Basyoni and Comcare
[2011] AATA 207
•29 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3285
GENERAL ADMINISTRATIVE DIVISION ) Re MOHAMED BASYONI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date29 March 2011
PlaceCanberra
Decision The Tribunal has jurisdiction to determine Mr Basyoni’s incapacity entitlements. Having heard the parties, I direct that:
1. pursuant to section 25(4A) of the Administrative Appeals Tribunal Act 1975 the scope of the review in these proceedings is limited to consideration of Mr Basyoni’s entitlement to compensation for incapacity from 26 June 2001 - the matters decided by the Tribunal on 25 June 2001 will not be revisited;
2. Mr Basyoni is to inform the Tribunal and Comcare within seven days whether or not he intends to proceed with the application; and
3. if so, a directions hearing is to be listed before me to determine procedural issues, including whether or not the application should be dismissed pursuant to section 42B of the Administrative Appeals Tribunal Act 1975.
..............................................
Mr S. Webb, Member
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction - consent decision - alleged errors in matters previously settled - no errors demonstrated in consent decision -– no contracting out of statutory entitlements – decision effective - jurisdiction exercised and exhausted – no power to reopen matter that has been conclusively and effectively decided
PRACTICE AND PROCEDURE - jurisdiction - calculation of normal weekly earnings - request for recalculation of weekly compensation for incapacity - previous consent decision no bar to present jurisdiction - NWE calculations integral to calculation of weekly compensation payments for incapacity - Tribunal has jurisdiction in relation to NWE
PRACTICE AND PROCEDURE – relitigation – consent decision – alternative dispute resolution and negotiated settlement – scope of decision not beyond power - good faith – legal representation – rights of appeal – no fresh evidence or changed circumstances of relevance – prejudice – relitigation not permitted – scope of review limited
Administrative Appeals Tribunal Act 1975 ss 25(4A), 42B, 42C, 43, 44
Compensation (Australian Government Employees) Act 1971 ss 97, 99
Safety, Rehabilitation and Compensation Act 1988 ss 8, 9, 19, 21, 48, 62, 64, 72, 123, 124, 132
Comcare v Grimes [1994] FCA 1054
Lees v Comcare (1999) 56 ALD 84
Lonergan v Comcare [2005] FCA 377
Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Re Behan and Australian Telecommunications Corporation (1990) 12 AAR 466
Re Fuad and Telstra Corporation Limited [2004] AATA 1182
Re Grimsley and Telstra Corporation Limited [2010] AATA 106
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Telstra Corporation Limited v Hannaford [2006] 151 FCR 253
Melbourne Steamship Co. Ltd v Moorehead (1912) 15 CLR 333
REASONS FOR DECISION
29 March 2011 Mr S. Webb, Member 1. Mohamed Basyoni is a mechanic who worked on buses. He injured his back. He claimed and was paid compensation[1]. He returned to work, performing different duties, and he was promoted. But his back injury continued to trouble him. He commenced action for common law damages in the ACT Supreme Court. Agreement was reached and an award was made[2]. Some years later he accepted a redundancy offer and left his employment. Mr Basyoni’s hopes of obtaining other employment were not realised. His back injury was incapacitating. He had little income and made a further claim for compensation[3]. This claim was rejected by Comcare[4]. The matter came before the Tribunal. Negotiations ensued and agreement was reached. It was agreed that weekly compensation payments would resume from an agreed date once the awarded damages and a superannuation lump sum payment had been off-set against compensation entitlements that otherwise would have been payable. The agreement was given force in a consent decision[5]. Weekly compensation payments resumed on the agreed date and continued until Mr Basyoni reached retirement age.
[1] T4.
[2] T5.
[3] T8.
[4] T17 and T22.
[5] T27.
2. A number of years later, Mr Basyoni asked Comcare to recalculate his weekly compensation entitlements as aspects of his case had not been properly dealt with[6]. Comcare decided that the compensation payments were correct and refused to re-open matters that had previously been settled by agreement and decision of the Tribunal[7]. Mr Basyoni applied for review.
[6] T43, T49, T56, T58 and T60.
[7] T62 and T68.
3. Presently, two preliminary matters have arisen for determination.
(a)Does the Tribunal have jurisdiction to determine the amount of Mr Basyoni’s normal weekly earnings from 3 April 1993 to 28 July 2007?
