abrahams is that the May 2007 reconsideration decision rendered these proceedings abortive and hence Mr Abrahams' is entitled to costs of these proceedings pursuant to s 67(2) of the Act, or alternatively, I can exercise the power pursuant to s 67(8) of the Act and make an order for costs.
8. For the reasons that follow, I dismiss the application pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
THE HISTORY OF THE MATTER
It is necessary to set out the history of this matter in some detail.
The 2003 claim
9. On 11 July 2003 Mr Abrahams made a claim on the basis of Dr Andrews' diagnosis of carpal tunnel syndrome to account for right hand and wrist pain. The claim was made to Centrelink and forwarded to Comcare where it was received on 4 September 2003.
10. The claim stated that the injury first happened on 1 June 2002 at 08.30 am, and that the first medical treatment had been received on 6 June 2003 from Dr Viketos. The body part affected was described as "right hand and wrist". The description given of how the injury affected Mr Abrahams was:
Causes pain and swelling in right hand and wrist when typing, is often inflamed around the hand without doing anything. Painful to lift/move objects with the right hand. Decrease in strength in hand.
11. The response to the question whether he had ever had a similar injury or illness before was "No". The events said to contribute to the injury were "keyboard work, in particular use of numerical keyboard".
12. On 16 April 2004 the "claim for right carpel (sic) tunnel syndrome" was rejected. Mr Abrahams requested the reconsideration of that decision pursuant to s 62 of the Act. The reconsideration decision, which is the reviewable decision in these proceedings, was dated 6 September 2004. It affirmed the decision made on 16 April 2004.
13. Mr Abrahams appealed to this Tribunal by letter dated 28 October 2004. He was not legally represented at that time, but was by the time the matter came on for hearing on 24 July 2006, and has been legally represented thereafter.
14. On 7 April 2006, Comcare's solicitor wrote to Mr Abrahams' solicitor, on a "without prejudice except as to costs" basis. In summary, Comcare asserted that the evidence indicated that Mr Abrahams had never suffered from carpal tunnel syndrome, that he had not suffered an injury on either 1 June 2002 or 6 June 2003, that he was out of time to request a reconsideration of the February 2003 "cease liability" decision, and that the current claim for compensation was ill-conceived. The letter advised that Comcare would argue that costs in relation to the proceedings were not recoverable and inquired about the withdrawal of the proceedings.
15. On 13 April 2006, apparently in response to a letter from Mr Abrahams' solicitor dated 10 April 2006, Comcare approved a request for extension of time in which to lodge a request for reconsideration of the February 2003 "cease liability" decision, and indicated that such a request would not be formally registered until a full statement outlining the reasons for requesting the reconsideration had been given.
16. On 11 July 2006, the solicitor for Mr Abrahams again wrote to Comcare requesting "an extension of time to reconsider the ceasing of liability in February 2003". Attached to that letter was a document prepared by Mr Abrahams and lodged with this Tribunal before he was legally represented. In the document attached, and specifically referred to in the letter of 11 July 2006, Mr Abrahams stated that he did not fight the February 2003 decision because he had been advised by his doctor that:
to fight the claim would be very long and you would probably need a solicitor and there was no guarantee of winning.
17. The 11 July 2006 letter also advised that the client had moved to Tasmania and had been difficult to contact. The letter noted that the proceedings were listed for hearing on 24 July 2006.
18. On 26 July 2006, Senior Member Constance dismissed the application pursuant to s 42B(1) of the AAT Act for being vexatious. In essence, the learned Senior Member would not permit the case for Mr Abrahams to be "amended" to allege an injury more broadly described than as "right carpal tunnel syndrome" (Re Abrahams and Comcare (2006) 44 AAR 14; [2006] AATA 793).
Remittal from the Federal Court
19. Mr Abrahams' appeal to the Federal Court was allowed on 6 December 2006, and the matter was remitted to the Tribunal for further consideration. It is convenient to quote some of His Honour's findings in Abrahams v Comcare (2006) 93 ALD 147; [2006] AATA 793, beginning at paragraph [19]:
[19] While no legal criticism can be made of the tribunal for declining to accept counsel’s invitation to reconsider the matter entirely, since something new in 2002 was being propounded as the injury, it seems to me to have been over-technical, and to have been a legally impermissible mode of interpretation, to hold the applicant irretrievably to the use of what was plainly the then medical diagnosis which he had received.
[20] In the context, it is clear that he was simply adopting the then medical diagnosis of his injury. It was nevertheless entirely clear that he was complaining in fact of pain, swelling and inflammation in the right hand and wrist associated with decreased ability to lift and move objects with his right hand and decreasing strength in the hand.
[22] As the applicant's counsel was at pains to say, and not shortly, there was abundant medical information to support a claim that would include, or could include, the proposition that he had suffered some further compensable injury in the period assigned in the notice of injury. He was, as counsel submitted, at least claiming a wrist injury occasioned in that period which had had consequences for medical expense and/or incapacity for him.
