Austin and Commonwealth Bank of Australia

[2014] AATA 21

[2014] AATA 21  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3374
Re	Virginia Austin
APPLICANT
And	Commonwealth Bank of Australia
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date	20 January 2014
Place	Sydney

(i)The application for an order under s 42B is refused.

(ii)The matter is to be listed for a directions hearing at the earliest time suitable to the parties.

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Senior Member J Toohey

CATCHWORDS – PRACTICE AND PROCEDURE – COMPENSATION – whether application for compensation valid – whether application for review frivolous or vexatious – whether discontinued application should be reinstated – application to dismiss as vexatious or frivolous refused

Legislation

Safety Rehabilitation and Compensation Act 1999 ss 5A, 54 (2)(b), 54(5), 65(4)

Administrative Appeals Tribunal Act 1975 s 2A, 25, 29(7), 33(1)(a), 42(1B), 42A(10), 42B(1)(a), 42C,

Cases

Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176
Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558
Re Asset Risk Management Ltd (1995) 59 FCR 254; 130 ALR 605 at 607
Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173
Grimsley and Telstra Corporation [2010] AATA 106
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Re Coa and Australian Postal Corporation [1999] AATA 995

REASONS FOR DECISION

Senior Member J Toohey

Background

1. In January 2009 and August 2009, the applicant lodged claims under the Safety Rehabilitation and Compensation Act 1999 (the SRC Act) for physical and psychological injuries.

2. The respondent accepted liability under s 14 of the SRC Act for the applicant’s physical injury.  In October 2009, the respondent denied liability for the psychological injury.  It seems accepted that the applicant suffers a psychological condition to which her employment contributed, but the respondent says it did not contribute to a significant degree and, in any event, relying on s 5A(1), that it was not an injury within the meaning of the Act.

3. On 6 November 2009, the respondent wrote to the applicant advising that available evidence indicated it had no present liability to compensate her for incapacity and medical treatment in relation to her physical injury beyond 7 November 2009.  The respondent advised that it proposed to make a formal decision regarding liability after 14 days, and invited the applicant to submit any relevant information before then. 

4. The applicant asked for additional time in which to submit material concerning the claim for physical injury, and an extension of time to respond to the denial of liability for the psychological injury.

5. Over the course of the following months, the applicant sought, and was granted, further extensions of time to respond until, on 7 May 2010, the respondent declined a further extension of time to obtain medical material in relation to the physical injury.  The respondent’s letter purported to be a reviewable decision and the applicant regarded it as such.

6. It appears, from an email from the respondent to the applicant on 4 August 2010, that on or around that date, the applicant inquired about the progress of reconsideration of her psychological claim.  It is not clear what gave her to understand that reconsideration was on foot.  In reply, the respondent advised that it was not required to make a formal reconsideration as she had not submitted further material in the extended time granted to her, and the rejection of her claim was maintained.   The applicant treated this as a failure to complete the reconsideration and so a reviewable decision.

   Application for review of determination to refuse an extension of time in which to seek reconsideration

7. On 22 October 2010, the applicant lodged with the Tribunal applications for an extension of time in which to seek review of the decisions on 7 May 2010 and 4 August 2010.  In effect, she sought an extension of time in which to seek review of a decision refusing an extension of time in which to seek reconsideration of the original determinations.  The respondent opposed the extensions.

8. On 28 January 2011, the applications for extensions of time came before Senior Member Britton. After argument about whether extensions should be granted, the applicant discontinued her applications and the Tribunal dismissed them accordingly under s 42(1B) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). How that came about is discussed below.

9. Nothing further happened until 22 August 2012, when the applicant’s solicitors wrote to the respondent enclosing a claim form for injuries described as “muscoluligamentous strain to the cervical spine; aggravation of pre-existing degenerative cervical spondylosis; rotator cuff strain to the right shoulder; subsequent development of adhesive capsulitis to the right shoulder; chronic depression and anxiety resulting from a major depressive disorder”.

10. The descriptions of the applicant’s injuries were broadly similar, although different in detail, to those in her original claims.  The letter accompanying the claim form made no reference to the earlier claims or applications. 

11. On 6 September 2012, the respondent wrote to the applicant’s solicitors to say it was confused by the claim which appeared to be for the same injuries as claimed in the 2009, determinations in respect of which had previously been made.  The respondent suggested the more appropriate way to proceed, if the applicant wished to pursue her claim, was to seek an extension of time from the Tribunal in which to file an application for review of the reviewable decisions already made.  The respondent asked how the injuries presently claimed were different from those in the prior claims and why they required separate s 14 determination.  The respondent also cited numerous unanswered questions on the claim form and said that, in the event that separate determinations were needed, a properly completed claim was required.