(b)Should Mr Basyoni be permitted to re-open matters that were settled by agreement and decision of the Tribunal on 25 June 2001?
4. Mr Basyoni was assisted by Richard Seczawa. Mr Seczawa presented Mr Basyoni’s case and made oral submissions on his behalf. I note the earlier written submissions Mr Seczawa made on Mr Basyoni’s behalf on 21 January 2011[8] and on 25 January 2011.
[8] Exhibit A.
5. Mr Basyoni asserts that Comcare wrongly calculated his normal weekly earnings (NWE) from 3 April 1993 – the NWE amount should be the weekly amount he was last paid in employment prior to redundancy. During the interlocutory hearing, Mr Seczawa informed me that no further issue would be taken in respect of the employment classification ‘GSO-6’ for the purposes of calculating Mr Basyoni’s NWE.
6. Mr Basyoni asserts that mistakes were made by his former employer, Comcare and his previous solicitor in respect to his NWE amounts over time. He points to a reduction in the NWE amount on 31 July 1995[9] and asserts that this cannot be correct as award wage determinations do not result in a reduction in wages.
[9] See T43 folio 101 and Exhibit D.
7. Mr Basyoni asserts that the damages award is not able to be ‘recovered’ under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) as the award was made prior to the enactment of the SRC Act in 1988 and the award was not simply for loss of wages. During the interlocutory hearing, however, Mr Seczawa informed me that no issue would be pressed in relation to this aspect of Mr Basyoni’s case and, for present purposes, the net amount of the award is not in dispute – an amount of $102,628.58.
8. Mr Basyoni asserts that his weekly compensation entitlements should have been calculated under section 19 of the SRC Act, or under relevant provisions of the Compensation (Australian Government Employees) Act 1971 (the 1971 Act), and not under section 21 of the SRC Act. In his submission, it was wrong to off-set his superannuation lump sum payment against his entitlement to weekly compensation.
9. Mr Basyoni asserts that even if the superannuation lump sum is included and the NWE amount determined by Comcare is correct, the off-set period is not correct. He says that the off-set period should have been shorter and his weekly compensation payments should have resumed earlier. In his submission, neither he nor Comcare can contract out of an entitlement under the SRC Act by agreement.
10. Mr Basyoni asserts that he has been the subject of injustice and unfairness, and he has suffered as a result of his back injury without adequate compensation. He is critical of Comcare and of his previous solicitor.
11. Mr Basyoni asserts that the Tribunal’s decision, by consent, in 2001 is flawed. He says that the decision is not good in law and that it exceeded the power of the Tribunal at the time it was made. Furthermore, he says that the Tribunal’s decision is built on errors that should now be corrected. The errors, he says, mean that parts of the decision are nullities and the power the Tribunal purported to exercise when making the decision remains to be exercised: the Tribunal’s jurisdiction has not been exhausted in the earlier proceedings. In his submission, in any event, the Tribunal is not bound by its earlier decision. He says that there is no bar to the Tribunal returning to its earlier decision in order to perfect it in the interests of justice and fairness.
12. I will deal with each of these issues in turn.
nwe amount
13. The NWE amount of an injured worker is to be calculated under section 8 of the SRC Act. That section applies various formulae and, as can be seen, the starting point is the employee’s earnings in the ‘relevant period’ immediately prior to injury (section 9 refers). Section 8 contains various subsections the sole purpose of which is to provide for adjustments of the injured worker’s NWE amount in response to changing circumstances over time.
14. An injured worker may return to employment, perhaps performing other duties, and may, over time, achieve promotion and increased remuneration. It does not follow, however, that the employee’s increased earnings in such circumstances equate to his NWE amount. As can be seen in section 19, an injured worker’s entitlement to payment of weekly compensation for incapacity is derived from the formula NWE – AE, as defined: NWE – normal weekly earnings; AE – ability to earn. Clearly the employee’s earnings in employment would equate to his or her AE amount whereas his NWE amount is to be determined under section 8.
15. It follows that Mr Basyoni’s earnings in the last period of his paid employment is his AE amount at that time, and this should not be confused with his NWE amount under section 8.
nwe errors
16. Mr Basyoni pointed to a reduction in his NWE amount as at 31 July 1995 and asserted that an error had been made: award adjustments do not result in reduced wages and there must be a transcription or typographical error in the documents.