[23] It would have been open to the tribunal to treat what counsel was saying as an informal application to amend the notice of injury, if need be, to allege an injury more broadly designated than as “right carpal tunnel syndrome”, or to change it from that designation, provided that the same symptoms, disability and timeframe were still being asserted. The Tribunal Member certainly had jurisdiction to consider such a claim, and it was legally erroneous to say that he had no jurisdiction further to embark on the matter. …
[25] In the result, the appeal must be upheld and the matter remitted to the tribunal further to consider the matter according to law and in accordance with these reasons. It will still be for the tribunal to decide whether what has been sought to be litigated is in truth a claim for injury, broadly understood, to the right wrist, occurring in the limited time frame assigned to it in the notice of injury, in which case a proper exercise of the powers of the first instance decision-maker might well be to enable any material that is sought to be put on that subject to be put.
[26] If, however, it should emerge that in reality it is the injury formerly accepted by Comcare to have been sustained, and the sequelae of the original injury, and not what may have occurred at work in 2002, then it might well be a legally proper understanding of the power of the first instance decision-maker to decline to deal with those claims in the vehicle here presented.
The present proceedings
20. On 12 April 2007, the solicitor for Mr Abrahams replied to a request for further and better particulars in relation to the present proceedings from Comcare's solicitors dated 27 March 2007. In summary, the case for Mr Abrahams was said to be put on alternate bases. The first was that Mr Abrahams suffers from chronic pain syndrome of the whole of his right arm, including the shoulder and hand/wrist and fingers,
The applicant says that this is what he was always intending to claim and this is what is fairly disclosed by the evidence,
and that he first complained of the condition in his right hand and wrist in January 2001, and first had treatment on 16 May 2001. Comcare was wrongly holding Mr Abrahams to the date of injury disclosed in his 2003 claim, that is June 2002, rather than looking at the evidence it had, and, in particular, reports it had obtained for the purpose of these proceedings which showed a history of pain in the whole of the right arm, including the hand and wrist since December 2001.
21. The "alternate" position, as I understand it, was that Comcare had to consider a claim for the right hand and wrist.
22. The letter of 12 April 2007 set out the particulars Comcare had requested and then provided answers. One of the "questions" indicated that Comcare had not received any reasons for the request for reconsideration of the February 2003 decision from Mr Abrahams.
23. Comcare's reconsideration decision in relation to the February 2003 cease liability decision, was set out in a document dated 25 May 2007.
24. Consequently, a telephone directions hearing was held in these proceedings on 1 June 2007. On that occasion, it was disclosed to the Tribunal that the matter may resolve. However, it did not.
25. The hearing commenced before me on 21 June 2007. It emerged on that day that the real issue was the question of costs. As a consequence of the reconsideration decision of May 2007, Mr Abrahams was receiving compensation entitlements from the date of the “cease liability” decision. There were numerous legal arguments put by the parties on that day.
26. Mr Anforth, counsel for Mr Abrahams, stated that the proceedings would be withdrawn if Comcare gave a commitment pursuant to s 67(2) of the Act to pay the costs, but Comcare was saying it would not do that.
27. Mr Anforth was prepared to concede that there was no new injury in 2002, that there was a new diagnosis of carpal tunnel syndrome which was ultimately found to be incorrect, that the wrist pain in 2002 was a manifestation of the 2001 injury, and was manifest in 2001. He asserted that the wrist injury was part of the 2001 injury and claim, but had not been accepted. That was one basis for re-agitating the matter. He also argued that it was not the law that a claim cannot be made for an existing injury.
28. At that time, Mr Anforth said that the decision I should make would be to set aside the reviewable decision because the proceedings had been rendered abortive because they have succeeded by way of the reconsideration decision. Setting aside the reviewable decision would mean that there was no negative determination in relation to the wrist, and that the reconsideration included the wrist. That would be a more favourable outcome, and it would follow that costs were payable pursuant to s 67(8) of the Act. Mr Anforth's position was that the factual issues had evaporated, and had been admitted by the respondent.
29. As I understand what Mr Anforth was saying on that occasion, the alternative arguments he was putting were:
1. The 2003 claim was not a new claim, just a continuation of the 2001 injury claim; and
2. There was a new claim for the wrist in 2003 which Mr Abrahams was lawfully entitled to make;
but both have been superseded by the reconsideration, which was a technicality, or device, in terms of purporting to deal with the 2001 claim but which really dealt with these proceedings and had rendered them abortive within the meaning of s 67(2) of the Act.
30. The respondent did not agree to the concessions offered by Mr Anforth.At the end of lengthy argument, the parties agreed to a two part process. The first part was to have evidence from Mr Abrahams about what he was claiming for when he made his claim in 2003, and for me to determine what the claim was for. Depending on my decision, there might or might not be a second hearing on the merits of the matter.
31. On 25 October 2007, the hearing date of 26 October 2007 was vacated and directions made, including for the filing of a witness statement from Mr Abrahams on the aggravation issue, and the filing and serving of evidence by Comcare. A witness statement was filed from Mr Abrahams. No further evidence was filed by Comcare.