12. By letter dated 15 November 2012, the applicant’s solicitors advised “The injuries pleaded are different, so is the time period during which it is alleged that the injuries occurred.”  It is not clear what this statement meant except that the period referred to in the later claim extended some months after the earlier claim.  The applicant’s solicitors further stated that she was not stopped from further action and they regarded the respondent’s letter of 6 September 2012 as being a determination of which it sought reconsideration.  They provided some further particulars of the claim.

13. On 10 December 2012, the respondent wrote affirming its position that the injuries were the same as those previously determined and the appropriate course was to seek an extension of time in respect of those decisions.  The letter asked further questions about the claim, in particular the time period covered.  There is some dispute as to whether the applicant’s solicitors responded to those questions.  They say they have; the respondent’s solicitors say they have not received them.  Nothing at present turns on this.

14. Leaving aside for now whether the claim lodged on 22 August 2012 was a valid claim for the purposes of the SRC Act (which the respondent says it was not), the respondent agrees that the failure to make a reviewable decision is capable of constituting a determination and a decision reviewable by the Tribunal.

    The present application

15. On 17 January 2013, within the 60 days provided for by s 65(4) of the SRC Act, the applicant lodged an application for review with the Tribunal. The respondent seeks an order that the application be dismissed as frivolous or vexatious under s 42B of the AAT Act.

16. For the reasons which follow, I am satisfied that the claim in August 2012 was a valid claim for the purpose of the SRC Act and that the Tribunal has jurisdiction to determine them.  I am satisfied it should not be dismissed as frivolous or vexatious.  These decisions are informed by what I find occurred at the hearing on 28 January 2011.

    The hearing on 28 January 2011

17. The transcript of the hearing on 28 January 2011 is available.  It shows that counsel for the applicant referred to medical evidence to the effect that her psychiatric illness, which had been diagnosed by five doctors and was her “overriding problem”, affected her ability to deal with her claim for compensation and to instruct her solicitors in a timely manner. (The applicant had changed solicitors during 2010 but nothing turns on this.)  Counsel for the applicant advised the Tribunal that Dr Jonathon Phillips, consultant psychiatrist, was present and available to give evidence about this, and reports were available from her treating psychologist. 

18. Counsel for the respondent argued strongly against extensions of time.  He submitted that, applying Hunter Valley Developments Pty Limited v Minister of Home Affairs and Environment [1984] FCA 176, the starting point was that the extension of time should be refused. He referred to the applicant’s repeated requests for extensions of time and submitted it would be unusual for a court or tribunal to allow an extension of time for the purpose of conducting a hearing on an extension of time application which, in effect, was what the applicant was seeking. He indicated he would want to cross-examine her witnesses as to the effect of her illness in relation to her claims. He submitted that the Tribunal would be satisfied that she had no reasonable prospects of success.

19. There followed exchanges between the Tribunal and counsel for the respondent about the potential, if the extension were granted, for a series of hearings as to the merits of each layer.  Page 18 of the transcript records the following:

    MR RICHARDS: Well, no, because prima facie - Hunter Valley says that you should prima facie accept that the reconsideration decision should not be - the extension shouldn't be granted.

    SENIOR MEMBER: Okay.

    MR RICHARDS: I mean, how many levels of extensions does the tribunal,   with respect, need to go through?

    SENIOR MEMBER: Okay. Okay.

    MR RICHARDS: And, Senior Member, the applicant has a right at any time     under this jurisdiction to make an application - sorry - request a determination, whatever she wants. There is nothing stopping the applicant putting in a new request or a new claim now. This will undertake, if you grant it, three hearings to get back to a decision. Sorry, two hearings to get back to a decision, and we say it's inconsistent with the legislation.

    The Tribunal then asked counsel for the applicant:

    SENIOR MEMBER: Mr Beauchamp, on the claim point, what's to stop the applicant putting in a fresh claim for both injuries, do you want to speak to that?

    At this point, counsel for the applicant said he would have to take instructions, and said:

    MR BEAUCHAMP: Quite clearly it's in Ms Austin's interests to have the case brought to the tribunal as expeditiously as possible.

    SENIOR MEMBER: Yes. Yes.

    MR BEAUCHAMP: And so I think I should take some instruction about which is the best manner of facilitating that.

    The transcript shows, when the hearing resumed:

    MR BEAUCHAMP: But it's our view that we will achieve probably less by - even if successful in this application than we would by simply making a fresh application to the respondent. A number of events have overtaken things in the meantime and rather than wasting the Tribunal’s time and everybody else's, we think it’s better if we discontinue the proceedings at this stage

    SENIOR MEMBER: Yes. Very wise decision, I think. Thank you.

20. Mr Beal, solicitor for the applicant at the time of the hearing on 28 January 2011, gave evidence on affidavit, and orally before me, that he was present when the applicant elected to discontinue her applications and when her counsel advised the respondent’s representatives that she intended to make “a new claim based on the same facts and the same allegations” as in the earlier applications. 