17. This submission is not made out. As I have said, an injured worker’s NWE amount is to be calculated under section 8 of the SRC Act. Award determinations are made by a different process. The particular reduction to which Mr Basyoni drew attention is replicated in numerous documents in the materials before me (see Exhibits E, F and K, for example), including schedules provided by Mr Basyoni’s former employer[10]. It is abundantly clear that these schedules were the subject of close scrutiny in the course of Mr Basyoni’s claim for payment of compensation for incapacity at that time, and in the related negotiations in the context of the earlier Tribunal proceedings.
[10] Letters dated 20 July 2000 in Exhibit E and 3 January 2001 in Exhibit K.
18. No fresh evidence of any error has been brought to light by Mr Basyoni or Mr Seczawa in these proceedings.
the damages award
19. Mr Basyoni’s award of damages was made while the 1971 Act was in force. He is correct in asserting that section 48 of the SRC Act does not apply in those circumstances. As can be seen from section 124(11), that is plainly correct. Nevertheless, this does not assist Mr Basyoni’s case: section 99 of the 1971 Act applies. This was made clear to Mr Basyoni in letters from the Commissioner in May 1987[11].
[11] T6 and T7.
20. The effect of section 99 is to preclude payment of compensation unless and until the amount of the awarded damages is exceeded by compensation that would otherwise be payable. Plainly enough, the net amount of Mr Basyoni’s award – the uncontroversial amount of $102,628.58 – is the amount to be off-set.
section 21
21. Section 21 of the SRC Act applies where an injured employee is in receipt of a superannuation lump sum benefit. The periods of incapacity in issue are covered by the SRC Act. As can be seen from section 124, the SRC Act applies whether or not the injury occurred while the 1971 Act was in force.
22. Mr Basyoni received a superannuation lump sum benefit following his retirement from employment on 2 April 1993[12]. He had a partial incapacity for work as a result of his injury when he retired. His case is distinguished from that of Lonergan v Comcare[13]. It is clear enough that section 21 of the SRC Act applies. Mr Basyoni did not raise any issue concerning the quantum of the lump sum superannuation benefit. I will go no further on this point.
[12] Letter dated 5 May 1993, Exhibit C.
[13] [2005] FCA 377
off-set period
23. Mr Basyoni says that Comcare or his former solicitor miscalculated the compensation off-set period in respect to his recovery of damages and a lump sum superannuation benefit.
24. It appears that this matter, too, was the subject of close scrutiny in the course of Mr Basyoni’s previous claim and in the previous proceedings in the Tribunal. It is clear that his former solicitor concluded that the off-set period came to an end on 23 April 1998. It is equally clear that this was the subject of some disputation. One must bear in mind the particular issues that were on foot in those proceedings. These included consideration of the extent of Mr Basyoni’s incapacity for work and his ability to earn in suitable employment, not least because it was alleged that he was only partially incapacitated for work when he accepted a voluntary redundancy, having previously been employed in suitable duties.
25. As I have said, weekly compensation payments for incapacity are to be determined by application of the NWE – AE formula in section 19 of the Act (with reference to section 21 as required). Clearly, the duration of the off-set period will be determined in relation to the result of this formula. It is a simple exercise of mathematics: the larger the AE amount, the smaller the amount of weekly compensation that is payable and the longer the off-set period. Even if there is no ability to earn, and the injured worker is totally incapacitated for work, it would be necessary to establish by evidence when the period of total incapacity commenced.
26. To my mind it is very clear that these were matters of negotiation in the particular circumstances. A negotiation of that kind, to my mind, is not properly characterised as one that involves contracting away any right to compensation by application of the SRC Act. It is more properly characterised as a negotiation in relation to matters of fact, albeit not proved, for the purposes of determining compensation rights and entitlements under the Act. This is clearly distinguished from the case of Re Behan and Australian Telecommunications Corporation[14] concerning the redemption of compensation entitlements in respect of incapacity by payment of a lump sum.
[14] (1990) 12 AAR 466.
unfairness
27. Mr Basyoni was critical of Comcare and his former solicitor and says that he has been treated unjustly and unfairly. He produced no evidence to support his criticisms even though he was given ample opportunity to do so.