32. On 20 December 2007, further directions were made for the filing and serving of submissions by both parties. Those submissions were received by Tribunal. There was no further hearing.
WHAT IS THE CASE FOR MR ABRAHAMS?
33. There were several versions of the case for Mr Abrahams before me. The first was the 12 April 2007 response to a request for further and better particulars. The next was the Outline of Argument filed before the June 2007 hearing. Oral submissions were made at the hearing on 21 June 2007. Supplementary written submissions were also filed on 24 October 2007, and a reply filed in February 2008.
34. I have had some difficulty distilling clearly the case being put on behalf of Mr Abrahams, which evolved over time. In simple terms it was a complaint that Comcare had wrongly refused to pay Mr Abraham's costs of these proceedings by the device of the May 2007 reconsideration decision and that somehow I could overcome that device. The following paragraphs in the "Applicant's Reply" dated 19 February 2008 make that clear:
5. However it will be recalled that the applicant has previously argued before the Tribunal that, in so far as the determination of 25 May 2007 has dealt with the substance of the present matter before the Tribunal, thus rendering unnecessary the hearing of the present application on the merits, that either the respondent should consent to the finalisation of the present claim with costs or section 67(2), Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”), should be applied by the Tribunal.
6. The applicant contends that the respondent’s determination of 25 May 2007 in belatedly admitting the substance of the matter presently before the Tribunal. The respondent could equally have admitted the same liability via the process of the present proceedings.
35. The following is what I understand was finally being put on behalf of Mr Abrahams:
(i)These proceedings have been rendered abortive by the May 2007 reconsideration decision of the February 2003 cease liability decision in relation to the 2001 claim because it dealt with Mr Abrahams 2003 claim, however framed, and he has been successful ;
(ii)Consequently it is unnecessary for me to consider the current application on the evidence before me and make a decision;
(iii)Section 67(2) of the Act takes effect with the consequence that Comcare is liable for Mr Abrahams costs of these proceedings, and Comcare wrongly refuses to accept that that is the so, and I have jurisdiction to overcome that refusal;
(iv)Alternatively, and perhaps this was not pressed at the end of the matter, I have power to make an order for costs pursuant to s 67(8) of the Act because there has been a more favourable decision made than the reviewable decision in these proceedings.
CONSIDERATION
36. Section 67(2) of the Act provides:
Subject to this section, where a proceeding instituted under this Part in respect of a reviewable decision relating to a determination is rendered abortive because a decision has been made, following a reconsideration under subsection 62(1), varying or revoking that determination, the responsible authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding.
37. If the present proceedings have been rendered abortive, by the May 2007 reconsideration decision, it must follow as a matter of law that I have no jurisdiction to hear the matter further, including the question of costs. This Tribunal has no role in relation to s 67(2) of the Act (see Re Coyne and Comcare Australia (1995) 37 ALD 553; Re Knight and Comcare (1994) 20 AAR 455).
38. As I understand the case put by Mr Anforth, the Tribunal was being asked to interpret both the May 2007 reconsideration and the 2003 claim, and determine that the latter was the subject of the former reconsideration decision, and conclude that s 62(2) of the Act took effect. Such an exercise is not within the jurisdiction of this Tribunal. Further, the May 2007 reconsideration decision is not before me for review and I was specifically told that it was unnecessary to exercise the jurisdiction that the Tribunal does have, that is to review the reviewable decision in relation to the 2003 claim.
39. I do not accept Mr Anforth's invitation to set aside the reviewable decision, which he argued would have the effect that the May 2005 reconsideration decision would take its place. The Tribunal's powers to set aside a decision are limited to where it "reviews" a decision and makes a decision pursuant to s 43 of the AAT Act, or where the parties reach agreement and a decision to set aside is made pursuant to s 34D or s 42C of the AAT Act. In the present circumstances I have no power to make the decision sought.
40. I have not been asked to review the decision made on 6 September 2004, which is the only decision in respect of which I have jurisdiction, pursuant to s 64 of the Act and s 25 of the AAT Act. As I am not making a decision on that question, the power to award costs under s 67(8) does not arise.
DECISION
41. In my opinion, it follows that these proceedings are frivolous or vexatious and should be dismissed pursuant to s 42B of the AAT Act. They are obviously untenable or manifestly groundless as to be utterly hopeless (see Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, which was approved by this Tribunal constituted by Mathews P, Beaumont and Hill JJ in Re Williams and Australian Electoral Commission (1995) 21 AAR 467). If that be wrong, I would dismiss the application because the Tribunal has no jurisdiction to carry out the exercise it has been asked to undertake.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.Signed: ……..[sgd].………..
Steven Mulipola, Associate
Date of hearing: 21 June 2006
Date of final submissions: 15 February 2008
Date of decision: 3 July 2008
Counsel for the Applicant: Mr A Anforth
Solicitors for the Applicant: Capital Lawyers
Counsel for the Respondent: Ms L Walker
Solicitors for the Respondent: Dibbs Abbott Stillman
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