21. Mr Beauchamp, counsel for the applicant on 28 January 2011 has sworn an affidavit stating that no qualification to the statement by the respondent’s counsel that the applicant could withdraw and commence with a fresh claim was communicated to him, either in the presence of the Tribunal or otherwise; had that occurred, he would have taken further instructions and advised the applicant to continue with the proceeding before the Tribunal.

22. The respondent submits that nothing in what was said at the hearing on 28 January 2011 suggested to the applicant an invitation to make the same claim again so that she could, in effect, overcome all of the problems of delay simply by starting again. The respondent submits that, were that the case, s 29(7) of the AAT Act would serve no purpose.

23. I accept that counsel for the respondent may not have intended to suggest that the applicant could overcome the considerable procedural difficulties merely by starting again.  However, parties plainly left the hearing on 28 January 2011 with different understandings of what had occurred, and what was to occur.  It seems from the transcript that everyone, including the Tribunal, viewed the discontinuance in the context of discussion about filing “fresh applications” and as a means of dealing with the procedural difficulties, including further delays, that determining the applications for extensions of time would occasion.  It does not appear from the transcript that either party felt the need to clarify or qualify what counsel for the respondent meant, or the applicant understood, by “putting in a new request or a new claim” or “fresh claim”.

24. I am satisfied that the applicant would not have discontinued her applications had she any reason to anticipate objections to fresh applications.  I am satisfied that the applicant understood she could file the same, or substantially the same, applications again.  I am satisfied that it was reasonable, given the discussion at the hearing and the circumstances in which she discontinued that application, for her to think that had been agreed.

25. It is not clear why, following the hearing on 28 January 2011, it took the applicant, through her solicitors, a further 17 months to make the fresh claims.  No explanation for the delay has been offered.

    Has the Tribunal jurisdiction to review the 2012 application

26. The respondent submits that, the subject matter of the new application having come before the Tribunal and been dismissed, the Tribunal has no jurisdiction to determine the matter again. 

27. The applicant submits that, there being a reviewable decision or decisions before the Tribunal, it can, and must, determine the application (unless it dismisses the application as frivolous or vexatious).

28. I agree with the submissions for the applicant that there is no jurisdictional barrier to the Tribunal determining the application. Whether the Tribunal should do so in the circumstances of this case is another matter. Its jurisdiction relies on there being a reviewable decision which there is in this case: s 25 of the AAT Act. The applicant lodged her application within the time required by s 65(4) of the SRC Act. Moreover, the Tribunal has not previously reviewed any decision concerning the applicant’s claims.

29. The issue of the Tribunal’s jurisdiction was discussed at length by Deputy President Forgie in Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558 at [93]-[111] especially at [109]-[110], and I respectfully agree with her conclusions. I also respectfully agree with her observations at [102] about the Tribunal’s powers under s 33(1)(a) of the AAT Act to adopt flexible procedures: s 33 (1)(a) is not a means by which the Tribunal can assume jurisdiction that it would not otherwise have, but of adopting flexible procedures when it has jurisdiction.

    Was the second application a valid application?

30. The applicant lodged her present claim under cover of a letter which stated, simply, that a claim for workers compensation dated 22 August 2012 was enclosed.  The letter made no reference to the January 2011 proceedings.  The attached form contained scant information.  It did not attach a medical report as required by s 54 (2)(b).  The copy on the Tribunal’s file is not even signed by the applicant, although I assume the copy submitted to the respondent was.   

31. The respondent submits that the claim failed to meet the requirements of s 54 of the SRC Act and was not valid.

32. Section 54(5) of the SRC Act provides that strict compliance with the form is not required; substantial compliance is sufficient. 

33. Substantial compliance requires more than a passing reference to an approved form.  It is a matter of degree and concerns "the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to achieve": Re Asset Risk Management Ltd (1995) 59 FCR 254; 130 ALR 605 at 607, per Burchett J. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173, Smithers J, considering the meaning of "substantially" said (at 191-192):

    [It] is a word the meaning of which in the circumstances in which it is applied must, to some extent, be of uncertain incidence and a matter of judgment. There is no precise scale by which to measure what is substantial.

34. Whether there was substantial compliance in this case has to be viewed in light of the circumstances.  The applicant had previously given information in relation to the 2009 claim.  It is not clear what her solicitors meant in their letter dated 15 November 2012 that the injuries pleaded and the time period during which they occurred were different.  Whatever that meant, the respondent submits that the 2012 claim is the same as the earlier two claims and I do not think there can be any mistaking that the applicant was making her claims again.   

35. Considered in light of the information previously provided by the applicant, I am satisfied the claim lodged in August 2012 substantially complied with the SRC Act and was a valid application. 

36. The question now becomes whether the Tribunal should decline to deal with the claim.

    Should the application be dismissed under s 42B as frivolous and vexatious?