28. There are a number of things to say about this. Mr Basyoni gave his solicitor signed instructions concerning the settlement of the previous proceedings in the Tribunal. He made no complaint about any issue relating to those proceedings or the manner in which he had been treated at the time or subsequently, until now. He did not challenge the Tribunal decision he obtained by agreement in the Federal Court of Australia, as was his right if he so chose. His assertion that he was not provided with information about his right of appeal is not supported by evidence, and this must be considered in the light of the fact that he was legally represented at all relevant times, he had agreed to settlement terms and there is no evidence of subsequent complaint to the Tribunal or any other person or body.
29. If Mr Basyoni was truly concerned about what occurred 10 years ago, one would have expected him to raise it at the time or soon thereafter. He did not. One must question why he is doing so now, after so much time has elapsed, in the context of seeking additional compensation payments. To my mind, if Mr Basyoni wants to raise issues of this kind that he has not previously raised, one would expect him to obtain supporting evidence and to carefully consider his position before casting aspersions and making unsupported allegations in public. He has not done so.
30. Finally on this point, it is one thing to make unsupported allegations in hope of obtaining additional compensation; it is another to raise evidence and good reasons to re-open matters that were settled many years ago. Mr Basyoni’s assertions concerning injustice and unfairness are consistent with the former but not the latter; they are not made out.
tribunal’s previous decision – 2000/16
31. I have carefully reviewed Mr Basyoni’s earlier claim for resumption of compensation on 2 November 1998[15] and the primary and reconsideration decisions that followed[16]. I have also carefully reviewed the terms of the agreement by the parties and the terms of the Tribunal’s decision under section 42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
[15] T8.
[16] T18, T19, T20, T21 and T22.
32. As it appears to me, the Tribunal had power to make the decision it did and it is not vitiated by jurisdictional error. Mr Basyoni’s earlier claim was for resumption of compensation payments for incapacity. He asked Comcare to determine the off-set period in respect to his damages award. Clearly, in order to respond to Mr Basyoni’s claim, Comcare was required to determine whether Mr Basyoni was incapacitated for work as a result of his back injury and, if so, to determine the amount of any entitlement to weekly compensation by application of the relevant provisions of section 19 and 21, including the calculation of NWE and AE amounts, and then to determine the duration of the applicable off-set in respect to his damages award pursuant to section 99 of the 1971 Act (by operation of section 124(11) of the SRC Act). The primary decision-maker did not make specific determinations in respect to NWE. But that person had the power to do so. By operation of section 62 of the SRC Act, the reconsideration decision-maker had power to determine any relevant matter that was before the primary decision-maker. The powers and discretions of the reconsideration decision-maker are conferred upon the Tribunal by operation of section 64 of the SRC Act and section 43 of the AAT Act for the purposes of reviewing the decision that has been placed before it[17]. It follows, to my mind, that the Tribunal had jurisdiction and power to determine issues relating to the calculation of weekly compensation for incapacity, and that is what it did.
[17] Lees v Comcare (1999) 56 ALD 84 at [39].
present jurisdiction
33. The issue of the Tribunal’s present jurisdiction in relation to the recalculation of Mr Basyoni’s NWE must be considered in the same way. It is well settled law that the Tribunal does not exercise power at large.
34. Mr Basyoni’s letters to Comcare on 4 February 2008[18], 7 August 2008[19], 9 October 2008[20] and 18 January 2010 (Mr Seczawa on Mr Basyoni’s behalf)[21] set out the background to his present claim. As can be seen, Mr Basyoni raised a number of issues in connection with his compensation entitlements from April 1993 to July 2007, particularly concerning the application of section 21 of the SRC Act and the treatment of his superannuation lump sum benefit. At that time Mr Basyoni was relying on Lonergan v Comcare[22] and asserting that he did not have any incapacity for work at the date of his retirement from employment on 2 April 1993. The starting point for present purposes, however, is his letter dated 17 February 2010[23]. In this letter, Mr Basyoni asked Comcare to “recalculate the start date from which weekly compensation should have commenced” and to “send me the weekly compensation amounts/rates that would have been payable during the offset period both with and without the superannuation reduction amount applied”. These matters were addressed in Comcare’s primary determination[24]. The primary decision-maker decided that Mr Basyoni’s weekly compensation for incapacity was correctly determined under section 21 of the SRC Act and
“With reference to your letter of 17 February 2010, in view of my above decision, I do not see any need to re-calculate the date that your damages was exhausted or to re-calculate the weekly rates during the offset period.”
[18] T43.
[19] T49.
[20] T56.
[21] T58.
[22] [2005] FCA 377.
[23] T60.
[24] T62.
35. Mr Basyoni requested reconsideration of this determination[25]. As can be seen, the focus of his request was directed to section 21 of the SRC Act. Nevertheless, he also requested that the ‘review’ “look at other issues I have previously raised”.
[25] T63.
36. The reconsideration decision-maker described the issue for consideration in the following terms – “whether your incapacity payments from 3 April 1993 to 28 July 2007 should have been calculated under section 21 of the Act”[26]. Nevertheless, the reconsideration decision-maker reviewed a number of issues and stated that “I therefore refuse to recalculate your entitlements arising from the AAT’s decision of 25 June 2001 and following” and “Even if it would be appropriate for me to reconsider the AAT’s consent decision of 25 June 2001, it seems to me that your compensation entitlements were correctly determined”[27].
[26] T68 folio 161.
[27] T68 folio 165.
37. It is clear enough that the reconsideration decision-maker had before her issues concerning Mr Basyoni’s weekly compensation for incapacity including the re-calculation of those entitlements. She decided not to re-calculate Mr Basyoni’s weekly compensation for incapacity from 3 April 1993 for the reasons stated. Nevertheless, she had the power to do so and, in so doing, she had the power to determine all related matters for the purposes of sections 19 and 21 of the SRC Act.
38. As Downes J said in Re Fuad and Telstra Corporation Limited “the decision adverse to the applicant is a decision adverse on all matters put before the decision-maker by the applicant”[28]. That is the case here. The powers that were exercisable by the person who made the decision under review may, on application to the Tribunal for the review of that decision, be exercised by the Tribunal for that purpose. Thus, the Tribunal has power to re-calculate Mr Basyoni’s weekly compensation in respect of incapacity from 3 April 1993. The earlier consent decision is no bar to power. It follows that the re-calculation of Mr Basyoni’s NWE amounts, from time to time, is presently before the Tribunal.
[28] [2004] AATA 1182 at[4]-[5].
relitigation
39. It is clear from Mr Seczawa’s submissions and the concessions that were made during the interlocutory hearing that Mr Basyoni’s present case is directed to achieving an earlier resumption date for his weekly compensation payments than was previously agreed and decided in order to obtain an additional amount of weekly compensation for incapacity. Even though Mr Basyoni disputes the correctness of the agreed date – 23 April 1999 – Mr Seczawa informed me that the ‘correct’ date had not yet been identified.
40. Considering these matters it is tolerably clear that Mr Basyoni wants to undo what was previously done in respect to his claim for weekly compensation for incapacity, with his agreement in 2001, as a result of which his proceedings before the Tribunal at that time were brought to an end without a hearing, and his weekly compensation payments resumed from 23 April 1999. Mr Basyoni was legally represented in those Tribunal proceedings and in all related processes concerning the making of the claim and the negotiation of terms of agreement for settlement.
41. As will appear, I am not persuaded that Mr Basyoni should be allowed to re-open the matters that were previously settled and dealt with in the Tribunal’s decision in 2001. No fresh evidence has been brought to light even though Mr Basyoni and Mr Seczawa have been given ample opportunity to do so in these proceedings. No new development of relevance has occurred. Almost 10 years have elapsed. Almost four years have elapsed since Mr Basyoni passed retirement age. One must have a good reason to re-open matters that have long been settled and left undisturbed, without upset or notice of concern. To my mind, no such good reason has been made out.
42. Mr Basyoni says that aspects of the Tribunal’s 25 June 2001 decision are nullities on the basis that they were decided without power or are affected by error. Furthermore, he says that the Tribunal’s jurisdiction in those earlier proceedings has not been exhausted and, as the Tribunal is not functus officio in those proceedings, it should revisit and perfect or make afresh decisions concerning the resumption of Mr Basyoni’s weekly compensation payments.
43. It is settled law that the Tribunal must make the correct or preferable decision on the material that is before it and it is the master of its own procedure[29]. There is power and good authority not to permit a matter that has previously been decided to be revisited if, having regard to issues of fairness and all the relevant circumstances, it is appropriate to do so[30]. This is consistent with the compensation scheme and decision-making mechanisms set out in the SRC Act. The legislative framework provides for “progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances that may subsequently happen” [31].
[29] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 526.