37. The Tribunal may, at any stage in the review of a decision, dismiss an application if satisfied that it is frivolous or vexatious: s 42B(1)(a).

38. The respondent submits that the Tribunal should exercise its discretion and dismiss the application because there is no valid claim and so no reviewable decision, and the applicant is seeking to re-litigate matters on the same facts and evidence as already litigated and concluded. 

39. The respondent submits that allowing the applicant to proceed now would breach the principle in Grimsley and Telstra Corporation [2010] AATA 106. In that case, shortly after proceedings in the Tribunal were concluded by way of a consent agreement under s 42C of the AAT Act, the applicant sought to make a fresh claim about the same matters. The present case is distinguishable because no determination by consent or otherwise has been made by the Tribunal in regard to the merits of the applicant’s claims.

40. In Rana (above), the Tribunal set out lengthy extracts from the judgments of Barwick CJ and Dixon J in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 describing the principles that underlie the exercise of the power to dismiss a matter as frivolous or vexatious. I will not repeat them here other than to say that the power is to be used “cautiously and sparingly” and not where “there is a real question to be determined” but where a case is “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”.

41. It does not appear – and I do not understand the respondent to say – that the applicant’s case is manifestly without cause or groundless.  Nor do I understand the respondent to say it would suffer prejudice if the application is allowed to proceed other than the disadvantage that always comes with the effluxion of time.  Prejudice to the respondent is not a consideration in these proceedings as it would be in an application for extension of time but fairness to parties is.  However, I do not understand the respondent to say it would suffer any other unfairness or disadvantage.

1. Although I have not heard evidence about her psychological condition, medical reports in the T-documents suggest the applicant has suffered a worsening psychiatric illness since early 2010 which appears to have affected her ability to conduct her claim.  She has never had the merits of her claims reviewed, either by the respondent or by the Tribunal.  It is true that she could have requested reconsideration at any point but, equally, the respondent could have reconsidered her claims on the information she had provided.

2. In Re Coa and Australian Postal Corporation [1999] AATA 995, the Tribunal declined to entertain a second application because doing so would allow the applicant to make a fresh claim “as a back door way of reviewing a reviewable decision … which is otherwise out of time” (at [10]). Coa can be distinguished from the present case because here was an application for an extension of time before the Tribunal that was discontinued in the circumstances already described.  The applicant or her solicitors might be criticised for delay and for unhelpful correspondence but I do not think in the circumstances she can be criticised as trying to avoid the necessity for seeking an extension of time.

   Should the Tribunal proceed by treating the dismissal in 2011 as a dismissal in error, and reinstate the application under s 42A(10)?

3. The respondent submits that, if the Tribunal accepts the applicant discontinued her application in January 2011 under a misapprehension as to the effect of withdrawal on the progress of her claims, then the proceedings may be said to have been dismissed in error and may be reinstated under s 42A(1) of the AAT Act. The respondent submits this is the preferable course should the Tribunal allow the matter to proceed.

4. I accept that course is open under s 42A(10) of the AAT Act if I am satisfied that the applications were dismissed in error as suggested. However, it would likely achieve little, it would almost certainly lead again to protracted proceedings, and it would be not be in keeping with the objective of the Tribunal to provide a mechanism of review that is fair, just, economical, informal and quick: s 2A of the AAT Act.

5. If the discontinued application were reinstated, the matter would be back where it was on 28 January 2011.  The Tribunal would face the same problems raised by the respondent at that earlier hearing.  It is possible that, having gone through that process, including hearing from medical witnesses, the Tribunal would refuse the extensions of time.  It is possible that the Tribunal would grant the extensions, in which case the matter would go back to the respondent to consider whether to grant the applicant an extension of time in which to seek reconsideration.  If the respondent declined to grant the extension, which would be a reviewable decision, the applicant could come before the Tribunal again seeking review of that decision.  If the respondent granted the extension, it would have to reconsider its original decisions and, absent favourable decisions, the matters could be back before the Tribunal. 

6. Unless the applicant abandons her claims altogether, and there is nothing to suggest that is likely, there is every chance that they will end up back before the Tribunal again, only at a much later date.  I think the preferable course is to allow the review to proceed and direct that it do so as quickly as possible.

   Conclusion

7. For the reasons set out above, I find that the Tribunal has jurisdiction to determine the application for review. I am not satisfied that the application is frivolous or vexatious. The respondent’s application for an order under s 42B is refused.

8. Counsel for the applicant says she is ready to proceed.  The respondent says it has not had the opportunity to have the applicant examined by its doctors.  The respondent should have that opportunity but, subject only to the time that may require, the matter should proceed to a hearing as quickly as possible.  To that end, a directions hearing will be convened at the earliest date suitable to the parties so that programming orders may be made.

53.       I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. 

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Associate

Dated  20 January 2014