[30] Re Grimsley and Telstra Corporation Limited [2010] AATA 106 at [5]-[7]; Comcare v Grimes [1994] FCA 1054 at [26]; Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525-526.
[31] Telstra Corporation Limited v Hannaford [2006] 151 FCR 253 at [57].
44. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Bhardwaj “The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration”[32]. And so it is in this case.
[32] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603.
45. Nevertheless, if a Tribunal decision is attended by jurisdictional error, it has no effect or force unless the particular legislative scheme under which it was purportedly made should be construed in a manner that would require that effect[33]. Absent that requirement, in law, no decision has been made and the Tribunal may proceed to correctly exercise jurisdiction and make an effective decision[34].
[33] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at 616, per McHugh J at 618.
[34] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at 616, per Gleeson CJ at 606.
46. I am satisfied, as I have said, that no jurisdictional error has been established in respect of the Tribunal’s decision on 25 June 2001. The matters decided therein are matters of fact relevant to Mr Basyoni’s claim for resumption of weekly compensation payments in respect to incapacity. The Tribunal’s jurisdiction in those proceedings conferred by section 64 of the SRC Act extended to all matters that were before the reconsideration decision-maker. For the purposes of the review, the Tribunal was able to exercise all of the powers and discretions that were available to the reconsideration decision-maker. This is what it did.
47. I do not accept Mr Basyoni’s submission that any part of the decision concerning the duration of the off-set period was invalid or in excess of jurisdiction. As I have said, there are a number of variables in the calculation of an injured worker’s entitlement to weekly amounts of compensation for incapacity. I have seen no evidence that the relevant provisions of the SRC Act and the 1971 Act, to which I have referred, were misapplied.
48. Disputes about factual matters in the context of administrative decision-making and merit review processes are commonplace. The Tribunal determines such disputes by finding facts and giving reasons for its decisions, setting out the evidence on which it has relied. In this case, the Tribunal’s decision was made under section 42C of the AAT Act, and it was predicated on the agreement of the parties. Clearly, at the time the Tribunal was satisfied that it had the power to make the decision in the terms agreed and that it was appropriate to do so without proceeding to hear the matter. That is what it did. The fact that the decision was made under section 42C of the AAT Act does not mean that it has less force than a decision made under section 43 of that Act. It does mean, however, that no detailed reasons for the decision were given and none were requested.
49. Subsequent disputation about the facts that were agreed and that informed the terms of the Tribunal’s decision does not mean that there has been an error of law or any jurisdictional error; more is required. Section 44 of the AAT Act provides an avenue of appeal to the Federal Court of Australia against a decision of the Tribunal on a question of law. As I have said, the SRC Act allows for progressive and evolving decision-making in light of changing circumstances. Nevertheless, once the Tribunal has conclusively made a decision and the proper exercise of jurisdiction is exhausted, it is not open to the Tribunal to set aside or make that decision again unless there is express authority to do so in the relevant legislation. Once properly made, the decision (without prospective effect) is binding on the parties unless it is found to be ineffective or it is set aside on appeal[35]. Nevertheless, in subsequent proceedings under the SRC Act, in light of fresh evidence or changed circumstances, it may be necessary for the Tribunal to revisit the matters already decided and make another decision on the materials before it. In so doing the Tribunal may decide matters in terms that are not consistent with its earlier decision if that is what the present state of the evidence and the law requires.
[35] Comcare v Grimes [1994] FCA 1054 at [17]-[18]; Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 at 98.
50. This is not such a case. Nothing new has occurred and no fresh evidence has come into light – there has been no development that may justify further consideration of the matters that were dealt with by the Tribunal’s decision on 25 June 2001. Much time has elapsed. Presently no error, flaw or other good reason to revisit those settled matters has been established.
51. The Tribunal’s 25 June 2001 decision was the culmination of a review, properly conducted, of Mr Basyoni’s entitlements to compensation in respect to incapacity at that time. The decision set aside a reconsideration decision and replaced it with a final decision in terms that had been agreed and reduced to writing by the parties. The decision was the end result of an alternative dispute resolution process that was conducted in the course of the proceedings before the Tribunal. It appears that there was a conciliation conference and negotiations between the parties over an extended period. Mr Basyoni’s assertion that Comcare did not act in good faith in the conduct of the negotiations is not supported by evidence and is not made out. Even though, at the time, the Legal Services Directions 2005 had not been made under the Judiciary Act 1903, Comcare, being an agent of the Commonwealth, was required to comply with section 72 of the SRC Act and was expected to conduct itself as a model litigant, bearing in mind what Griffith CJ said in the oft quoted passage from Melbourne Steamship Co. Ltd v Moorehead concerning “the old fashioned, traditional, and almost instinctive, standard of fair play to be observed by the Crown”[36].
[36] (1912) 15 CLR 333 at 342.
52. Mr Basyoni’s assertions concerning his former solicitor and the conduct of the negotiations that lead to settlement of the Tribunal proceedings in 2001 are also not supported by evidence, and they are not made out. As I have said, Mr Basyoni gave his former solicitor signed instructions and authority to settle the matter in the terms agreed. If there were or are presently issues between Mr Basyoni and his former solicitor those matters should be taken up directly with the solicitor or with the ACT Law Society.
53. Mr Basyoni’s assertions concerning the content of the negotiations and the jurisdiction and power of the Tribunal are not accepted for reasons already stated. Nevertheless, the issues Mr Basyoni raises are cautionary in respect of alternative dispute resolution processes and settlement negotiations. One may accept in the course of alternative dispute resolution processes and settlement negotiations between parties in proceedings before the Tribunal that matters may arise that raise difficult issues of law or that may exceed jurisdiction. There may be a fine line between what can be negotiated in good faith according to law and that which exceeds power or requires the doing of something that cannot lawfully be done under the particular legislation. However attractive such considerations may be to the parties, it is for the Tribunal to be satisfied that the terms of any resulting request for a decision by consent are lawful and within power for the purposes of sections 42C or 34D of the AAT Act. A decision under either of these sections is appellable under section 44 of the AAT Act.
54. There was no appeal or complaint against the section 42C decision in Mr Basyoni’s case. He asserts that he was not informed about his appeal rights in respect of that decision. All that can be said from this distance is that he was legally represented at the time and one would expect that information to be conveyed to him by his solicitor. In the usual course the Tribunal should provide such information with the terms of the particular decision. When a party is legally represented this information would be provided to the legal representative.
55. Thus, in conclusion on this point, without raising the prospect of any issue or cause of action estoppel, subject to challenge or new developments, the parties are in effect bound by the Tribunal’s earlier decision for the purposes of the SRC Act. Being so bound, Comcare gave effect to it and Mr Basyoni was paid compensation. There it rested for a number of years, and there it rests now.
56. It appears that Mr Basyoni, perhaps with Mr Seczawa’s assistance, has changed his mind about what he previously agreed and accepted; he regrets the agreement he made and is now seeking to change it. I am reasonably satisfied, however, that there is no sufficient reason to permit those long-settled matters to be revisited. In the absence of demonstrated error, fresh evidence, or the occurrence of something new and relevant, including a change in the applicable law for example, to do so would be unfair and prejudicial, given the effluxion of so much time. Furthermore, it would be inappropriate to permit a properly made decision of the Tribunal to be reopened or revisited on a whim. The fact that the subject decision was made by consent under section 42C of the AAT Act does not diminish its legal effectiveness, force or resolute quality.
conclusion and orders
57. The answer to the first question at 3(a) is Yes. The answer to the second question at 3(b) is No.
58. Thus, even though the Tribunal has jurisdiction to review Mr Basyoni’s weekly compensation for incapacity from 3 April 1993, it is not appropriate to permit him to re-open matters that were settled by agreement and decided by the Tribunal in its decision on 25 June 2001.
59. I direct that the scope of the review in these proceedings is limited to consideration of Mr Basyoni’s weekly compensation for incapacity from 26 June 2001. The matters decided by the Tribunal on 25 June 2001 will not be revisited.
60. That being so, consideration should be given to whether the application should be dismissed or withdrawn, or whether there is something remaining for the Tribunal to decide if the review proceedings continue. The parties have not been heard on this point. Thus, it is appropriate to direct Mr Basyoni to inform the Tribunal and Comcare within seven days whether or not he intends to continue with the application, and if so, a directions hearing is to be listed before me to determine any procedural matters, including whether or not the application should be dismissed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, MemberSigned: ................................................................................
H. Choi (Associate)Date of Hearing 9 March 2011
Date of Decision 29 March 2011
Representative for the Applicant Mr R. Seczawa
Solicitor for the Respondent Dibbs Barker
7
3